TRAQUINI V. ASC NIGERIA LTD [2021] – PART II

Traquini v. ASC Nigeria Ltd (Suit No. NICN/LA/580/2017)

Judgment was delivered on 10 March 2021.

The Claimant (Jorge Allende Iriate Traquini), a foreigner, was employed as a General Manager for the Defendant (ASC Nigeria Ltd) in Nigeria through the Defendant’s parent company, Energy Resources International Ltd (member of the ONSTREAM Group) based in Anguilla, the British West Indices. The Claimant executed two employment contracts: one with Energy Resources Int’l Ltd (Executive Employment Agreement) and another with the Defendant (Contract Agreement). Both contracts took effect from 17 March 2014. The employment was effectively terminated on 18 October 2017.

The Claimant sued the Defendant claiming, among others, the agreed 5% pension fund contribution deducted from his salary by the Defendant but which was unremitted for the period of the employment. The Defendant filed its defence and counter-claim. The recondite issue of pension fund remittance was analysed here. Below is the analysis of other claims presented by the parties and the decision of the court.

Claims based on earned leave and holiday not utilised

The Claimant claimed money earned for un-used leave and holiday.  The Defendant contended that the Claimant was not entitled to the amount claimed because the contract did not provide for monetisation and such claim is not recognised under the Act and Labour Act. After a thorough review, the learned trial Judge, Ogbuanya J., held (p. 22 of the Judgment):

Earned leave and holiday which are not utilized are monetized and paid to the employee by operation of law as best practice in labour relations. To say otherwise is to promote unfair labour practice. A cursory review of the Clause 12(g) of the Exh. CJ2/DJ2 shows that the leave and holidays are to be ‘observed and paid’. What more is monetization?

The evidence in support of the computation for the leave and holiday period was an email from a representative of the Defendant’s parent company (Therese Gerber). The Defendant challenged the admissibility of the email on the ground of lack of compliance with Section 84 of the Evidence Act 2011, in that the requisite certificate was not allegedly filed. More so, the Defendant claimed that the Defendant is legally distinct from the parent company. The learned trial Judge discountenanced the argument. The Court found that the certificate filed covered the email in question. It also held that since the Claimant received his entitlements directly from the Defendant’s parent company, it is futile for the Defendant to attempt to distance itself from the parent company for this purpose. Furthermore, the Claimant’s claim was based on the relevant Clause 12(g) in the contract he entered into with the Defendant.

This finding and holding of the Court relating to the Defendant’s parent company also supports the earlier position of the Court that the joinder of the Defenant’s parent company was not necessary in the circumstances of the case. The Defendant had argued that the Claimant’s case was liable to be struck out for being improperly constituted in that the Claimant failed to join a necessary party being the Defendant’s parent company. The Court was not persuaded. In the view of the Court, the fact that the Claimant was paid his salaries by the Defendant’s parent company was not sufficient to make it a necessary party. Furthermore, the Claimant never desired to move against the Defendant’s parent company and the Defendant’s parent company never applied to be joined.

Payment in lieu of notice

To avoid springing surprises, the law recognizes service of notice of termination or payment in lieu of notice. The contract between the Claimant and the Defendant contained provisions in this regard. In contention was whether the Claimant was entitled to payment for the last working month (October 2017). The Claimant claimed payment for a fraction of the period which was 1st to 18th October 2017. The argument of the Defendant was that the Claimant does not deserve the payment as the Claimant never worked during the period but was rather, “gallivanting the world”.

The Court found that the termination notice allowed the Claimant not to resume at work. Thus, the Defendant cannot reasonably sustain the accusation of “gallivanting the world” leveled against the Claimant. More so, the Claimant was still regarded in law as the Defendant’s employee during the notice period and subject to the Defendant’s disciplinary measures. The Defendant never instigated any.  

On the extent of an employee’s entitlement as it pertains to the month of exit, the learned trial Judge held as follows (p. 25 of the Judgment):

An employer who decides to terminate an employee within a new month is liable to pay full salary of that exit month and not fraction of the days the employee worked in the month or has a notice period.

In effect, the Claimant was granted more than he claimed in the interest of justice and in accordance with established principles. That was USD11,000.00 (full payment for his last month) as against USD6,574.71. The Court relied on the cases of Grant Mpanugo v. CAT Construction Nig. Ltd. & Anor (Suit No. NICN/LA/660/2015, Judgment delivered on 20 September 2019); Babalola v. Equinox Int’l Resources Ltd (Suit No. NICN/LA/166/2015, Judgment delivered on 17 June 2020) and Akindele v. Netconstruct Nig. Ltd. (Suit No. NICN/LA/559/2017, Judgment delivered on 8 September 2020) in arriving at its decision.

General Damages

In considering award of general damages, the Court applied the principle that “An employer who persists to practice unfair labour practice at workplace risks liability for compensation of victimized employee.” Per Ogbuanya J. in Oyinbo v. Guinness Nig. Plc (Suit No. NICN/LA/639/2012, Judgment delivered on 20 September 2019).

The Court awarded the Claimant N500,000 (as against the N1,000,000 claimed by the Claimant) “As compensation for the wrongful withholding of the Claimant’s accrued salary, allowance and pension fund contribution, and not paying him off upon termination of his employment since October 2017, thereby exposing him to undue financial difficulties.”

Cost

The Claimant claimed N2,000,000 as cost of the action being Solicitor’s fees. The Court acknowledged the controversy surrounding this head of claim in that it has been rejected by the courts. The Court however relied on the rule of “cost follows events” to award the Claimant the sum of N500,000 as cost.

Interest

Claimant’s claims based on pre-judgment and post-judgment interest were dismissed as misconceived. The amount claimed as pre-judgment interest was not proved. The Court rejected Claimant’s claims on post-judgment interest for being “Presumptuous, speculative and role-swapping.” This is on the ground that the Court has the prerogative to grant post-judgment interest in accordance with the Rules of Court. The Court held that the amount awarded as Judgment Sum shall be paid by the Defendant within 2 months, failing which it shall attract 10% interest rate per annum until fully liquidated.

Counter-claim – Breach of confidentiality

The Defendant filed a Counter-claim, seeking reliefs which were bound to fail given that the claims of the Claimant succeeded on the merits and so, the Counter-claim (touching on refund for Claimant’s alleged period of absence) found no plank to stand on.

The only part of the Counter-claim that seemed unaffected by legal automation was the claim for damages for breach of confidentiality. The Defendant contended that the Claimant revealed secret information as contained in his Handover Note (admitted as exhibit in the case) which he forwarded to his Counsel. The Defendant argued that the Claimant could have conducted his case without recourse to the Handover Note. The learned trial Judge considered the argument and in dismissing the claim, had this to say (at p. 30 of the Judgment):

How did Counsel Counsel come to such a conclusion, without minding that the Claimant has an onerous burden to establish his case and there is no limit to the type of admissible evidence he would need to present? Learned Claimant’s Counsel had argued that there is no evidence that the said Handover Note (Exh. CJ8/DJ8) was disclosed to any third party other than the Claimant’s Solicitors, who merely used it for preparation of the Claimant’s suit and there is no evidence that it was used beyond the court proceedings. Counsel submitted that such usage of the said document between a Client and his Counsel constitutes one of the acceptable usages of privileged information in law. I cannot agree less, as I find no evidence to the contrary.

Read full Judgment here.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.