By Elvis Evbaruovbokhanre Asia
Case: Mr. David Nwaogwugwu v Bogo Beverages Limited [1]
Judge: Justice J. I. Targema, PHD
Date: 24/07/2025
Main Issues of Law
- Jurisdiction and Venue for determination of cases at the National Industrial Court
- Termination during probation and the power of the NICN to apply international best practices
- Condition For Validity Of Performance Improvement Plan
- Reasons for termination and failure of employer to provide work tools
- General Damages for breach of contract or wrongful dismissal
- Employee Liability for Credit Sales
Summary of Facts
The claimant was employed on 18 August 2023 as a Sales Representative for Onitsha, Anambra State. His employment was terminated without notice on 30 November 2023. He instituted the action in the Awka Division against the defendant, whose registered office is in Lagos, seeking a declaration that the sudden termination of his employment, under the guise of poor performance, was contrary to international best practice.
The claimant contended that the defendant failed to provide him with a sales vehicle and refused his request to use his personal vehicle. The Toyota Sienna van provided was allegedly unroadworthy and had previously been rejected by other staff. He argued that this hindered his performance.
The defendant challenged the court’s jurisdiction, arguing that it was not resident in Anambra State, and counterclaimed for the claimant’s alleged indebtedness arising from customer credit sales.
Court’s Decision
The court held that, from the claimant’s statement of facts and unchallenged evidence, he was employed to serve in Onitsha, and that all material events – including the provision or non-provision of a sales vehicle and the termination – occurred there. The contract was executed in Anambra State. Accordingly, the court had jurisdiction.
On termination, the court held that dismissal without notice, in circumstances where the defendant failed to provide essential work tools, was wrongful. It found Exhibit CW4 (part 2) particularly disturbing: an email from a senior company official stating – “Your performance is poor, and your attitude is bad. We therefore will not give you any vehicle even if we have any presently.” Combined with Exhibit CW9, showing the claimant’s removal from the company’s WhatsApp group, this suggested a predetermined intent to frustrate him out of employment.
The court also noted inconsistencies in the two termination letters – one citing gross insubordination and company debts, the other citing poor performance.
On the counterclaim, the court held that the alleged debt related to customer credit sales, which were not shown to have been personally assumed by the claimant.
Jurisdiction and Venue for determination of cases at the National Industrial Court
Legal Principles Relied Upon
Order 2 Rule 1(1) of the NICN (Civil Procedure) Rules 2017 provides that a suit shall be commenced in the Judicial Division where the defendant resides or carries on business. However, the proviso to that rule permits filing where the cause of action arose.
It is now settled law that where a court has subject-matter jurisdiction, a challenge on venue is a question of convenience, not competence.
Termination during probation and the power of the NICN to apply international best practices
While the employer has wide latitude under Nigerian common law—as confirmed by the Court of Appeal in Afribank Nigeria Plc v. Osisanya (2000) 1 NWLR (Pt. 642) 592 to terminate during probation without notice as contained in the terms of employment—such latitude must now be viewed through the lens of modern labour jurisprudence. By virtue of Section 254C (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), is empowered to apply international best practices in labour relations. Similarly, by the tenor of Aloysius v. Diamond Bank Plc (2015) 58 NLLR (Pt. 199) 92 and Oak Pensions Ltd & Ors v. Olayinka (2018) 12 ACELR 85 at 117, even a probationary employee is entitled to fair treatment, justifiable termination, and must not be constructively dismissed or placed under unreasonable conditions.
Condition For Validity Of Performance Improvement Plan
For employer to rely on a Performance Improvement Plan (PIP), it must be shown to have been signed or acknowledged by the employee. Exhibit DW10 refers to a PIP being sent to the claimant, but no evidence of its proper service, acceptance, or implementation was shown and the claimant denied ever signing or accepting any PIP under cross-examination.
Reasons for termination and failure of employer to provide work tools
An employer could hire and fire, but there must be a good cause for the termination. The reason for termination must be consistent and inconsistency diminishes the credibility of the claim that the termination followed a coherent and objective appraisal process. While the employer may have had the contractual power to terminate a probationary employee, such power must not be exercised capriciously or as a pretext to cover up the employer’s failure to provide essential work tools.
General Damages for breach of contract or wrongful dismissal
It is trite that general damages are awardable for breach of contract or wrongful dismissal where the Court finds the employer’s conduct harsh or oppressive. The principle in Ekpenyong v. Guinness Nig. Ltd (1986) 3 NWLR (Pt. 59) 74 permits the Court to assess such damages judicially and judiciously, taking into account the hardship suffered by the employee.
Employee liability for credit sales
To succeed in a claim to recover credit sales from employees, the burden is on the employer to establish not only that the employee supplied the customers, but that he received payment and failed to remit same, or that he expressly indemnified the defendant against unrecovered sales. In the absence of proof that the employee personally assumed liability for the debts, the claim cannot succeed.
Commentary:
This decision offers several important lessons for both employers and employees:
- International Best Practices – The court once again relied on the principle of international best practices, despite the claimant neither pleading nor proving the specific standard or convention allegedly breached. This contrasts with Mr. Kapo Kayode v. ASA Advance Tech Nig. Ltd[2] (Justice Nweneka, delivered 17 July 2025), where the court held that it is not the role of the NICN to identify applicable ILO conventions in the absence of pleadings. However, the Judge in Mr. Paul Udeh v. Cadbury Nigeria Plc[3], delivered on 3rd October 2024, and Mr. Constantine Alimonos V Honeywell Flour Mills Plc[4] delivered Monday, 28th July held that the international best practices on the requirement for termination with reason has been accepted by the court and needs no further proof[5]. Employers should be mindful that the court may invoke international best practices and should therefore ensure that termination decisions can withstand scrutiny under these standards.
- Damages for Wrongful Termination – The case highlights the ongoing challenge of determining damages for wrongful termination under the current constitutional framework. Here, the ₦3,000,000 award was based on perceived hardship and professional injury, without supporting medical or financial evidence. While some courts peg awards to proven salary for a specified period (providing more certainty), others rely on judicial discretion, which can produce variable results. Employers should anticipate that termination without solid procedural justification may attract substantial damages, and employees should be advised to document actual losses to strengthen their claims.
- Performance Improvement Plans (PIP) – The clarification that a valid PIP requires acknowledgment by the employee is welcome but also potentially problematic. Unsigned PIPs could allow employees to avoid the consequences of performance monitoring by simply refusing to acknowledge receipt. Employers should adopt clear internal procedures—such as sending follow-up emails, documenting delivery and application—to ensure that the existence and delivery of a PIP can be proved even without the employee’s signature.
- Credit Sales Liability – The dismissal of the counterclaim reiterates that employees cannot be held personally liable for customer debts unless it is proved that they received and failed to remit payment, expressly assumed liability, or negligently/fraudulently extended credit. Employers in sectors where credit sales are common should adopt formal credit approval policies and ensure that responsibility for debt recovery is clearly documented and allocated.
- Corporate Communication and Fair Labour Practice – The judgment underscores the risks of emotional or vindictive workplace communication. A single email from a senior staff member stating, “Your performance is poor, and your attitude is bad. We therefore will not give you any vehicle even if we have any presently”—together with evidence of the claimant’s removal from the company’s WhatsApp group—was a decisive factor in the court’s finding of a predetermined intent to frustrate the claimant. Employers should have a formal internal communication policy, train managers on its use, and monitor compliance. Many adverse judgments at the NICN result not from the substantive decision to terminate, but from poorly worded communications that undermine the employer’s position.
[1] SUIT NO NICN/AWK/52/2023. Available online at https://nicnadr.gov.ng/judgement/judgement.php?id=10240
[2] https://nicnadr.gov.ng/judgement/judgement.php?id=10137
[3] Suit No. NICN/LA/364/2020. https://www.nicnadr.gov.ng/judgement/judgement.php?id=9270
[4]2025 Suit No. NICN/LA/161/2023. https://nicnadr.gov.ng/judgement/judgement.php?id=10229
[5] For a detailed consideration of the legal issues on application of unratified conventions by the NICN, see Elvis E. Asia, ‘Reining in the Unruly Horse: A Review of Appellate Decisions on the Application of Unratified International Best Practices and Labour Standards by the National Industrial Court, Employment and Labour Law Journal, Vol. 1, Issue 1, 2025
