This Review by Folabi Kuti, outlines some of the landmark decisions of the National Industrial Court of Nigeria (NICN) in 2020 covering quantum of damages, pharmaceutical industry employment disputes, compensatory damages relating to injury at the work place, and decisions involving the Companies and Allied Matters Act. He concludes that with the new trends set in the workplace (due to the pandemic), 2021 may see novel types of employment disputes arise
Sahara Energy Resources Limited v Mrs Olawunmi Oyebola
Unarguably, the ex cathedra decision of the Court of Appeal, Nigeria in Appeal No. CA/L/1091/2016 Sahara Energy Resources Limited v Mrs Olawunmi Oyebola, delivered on December 3, 2020, represents perhaps, the single most significant decision on the employment landscape in 2020. Here, the final court on labour and employment matters, in a significant shift from some of its previous disapproving decisions, affirmed the latitude, within set parameters, of the National Industrial Court of Nigeria (NICN/the Court) to depart from orthodoxy common law prescriptions, restricting the quantum of damages to remedy deserving wrongful termination cases. Instructive though, is the incremental approach with which the NICN, roundabout the same timeline of 2020, has also continued to apply its statutory powers to apply equity in many deserving cases. A good number of noteworthy cases will be recapped to bear this out.
In Captain Benedict Olusoji Akanni v The Nigerian Army & 3 Ors, the NICN awarded N75 mill for loss of expectation and psychological trauma, as a result of the arbitrary and illegal actions of the 1st Defendant. Similarly, in Ugochukwu Edmund Okwu v Zenith Bank Plc, upon a finding that a suspension without pay for 77 months was inhumane and tantamount to unfair labour practice, the NICN, awarded the sum of N33,194,245.70 in favour of the Claimant. The rationale was hinged on arrears of salary from the date of suspension, to the day the Claimant retired. Still on NICN’s high watermark compensatory damages, in apparently deserving cases, Chukwudoro v Oiltest Well Services Limited (Unreported Suit No.
NICN/EN/53/2013, judgement delivered September 28, 2020; per Hon-Justice O.O Arowosegbe) and Osazuwa v International Tobacco Company & Anor (Unreported Suit No. NICN/EN/25/2016, judgement delivered September 29, 2020; per Hon-Justice O.O Arowosegbe) are standalone seminal judgements. The NICN, inter alia, greatly expounded the broad scope of discriminatory practices that will amount to unfair labour practices; deserving of ‘penalties that must have a dissuasive effect on potential perpetrators of discrimination’.
NICN & CAMA
The Companies and Allied Matters Act (CAMA) is a legislation that, by jurisdictional apportionment, gets squarely interpreted at the Federal High Court, even as there are vestiges of jurisdictional power suitable for the NICN in appropriate circumstances. The Claimant in Onyejiaka v Mr Oluwakemi Balogun (Liquidator of Woolworths Retail Stores) (Unreported Suit No. NICN/LA/200/2014, judgement delivered June 3, 2020; per Hon-Justice O.A Obaseki-Osaghae), rode roughshod over these principles, and accordingly the suit was struck out for failure to obtain leave of the Federal High Court (in accordance with Section 567) to bring an action against the Liquidator of a Company.
The Claimant company in Dreamworld Leisures Limited v Jude Attoh (Unreported Suit No. NICN/LA/494/2019, judgement delivered July 22, 2020; per Hon-Justice Ikechi Gerald Nweneka) sought to, inter alia, restrain the Defendant from parading himself as the Managing Director of the Claimant company; having been suspended at a board of directors’ meeting. The Court upheld the Defendant’s objection to the suit; being an action exclusively within the jurisdiction of the Federal High Court.
Contrariwise, the NICN in Sogo v HEBN Publishers Plc (Unreported Suit No. NICN/IB/41/2018, judgement delivered March 12, 2020; per Hon-Justice J.D Peters) agreed that the purported termination of the Claimant’s employment as Managing Director (MD/CEO) of the Defendant is inconsistent with Clauses 56 and 60 of the Memorandum and Articles of Association of the Defendant , Section 262(1) & (2) of the Companies and Allied Matters Act, and therefore wrongful, unlawful, invalid, null and void and of no legal effect.
The Court in Omotosho & Ors v Mr Seyi Akinwunmi (Receiver/Manager, Evans Medical Plc) (Unreported Suit No. NICN/LA/526/2018, judgement delivered April 27, 2020; per Hon-Justice Ikechi Gerald Nweneka) rightly upheld the general intent of Section 390[b] of the CAMA, as the duty to ensure, as first-line charge, the payment of salaries and allowances of employees of companies under receivership.
The cases of Abe Adewunmi Babalola v. Equinox Int’l Resources Ltd (Unreported Suit No.NICN/166/2015; judgement delivered on 17th June, 2020; per Hon-Justice N.C.S Ogbuanya); and Akindele v Netconstruct Nigeria Limited (Unreported Suit No. NICN/LA/559/2017, judgement delivered September 08, 2020; per Hon-Justice N.C.S Ogbuanya) restated the principle that there is no fractional payment of salaries in periodic employment. The Court’s illuminating proposition, further applied in Akindele’s, availed an employer a convenient balance of holding an employee to his bargain. The ‘four weeks’ notice period an exiting employee gave the employer, was held ineffectual and contrary to the ‘three months’ notice’ in the contract of parties. The employee was in the circumstance, held to have resigned without notice, and liable to pay a sum equivalent to one-month salary to the employer.
In 2020, unmitigated global disruption brought dramatic changes to the world of work. These changes are yet unfolding. It is the morning of a new year. As the world continues to grapple with the incessant waves, disputes, inevitably from the impact of the global public health crisis on companies’ balance sheets, will abound. To fire, or to fire? That, with all the emphasis, is not the only question. The emerging workforce trends and workplace flexibility etc, are some of the novel particularities that may form/shape the thrust of employment disputes or adjudicatory process in 2021. Time will tell.
Folabi Kuti, Partner, Perchstone & Graeys LP