MR. ASIKONG DON ESEGE -VS- SONGHAI NIGERIA PARTNERSHIP

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE

DATED: 14^th March 2018 SUIT NO: NICN/CA/89/2014

BETWEEN:

ASIKONG DON ESEGE – CLAIMANT

AND

1.SONGHAI NIGERIA PARTNERSHIP LTD

CROSS RIVER SONGHAI INTERGRATED

FARMS LTD

MR. JEREMIAHLEBO (DSP) RTD. DEFENDANTS

(CHIEF SECURITY OFFICER)

NKANU EKOR

REPRESENTATION

E. USANIESQ. for the Claimant

ANTHONY EFFIOM ESQ. for the Defendant

JUDGMENT

The claimant brought this suit vide a complaint dated the19th day of November 2014 which was subsequently amended on the 16^th day of May, 2016 wherein he prayed this Court for the following reliefs, to wit;

1.Declaration that the 1^st and 2^nd defendants are jointly and severally liable for the wrongful, illegal and disengagement of the services of the claimant from 6^th day of
October, 2014.

2.An order of this Honourable Court declaring that the termination of the employment of the claimant by the 1^st and 2^nd defendants is null and void.

3.An order directing the 1^st and 2^nd defendants to pay the claimant his monthly salary of Twenty Thousand Naira (1420,000) commencing from the month of October, 2014 when the 1^st and 2^nd seized to pay him to when he shall be finally be reinstated or lawfully disengaged.

20 Million Nairageneral damages for unlawful termination of the claimant’s employment with the 1^st and 2^nd defendant.

SUMMARRY OF FACTS

The claimant averred that he was an employee of the 2^nddefendant, employed as a securityOfficer in the month of August. 2013 at a monthly salary
of N20, 000by hand (table payment).

The Government ofCross River State in a view of creating an enabling environment for the re-orientation of youths in Cross River State for sustainableemployment/income generating activities using locally available resourcesand effective technique and affordable technologies and inputs, engaged the1^st defendant into business partnership to set up the 2^nd defendant.

Sequel to the said employment of the Claimant, and for him to perform his duties efficiently, the 1^st and 2^nddefendants provided him with rain boot, army jungle boot and two pairs ofuniform, an ID card among other things.

The Claimant, while carrying out his duties as security inthe 1^st and 2^nd defendant premises, on the 24^th day of September, 2014 the 1^stand 2^nd defendants alleged that it was informed by one of its staff, known as NKANU EKOR., the 4^th defendant, that he the claimant stole a fish in one of its fish ponds at its farm in Itigidi.

The 1^st and 2^nd defendants acting on the information of NKANU EKOR,gave directionsto Mr. Jeremiah Lebo, the 3^rd defendant, the Chief security officer of the 1^stand 2^nddefendants to terminate the claimant’s employment

Jeremiah  Lebo  acting  on  the  directions  of the   1^st and  2^nd  defendant
terminated the claimant’s employment by preventing him to enter the 1^st and
2^nd   defendants’   premises   on   the   6^th   day   of  October,   2014   without
investigating the allegation or serving    him a termination letter or notice.

Claimant averred that the 1^st and 2^nd defendants did not setup any committee to investigate the matter or sought for his explanation on the matter before terminating his employment. The 1st and 2^nd defendant also did not report the matter to the Police nor was he arraigned or convicted in any Court before terminating his employment

AMENDED STATEMENT OF DEFENCE

The Defendants held the view that the Claimant has neverbeen an employee of either the 1^st or 2^nd defendant as there is nothing from the claimant to substantiate that claim.

They stated that the identity card claimed to havebeen issued to the claimant is not that of either the 1^st or 2^nddefendants and that the claimant is not entitled to any relief before this court. The remaining claim of the claimant is misleading and discloses no cause of action against the defendants. They however urged this Honorable Court to dismiss this case with cost.

REPLY TO STATEMENT OF DEFENCE

In reply to the statement of defence, the claimant averred that the 1^st and 2^nd defendants after achieving the scope of work as contained inthe agreement dated 21^st day of May, 2012 between Cross River State ANDSonghai Nigeria Partnership Initiative Limited by guarantee in respect-of SonghaiCross River Initiative of training Cross River Youth at Songhai Regional Centre inrelevant disciplines that can man and operate the Songhai Cross River Initiativeproject, the farm was later registered as Cross River Songhai Integrated FarmsLimited. The Cross River state government used the name Songhai Cross RiverState Initiative in the agreement and also in issuing the ID card for its workersincluding the claimant.

DEFENDANTS’ FINAL WRITTEN ADDRESS.

In their final written address, Learned Counsel to the Defendants submitted 2 issues for determination by this Court, which are;

Whether the claimant has proved his employment status so as to establish any cause of action against the defendants from the evidence adduced in thiscase.

Whether the claimant has proved his case to be entitled to the salary
claimed as well as the N20,000,000 general damages for the alleged unlawful
termination of employment.

ON ISSUE NO 1.

Learned Counsel submitted that from the evidence adduced by the claimants in this case, there is no cause of action against the defendants on record as there is nothing to show that the claimant was in the employment of the defendants.

While reproducing the provisions of Section 136 (1) of the Evidence Act 2011, Learned counsel submitted that it is the duty of the claimant to show and proof that he was in the employment of the defendant. He referred the Court to thecase of Okomu Oil Palm Co. v. Iserhenrhien (2001) 85 LRCN 873 at 882 – 883Paragraphs H-A; Katto v. CBN (1999) 69 LRCN 1119.

Counsel also referred this court to the case of Imasuen v. University of Benin (2011) All FWLR (Pt.572) 1791 at 1809, paragraphs B – D, where the court held that the onus is on the appellant to prove that the termination of his appointment is unlawful. And to discharge this onus, he must prove:

That he is an employee of the respondent
Placing before the court the conditions of his employment;
Who can appoint and who can remove him;
In what circumstance his appointment can be determined.

He further referred the Court to the Case ofCharles Organ and ors vs. Nigerian
Liquefied Natural Gas Ltd (2014) 41 NLLR (Pt. 125) 1 at 38 where the Supreme
Court held as follows;

“In a claim for a declaration aimed at ascertaining and determining the right of a claimant to remain an employee of the defendants, the letter ofappointment of the appellant is a sine qua non of his pleading. The declaration sought cannot be granted in vacum. It must be granted in relation to the employment. There can be no termination unless the appointment terminated was an appointment by the person or authority terminating, the letter of appointment is undoubtedly the creator of the right sought to be declared.”

Learned counsel argued that the claimant in this case has not tendered his letter ofemployment, which employmentwas allegedto have been wrongly andunlawfully terminated by the 1^st and 2^nd defendants, and submitted that the letter of employment is the bedrock on which the claimant in this case can lay claim to being an employee of the defendantand without the production of such a document, no employment can be inferred.

To counsel, there is nothing from the evidence by the claimant that shows he was ever employed by the defendants on record and/or that he was terminated by them. There was no letter of termination of appointment tendered by the claimant. There was no evidence of claimant ever collecting salary or any sort of emolument from the defendants shown to this court. This court cannot speculate but will only act on facts brought before it.

He submitted that the claimant has failed woefully to prove his employment with the defendant and has not established any cause of action whatsoever against the defendant.

He urged this Court to resolve issue No 1. in favour of the defendant and refuse the declaratory reliefs No 1. and 2 claimed in the statement of fact.

ON ISSUE NO 2.

Learned counsel submits that the claimant haswoefully and abysmally failed to prove his employment with the defendants and as such is not entitled to the salary and or the general damages claimed.

He argued that The N20,000 monthly salary claimed from October 2014 to when the
claimant shall be reinstated or lawfully disengaged, is a claim in the form of aspecial damage which must be specifically pleaded and proved. Alas, claimantproffers no evidence or proof to substantiate the claim. He submitted that cases are determined by facts and credible evidence placed before thecourts.

To counsel, the claim of salary and N20,000,000 generaldamages is premise on the success of reliefs 1 and 2 bordering on havingemployment with the defendants. He submitted that in the absence of theestablishment of a contractual employment relationship, reliefs 3 and 4 cannotstand. The law is that you cannot put something on nothing and expect it tostand. It will collapse. This was the dictum of the Learned Lord Dennings in thelocus classicus of Macfoy v. UAC (1962) AC 158.

CLAIMANT’S FINAL WRITTEN ADDRESS

On their part, Learned Counsel to the Claimant/Respondent, also submitted 2 issues for determination, which are;

Whether from the totality of the claimant’s pleading and the evidence of the a claimant’s sole witness CW1 and the documentary evidence the claimant haveestablished that he is an employee of the 1^st and 2^nd defendants.

Whether form the totality of the pleadings and the evidence led by the claimant’s
witness, the termination of the claimant’s employment with the 1^st and 2^nd defendant is
not void, illegal and unlawful.

ISSUE 1

Learned counsel submitted that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person, but the burden may in the course of a case be shifted from one side to the other. See section 36(1) of the Evidence Act 2011 as Amended.

Counsel submitted that, in paragraph 1 of the claimant’s reply to the defence, affidavit of Cletus R. 0. Agbor (EXHIBIT C1) and paragraph 1 of the claimant’s additional written statement on oath of his sole witness has clearly stated that as at the time the Cross River State Government entered into agreement with the 1^st defendant in respect of Songhai Cross River Initiative of 21^st May, 2012 was not registered but later registered as the 2^nddefendant. The claimant position of none registration of the Songhai Cross River Initiative which the claimant ID card was issued was supported by Exhibit Cl (affidavit of facts depose to Cletus R.O.Agbor, page 1 paragraph 4,5,6,7 and 8 of the affidavit. 4.2.

Counsel argued that as a general rule, only natural persons, that is to say, human beings andjuristic or artificial person such as bodies corporate are competent to sue and be sued before any Court. In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by expressly or implied or by common law either a legal personality under the name by which it is sues or is used or a right to sue or be sued in that name. He referred the court to the case of FAWEHINMI VS. NIGERIAN BAR ASSOCIATION (NO.2) (1989)2 N.W.LR (PT.105)558 at 595.

To counsel, in the instant case, exhibit Cl has demonstrated that the Songhai Cross River Initiative upon which the claimant ID card was issued was not registered but later registered as the 2^nd defendant as evidence by a certificate of incorporation at page 3 of exhibit Cl.

Counsel argued that to be able to prove the corporate status of a body or company, one must produce a certificate of incorporation in respect of the body or the company. The certificate is also evidence that the company came into existence on the date of incorporation. He referred the court to N.N.P.C. VS. LUTIN INVESTMENT LIMITED (2006)2 N.W.LR (pt. 965)506 SC.

He contended that the defendants have failed woefully to show that Songhai Cross River Initiative upon which the claimant ID card (exhibit C2) was issued is a natural or artificial person capable of being sued rather than its registered name as the 2^nd defendant.

He further contended that it is a settled principle of law as applicable in the instant
case that, the onus is on the party who claims juristic personality to prove that status by
producing evidence of incorporation.

ON ISSUE 2

Learned counsel submitted that an “employee” is a person in the service of an employer under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.

On the other hand, an “employer” is one who employs the services of others; one of whom employees work and who pays their wages or salaries.

A“worker” is genetically as any person not being a minor but employed under certain terms of a contract of employment. Consequently, a worker includes a casual worke^r. He relied on the case ofPHOENIX MOTORS LIMITED VS. NATIONAL PROVIDENT FUND MANAGEMENT BOAD (1993)1 NWLR (PT. 272) 718 CA.

Counsel submitted that by virtue of section 91(1) of the Labour Act, Cap. LI Laws of the Federation of Nigeria, 2004,“worker” means any person who has entered into or works under a contract with an employer; whether the contract is for manual labour or clerical work or is expressly or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or (labour, but does not include: (a) any person employed otherwise than for the purposes .of the employer’s business; or (b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise. He referred the court to the case of EVANS BROSS (NIG) PUBLICATION LTD FALAIYE (2003)13 NWLR (PT. 838)564 CA.

To counsel, from the statutory and judicial interpretation of who a worker is, therefore means that it is not mandatory that an employer and employee contract must be written as speculated by the defendants’ counsel argument. In law, the fact that an employer is a statutory body does not mean that the conditions of service of its employees must be presumed to be of any special character where the terms and conditions of its employment must be written. This position of the law was given judicial stamp in the case of NITEL PLC VS. AWALA (2002)3 NWLR (PT. 753) page 1 at page 3 held 1

To him, it is only where there is a written contract of employment between the employer and employee that the court has a duty to determine the rights of the parties under the written contract.

Conclusively, Learned Counsel prayed the Court to grant the reliefs sought by the claimant in the statement of complaint.

COURT

Having gone through the case of both parties, evidence adduced during the trial, as well as the written arguments of both counsel to the parties, it is however my view that the 2 issues below, aptly suits for the just determination of this suit, and they are;

Whether giving the facts and circumstances of this case, an employment relationship can be said to have existed between the parties?
If issue one above is answered in the affirmative, whether the nature of the employment of the claimant entitles him to the reliefs sought on the face of the complaint?

On Issue 1,

Both parties in this suit are on a cross road as to the existence of an employment relationship between them.

The defendant held the view that from the evidence adduced by the claimants in this case, there nothing to show that the claimant was in the employment of the defendants and that the claimant in this case has not tendered his letter of employment, which employment was alleged to have been wrongly and unlawfully terminated by the 1^st and 2^nd defendants. That there is nothing from the evidence by the claimant that shows he was ever employed by the defendants on record and/or that he was terminated by them. There was no letter of termination of appointment tendered by the claimant. There was no evidence of claimant ever collecting salary or any sort of emolument from the defendants shown to this court.

The claimant on their part contended that having tendered the staff ID card which was given to him by the defendants, as Songhai Cross River Initiative, not as the 1^st and 2^nd defendants, the said Songhai Cross River Initiative, is one and the same with the 1^st and 2^nd Defendants, only that the 1^st and 2^nd defendants are the registered names. It was their argument that the claimant was a worker as envisaged by Section 91 of the labor Act, and as such, it is not mandatory that there must be a formal or written contract of employment between the parties.

A worker is a person not being a minor but employed under certain terms of a contract of employment, such as a casual worker, while an “employee” is a person in the service of an employer under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.

There are three types of employer/employee relationship in Nigeria, namely;

Under the common law, where in the absence of a written contract, each party could abrogate the contract on a weeks or months notice or payment in lieu thereof.
Where there is a written contract of employment between an employer and an employee. In such a case, the court has a duty to determine the rights of the parties based on the contract.

Public Servants. Their employment is provided for in a statute plus conditions and service agreements, they include public servants in the nations civil service.

See generally, the case of Iderima vs R.S.C.S.C. (2005) 16 NWLR (Pt. 951) 378 SC.

In the instant case, the fact that there is no written contract between the parties herein does not necessarily mean that there was no employment relationship between the parties, and I so hold. It is only where there is a written contract of employment between the parties that the court has a duty to determine the rights of the parties under the written contract.

Regarding the staff identity card tendered by the claimant to support his claim of being in the employment of the defendant, although countered by the claimant, the defendant failed in this case to lead any evidence to the fact that the said staff identity card did not emanate from them.

Gleaning on the above, I find and hold that the claimant in this case actually works with the defendant as a security personel. I however resolve issue 1 in the affirmative.

On Issue 2,

A contract of employment can be divided into two broad cartegories. The first is the common law ordinary master and servant relationship, with all its normal incidents. The second is a contract of employment protected in one form or the other by a statute. This type of contract of employment enjoys statutory flavor. See the case of C.B.N vs Jidda (2001) 7 WRN 24 at 27.

In a master servant relationship, parties are at liberty to terminate the employment for any reason, or for no reason at all, provided the agreed length of notice is given, whereas the one with statutory flavor must be in conformity with the statute backing up such employment.

That said, there is nothing before me suggestive of the fact that the employment of the claimant is protected by any statute or any service agreement, and as such it makes the employment, one of a master servant relationship.

At this stage, I will however address the reliefs of the claimant, one after another.

On the first relief which seeks for a Declaration that the 1^st and 2^nd defendants are jointly and severally liable for the wrongful, illegal and disengagement of the services of the claimant from 6^th day of October, 2014., having found above that the employment of the claimant is a master servant relationship, the court cannot declare that the termination of the employment of the claimant is illegal or wrongful given the fact that the master in this case which is the defendants, reserve the right to hire and fire at any time for any reason, or for no reason at all.

On the second relief which seeks for an order of this Honorable Court declaring that the termination of the employment of the claimant by the 1^st and 2^nd defendants is null and void. This court lacks the powers to do that as the court cannot force a willing employer on an unwilling employee

On the third relief which seeks for an order directing the 1^st and 2^nd defendants to pay the claimant his monthly salary of Twenty Thousand Naira (20,000) commencing from the month of October, 2014 when the 1^st and 2^nd seized to pay him to when he shall be finally be reinstated or lawfully disengaged, for the reasons given under relief two above the claimant in this case is not entitled to be reinstated in the employment of the defendant. He would only be entitled to payment of appropriate salaries in lieu of any notice of termination if agreed by the parties. Based on the above, the court cannot make an order as couched in the relief 3 of the claimant’s claim

On the 4^th relief which seeks for 20 Million Naira general damages for unlawful termination of the claimant’s employment with the 1^st and 2^nd defendant. This particular relief cannot also succeed, because of the outcome of relief one above, as this court have held earlier that the termination of the employment of the claimant was not unlawful.

Consequently, and for all the reasons given above, I resolve this issue in the negative, and in favour of the defendant.

The claims of the claimant, however fails, and same are hereby dismissed.

Judgement is entered accordingly.

…………………………………………….

HON JUSTICE M.N.ESOWE

PRESIDING JUDGE