Ogbete Anthony O & 2 ORS -VS- The Council Federal Polytechnic Nekede

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY 8^TH NOVEMBER 2018

SUIT NO.NICN/OW/70/2016

BETWEEN:

OGBETE ANTHONY O.
NLEMCHI ROMANUS CLAIMANTS
UBAH EDWARD N.

AND

THE COUNCIL, FEDERAL POLYTECHIC
NEKEDE DEFENDANTS
THE RECTOR, FEDERAL POLYTECHIC
NEKEDE

APPEARANCES:

I.G. OFOEGBU (MRS.) FOR THE CLAIAMNT.
G.C. NKWOCHA FOR THE DEFENDANTS.

JUDGMENT

INTRODUCTION

This suit was commenced by complaint on 28/10/2016. The Statement of Facts has the following reliefs in its paragraph 23:

a declaration that by retaining the services of the claimants after the end of the NAPEP MAP Programme, the defendants have fully converted them directly or by necessary implication to permanent staff of the defendant institution by November 2003; [sic]
a declaration that the purported disengagement of the claimants from the services of the defendant institution in 2007 was unlawful, null, void, and of no effect the claimants at that time being no longer MAP attachees posted to the institution; [sic]
an order compelling the defendants to re instate and or restore the claimants to their proper positions in the defendant institution; [sic]
an order compelling the defendants to pay the claimants the sum of N14,880,401.5 being their respective unpaid salaries and housing allowances from November 2003 to December 2016; [sic]
N50 Million to each of the claimants as general damages. [sic]

In reaction to the above, the defendants filed their joint Statement of Defence on 24/01/2017. This was deemed as properly filed on 15/03/17. In reaction to the Statement of Defence, the claimants filed their reply on 08/05/17.

The case subsequently went to trial on 06/02/18 with CW1. CW1 affirmed and adopted his Statement on Oath of 28/10/16 and the Further Statement on Oath made on 08/05/17. CW1 tendered Exhibits A-G without objection. Exhibit H1-HI8 was objected to and the Court ruled that argument on the objection be deferred to final address state.On this note, CW1 ended his testimony and the case was adjourned to 7^th and 20^thMarch 2018 for continuation of trial. On 7^th March 2018, the matter came up as adjourned and CW1 was cross-examined. The cross-examination ended this same day without re-examination. CW2 followed suit to testify for the claimants. He was sworn with the Holy Bible. He adopted his Witness Statement on Oath made 28^th October 2018 and the Further Witness Statement on Oath made 8^th May 2018. CW2 tendered two documents without objection and they were marked accordingly. CW2 brought his testimony to an end. He was cross-examined this very day too, and there was no re-examination. The matter was thereafter adjourned to the 2^nd date of 20^th March 2018 for continuation of trial. On this date, the matter came up as adjourned and, CW3 was taken after he affirmed. CW3 adopted his Witness Statement on Oath made 28^th October 2017 and the second one made on 8^th May 2017.CW3 also tendered two documents without objection and they were accordingly marked. The testimony of CW3 was brought to an end. Cross-examination took place immediately thereafter. At the end of the cross-examination, there was no re-examination.The case of the claimants was closed and the case was thereafter adjourned to 19^th and 24^th April 2018 for the defence.

On the 19^th April 2018, the case could not go on as adjourned, as the defence witness was not present in Court. As a result, the matter was adjourned to 10^th and 14^th May 2018 for defence. On 10^th May 2018, the matter came up. On this date again, the defence failed to go on, as counsel for defence was absent. The matter was therefore adjourned to the outstanding date of 14^th May 2018 for defence. On the said 14^th May 2018, it came up as adjourned. DW1 opened the defence by affirmation and thereafter went ahead to adopt the Witness Statement on Oath deposed to on 24^th January 2017. Attempt to tender document by CW1 was objected to and arguments taken. Because the counsel to the defendants promised to bring authorities on the objection, the matter was adjourned to 4^th and 12^th June 2018 for continuation of defence. The matter came up on 4^th June 2018 as adjourned, and the objection to the admissibility of Exhibit DA was overruled, and the document admitted and marked accordingly. Thereafter, DW1 testimony came to an end and he was cross-examined. The cross-examination came to an end without re-examination. Thereafter, the defence closed their case and the matter was therefore adjourned to 25^th September 2018 for adoption of Final Written Addresses.

This could not be, as I was transferred out of the Owerri Division before this date and only secured fiat to come back for my part-heard matters on 12^th October 2018. Subsequently, the adoption was re-fixed for 19^th October 2018. The matter came up 19^th October 2018 as adjourned. The learned counsel to the defendants: TONY UROEGBULAM informed the Court that he had an application dated 3^rd August but filed 10^th August 2018. The application was moved unopposed and granted to regularize the Final Written Address of the defendants filed out of time. Thereafter, the learned TONY UROEGBULAM adopted the Final Written Address of the defendants dated 15^th June 2018 and filed 25^th June 2018. The learned counsel also adopted the Reply on Points of Law dated 17^th August 2018 and filed 20^th August 2018. In adumbration, the learned counsel submitted that, all the exhibits tendered by the claimants had nothing to do with the existence of a contract between the parties, and thereafter urged the Court to dismiss the case.

Thereafter, the learned counsel to the claimants: I.G. OFOEGBU[MRS.] applied to make some corrections on the Final Written Address of the claimant. This application was opposed by the learned counsel to the defendants on the ground that, it was substantial and ought to be brought by written application. In reply to the objection, the learned counsel to the claimant submitted that the Final Written Address had already covered the amendment sought and that; he just wanted to make further clarification. On this note, the Court held that the counsel to the claimant was blowing hot and cold on the application and therefore refused it. After this, the learned counsel for the claimants: I.G. OFOEGBU proceeded to adopt the Final Written Address of the claimants dated 30^th July 2018 and filed 2^nd August 2018. In adumbration, the learned counsel submitted that, there was implied contract between the parties, which was breached. The learned counsel finally urged the Court to grant the reliefs sought. Thereafter, the case was adjourned to 8^th November 2018 for judgment.

As could be seen, I have carefully narrated the progression of the case from inception to the adoption of the final written addresses of the parties.It is opposite now,to proceed to the next job, which is to summarize the final written addresses of counsel to the parties.

FINAL WRITTEN ADDRESSES OF THE PARTIES

A: Final Address of the Defendants

TONY UROEGBULAM franked the Final Written Address for the defendants. The learned counsel formulated two issues:

Whether the Claimants have proved their case on the preponderance of evidence that the Defendants actually employed them as permanent staff.
Whether the Defendant [sic] successfully provides that there is no binding contract to absolve [sic] the claimants as permanent staff of the defendant institution.

Arguing issue 1, the learned counsel submitted that, the answer to the poser was in the negative, because the claimants failed to discharge the burden of proof placed on them by sections 133 and 134 of the Evidence Act.Learned counsel cited Oyinlola v. Eswicin (1990) 10 NWLR (Pt. 624) 540 at 549. The learned counsel argued that, there was no iota of evidence supporting the existence of employment relationship between the claimants and the defendants as the claimants’ case was simply that,the defendants made firm promise to employ them, which alleged promise, the defendants denied. The learned counsel went further to argue that, under cross-examination on 7^th March 2018, CW1 admitted that he did not make any formal application for employment and that, no formal employment letter was issued him. Counsel also argued that CWI admitted that, their appeal for conversion was not granted and that, this proved that they were not employed. Counsel submitted that these admitted facts need no further proof, and cited Osunbor v. Oshiomole (2009) ALL FWLR (Pt. 463) 1363 at 1405, paras. E-G; Eigba v. NUT (2009) 5 NWLR (Pt. 108) 604; and Onisaodu v. Elewuju (2006) ALL FWLR (Pt. 328) 676.

Counsel submitted that, consequent upon the foregoing, the claimants are not entitled to relief d and that, additionally, relief d must be proved specifically and distinctly, as to how it was arrived at. On this, the learned counsel cited Bodi v. Agyo (2003) 4 FR 49 at 66.The learned counsel thereafter argued that,prayer c is vague because the claimants failed to state the position they occupied and into which they are to be reinstated. The learned counsel submitted further that, prayer a is bound to fail, in view of the fact that, there is no iota of evidence led in its support as earlier argued in paragraph 5.07 and 5.08 of the address.

Thereafter, the learned counsel moved to the issue of Exhibits H1-H18, which the Court admitted conditionally, subject to the right of parties to canvass arguments on the objection in the final written addresses. The learned counsel submitted that, since these documents are public documents, they could only be tendered through certified secondary copies by virtue of section 104(2) of the Evidence Act, which is not the case here. The learned counsel went further to urge the Court to expunge Exhibits H1-H18.The learned counsel arguedfurther that DW1 also testified that they [Exhibit H1-H18] did not emanate from the defendants. The learned counsel argued that the reasons given by DW1 for saying these documents did not emanate from them were never challenged.

The learned counsel thereafter moved to issue 2. The learned counsel submitted that, the answer to the poser raised in issue 2 was in the affirmative.The learned counsel submitted that, apart from the fact that the claimants did not adduce any evidence to prove that the defendants employed them, DW1, by virtue of Exhibit DA, successfully proved that the defendants never employed the claimants. The learned counsel argued further that, Exhibit DWA showed clearly the procedures and conditions precedent to employment in the defendants’ institution and that, the claimants did not dispute these or establish any alternative procedures. The learned counsel submitted that, the evidence of DW1 therefore remained unchallenged under cross-examination. The learned counsel therefore urged the Court to accept it and cited Nriri v. Erhuhobara (1991) 2 NWLR (Pt. 173) 252 at 262; and Leadway Assurance Co. Ltd v. ZECO Nig. Ltd (2004) 6 MJSC 179 at 188-189, paras. G-A.

The learned counsel finally submitted that, even if the defendants gave firm promise to recruit the claimants, this would not create a binding contract. The learned counsel consequently urged the Court to dismiss the case. I shall now move to the final written address of the claimant.

B: Address of the Claimants

HIGH CHIEF JOHN O. NSO franked the final written address of the claimants. The learned counsel formulated two issues. They are:

Whether there was no completed and binding contract between the parties to convert the claimants to permanent staff of the defendants at the end of the Mandatory Attachment Programme (MAP). [sic]
Whether there was no contract of employment between the parties. [sic]

The learned counsel argued the two issues together. The learned counsel argued that, contract of employment is governed by the general law of contract, and that, contract of employment means any agreement whether written, express or implied whereby one person agrees to employ another as worker and where that other person, agrees to serve the employer. The learned counsel cited P.C. Mike Eze v. Spring Bank Plc (2011) 12 SC (Pt. 1) 173; Shena Security Co. Ltd v. Afropac Nig. Ltd (2008) 34 NSCQR 1287, and the Labour Act Cap. 198, Laws of the Federation 1990 [without referring to any section]. The learned counsel further argued that, since the defendants failed to relieve the claimants of their appointments immediately after the end of the MAP in 2003, they are deemed to have impliedly employed the claimants from 2003 to 2007 by virtue of section 91 of the Labour Act.

The learned counsel argued further that, the claim of the defendants that the claimants stayed back after the cessation of MAP without their knowledge is false, as revealed by paragraphs 5(c) iii-vii of the Statement of Defence and 7(c) (iii)-(vii) of the DW1’s Statement on Oath. Counsel argued that a perusal showed that the defendants still continued to put the claimants in their pay rolls, still paid them salaries and only disengaged them in 2007. The learned counsel submitted that, an agreement is complete the moment there is offer, acceptance, consideration, capacity and intention to create legal relationship. On this, the learned counsel cited Yaro v. Arewa Construction Ltd (2007) 30 NSCQR 1193(a) 1239, and submitted that these ingredients were established in the instant case. The learned counsel argued that, the contract became established immediately the defendants proposed to the claimants to stay back after the cessation of MAP, and the claimants, who had the capacity to perform accepted the offer by continuing to render their services, which constituted the consideration. The learned counsel argued further that, by this, intention to create legal relationship was established.

The learned counsel argued further that, the defendants ought to know, as reasonable men, what loss the claimants who were graduates and competent, according to DWI under cross-examination, would suffer from a breach of the promise to employ the claimants, which made them to stay back after the cessation of the two-year MAP. The learned counsel cited Cap Plc v. Vitae Inv. Ltd (2006) 46 WRN 74 and Victoria Laundary (Windsor) Ltd v. Newman Industries Ltd (1949) 2 K.B. 528 to buttress the fact that, a reasonable man is taken to know the ordinary course of things and the consequential loss arising from breach. The learned counsel argued that, the labour law makes it abundantly clear that, a contract of employment would be valid irrespective of formalities and that, this is so, becauseno law stipulated that all appointments must be in accordance with the formalities enumerated by the defendants. The learned counsel argued further that, because the claimants were shortlisted, interviewed, and employed by the Federal Government under MAP and under the auspices of the National Poverty Eradication Programme [NAPEP], and posted accordingly, it is apt to infer that their appointment was tainted with statutory flavour.

The learned counsel argued further that,by virtue of the foregoing, the claimants are entitled to be reinstated with arrears of salaries paid as damages. The learned counsel cited CBN v. Igwillo (2007) 5 SCNJ 52 to buttress his point. The learned counsel submitted that, the defendants, after restoring the claimants to their original posts, are liable to specific performance of the agreement to convert the claimants to permanent staff, in accordance with the agreement between them.The learned counsel argued further that, a defendant could not rely on his wrong doing to limit his liability in contract matters and cited M.V. Gongola Hope v. Smurfit Ltd (2007) 30 NSCQR 534 to buttress his argument.

The learned counsel argued further that,CW3 was not cross-examined on Exhibit CW3B (1-2) [the Performance Evaluation Form] and that DW1 even confirmed under cross-examination that report of satisfactory performance would be given at the end of three years. The learned counsel argued that, the salary slips are primary documentary evidence and as such, need no certification. Counsel argued that these salary slips, which were in the names of the claimants, and had their file numbers and departments, were printed and released on monthly basis, and that, when the claimant stumbled on them and reported this to the defendants, a kangaroo panel was set up, which did not release its report till date. The learned counsel also submitted that,the defendants did not challenge paragraphs 4(e)-(h) of the Reply to the Counter-Claimand that, neither was any evidence led in rebuttal. The learned counsel submitted further that, by virtue of section 86(4) of the Evidence Act, the pay slips, being primary evidence, as opposed to secondary evidence, which certified true copies of documents are, would not require certification to be tendered.The learned counsel tied up this submission by saying the pay slips are not copies of common original but copies of documents made by uniform process, as envisaged under section 86(4) of the Evidence Act and that, as such, Exhibits H1-H18 are original copies and that no law precludes original copy of any document being tendered. On this, the learned counsel referred to Dana Impex Ltd v. Awukam (2006) ALL FWLR (Pt. 311) 1928-29; and Anyakora v. Obiakor (1990) 2 NWLR (Pt. 130) 52.

The learned counsel argued further that, since the said pay slips were pleaded, relevant and admissible, by the authority of Okonkwo v. Njokanna (1999) 11812 SCNJ 273, they remained admissible. The learned counsel argued further that, the defendants did not reply in their pleadings to allegations relating to the pay slips and that, the defendants did not also deny the facts that they set up kangaroo panel to investigate the issue.Learned counsel submitted that, failure to file a reply in this instance, as enjoined by Order 32, Rule 10 of the NICN Rules, amounts to admission, and cited Makanjuola v. Ajilore (2001) 12 NWLR (Pt. 727) 416 at 436; and Egesimba v. Onuzurike (2001) 15 NWLR (Pt. 791) 466. The learned counsel argued further that, the pay slips showed that, the claimants were taken as service staff entitled to payment of salaries.The learned counsel submitted that, the denial of the existence of the pay slips by the DW1 and the tendering of Exhibit DA, which contradicted the pay slips would not avail the defendants, in that, Exhibit DA was neither specifically pleaded nor anything said about it in the Statement of Defence. The learned counsel argued further that, Exhibit DA was mentioned for the first time in the witness statement on oath of DW1 at paragraph 7(g) thereof.Learned counsel submitted that, parties are bound by their pleadings, and evidence adduced in variance to pleadings, goes to no issue; and must be disregarded. The learned counsel cited Buraimoh v. Esa & Ors. (1990) 4 SC1, and two other authorities.

The learned counsel argued in the alternative that, assuming paragraph 7(g) of the Statement on Oath of DWI could be considered, the fact remained that, it did not traverse paragraph 4(e)-(h) of the Reply to the Statement of Defence, which alleges the existence of the salary slips. The learned counsel submitted further that, since the defendant did not join issue on the pay slips, the evidence, though admitted, must be discountenanced. On this, the learned counsel cited Onamade v. A.C.B. (1997) ISCNJ 65.

The learned counsel finally urged the Court to grant all the reliefs claimed. Thus, the learned counsel to the claimant brought his written address on behalf of the claimants to an end. I shall now move to the Reply on Points of Law.

C. Reply on Points of Law

TONY UROEGBULAM franked the Reply on Points of Law. The learned counsel argued that the mere fact that the claimants stayed till 2007 would not signify that they have a binding contract with the defendants, because some of the claimants started the programme late and could therefore not end in 2003 while some continued to hang around the defendants premises without the defendants knowledge; and that, the fact that the defendants magnanimously paid them stipends up to 2007 was not a signification of any contract between them. The learned counsel submitted that, section 91 of the Labour Act cited was irrelevant, as it referred to an already existing contract with an employer and that, the claimants did not also satisfy the requirements for employment under Exhibit DA.

The learned counsel argued further that, the Court could not construe implied contract simply because the claimants stayed up to 2007 and were paid their stipends, because this would negate Exhibit DA,which is the expressed provisions as to the modalities of employment into the defendants’ institution. The learned counsel also said the Performance Evaluation Report tendered is of no avail because they related to assessment for the programme and not assessment as employees of the defendants. The learned counsel submitted with regard to the issue of not traversing the pay slips that, since the issue was pleaded in the Reply to the Statement of Defence, which was the last in the series of pleadings, they could not file any other pleading to counter it, but rightly objected to the admissibility during trial, which was the only opportunity they had. The learned counsel also argued that Oder 32, Rule 10 of the NICN Rules cited is inapplicable to the circumstances in issue, as it only deals with issue of counter-claim or set-off. The learned counsel submitted that, it was not mandatory, under this rule, that the defendant must file a reply to Reply to Statement of Defence, especially when the issue involved had been taken care in the Statement of Defence.

The learned counsel argued further that, section 86(4) of the Evidence Act would not be applicable in the situation at hand, as the conditions necessary for the admissibility of Exhibit H1-H18 were not met. The learned counsel argued further that, to stumble on the pay slips, as alleged, would not clothe them with the toga of public document, when the exact source was not revealed and more so, in the absence of signature, stamp and date of issue.On this note, the Reply on Points of Law was brought to a stop.

Having carefully summarized the addresses of counsel to the parties, the next thing to do is to give my judgment. In doing this, I have carefully read and digested all the processes connected with this case and carefully consulted the pertinent authorities cited. I have also carefully digested the evidence-in-chief of the parties’ witnesses, as contained in their written depositions on oath and their oral testimonies under cross-examination and re-examination.

JUDGMENT OF THE COURT

I have looked at the issues formulated by the parties. I am inclined to the issues formulated by the counsel to the claimants. The two issues seemed, to me,clear and,captured the essence of the controversies in this case, while those of the counsel to the defendants looked vague. I therefore adopt the two issues formulated by the counsel to the claimants, albeit a slight modification, in deciding this case. They are:

Whether there was no binding contract between the parties to convert the claimants to permanent staff of the defendants at the end of the Mandatory Attachment Programme (MAP)?
Whether there was no contract of employment between the parties?

However, before I go on to treat the issues, I will like to treat the issue of objection to the admissibility of Exhibit H1-H18 [Pay Slips] and Exhibit DA. While the exhibit H1-H18 was to be tendered at trial, objection was raised to its admissibility and the Court ruled that arguments on the objection be deferred till the final address stage, and admitted the exhibit on the condition that it would be expunged if objection to it were sustained at the final address stage. The objections were that the documents making up the exhibit did not emanate from the defendants, and that, they are public documents, which could only be tendered in certified true copies. The answer to the objections were that, the documents were primary evidence, relevant, pleaded and admissible by virtue of section 86(4) of the Evidence Act, and that, the defendants did not controvert these documents by filing a reply to their Reply to the Statement of Defence and therefore, they must be deemed to have admitted these documents and thus, precluded from disputing them.

It is pedestal that relevancy is the first rule of admissibility. Is Exhibit H1-H18 relevant? The issues that arose in a case and the nature of evidence [facts] that would prove these issues determine relevancy. The issues that need clarification in this case, are as stated above. The Statement of Facts, Evidence and arguments of counsel to the claimants showed that the defendants were never paid the sums contained in Exhibit H1-H18. The claimant never made a case that the sums reflected in Exhibit H1-H18 were their salaries. The case is based on breach of implied contract.There was never a time the claimants claimed that they were paid the various sums reflected in Exhibit H1-H18. So, what is the essence of Exhibit H1-H18 in the case? The only usefulness is to raise suspicion of a crime against staff of the defendants’ institution and not to proof the fact of employment, as the claimants averred clearly that, the pay slips were prepared on monthly basis, thus suggesting that, some people in the defendants’ organisation were probably using them to swindle the defendants’ institution – see paragraphs 4(e) & (f) of the Reply to the Statement of Defence, wherein the claimants stated that:

“(e) The claimants will prove at trial that, the defendants were infact [sic] printing monthly salary slips in the names of the Claimants with their files names, positions and departments, and with the salary slips, official salaries were released by the Federal Government to the defendants in the names of the claimants. But the claimants were denied the salaries by the defendants.

‘(f) The claimants stumbled on the said salary slips in 2006 and took the matter up with the defendants through the office of the 2^nd defendant. The 2^nd defendant set up a kangaroo panel to investigate the source of the salary slips and unmask the culprit from the bursary department.”

This shows clearly that the documents that made up Exhibit H1-H18 are totally irrelevant to the case of the claimants. The fact of irrelevancy of Exhibit H1-H18 was further proved when in paragraph14 of the Statement of Facts the claimants averred that:

“For the more than four years we served the defendants institution after NAPEP MAP Programme, the defendants only paid each of us N2,500.00 transport allowance per month. It is the belief and hope of being converted officially that kept us working until 2007 when we were most brutally and unlawfully disengaged”

This becomes very clear beyond reasonable doubt when the counsel to the claimantsargued at the last paragraph of page 7 of the Final Written Address that, “…the defendants will be liable to specific performance of the agreement to convert them to permanent staff. This is the crux of the matter.”It therefore follows that Exhibit H1-H18 is totally irrelevant to the civil case of the claimant. It therefore fails thetest of relevancy, the very first basic condition precedent to admissibility.

Secondly, the learned counsel to the claimants raised the issue that since the defendants failed to take advantage of Order 32, Rule 10 of the NICN Rules to file a reply to the issue of Exhibit H1-H18 raised in the claimants’ reply, the defendants are deemed to have admitted the facts raised in Exhibit H1-H18 and could not counter Exhibit H1-H18 via the witness deposition of DW1 as this would amount to evidence at variance with pleadings, hence, Exhibit DA tendered to counter Exhibit H1-H18, should be expunged. The learned counsel to the defendants argued instead that, Order 32, Rule 10 of the NICN Rules was cited out of context.I waste no time in agreeing with the learned counsel to the defendants that Order 32, Rule 10 is not applicable to the situation at hand, but to issues connected with setoffs and counterclaims. Construing the provisions of Order 32, Rules 4-10 confirms the authenticity of my view. Besides, it would appear that, even the claimants had no vires to even frontload Exhibit H1-H18, and if the claimants did not have the right to frontload Exhibit H1-H18, then, they would lack the right to tender it, and it would logically not have been necessary for the defendants to counter it by tendering Exhibit DWA. Why do I say this? This is clear from a construction of Order 33, Rules 1 & 2 of the NICN Rules, whichbears the fact that Reply is the last in the series of pleadings.And it is the claimant that files Reply against the Statement of Defence.

After the Reply, issues are joined and pleadings closed. The defendants would not have a right to file any further pleadings, because by then, issues are joined in the pleadings and the stage set for trial. A construction of Order 32, Rule 9 together with Order 31, Rules 1 & 2 and Order 32, Rule 1 of the NICN Rules would show that Statement of Facts and Statement of Defence are the only pleadings in which documents to be tendered are to be frontloaded. It is not permissible in Reply, which is why the requirement that documents be frontloaded was conspicuously omitted under Order 33, Rule 1, which permitted the filing of Reply. To show that this is the true intent of Order 33, Rule 1, the very next rule, that is: Rule 2 of Order 33, which deals with Reply to Counterclaim, specifically provided again that, the rules applicable to Statement of Defence would apply to Reply to Counterclaim. This is because, Reply to counter-claim, is in essence, a Statement of Defence, as rightly defined therein. The rationale for this is that, a reply to Statement of Defence is not expected to raise new issue but to react to new issues raised in the Statement of Defence. Appositely, the Court of Appeal held in Adepoju v. Chief Awoduyilemi (1999) LPELR-6703 (CA) 24, Paras. C-E that:

“It is settled law that a plaintiff/petitioner cannot raise in his reply to a statement of defence or reply to respondent’s reply a new issue which was not raised in his statement of claim/petition as by so doing it will amount to a departure and such averment will take the defendant by surprise as he will no longer be in a position to react to the new issue.”

Thus, where new issues are to be raised by a claimant, that would properly belong to the domain of amendment of the Statement of Facts or where a claimant forgot to frontload a document in relation to issues already raised in its Statement of Facts, such also belong to the corridor of application for leave to file additional Statement on Oath and definitely, not to be done under Reply.Otherwise, there would be no end to pleadings: if the views of the learned counsel to the claimants were to be bought!My views herein have received judicial imprimatur in Nkpa v. Champion Newspapers Limited & Anor (2016) LPELR-40063 (CA) 10-17, Paras. C-A, where similar provisions of the Rules of the High Court of Lagos were construed with the verdict that, filing of new witness statement on oath and frontloading of documents are not permissible in Reply to Statement of Defence.

The implication is that,the arguments of the learned counsel to the claimants in this regard have boomeranged against his clients: the claimants. The issue of section 86(4) of the Evidence Act would therefore not arise in the instant case.In any case, section 86(4) will not in any event assist the claimants here. The document in issue, being public documents, if original [primary copy] must be tendered;they must be through one of the makers- see Uduma v. Arunsi & 14 Ors. (2010) LPELR-9133 (CA) 106, Para. D. The claimants, not being the makers of Exhibit H1-H18, cannot therefore tender it. What the claimants herein did, amounts to amendment by subterfuge. It cannot stand. Therefore, paragraph 3(e)-(h) of the Reply, the Further Statement on Oath of Claimant’s Witness (1) made 8^th May 2017 and Exhibit H1-H18 frontloaded thereof, are therefore, improperly before this Court and, are consequently discountenanced and accordingly expunged from the record of the Court. Likewise, the further depositions of CW2 and CW3 deposed to the same 8^th May 2017 and Exhibits CW3B1-2 tendered thereto together with the accompanying Claimants’ Additional List of Exhibits dated 5^th May 2017 and filed along with the Further Statement on Oath of Claimant’s witness (3) – see Adepoju v. Chief Awoduyilemi [supra] Pp. 23-24, paras. G-C.In the same manner, section 91(1) of the Labour Act [the definition section] does not assist the claimants. The proviso (b),in the definition of ‘worker’, excludes persons exercising executive, technical or professional functions as public officers or otherwise. This proviso definitely excludes the claimants from the ambit of section 91 of the Labour Act.

On Exhibit DA tendered by the defendants, I have found that the arguments that it was not pleaded and that, it was tendered in reaction to Exhibit H1-H18 are totally misleading. First, in the objection to admissibility of Exhibit DA at trial on 14^th May 2018, the learned counsel to the claimants admitted that Exhibit DA was pleaded. The only ground of the objection then, was that, it was not frontloaded. To now turn round, at this stage, to say Exhibit DA was not pleaded amounts to blowing hot and cold on the same issue. Besides, I found that, Exhibit DA was actually pleaded in paragraph 5(b) of the Statement of Defence, when it was stated that, “…there couldn’t have been any “conversion” under Relevant Staff Rules of the Polytechnic”. Exhibit DA’s full title is “The Federal Polytechnic Nekede, Owerri: Polytechnic Staff Manual 1986” [underline supplied for emphasis]. It is very clear that, Exhibit DA was the one referred to as “Relevant Staff Rules of the Polytechnic” in paragraph 5(b) of the Statement of Defence, as quoted above. Besides, it is not the extant law that a document must be specifically pleaded before it could be tendered and admitted. Once facts relating to such document are pleaded, such documents are admissible – see Oghoyone v. Oghoyone (2010) LPELR-4689 (CA) 26, Paras. A-B.In a nutshell, Exhibit DA was not in reaction to Exhibit H1-H18 and was not mentioned for the first time in the Witness Statement on Oath of DW1. It was in reaction to paragraphs 2, 6, and 7 of the Statement of Facts; and as such, validly admitted.Be that as it may, let me now go to the issues adopted for the determination of this case.

ISSUE 1:

Whether there was no binding contract between the parties to convert the claimants to permanent staff of the defendants at the end of the Mandatory Attachment Programme (MAP)?

The arguments of the counsel to the claimants herein, centred essentially on implied contract by conduct. The focal point of the arguments is that the claimants were asked to stay back after the expiration of their mandatory attachment programme with the promise that they would be employed. The contention is that, this promise, was accepted and the staying-back constituted the consideration for the contract. The counteraction is contained in the arguments that, the claimants stayed back without the knowledge of the defendants and that, the defendants were only magnanimous in paying the claimants off in 2007 when it was discovered that they stayed back, and were formally laid off.

Common grounds are that the claimants stayed back after the expiration of their mandatory attachment programme in 2003, till 2007 and that, they were formally disengaged and paid off in 2007. The dispute centred on whether or not it was to the knowledge of the defendants that the claimants stayed back. The defendants’ arguments that there is no such contract between them are anchored on ignorance of the claimants stay-back, and that even at that, the claimant having not complied with the relevant conditions precedent have not been employed. That is what is to be resolved herein before prying into the law on whether there was a subsisting contract to employ the claimants. Let me now examine the pleadings and evidence. It was pleaded in paragraphs 6 and 12 of the Statement of Facts respectively:

“(6) In 2003 when the NAPEP MAP Programme came to an end, the defendants [sic] institution did not allow the claimants to go but retained them with the firm promise to in the nearest future formalize their conversion to permanent staff.

‘(12)For more than four years the claimants served the defendants institution after NAPEP MAP Programme, the defendants only paid each of them N2,500.00 transport allowance per month. It was the belief and hope of being converted that kept the claimants working until 2007 when they were most brutally and unlawfully disengaged.”

In reaction, the defendants pleaded in paragraphs 5(iii) and 7(b) of the Statement of Defence respectively:

“5(iii) likewise, even when the two year period of attachment officially ended in 2004 for these late attachees, the Polytechnic subsequently discovered that certain of them, which included the Claimants, still hung around the premises, without the consent and authority of the Polytechnic.

‘7(b) That the Claimants were hanging around doing casual work during the period for which they were paid N2,500 transport allowance. That the Defendants have no obligations whatsoever to offer any employment or reserve any employment slot for the Claimants. They can only be employed if vacancy exists and they are found to be qualified for the vacant position. This is not the case here.”

The claimants reiterated the averments in paragraphs 6 and 12 of their pleadings, in paragraphs 8 and 14 of the Statement on Oath of Claimants’ Witness (1) of 28^th October 2016 adopted in this Court by CW1 on the 6^th February 2018 and likewise,in CW2’s evidence-in-chief at paragraph 14 of his Statement on Oath adopted in this Court on 7^th March 2018. Under cross-examination, these averments were re-affirmed with CW2 clarification that, he was being paid the same amount as he was paid when he was an attaché. In the evidence-in-chief of DW1,as contained in the witness deposition on oath adopted by DW1 in this Court on 14^th May 2018, at paragraph 7(c)(iii) & (iv) and 8(b), (i), & (j)thereof, it was stated:

“7(c)(iii) likewise, even when the two year period of attachment officially ended in 2004 for these set of late attachees, the Polytechnic discovered that certain of them, which included the Claimants, still hung around the premises, without the consent and authority of the Polytechnic. [sic]

‘7(c)(iv) By March 2007, Management of the Polytechnic were receiving reports that some successive sets of Attachees whose two year period of Attachments had expired still hung on at the periphery of the Institution impersonating and still holding themselves out as staff, and were extorting money in various guises from unsuspecting members of the public while passing off themselves as “staff” of the Polytechnic. This is despite the fact that the Polytechnic has no permanent place for them, and have not and do not intend to employ them as “Staff”. [sic]

‘8(b) that the Claimants were hanging around doing casual work during the period for which they were paid N2,500 transport allowance. [sic]

‘8(b)(i) That the transport allowance of N2,500.00 was the amount of stipend which the Polytechnic pays its “Attachees” which included those on N.Y.S.C. ND, four months and one year Industrial Training (I.T.) Attachees respectively, and MAP, N.D.E. attachees e.t.c. That nobody compelled the Claimants or any other prospective attachees to accept such offer. They had the free will to turn same down and look elsewhere. In this case the Claimants freely accepted the offer. [sic]

‘8(b)(j) that there was no other agreement between the Claimants and the Polytechnic on the payment of salary or allowance apart from the N2,500.00 transport allowance of 2002. The Polytechnic fulfilled their own side of the bargain by paying same to the Claimant upto 2007 [sic].”

Under cross-examination of DW1 on 4^th June 2018, DW1 stated that, it only discovered in 2007 that the claimants stayed after the end of their programme in 2003, and that it was then, the Poly wrote them to disengage them. DW1 also insisted that the claimants were hanging around after 2003 without the Polytechnic’s authority. From the scenario painted with regard to the pleadings and testimonies in this case, it becomes abundantly clear that, while the story of the claimants are very consistent throughout; the stories of the defendants were self-contradictory at every stage,starting from the Statement of Defence to the cross-examination of DW1,in material respects on the vexed issue of contract between the parties. Now, what is the effect of the contradictions identified above, in the evidence of the defendants herein? I rely on the Court of Appeal in Molegbemi & Ors. v. Ajayi & Ors. (2011) LPELR-4501 (CA), where it was opined:

“The law is that, where there are material or grave contradictions in the evidence of a party and which contradictions touch on the vital or material point in issue, such party’s case becomes weakened. The result is that such party’s case is taken with pinch of salt and therefore regarded as unreliable and therefore of no probative value.”

In essence, the defendants at one breath, said the claimants were hanging around without the defendants’ knowledge and authority of the Polytechnic, and at another breath, said the defendants negotiated with them to stay back on the payment of N2,500 monthly. At yet another breath, the story was that, they were magnanimously paid off in 2007 when the Polytechnic discovered that they were still hanging around.Yet, still under cross-examination, DW1 admitted that the claimants’ names were on the Pay List of the Polytechnic till 2007 from which they were monthly paid their stipends of N2,500. If I may ask: on what basis did the claimants remain on the monthly Pay List of the Polytechnic, and on what basis did the claimants also agree to be retained on a mere transport allowance or stipend? The defendant said this amount was what they used to pay students on industrial attachment and Youth Corps. The fact that the claimants remained on the Pay List of the Polytechnic till 2007, almost four years after the MAP Programme ended in 2003; is signification that, there was an agreement between the parties and exposed the falsehood of the feigned ignoranceand lack of authority for the claimants to stay back. Besides, everybody knows that, the stipend N2,500is far below salaries of graduates.This is even evident from the DW1 who testified that their staff earned salaries and not stipends. The defendants never explained the reason why the claimants agreed to endure such ridiculous stipends for 3 years plusafter the end of the attachment without protest, even when NAPEP had stopped paying the claimants the N10,000 monthly at the end of the MAP Programme [see Exhibits A, CW2A and CW3A respectively] leaving them with only N2,500 instead of the cumulative original N12,500 monthly.The claimants on the other hand did by saying the promise of conversion was the reason for their endurance.

When this omission on the part of the defendants is taken alongside the explanation of the claimants that they endured these deprivations because they were promised employment then,one would see the logic in the case of the claimants. In the absence of any explanation from the defendants, on an issue begging for explanation from them, one has no discretion not to accept the very cogent and reasonable explanation of the claimants as veracious. Evidence is on record that the defendants were all graduates [see Exhibit B] and were posted to different departments [see Exhibit C] of the defendants. This is why the defendants directed on 7^th March 2007 that the claimants should hand over all properties of the Polytechnic in their possession to their Heads of Departments – see paragraph 7(v) of the deposition of DW1. It is equally surprising that, the defendants, who claimed that 508^th Management Committee of the Polytechnic met on the issue of the claimants on 7^th March 2007, failed to tender the report of that meeting for the Court to see what was discussed and how the defendants arrived at their decision that the claimants be written and informed that they should cease to come to the institution from 1^st April 2007 – see paragraph 7(v) of the deposition of DW1 [supra].

I therefore entertain no hesitation in accepting the evidence of the claimants as true, with the implication that the burden now shifts to the defendants to disprove this by more cogent evidence, which, as shown above, they have woefully failed to do.To put a clinch to the serious contradictions inherent in the defendants’ stories, Exhibit D-D1 [the letter of disengagement issued the claimants] stated in its 3^rdparagraph, “Management Committee therefore directed that since you have completed your assignment, you should be disengaged from the services of the Federal Polytechnic Nekede, Owerri with effect from 1^st April, 2007.”Exhibit E [Reply to the Demand of the claimants for conversion] dated 11^th February 2016 stated in its paragraph 2 that, “I have been directed to inform you that it is not obligatory for the institution to employ you after the expiration of the MAP programme which ended in 2007.”

These two letters from the defendants put a lie to the defendants’ defence that they had no further contract with the claimants after disengaging them in 2003 or thereabout. The letters, as they were, were evasive on the issue of how the claimants came to stay put,after completing their programme and why they ought to be paid for the overstayed period.But the 2^nd letter [Exhibit E] contradicted Exhibit D-D1 in a material part, by now stating that the MAP Programme ended in 2007. This is a clear pointer to the fact of a contract between the parties, which the defendants are convolutedly summersaulting simultaneously to deny. Unfortunately, the more they tried to craft, the more they kept exposing their flanks.

The forbearance of the claimants to endure the stipends plus the continued performance of their duties constitute the consideration furnished by the claimants for the contract, while the promise of the defendants, which is clearly inferable from the scenario painted above, constitutes their own reciprocal consideration to the claimants – see Oyewale v. Lawal (2008) LPELR-4118 (CA) 12, Paras. A-F. There was definitely intention to enter into legal relationship inferred from the scenario painted above and the conducts of the parties, especially the defendants. When then, this promise was not fulfilled; there was a breach of contract.

The argument that by virtue of Exhibit DA, the claimants did not satisfy the procedure for employment in the Polytechnic appeared to be grossly misconceived. Firstly, the defendants did not quite appreciate the fact that the claimants were not saying they were employed as staff but that, they were promised employment. In essence, two separate contracts are involved in this case: the contract of promise to employ/convert, and the contract of employment [conversion] itself. The claimants are only inviting the Court to imply that they were so employed once the Court comes to the conclusion that there was indeed a promise to employ them based on the fact that they had served the defendants for four years as a result of this promise. That is, they fulfilled their part of the contract; the Court, should, by way of specific performance, compel the defendants to honour their own obligation too.It is in fulfillment of the first contract, that is, the promise to employ/convert that, the requirements needed for the second contract would be complied with. The claimants did not say they have complied with these conditions precedent but that, by virtue of the breach of the contract to employ, the Court should hold the defendants fast to their promise and deem them as employed by way of ordering specific performance of the contract to employ. The earlier the defendants get this right, the better. After all, contracts could be validly implied through conduct or oral agreement. This,precisely, is the case here. The cogency of this view is accentuated inCompagnie Generale De Geophysique Nigeria Ltd v. Okparavero Memorial Hospital Ltd (2011) LPELR-3995 (CA) 20-21, Paras. E-C, wherein, in treating similar situation, the Court of Appeal held:

“I think it is so, after all, it is an established rule of law that contracts may be in writing, oral or even implied. Consequently, a contract between parties may be expressed by words or by an agreement in writing. Similarly, contract could be implied by conduct of the parties themselves as in the instant case…Similarly, a contract may subject to terms that are implied by question [sic] or trade usage…From the surrounding circumstances of this case, I am of the firm view, that there existed an oral agreement of retainership between the appellant and the respondent. It is also based on that oral retainership that the appellant caused its two patients to be rushed to the respondent hospital for treatment without any formal retainership agreement or referral letter and they were duly treated for the injuries sustained…The terms of the oral retainership could be implied that after the treatment bills could be sent to the appellant for settlement of same. It is my considered view therefore, that the defence posed by the appellant that bills should have been passed by the respondent to Dumex Nigeria Ltd is of no moment and porous…” [Underlining supplied for emphasis]

The situation here is more of implied contract by the conducts of the parties – see also Multichoice Nigeria Limited v. Azeez (2010) LPELR-4558 (CA) 11, Paras. F-G, where the Court of Appeal held equally that, “BLACKS LAW DICTIONARY 8^TH EDITION page 345 refers to a contract implied in fact as ‘a contract that the parties presumably intended as their tacit understanding as inferred from their conduct and other circumstances”. Me think, the whole scenario painted above raises the issue of section 169 of the Evidence Act: implied estoppel by word or conduct, as enunciated very recently in Suit No. CA/A/795/2015 – Tukur v. the Kaduna Polytechnic & 2 ors. [delivered 30^th July 2018], p. 39, wherein the Court of Appeal, Abuja Division, adopted the ratio of the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112:

“The effect of exhibit CA2, in my view, is that it operates as estoppels by conduct, the type of estoppels contemplated by section 163, Evidence Act 2011. That is: a party who has, either by his declaration or act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of the thing, he must accept the new legal relationship as modified by his own words or action, whether or not it is supported by any point of law, or by any consideration but only by his word or conduct…These applicants herein, represented by the 2^nd set of respondents, in view of exhibit CA2, cannot be allowed to approbate and reprobate at the same time. They are stopped by operation of exhibit CA2”.

Arising from the foregoing, I therefore hold that, there was a valid and subsisting implied contract to employ the claimants by the defendants. Therefore, issue No. 1 is resolved in favour of the claimants and against the defendants. Flowing from the foregoing ratio, what then, is the consequential order to make? That takes me to issue 2.

ISSUE 2:

Whether there was no contract of employment between the parties?

The argument here is that, flowing from issue one being answered in favour of the claimants, the Court should order specific performance of the contract of employment and order the claimants to be reinstated into the defendants’ institution and placed on HATISS 7. The defendants have argued in the contrary that, no document is placed before the Court to ascertain the basis of the post required and that of the salaries and allowances being claimed. The defendants went further to argue that, the posts and salaries and allowances requested are mere figments of the imaginations of the claimants.

Now, the nature of claim determines the nature of evidence to be adduced in proof. Issue 2 above axiomatically implies order of specific performance by way of reinstatement of the claimants and the consequential arrears of allowances and salaries.Thus, all the reliefs claimed in this action, except reliefsb&e, which correspond to issue 1, correspond to issue 2. At paragraph 17-21 of the Statement of Facts, the claimants pleaded that they were by 2003 entitled to be on HATISS 7 with the consequential financial implications and by 2009, CONTISS 1, Step 2 with the consequential financial implications. And inferred from the foregoing, the claimants pleaded in paragraph 23(d) the relief of N14,880,401.5 as the total cumulative amount each of the claimants is entitled to. In Antoun & Anor v. Oghene (2012) LPELR-8502 (CA) 18-19, Paras. G-B, the Court of Appeal elucidates on the nature of evidence needed in a situation like this:

“The law is that in a claim for special damages, the specific claims must be specifically and specially pleaded and strictly proved…Furthermore as rightly submitted by Appellant’s counsel, in an action for termination of employment, a claim for salaries and other entitlements are in the nature of special damages which must be specifically pleaded and proved…”

From the paragraphs of the Statement of Facts quoted above, apart from the facts, that it is confirmed in the above authority that, salaries and allowances are special damages that need to be specially and specifically pleaded and proved, it is also clear that, the claims are in the nature of liquidated money demand/sum. On liquidated money demand/sum, in Akpan v. Akwa Ibom Property & Investment Company Ltd (2013) LPELR-20753 (SC) 18-19 [no paragraph supplied], the Supreme Court opined:

“However, the phrase “liquidated money demand” was interpreted by the Supreme Court in MAJA V. SAMOURIS (supra) as an ascertained claim or specific amount; which means “there is nothing more that needs to be further done to determine the quantum of extent of the defendant’s liability. In EFFIANG v. ROGERS (2003) FWLR (pt. 157) 1058 “liquidated money demand” was defined as an amount of money that could be ascertained by calculation or fixed by any scale or other positive data or mathematics…All said and done, the bottom line is that the amount claimed must be ascertainable, and if based on a contract, it must have been agreed upon by the parties thereto.” [Underliningsupplied emphasis]

In the evidence-in-chief of CW1, CW2 and CW3, as contained in their depositions of 28^th October 2016 adopted in this Court 6^th February 2018, 7^th March 2018 and 20^th March 2018 respectively, they repeated the averments contained in paragraphs 17-21 of the Statements of Facts verbatim in their paragraphs 18-22 respectively. In all these, I observed that no document is tendered to show the source of the data or arithmetic or mathematical table used to arrive at the various sums reflected. No document is also tendered to confirm the authenticity of HATISS 7 and CONTISS 1, Step 2 on which the calculations of the various sums, being claimed, were allegedly based. To make matters worse, I equally observed that, the Polytechnic’s Handbook/ Manual/Scheme of Service, which is supposed to be the bedrock or holy book [mantra] of the contract between the parties, was not tendered nor the Federal circulars granting the HATISS and CONTISS. Yet still, the claimants did not plead or lead evidence on the departments to which they were attached after the end of the attachment, to what post they were attached and the cadres and duties.

To make matters worse, the counsel to the claimants devoted much of his time to attacking Exhibit DA, [the Polytechnic’s Manual],which the defendants tendered. I wonder why it did not occur to the learned counsel that it would have assisted his case or why this did not alertthe learned counsel to the fact that his clients too, would need to tender the version they relied upon if they disagreed with Exhibit DA. Since the learned counsel strenuously strived to disallow the admittance of Exhibit DA, I think, it would be totally inequitable to make the same document part of the claimants’ case or to rely on it to strengthen the claimants’ case. In any case, even if this view is wrong, I have, for that purpose, examined Exhibit DA. I have not been able to find any portion of it that supports the case of the claimants. I could not find where HATISS or CONTISS was mentioned; neither did I find any allowance and salaries that corresponded with the allowances or salaries being claimed. As I observed earlier on, all the reliefs claimed [except reliefsb&e]are in the nature of prayer for a decree of specific performance. And like the Court of Appeal observed in Best (Nigeria) Limited v. Blackwood Hodge (Nigeria) Limited & Ors. (1998) LPELR-6383 (CA) 16, Paras. A-E:

“…In determining whether specific performance must be decreed or not, the court should examine very carefully the competing interests of the parties. These are the interest of the party who wants the relief to benefit from the raw terms of the contract and that of the opponent to pay damages in lieu. In the balancing exercise, the court is exercising its equitable jurisdiction and this it must invoke to the egalitarian advantage of the parties. Let the only discrimination in the matter be the factual position which the court cannot manufacture in favour of one of the parties to the disadvantage of the other party. In determining the competing interests, the court should also take into consideration the very nature of the contract in terms of its compelling character and whether from the entire transaction, the contract could be specifically performed.” [Underlining for emphasis]

Considering all the foregoing, it is manifestly clear that, reinstatement cannot be ordered in this situation where there is no satisfactory evidence to prove the posts desired [the posts are vague] and special damages [salaries and allowances] claimed, where there is no clarity on the positions to which the claimants are to be reinstated nor satisfactory evidence adduced to substantiate the liquidated sums claimed. I take judicial notice of the law that a court must not make an order that is vague or speculative. I also take notice of the fact that, an institution of higher learning haspeculiar requirements for employment into its various cadres, especially the lecturer cadre and the fact that, it is not clear the cadre into which, the claimants are to be reinstated. These gapping holes in the evidence of the claimants, I cannot manufacture sealants to fill in favour of the claimants and against the defendants. I therefore cannot order the specific performance of this contract nor award the reliefs related to issue 2 – that is: reliefs nos. a, c, and d. Issue 2 is therefore resolved against the claimants and in favour of the defendants.

I now come to reliefs b&e. I have earlier resolved issue 1 in favour of the claimants and against the defendants. It follows that relief b is granted. Let me now examine relief e, which is a claim for general damages. In Emirates Airline v. Ngonadi (2013) LPELR-22053 (CA) 77, Paras. C-F, the Court of Appeal opined, and I quote:

“The law is settled that once a breach of contract is established, damages flow. General damages are losses that flow naturally from the adversary; it is generally presumed by law “as it need not be pleaded or proved”…the Supreme Court per Adekeye, JSC, reiterated the position of the law – “In awarding damages in an action founded on breach of contract, the rules to be applied is restitution in integrum that is, in so far as the damages are not too remote, the plaintiff shall be restored as far as money can do it, to the position in which he would have been if the breach had not occurred.”

It is axiomatic that relief e is corollary to relief b. By virtue of the fact that I have resolved issue 1 in favour of the claimants and against the defendants and granted relief b, it follows, as day follows night, that relief e must be granted in favour of the claimants and against the defendants. As rightly held in Emirates Airline v. Ngonadi [supra], damages flow naturally from breach of contract, and the main consideration of the Court in awarding this type of damages is restitution in integrum. What is the position in which the claimants would have been, had this contract not been breached?They would have been public servants in the defendants’ Polytechnic with guaranteed tenures, with the possibilities of pensions and gratuities. I have also taken note of the fact that the attachment of the claimants ended in 2003, and they were retained till 2007, meaning that, they served as slaves more than extra three years. I also take note of the fact that, for this extra for three years-plus, they were paid the slave wages of N2,500 monthly and at that, they endured this in the hope of becoming permanent staff. I say, slave wages, because they were being paid N10,000 monthly by NAPEP on monthly basis for the period the attachment lasted [seeExhibits A, CW2A and CW3A respectively] in addition to the N2,500 stipend paid by the defendants. It should be noted that, the N10,000 paid by NAPEP was itself not salary, but another stipend, meaning that it was far below the salaries of graduates; now to imagine the level of suffering when they endured N2,500 stipends for three years plus.

If they, claimants relinquished the N12,000 monthly NAPEP stipend for only N2,500 monthly stipend from the defendants, which they were paid after the attachment, there must be a good reason for the forbearance. I say relinquishment, because, after the end of the MAP Programme, definitely, NAPEP N10,000 would end. So, in negotiating N2,500 with the claimants, the defendants were aware that the claimants no longer had access to the previous N10,000 monthly. The defendants thus knew the claimants were sacrificing a lot. It could not have been for nothing. DW1 said under cross-examination that, the claimants were doing menial jobs for which they were paid the N2,500! I ask, if menial jobs were the reason why they had to take N2,500 monthly, would they not have gotten better and more menial jobs done outside the Polytechnic. In any case, this explanation flies in the face of the admission by the same DW1 that, the claimants were posted to different departments like all other staff. The implication is that, they were doing jobs commensurate with their degree qualifications as other staff of the institution. And this is further confirmed in paragraph 7(v) of the deposition of DW1 and Exhibits A, C, D-D1, CW2B-B1, which all reflected that the claimants were staffers of the various departments into which they were deployed and not menial labourers, as the defendants would want the Court to belief. I also take especial notice of the fact that, apart from breaching the promise of conversion to permanent staff in a very brazen manner, as if this was not enough, the defendants, in justifying their inhuman action maligned the reputations of the claimants by saying they only got to know of the continued illegal stay of the claimants after the expiration of their attachment when reports of impersonation and extortions of monies started coming against them. They alleged too, by implication that, the claimants constituted themselves into nuisance in the institution. Apart from these accusations constituting calumnies, they also smacked of crimination imputations: impersonation and extortion are criminal offences.

And come to think of it, when the defendants witness, DW1 was cross-examined as to why the defendants [Polytechnic] did not report these allegations to the Police, DW1 retorted that the claimants were not reported because they were not staff of the Polytechnic: very preposterous! Logic dictates that it is even because they were not members of staff that should have prompted the defendants to promptly report them to the Police. To make matters worse, the defendants, through DW1, still maintained this obviously crooked calumny at the trial, aggravating the calumny. This shows plainly, apart from the fact that I have found earlier on that, the defence of the defendants was a sham poorly crafted that, the claimants never did such things and that, the claimants were still legally in the premises of the defendants by virtue of the subsequent contract.The contradictions in the evidence of the defendants became more confounding when DW1 admitted under cross-examination that, the names of the claimants, whom they claimed were in the Polytechnic premises without the knowledge and authority of the defendants, were still on the Pay Roll of the Polytechnic till 2007in which they were paid their stipends. This is almost 4 years after they were supposedly discharged in 2003!

It is surprising too that, the defendants deceived the claimants for three solid years and beyond, within which period, as admitted by DW1in her evidence-in-chief, the defendants did recruitments without considering the claimants [see paragraph 8(c) thereof]. I also take note of the fact that; this is a situation in which specific performance could have been ordered had the proper things been done. I am also aware of the fact that, the employment in contemplation, had specific performance been ordered and the claimants reinstated, is one clothed with statutory flavour, which would have translated to payment of arrears of salaries and allowances. Considering the above scenario, what is the appropriate damage to be awarded in the instant case? In elucidating on this,I refer SHELL PETROLEUM DEV. CO. LTD V. CHIEF VICTOR SUNDAY OLAREWAJU [2008] LPELR – 3046 [SC]7, Paras. D-E, the Supreme Court said:

“The matter then went on trial, concluding with the address [sic] of counsel for the parties. In his judgment on the 18^th of July, 2000, the learned trial judge, E. Akpomudjere, J., allowed the claim in part. Specifically, he held that the dismissal of the plaintiff was wrongful and therefore null and void, granted reliefs V and VI and awarded N3m as damages for his arrest, detention and humiliation…

‘Both parties not being satisfied with the judgment of the trial court appealed to the Court of Appeal. By its judgment on the 21^st day of January, 2002, the Court of Appeal affirmed the judgment of the trial court and dismissed both the appeal and cross-appeal.”

At page 30, paras. B-C, the Supreme Court affirmed the decision of the trial court as affirmed by the Court of Appeal and quoted above. This shows plainly that, in deserving cases, damages,which take into consideration, hardship and humiliation suffered by the claimants could be granted in cases of breach on contract of employment. Likewise, this Court before the enactment of the Third Alteration Act, in Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258, a case of wrongful termination of employment, awarded damages for high-handedness in the manner of dismissal of the claimant in that case. The Court held that,the peremptory manner in which the claimant was dismissed, suggesting that he committed a crime, was wrong and deserved compensation. The Court awarded six months salaries as meeting the justice of the case because it felt one-month salary in lieu of notice, which the claimant therein was ordinarily entitled to, would not meet the justice of the case. Also, in NIC/ABJ/47/2011 – Onah v. NLC & 1 Or. (delivered 28/02/2013),this Court, Coram Adejumo PNICN awarded, amongst others, two years’ salaries, as general and aggravated damages to the claimant to assuage his feelings negatively affected by the manner of termination of his appointment.

I take note of the provisions of section 254C-(1)(f) of the 1999 Constitution [as altered], which enjoins the Court eschew unfair labour practices in industrial relations and entrench fair labour practices in order to enhance industrial peace and harmony in the nation. The only way this could be entrenched is to award appropriate damages and make orders commensurate with the grievance in issue. I will not make reference to any international convention or best practices in view of the provisions of Order 14A of the NICN Rules, which seemed to limit the application of these to situations where they are raised before the Court, even though, these conventions are laws in themselves, incorporated into the Constitution, and are therefore supposed to be judicially noticed– see Okoebor v. Police Council & Ors (2003) LPELR-2458 (SC) 30, Paras. A-B;University of Uyo & Ors. v. Akpan (2013) LPELR-19995 (CA) 51, Paras. C-F; Amusa v. The State (2001) LPELR-6953 (CA) 13, Paras. A-E; and Shepherd Construction Company Ltd v. Kingston (2014) LPELR-22431 (CA) 20-21, Paras. C-A.

More so, when a court is enjoined to rely on any appropriate law that would entail justice in case, even though, not cited by any of the parties – see Skypower Express Airways Ltd v. Olima & Anor. (2005) LPELR-7548 (CA) 25, Paras. B-C, and Orugbo & Anor. v. Una & Ors. (2002) LPELR-2778 (SC) 33, Paras. E-G. I do not think, these international conventions etc. should be equated with principles of customary laws, which are to be proved before a court can rely on them for the obvious reason that they are not codified anywhere, and for the more important reason that the international conventions in issue are codified and incorporated by the Constitution.

Be that as it may, the international conventions, labour standards, protocols and international best practices have not been pleaded, as required by the rules of this Court. I follow the rules of the Court. I decline therefore, to take cognizance of international conventions, labour standards, protocols and international best practices in deciding this case. However, unfair labour practice is not included amongst the items contained in list specified in Order 14A of the NICN Rules. I am therefore free to take judicial notice of it, and I do. It is clearly unfair and inequitable the treatment meted to the claimants by the defendants. This must be discouraged if the nation is to entrench industrial harmony and economic growth.

In view of all the foregoing, I award 5million Naira [five million Naira only]damages for each and every of the claimants respectively in this case.Cost of N70,000 [seventy thousand naira only] is also awarded in favour of each of the claimants in this case. The judgment sums are to be paid within one month of the delivery of this judgment, failing, which the judgment sums shallbegin to attract 10% interest rate per annum.Accordingly, judgment is entered.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA