CORAM

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Jimi Olukayode Bada Justice Court of Appeal

Ngozika Uwazurunonye Okaisabor Justice Court of Appeal

Ruqayat Oremei Ayoola Justice Court of Appeal

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PARTIES

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MR. GOODNEWS EBUBECHI NGADI

APPELLANTS 

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1. FIDELITY BANK PLC

2. FIDELITY UNION SECURITIES LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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LABOUR AND EMPLOYMENT LAW, CONTRACT LAW, EVIDENCE, CIVIL PROCEDURE, APPEAL, PRACTICE AND PROCEDURE, ADMINISTRATIVE LAW, SPECIAL DAMAGES, FAIR HEARING

 

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SUMMARY OF FACTS

The Appellant, Mr. Goodnews Ebubechi Ngadi, was employed after an interview with the 1st Respondent (Fidelity Bank PLC) but was issued a letter of employment as a driver on the letterhead paper of the 2nd Respondent (Fidelity Union Securities Limited) with a clause about secondment. The Appellant complained about this arrangement but was told it was their mode of employment. The Appellant started working at the 1st Respondent as a driver, a non-core staff duty, and in 2006, he claimed to have participated in an in-house interview to convert non-core staff to core staff. He claimed he was successful but was not issued any letter of conversion. Instead, he was issued a letter of reassignment posting him from the drivers department to the cost management and due process department, where he claimed he was assigned core staff duties until his employment was terminated in 2018.

The Appellant claimed he was paid the salary of a driver while performing the job of Assistant Banking Executive (ABE) and that his status in the records of the 1st Respondent had changed from non-core staff to core staff. He claimed he was even sent on pre-retirement training and was later asked to resign. When he refused, he was logged out of the platform of the 1st Respondent without any termination letter or salary in lieu of notice. After the Appellant’s counsel wrote a letter of demand in June 2018, the 2nd Respondent issued a termination letter bearing the name of FSL Management Services Ltd, a different company from the one that originally employed him. No entitlements were paid to the Appellant upon the alleged termination of employment.

The Respondents contended that throughout the Appellant’s employment with the 2nd Respondent and by extension, his secondment to the 1st Respondent, the 2nd Respondent was responsible for matters incidental to his employment, including approval of leave periods, salary reviews, promotions, and assignments. They maintained that the Appellant was not an employee of the 1st Respondent and was categorized as a “non-core” member of staff of the 1st Respondent on account of his secondment from the 2nd Respondent. They claimed that the Appellant’s attempts to be employed by the 1st Respondent and converted to a core staff in 2005 and 2011 were unsuccessful. The 2nd Respondent reassigned the Appellant to the position of office assistant 2 in 2007, after he had risen to the position of Driver 3, and he maintained that position until the termination of his employment in May 2018.

The trial court (National Industrial Court) dismissed the Appellant’s claims in their entirety, finding that there was no contractual relationship between the Appellant and the 1st Respondent, and that the Appellant failed to establish his entitlement to the reliefs claimed.

 

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HELD

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1. The appeal was dismissed.

2. The judgment of the National Industrial Court, Nigeria, Lagos Division in Suit No. NICN/LA/454/2018 delivered on August 18, 2022, was affirmed.

3. The Court held that the Appellant failed to establish that he was an employee of the 1st Respondent or that he was appointed or promoted to the position of Assistant Banking Executive.

4. The Court found that the termination letter issued by FSL Management Services Ltd was invalid, as there was no evidence establishing any relationship between FSL Management Services Ltd and Fidelity Union Securities Ltd.

5. Despite the finding regarding the termination letter, the Court held that this had no positive effect on the Appellant’s case, as he had failed to establish his core claims.

6. No order was made as to costs.

 

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ISSUES

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1. Whether the learned Trial Judge was right when he denied the Appellant right to fair hearing when he held that there was no privity of contract of employment between the Appellant and the 1st Respondent, failing to consider the conduct and implied terms of employment between the Appellant and the 1st Respondent from 2006 to 2018?

2. Whether the learned Trial Judge was right when he denied the Appellant right to fair hearing when he failed to consider the discrepancy between the 2nd Respondent’s employment letter and the termination letter issued by FSL Management Services Ltd.

3. Whether the learned Trial Judge was right in failing to recognize the concept of justice, equity, fairness, and non-discrimination in the manner the Appellant was treated in employment regarding equal pay for equal work?

4. Whether the learned Trial Judge was right when he failed to determine the meaning of the abbreviation “ABE” (Assistant Banking Executive) in the 1st Respondent’s Personal Policies and Procedure Guide?

5. Whether the learned Trial Judge was right when he failed to recognize the disguised and ambiguous employment relationship between the 1st and 2nd Respondents as applied to the employment of the Appellant?

6. Whether the learned Trial Judge was right when he held that the Appellant did not plead special damages or give necessary particulars of claim?

7. Whether the Trial Court properly evaluated all the evidence placed before it?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF – ONUS ON CLAIMANT TO PROVE EMPLOYMENT RELATIONSHIP

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“By the combined provisions of Sections 131 and 132 of the Evidence Act, 2011, whoever approaches a Court of Law and seeks that judgment be given by the Court in his favour as to any legal rights or liability dependent on the existence of facts which he asserts, bears the evidential burden of proving the existence of the facts asserted by him as the person would fail if no evidence at all were given on either side in the case, Olaniyan Vs. Oyewole (2011) 14 NWLR (Pt 1268) 445.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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CONTRACT OF EMPLOYMENT – BINDING EFFECT OF WRITTEN CONTRACT OF EMPLOYMENT

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“Where the contract of employment is in writing, parties would be bound by the express terms and conditions stipulated. And the only document presented by the Appellant was exhibit C1. All other documents sought to be relied upon by the Appellant as the lower Court held, and in my view, right to so hold, are not sufficient to imply any contract of employment between the Appellant and the 1st Respondent.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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SECONDMENT – DETERMINATION OF REAL EMPLOYER IN CASES OF SECONDMENT

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“The Appellant’s contention is that the trial Judge did not consider the conduct and implied terms of employment between the Appellant and the 1st Respondent from 2006 to 2018. The question is whether the trial Judge failed to consider the principle of contract made orally or unwritten or implied, which according to the Appellant’s Counsel was the foundation of the contract between the Appellant and the 1st Respondent. I think the Appellant is misconceived in his postulation.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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PROOF OF EMPLOYMENT STATUS – NEED FOR DOCUMENTARY EVIDENCE OF PROMOTION OR CHANGE IN STATUS

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“And in the absence of a document categorically promoting the claimant to that position, the Court cannot conclude that the claimant was ever an Assistant Banking Executive.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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TERMINATION OF EMPLOYMENT – AUTHORITY TO TERMINATE MUST COME FROM THE EMPLOYER

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“I agree with the Appellant’s Counsel that it is only the Employer in Exhibit C1/D1 that can terminate the services of the employee. Without any explanation as to who is FSL Management Services Ltd by the Respondents it cannot be assumed that it is the same as Fidelity Union Securities Ltd. I also agree with the Appellant’s Counsel that there was no privity of contract between the Appellant and the FSL Management Services Ltd.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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IMPLIED TERMS – PREREQUISITES FOR ESTABLISHING IMPLIED TERMS IN EMPLOYMENT CONTRACTS

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“Thus, an implied term presupposes that there is an existing contract between the parties to the dispute. The only evidence showcased by the Appellant is Exhibit C4, an internal Memo dated 24/1/2006 from the 1st Respondent to the Appellant which reads thus: ‘Subject: Reassignment… This is to inform you that you have been reassigned to Due Process Unit (Head Office) with effect from Monday 30th January, 2006…'” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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PROOF OF SPECIAL DAMAGES – REQUIREMENT FOR STRICT PROOF

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“It is not enough to plead special damages; they must be strictly proved by credible evidence in court. See Oduwaiye & Ors v Ogunyanwo & Ors (2018) LPELR 43660 (CA). In the case of West African Shipping Agency (Nig) Ltd vs Kalla (1978) 3 SC 21, the Apex Court held that a person who claims special damages must prove it strictly by credible evidence of such a character, as would readily lead to qualification or assessment. Without such proof, no special damages can be awarded.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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RIGHT TO FAIR HEARING – DETERMINATION OF BREACH OF FAIR HEARING

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“In James v Gov. of Edo State & Ors (2021) LPELR 54203, this Court at page 46 paras A-C, held that fair hearing is primarily a matter of fact and thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the right to fair hearing of the citizen.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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REASSIGNMENT VS. PROMOTION – DISTINCTION AND LEGAL EFFECTS

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“Exhibit C4 does not qualify and no implied terms can be read into it, to be a promotion letter. The Appellant was aware of the steps to be taken to move from a non-core staff to a core-staff, and that is by conversion. He agreed that as at 2011 when he made an attempt to be converted, he was not successful. He was still a non-core staff and being paid the remuneration of that position.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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PRIMACY OF EMPLOYMENT LETTER – IMPORTANCE OF WRITTEN CONTRACT OF SERVICE

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“The law is that the letter of employment (where it exist) must be resorted to in considering the rights and Obligations of parties. See EFURIBE Vs. UGBAM (2010) 14 NWLR (PT. 1213) 257 AT 285-287, PARAS. H-A.” – Per NGOZIKA UWAZURUNONYE OKAISABOR, J.C.A.

 

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PAROL EVIDENCE RULE – INADMISSIBILITY OF PAROL EVIDENCE TO CONTRADICT WRITTEN CONTRACT

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“From the foregoing, I am of the view that this Court can not look outside the 2nd Respondent’s letter of employment issued to and accepted by the Appellant, to imply that the Appellant was now in the employment of the 1st Respondent without any cogent, credible and reliable documentary evidence to that effect, more so, as parole evidence cannot be used to contradict the letter of employment issued by the 2nd Respondent. See OWOEYE Vs. OYINLOLA (2012) 15 NWLR (PT. 1322) 84 AT 122, PARAGRAPH C.” – Per NGOZIKA UWAZURUNONYE OKAISABOR, J.C.A.

 

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CONTRACT OF SERVICE – IMPORTANCE AS BEDROCK OF EMPLOYEE CLAIMS

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“The contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms and conditions thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. See OVIVIE Vs. DELTA STEEL CO. LTD. (2023) 14 NWLR (PT. 1904) 203 AT PAGE 226, PARAGRAPHS F-H.” – Per NGOZIKA UWAZURUNONYE OKAISABOR, J.C.A.

 

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AWARD OF GENERAL DAMAGES – REQUIREMENT TO ESTABLISH WRONGDOING

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“With no wrongdoing established on the part of the Defendants, I find that there are no grounds for the award of general damages.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Evidence Act, 2011 (Sections 131, 132, 133(1), 134, 169)

• Labour Act, Cap L1, LFN 2004 (Sections 7(1)(a-h), 21(1)(c), 91)

• National Universities Commission Act, Chap N81, 1974 (Section 4(1)(a))

• ILO Convention on Equal Remuneration, 1951 (No. 100) Article 1

 

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