Can the Court Impose a Willing Employee on an Unwilling Employer?

CASE TITLE: UNITY BANK PLC v. ALONGE (2024) LPELR-61898(CA)

JUDGMENT DATE: 4TH APRIL, 2024

JUSTICES: MOHAMMED MUSTAPHA
ABDULLAHI MAHMUD BAYERO
MUHAMMAD IBRAHIM SIRAJO

DIVISION: LAGOS

PRACTICE AREA: LABOUR LAW

FACTS:

This appeal borders on wrongful termination of the employment of an executive director of a bank.

This is an appeal against the judgment of the Lagos Division of the National Industrial Court of Nigeria. The Respondent was employed by the Appellant as an Executive Director. On the 14th of January, 2015, the Respondent’s employment with the Appellant was terminated with immediate effect for services no longer required. Consequent to this, respondent approached the trial Court, against the appellant and sought, amongst others, the following reliefs:

i. A DECLARATION that the purported termination of the employment of the Claimant by the Defendant contained in the letter dated 14th January, 2015, is unlawful null and void, invalid and of no effect whatsoever

ii. AN ORDER setting aside the 1st Defendant’s purported letter of termination dated the 14th January, 2015 as unlawful, null and void, invalid and of no effect whatsoever.

iii. A DECLARATION that the Claimant is a subsisting Executive Director of the Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments, and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1st Defendant.

At the close of trial, the Court allowed the claim of the Respondent in part, declaring that the termination of the Respondent’s appointment by the Appellant was unlawful and setting it aside. The Court ordered that all salaries, allowances and entitlements of the Respondent be paid forthwith. Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court considered the following issues:

a. Whether going by the employment relationship between the Appellant and the Respondent and in view of Section 254(c) of the Constitution of the Federal Republic of Nigeria 1999, as amended, the National Industrial Court was vested with the jurisdiction to entertain the Respondent’s suit.

b. Whether going by the facts on record and evidence adduced at trial, the lower Court was right when it held that the Respondent’s termination was wrongful and unlawful and proceeded to enter judgment in favor of the Respondent and dismiss the counter-claim of the Appellant.

c. Whether the reinstatement of the Respondent to the position of an Executive Director in the Appellant Bank and the grant of reliefs sought were lawful and proper.

COUNSEL SUBMISSIONS:

Learned counsel for the Appellant argued that the decision of the lower Court reinstating the Respondent as an Executive Director of the Appellant was tantamount to compelling an unwilling employer to reinstate a willing employee. Counsel queried whether a Court can validly compel an unwilling employer to retain employees. Relying on the decisions in U.B.N. Plc vs. Soares (2012) 11 NWLR (Pt. 1312) 550, U.B.N. vs. Chinyere (2010) 10 NWLR (Pt. 1203) 453; I.H.A.B.U.H.M.B. v. Anyip (2011) 12 NWLR (Pt. 1260) 1 Obanye vs. U.B.N. Plc (2018) 17 NWLR (Pt. 1648) 375; Olarewaju vs. Afribank (Nig.) Plc (2001) 13 NWLR (Pt. 731) 691, learned counsel contended that the Respondent’s employment with the Appellant does not have statutory flavor and that the lower Court erred when it compelled the Appellant to reinstate the Respondent as its Director, stressing that the decision was given without jurisdiction rendering same null and void. The Court was urged to set aside the judgment and allow the appeal.

The Appellant submitted that the Respondent failed to prove the existence of a valid contract of employment as an Executive Director of the Appellant, as the onus lies on her to prove the existence of a valid contract of employment in order to establish a breach of its terms.

Counsel cited the case of Aji vs. C.B.D.A [2015] 16 NWLR (Pt.1486) 554 and contended that the document tendered by the Respondent in the lower Court cannot possibly qualify as a valid contract for failure to satisfy the basic elements of a contract. Counsel submitted that there was no evidence indicating the Appellant’s acceptance of the counter-offer introduced to the contract by the Respondent, placing reliance on the case of BPS Constr. And Engr. Co. Ltd. V. F.C.D.A [2017] 10 NWLR (Pt. 1572) 1 on what constitutes a valid contract based on the offer and acceptance of same. He submitted that the decision of the lower Court was reached per incuriam and liable to be set aside on appeal.

Respondent’s counsel recounted that the Respondent was employed by the Appellant as an Executive Director in the Appellant Bank, a company incorporated under CAMA, which renders and qualifies the said employment as one with statutory flavour, relying on the case of WAEC vs. Obisesan (2008) LPELR-8500 (CA). He contended that the provision of CAMA stipulated how an Executive Director in the Appellant Bank could be relieved of such employment, asserting that the Appellant is bound to comply with the stipulated procedure of doing so.

Counsel referred to the provisions of Section 262 (1) – (2) and 266 (1) & (2) of CAMA and the cases of Tabik Investment Ltd & Anor vs. GTB (2011) LPELR-3131 (SC); Obi vs. INEC & Ors (supra) and Saraki vs. FRN (supra) to submit that the Appellant failed to comply with the mandatory requirement of removal of an Executive Director like the Respondent. It was the Respondent’s contention that the submission of the Appellant goes to no issue, wherein it argued that the Respondent was a casual Director whose tenure had ceased and hence need not to be served with the notice of meeting. Citing the provisions of Section 244(1), 262 and 266 of CAMA, counsel contended that the Respondent, being a subsisting Director of the Appellant Bank, was entitled to be served with the notice of meeting of the Appellant’s Board. He reiterated that the Directors who removed the Respondent as an Executive director of the bank has no power to so act.

DECISION/HELD:

In the final analysis, the appeal was dismissed. However, the order of reinstatement made by the trial Court was set aside.

RATIO:

LABOUR LAW – CONTRACT OF SERVICE/CONTRACT OF EMPLOYMENT: Whether the court can impose an employee on an unwilling employer

“On whether the lower Court can rightly compel the Appellant to continue with the employment of the Respondent as contained in the judgment of the lower Court, the Respondent stated that the implication of the invalidation of the termination of the appointment as an Executive Director in the Appellant bank is that the Respondent’s employment with the Appellant subsists until the same is validly terminated. I have carefully considered the varying positions of the parties in this appeal, vis-à-vis the decision of the lower Court thereon. I am of the opinion that the decision of the lower Court in this regard is the extant position of the law, as such invalidation goes to the root of the termination of the Respondent’s appointment and ought to mean that the Respondent remains in the employment of the Appellant until the same is properly terminated.

However, it is the law that a Court is precluded from imposing a willing employee on an unwilling employer, save when the employment has statutory flavour. The Supreme Court, in a long line of decided cases, has stated the law pointedly that it is a well-established principle of law that a Court cannot impose in an ordinary contract of service a willing servant on an unwilling master. See Isievwore vs. NEPA (2002) LPELR-1555 (SC); Olarewaju vs. Afribank Nig Plc (2001) 13 NWLR (Pt. 731) 691 at 705 and Chukwumah vs. Shell Petroleum Development Co. (1993) 4 NWLR (Pt. 289) 512 at 560.

It is settled law that a Court cannot impose or foist an employee on an unwilling employer and vice versa, especially where the employer no longer needs the services of the willing employee or where the unwilling employee cannot reasonably continue to work with such willing employer. See Union Bank of Nigeria Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 664; Ziideeh v. Rivers State Civil Service Commission (2007) 3 NWLR (Pt. 1022) 554; and Obaje vs. NAMA (2013) LPELR-19958 (CA) (Pp. 26). In Shitta-Bey vs. Federal Public Service Commission (1981) LPELR-3056 (SC) (Pp. 23), the Supreme Court added that an employer has an undisputed right to dismiss or discharge his servant, and should the employer do so unlawfully, the redress which the servant has lies in damages for wrongful dismissal. The Court will not compel an unwilling master to keep in his employment a willing servant or, in a way, make an order for the specific performance of a contract of service.

See also Obanye vs. Union Bank (2018) LPELR-44702 (SC) (Pp. 16-22), where the law was elaborately spelt out thus: “…

Where the servant is removed in a contract with statutory flavour, the first question the Court would ask is: has the servant’s employment been determined in accordance with the way and manner prescribed by the statute under reference? Or, is the contract governed by an agreement of the parties and not under any statute? Where the servant is sought to be removed in a contract with statutory flavor, that is, a contract of employment wherein the procedures for employment and discipline, including dismissal, are clearly spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is void and has no effect.”

It becomes apparent that the hosts of the judicial authorities, including those cited by the Appellant, support that the Respondent’s employment be reinstated as held by the lower Court. However, this Court, in the circumstance of this case, is of the opinion that the Respondent could not be reasonably foisted on the Appellant Bank to continue in the contract of employment between the parties. This view is reinforced by the accusation and counter-accusation of the conducts of the respective parties, even during the pendency of their working relationship.

It is deducible from the printed record before the Court that the Appellant was reportedly orchestrating conspiracy in the form of a campaign of calumny, deliberate reduction in sectors under the Respondent’s sphere of control at the job, and deliberate humiliation by the removal of key loyal staff in the Respondent’s department in order to weaken her structure and performance while in the employment of the Appellant. See paragraphs 16-29 of the amended Statement of Facts filed in the lower Court by the Respondent as found at pages 840-844 of the Record of Appeal. The Appellant, in response, stated that the Respondent was employed as a result of bloated curriculum vitae submitted by her to the bank, adding that the Respondent’s performance, while in the employment, did not in any way justify any of the claims in the CV. See the Appellant’s averment in paragraph 5 of the Appellant’s Statement of Defence and Counterclaim found at pages 319-325 of the record.

It is my considered view that the parties herein cannot reasonably continue in the contract of employment, notwithstanding that the Respondent’s employment has statutory flavour and was wrongly terminated by the Appellant. I hold the firm view that even though it is lawful to order the reinstatement of the Appellant, such order will not be appropriate in the circumstances of this case. This Court cannot foist the Respondent on the Appellant notwithstanding the wrongfulness of the termination of her appointment by the Appellant.” Per SIRAJO, J.C.A.

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