Former MTN Nigeria staff and a father of four dies over the weekend after being bed ridden for three years as MTN Nigeria appeals a 2016 National Industrial Court judgement that was in his favour.
Mr. Nicholas Odigie‘s death was announced to colleagues on March 4, 2018 as MTN Nigeria was scheduled to appeal the NIC judgement on March 21, 2018.
Late Nicholas Odigie until his death was one of the 63 former staff of MTN Nigeria who on October 26, 2016 defeated their former employer at the National Industrial Court Ikoyi on a suit of Trade Restriction. The 63 staff had on Nov 17, 2009 were laid off without notice.
Justice K.I Amadi of the National Industrial Court Lagos on Feb 2, 2017 granted MTN Nig. appeal on a Trade Restriction/Unlawful Termination case (NICN/LA/596/2013) which was judged on October 26, 2016 in favor of 63 ex-Staff by Justice Peter Lifu.
“All we wanted since 2009 was justice and we got it at the NIC on Oct 26, 2016 after 6yrs of waiting. As at today in 2018, MTN’s appeal is yet to commence, they had not effected NIC judgement and equally not on the negotiation table. Over the weekend we lost a friend, colleague and brother who had taken ill since over four years. Today is the saddest day of my life”..says one of the ex staff.
“Our 4yrs gross salary as ordered to be paid to 63 of us is not up to N900m after untold hardship of over 6yrs. Now one of us; Nicholas Odigie who was down with stroke for about four years is now dead.”….says another ex-staff who couldn’t control her tears as she wept.
On Oct 26, 2016, it was a scene of songs of praises and joyful tears by some of the ex staff present as Justice Peter Lifu after minutes of reading the introduction to judgment and the court’s decision ordered MTN Nigeria to pay the 4yrs last gross salary of each affected staff within 30days failure of which it will attract 10% annually and N10,000 each for the cost of the case. The Claimant’s lawyer Barr. Adetunji Adeniyi-Adedoyin of AAA Chambers Lagos informed the judgment was a victory in God’s name and Oct 26, 2016 was the happiest day of his life.
The suit against MTN Nigeria Communication Limited was instituted in 2013 by Harrison Ossai, Gabriel Ameh, and Stephen Mahaja on behalf of themselves and 60 others.
The claimants had sought an order of the court compelling the defendant to pay each of them N10 million as damages for trade restriction by the company from taking up employment from 17th November, 2009, to 17th November, 2013.
They also demanded a payment of N20 million from the company as cost of the court action.
Mr. Ossai, 43, a Higher National Diploma holder in Mass Communications, said he worked as a Call Centre Executive at MTN for six years before his dismissal.
He said he had found it impossible to work anywhere else afterwards because of a restraint on trade covenant, adding that his job interviews at Airtel and Globacom were unsuccessful because of his MTN background.
While Mr. Ossai said MTN did not state the reasons for his dismissal, he insisted that a N100 million suit instituted by the company against a former employee, Yinusa Bello, for breaching the restraint on trade clauses was responsible for other telecom firms’ inability to employ him.
In their testimonies, Messrs Ameh, 53, and Mahaja, 43, said the restraint of trade clause was responsible for their failure at gaining employment after dismissal by MTN.
Nwamaka Okey-Aguoru, MTN’s witness in the suit, said she had not been employed by the company when the claimants were sacked.
Mrs. Okey-Aguoru said she doesn’t know about a matching order given to the claimants, who all worked in Customer Services department, to leave MTN’s premises on November 17, 2009, but added that she saw the letter of dismissal of the claimants.
Mrs. Okey-Aguoru, a senior manager, stated that the restraint of trade clause in MTN’s contract targets the company’s direct competitors such as Glo, Etisalat, and Airtel and covers a period of 48 months.
She said employees, who are under the clause, are not allowed to deal with MTN’s competitors when they leave the company.
Court documents showed that after Mr. Bello left MTN and secured a job in another telecom firm, the company slammed a N100 million suit on him for revealing market strategy, trade secret and design and confidential company information.
But the case was struck out at Lagos High Court, and later at the National Industrial Court.
On February 2, 2017 Hon. Judge K.I Amadi stated clearly that the judgment of NIC is unappealable except on grounds of fair hearing and surprisingly the Claimants were shocked when the Judge granted MTN’s application for stay of execution pending the hearing of appeal.
The Claimant’s Lawyer Barr. A. Adedoyin-Adeniyi of AAA Chambers who also appeared with learned colleague Miss. O. Olabinjo in his submission informed the Court that the judgment cannot be appealed but raised concerns at the pronouncement…..
In his words the Claimant’ Counsel Barr. A. Adedoyin-Adeniyi stated;
“…we all know MTN Nigeria is an International Corporation and we have 63 Nigerian Youths who won this case. We have one of them very sick with stroke and bed-ridden. His name is Nicholas Odigie. God forbid any of them die before the end of appeal……..”
But Justice K.I Amadi replied saying with a cheeky smile;
“…if any of them end up dead…..his/her estate will inherit the settlement if the MTN appeal fails”.
But rather than on fair hearing. On what ground is MTN Nigeria appealing the NIC judgement?
Information available to AfricTelecom has it that the initial suit filed in 2013 was summed at N10m each for the 63 ex staff but the NIC’s 2016 judgement gave a four years gross salary payment judgement to the 63 ex staff.
In the 2013 suit, the claimants maintained that they were terminated and restrained, for four years, from seeking employment in any telecommunications company in the same line of business with MTN Nigeria Limited.
They had worked for the company for a period that ranged from five to nine years before the termination of their contract.
According to the Restraint of Trade Clause 17.3 in their contract with MTN: ‘You are required to sign the MTN Nigeria confidentiality agreement and any restraint agreement in existence from time to time.’
Paragraph 17.3.3 says, ‘The restraint set out in this agreement shall apply in the territories of the Republic of Nigeria, the Republic of Rwanda, South Africa, Uganda, the Kingdom of Swaziland or any other countries that MTN has investment in.’
Paragraph 17.3.4 says:
‘You shall not during the existence of your employment with the company and for a period of 48 months after the termination of your employment for any reason whatsoever, be directly or indirectly interested, engaged or concerned in, whether as a principal agent, representative, shareholder, director, employee, consultant, advisor, financier, administrator or in any competitor situated in the Federal Republic of Nigeria with whom the employee is involved or was involved in carrying out an assignment.’
Adeniyi Adegbomire, a senior advocate of Nigeria, who represented MTN Nigeria Limited argued that the claimants willingly entered into the agreement with the company.
“There is no existing evidence visibly to demonstrate that any of the claimants was denied employment at any time because of the restraint of trade clause,” he said.
Moreover, Mr. Adegbomire added, the clause never prevented the claimants from securing employment in other organizations in the telecommunications industry, except MTN’s competitors – Airtel, Etisalat, and Globacom.
But the judge disagreed with the lawyer.
Judge Lifu said four years is “a long time” and that Clause 17.3.4 in the claimants’ employment contract is an all-embracing and wide covenant on restriction of trade.
“The claimants also stated that they have not been able to get any employment in the telecommunications section which they have interest in to enable them consolidate their career but was prevented from doing so due to the restraint of trade clause which has kept them jobless for the period of four years,” Mr. Lifu said.
“Given that telecommunication is an emerging sector and given that young men and women are now restrained for four years as in the instance case, after termination, can a reasonable man say that such restrictive contract is not onerous?
“A man or woman should be free to exercise his skill, experience, expertise and knowledge to his own advantage, his family and the entire society. I think this accords with public policy.”
The judge noted that the claimants alleged their inability to pay rents and had incurred huge debts, but did not provide evidence to buttress their claim.
“There is therefore no evidence of untold hardship before the court,” he said.
“However, the law is clear as to the fact that where there is a right, there is a remedy.
“The claimants’ rights to exercise their skill, aptitude and knowledge have been breached by this repugnant, oppressive and unreasonable clause as contained in paragraph 17.3.4 of their letters of employment.”
The judge further stated that terminating the claimants employment and at the same time restricting them from seeking employment from the sector for four years “is clearly unreasonable in the light of global economic challenges occasioned by recession which has resulted in mass unemployment.
“Consequently, I am satisfied that the claimants have proved their claims before the court as to the oppressive and unreasonableness of the restraint of trade covenant for four years for making and leaving the claimants hard and dry for four years.”
After ordering the payment of the claimants’ yearly gross salaries for four years, the judge said the judgment should be complied with within 30 days, from October 26, 2016, or attract an interest of ten percent per annum.
As at the time of filing this report, MTN Nigeria is yet to obey court judgement or negotiate settlement.
Burial Arrangement of Late Mr. Nicholas Odigie:
Wednesday March 14th
Service of songs at his residence
6 Wahab Street, Off Faseun Street by Century Bus Stop, Ago, Okota
Time- 6pm to 7pm
Thursday March 15th
Body leaves Isolo general hospital by 10.30am for Atan cemetery. Interment and grave yard service commence by 12noon.
May his gentle soul Rest In Peace
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