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National Industrial Court

Sunday ChukwuUkpai -VS- Ajuba Nigeria Limited & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: JANUARY 28, 2019

 

SUIT NO. NICN/LA/77/2015

 

BETWEEN

Sunday Chukwu Ukpai                              –                             Claimant

 

AND

  1. Ajuba Nigeria Limited
  2. Zenith Bank Plc –                       Defendants

 

REPRESENTATION

Chibuikem Opara, for the claimant.

Mutiu Akinrinmade, with Miss Funmilola Otegbayo, Adediran Adedayo and Tayo Ayprinde, for the 1st defendant.

Charles K. Nmarkwe, with Adums Eze and A. O. Isoh, for the 2nd defendant.

 

JUDGMENT

  1. The claimant commenced this action by a complaint filed on 10th March 2015 and accompanied with the statement of facts, list of witnesses, witness statement, list of documents to be relied upon at trial and copies of the documents. By the complaint and statement of facts, the claimant is claiming against the defendant the following reliefs:
  • A declaration that the conditions of employment under which the defendant placed the claimant throughout his employment with defendant and facilitated by the 2nd defendant amounted to servitude and/or slave labour, contrary to the claimant’s fundamental rights enshrined under the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the African Chapter of Human and People’s Rights.
  • A declaration that purported dismissal of the claimant by the 1st defendant is unfair, wrongful and contrary to natural justice.
  • N20,000,000.00 (Twenty Million Naira) general damages against the defendants jointly for slavery and servitude on the claimant’s person for seven years.
  • N5,000,000.00 (Five million Naira) against the 1st defendant for wrongful dismissal and breach of contract of employment.
  • N2,000,100.00 (Two Million One Hundred Thousand Naira) against the 1st defendant as particularized above being unpaid leave allowances, unpaid salaries and one month salary in lieu of notice.
  • N2,500,000.00 (Two Million Five Hundred Thousand Naira) as cost of the action, including solicitors’ fees of N2,000,000.00.
  • Interest on the unpaid salaries at 10% per month from the date of accrual until fully paid.

 

  1. The defendants respectively entered appearance and filed their individual defence processes (statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the documents). The 2nd defendant specifically filed a statement of defence and counterclaim. The counterclaim of the 2nd defendant is for:
  • A declaration that this suit, as it relates to the counterclaimant, is needless and spurious and has exposed the counterclaimant to unnecessary cost and expense.
  • The sum of N500,000.00 being the counterclaimant’s cost of the defence of this suit and the prosecution of the counterclaim.

The claimant reacted by filing a reply and defence to 2nd defendant’s statement of defence and counterclaim as well as an additional deposition on oath of the claimant.

 

  1. The 1st defendant also counterclaimed against the claimant. The counterclaim is for:
  • A declaration that the Plaintiff failed to performed (sic) and or refused to perform his duties under the employment agreement with the 1st Defendant and his contract of employment with the 1st Defendant was duly terminated for breach of the agreement.
  • An order that the Plaintiff pay to the Defendant the total sum of N2,515,000.00, 915,650.00 as refund of all monies spent on the repair of Truck 880 as a result of the Plaintiff’s breach of contract.
  • Cost of action.

The claimant reacted to the 1st defendant’s processes by filing a reply and defence to 1st defendant’s statement of defence and counterclaim together with a further deposition on oath of the claimant.

 

  1. At the trial, the claimant testified on his own behalf as CW. The claimant’s frontloaded documents were marked Exhibits C1 to C10. The 1st defendant’s frontloaded documents were marked as Exhibits RO1 to RO6. The 2nd defendant’s frontloaded documents were marked Exhibits DOO1 to DOO11. For the 1st defendant, Richard Oguntoye, Operations Coordinator of the 1st defendant, testified as 1st defendant’s witness 1; while Ogundiran Akinyemi, Transport Manager of the 1st defendant, testified as 1st defendant’s witness 2. And for the 2nd defendant, David Olatunde Onioluwa, Assistant Manager and Head of Operations of the 2nd defendant, testified as 2nd defendant’s witness.

 

  1. At the close of trial parties, starting with the defendants, were asked to file and serve their final written addresses. The defendants did not so file first. The claimant thus filed his on 21st September 2018. On the date set for adoption of written addresses, the addresses could not be adopted as the defendants had no address to adopt. The case had to be adjourned and cost of the day was appropriately ordered on them with a directive that the cost be paid before the next adjourned date. The defendants still refused to pay the cost and so were barred from further participating in the proceedings of the Court regarding the matter in accordance with Order 38 Rule 4 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017). Despite being barred, the 1st defendant filed its final written address on 21st September 2018; and the 2nd defendant filed its own on 25th September 2018. The claimant reacted on points of law to the respective addresses of the defendants. The two replies on points of law were both filed on 11th October 2018.

 

THE CASE OF THE CLAIMANT

  1. To the claimant, he was first employed as a store keeper by China Civil Engineering Construction Company (CCECC), a sister company of the 1st defendant on 5th April 2007. He served in that capacity with CCECC till 2009 when he was transferred to the transport department of the 1st defendant. Throughout the claimant’s period of employment with CCECC he was never issued a letter of employment irrespective of numerous demands for same. On his transfer to the 1st defendant, the claimant was made the Transport Coordinator in 2013, which position he held until his dismissal (orally) by the 1st defendant on the 22nd May 2014 which dismissal was later confirmed in writing via a letter of 15th August 2014 (Exhibit C1).The termination/dismissal was said to take effect retroactively on the 18th July 2014.That the employment of the claimant was oral and the 1st defendant failed to provide or supply him with any staff handbook/manual throughout the period of his employment with the 1st defendant. When the claimant was promoted, the 1st defendant informed him that his (claimant’s) salary would correspond with his promotion, and that he will earn the same salary with the person he replaced as Transport Coordinator, Mr Ebo Taylor Ernest, who earned a monthly salary of about N140,000.00 (One Hundred and Forty Thousand Naira). That as transport coordinator, the claimant had, amongst others, the responsibilities of superintending the loading of outgoing consignments and off-loading of incoming consignments on the low-bed in the 1st defendant’s premises and to also ensure proper parking of the low-bed trucks within the said premises and the repair of the diesel pumps as well as off-loading of diesel. The claimant was, aside from the duties of the transport coordinator, made to do the work of a gardener, messenger and a driver, repair of the faulty vehicles within the premises. Whenever the claimant complained that his schedule of duties did not include the work of a gardener, messenger, driver etc, the 1st defendant’s Mr Sonic would threaten him with instant expulsion and assert that he (Mr Sonic) would make the claimant regret the claimant’s life.That the 1st defendant further compelled the claimant to reside in the 1st defendant’s premises against the claimant’s will. During his 7 (seven) years’ employment with the 1st defendant, the claimant worked both day and night and was never allowed to go on leave despite repeated requests for same.

 

  1. The claimant went on that the 1st defendant secretly connived with the officials of the of the 2nd defendant, opened an Account Number 2040245256 in the name of the claimant and issued an ATM (Automated Machine) card in the name of the claimant which has facilitated the slave labour which the 1st defendant perpetrated on the claimant throughout the claimant’s employment with the 1st defendant. The effect of this facilitation by the 2nd defendant is that the 1st defendant never paid the claimant any fixed salary but paid into the account with the 2nd defendant whatever amount the 1st defendant wished. After paying into the bank account, the 1st defendant always compelled the claimant to sign the Payment Slip without the claimant knowing the content of the slip he signed. Whenever the claimant complained of being made to sign a document without knowing the content, the 1st defendant would threaten him with instant expulsion and threats.That this was the state of affairs of the employment till about 30th March 2014 when Mr Akinyemi Kayode (DW2), a transport manager with the 1st defendant gave instructions that the claimant should release one Ekene Anthony and one Adolphus, both drivers under low-bed group, and their truck to deliver some containers in Abuja; and the claimant followed the said instructions and released them. On the way back from Abuja to Lagos, Mr Ekene Anthony’s truck was involved in an accident. The General & Logistic Manager, Mr Sonic Sang, a Chinese National, after the accident, instructed the claimant to go to the scene and obtain a police report and the claimant did so.That the claimant ensured that the accident truck with vehicle No. AGL 880 XJ was brought back to Lagos without delay. Mr Sonic Sang called the claimant to his office and informed the claimant of the report from Mr Akinyemi Kayode alleging that the claimant was the one who authorized the driver of the accident vehicle to carry another (non-permitted) consignment. The claimant denied the allegation and sought to state his case but was not allowed to do so. Mr Sonic and Mr Akinyemi ordered the claimant out of the 1st defendant’s premises and on their instructions, the claimant was pushed out by an armed police officer and was not allowed to take his personal belongings in the office. The claimant was immediately informed orally that he should proceed on suspension until the time Mr Sonic would come back from his intended one month’s leave and the claimant so served the suspension. After the one-month suspension, the claimant reported to the office to resume his duties but was prevented by the 1st defendant from resuming his duties.On 22nd May 2014, the 1st defendant’s Mr Sonic Sang called the claimant to his (Mr Sonic’s) office and orally informed him that he had been sacked. The 1st defendant through a letter dated 27th August 2014 (Exhibit C9) offered to pay the claimant the sum of N324,000.00 (Three Hundred and Twenty-Four Thousand Naira) as final entitlement/severance benefits but that amount was calculated based on N36,000.00 (Thirty-Six Thousand Naira) monthly salary which the claimant rejected, hence the instant suit.

 

THE CASE OF THE 1ST DEFENDANT

  1. The 1st defendant by its statement of defence dated 13th October 2015 denied the case of the claimant in its entirety. It is the case of the 1st defendant that the claimant was initially employed as a store keeper and promoted to a transport coordinator on a salary of N36,000.00 but where extra hour is put in, the salary could be more depending on the number of hours. It is also the case of the 1st defendant that while the claimant was working as its transport coordinator, he committed several acts of misconduct as a result of which his employment was terminated. The claimant was offered terminal benefits as agreed but the claimant rejected the benefits claiming that he was entitled to a higher benefit. It is also the case of the 1st defendant that the condition of service under which the claimant worked did not amount to servitude and that the claimant’s contract of employment was duly terminated. Instead, 1st defendant instead complains that the claimant failed to perform his duties, and that he made the 1st defendant incur cost as to the repair of Truck 880; all for which the 1st defendant counterclaims against the claimant.

 

THE CASE OF THE 2ND DEFENDANT

  1. The 1st defendant had opened a current account number 1010561057 with the 2nd defendant. In the course of their banking relationship, the 1st defendant requested the 2nd defendant to open a Virtual Salary account (VSA) for the benefit of 18 members of its staff (including the claimant) and the 2nd defendant granted the request. This VSA can only be operated with an ATM card and it does not require any account opening documentation from the account holder as the accounts are opened at the instance of a well-known customer/organization (the 1st defendant) for the purpose of payment of the monthly salary of its staff via ATM. Upon the opening of the accounts, the 1st defendant through its sister company (CCECC Nig Ltd) demanded that the 2nd defendant release the ATM cards and PIN numbers of the accounts to it, which the 2nd defendant obliged. In the course of their banking relationship, the 1st defendant started instructing the 2nd defendant to credit the accounts. The 2nd defendant honoured the payment instructions and the payments made into the accounts were subsequently withdrawn by the staff of the 1st defendant (including the claimant) who are the beneficiaries of the accounts. The claimant, in the course of events, approached the 2nd defendant for an accounts statement relating to the account but his request was declined to by the 2nd defendant given that he was not the account holder and had no contractual right to request for the accounts statement. To the 2nd defendant, therefore, this suit discloses no reasonable cause of action against it and this Court lacks the jurisdiction to hear and determine the allegation relating to the infringement of the fundamental human rights of the claimant; as such the claim of the claimant against the 2nd defendant is misconceived and lacking in legal basis. Additionally, that there is no privity of employment contract between it and the claimant and the claimant was at no time its employee; nor did the 2nd defendant participate or facilitate the purported acts of servitude and slave labour allegedly meted out on the claimant by the 1st defendant.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant submitted four issues for determination, namely:
  • Whether the conditions of service perpetrated on the claimant by the 1st defendant and aided by the 2nd defendant amount to slavery and servitude; and if they do, whether the claimant is entitled to redress.
  • Whether the dismissal of the claimant by the 1st defendant is fair in the circumstances or whether it is wrongful and contrary to natural justice.
  • Whether the claimant is entitled to his claims for leave allowances and other reliefs he is seeking in this case.
  • Whether the defendants or any of them has established before this Court any of their counterclaims in this case.

 

  1. On issue (1), the claimant submitted that by section 34(1) of the 1999 Constitution every individual is entitled to respect for the dignity of his person and accordingly no person shall be subjected to torture or inhuman treatment; no person shall be held in slavery or servitude; and no person shall be required to perform forced or compulsory labour. That the claimant proved by credible evidence the various actions 1st defendant meted out to him while his employment with the 1st defendant lasted and how the 2nd defendant facilitated the servitude and slavery.Specifically, that the claimant proved that under terror of physical harm and dismissal, he was forced to do the job of store keeper, gardener, cleaner, transport coordinator, auto mechanic and messenger, and to work both day and night for 7 years without leave and without corresponding salary, and without knowing exactly what his salary was except what he saw on the account through the ATM card at the end of the month. That he was also against his will forced to reside at the 1st defendant’s premises for seven years. That it is worthy of note that the 1st defendant did not specifically deny that the claimant performed these duties. That in paragraphs 20(v), 22 and 23 of the 1st defendant’s statement of defence as well as paragraphs 20(v), 22 and 23 of the deposition of DW1, the 1st defendant stated that all these duties accord with the “lawful duties assigned to him (claimant) by the 1st defendant”, but DW1 did not tender any document where those duties are stated to be within the job schedule of the claimant nor is there any evidence before the Court that such was included in the oral description of his job. That it is to be borne in mind that DW1 did not participate in any way in recruiting the claimant or assigning to him schedule of duties.

 

  1. The claimant continued that while also agreeing that the claimant resided at the 1st defendant’s premises for seven years, the 1st defendant only contended that the claimant stayed on the premises voluntarily “to take advantage of free accommodation available to interested workers of the 1st Defendant”, referring to see paragraphs 24 of both the 1st defendant’s statement of defence and the deposition of DW1.That the question then is, whether subjecting the claimant to do his duties as a transport coordinator and at the same time under terror of physical harm dismissal, forced to do the job of store keeper, gardener, cleaner, auto mechanic messenger and to work both day and night for 7 years without leave and without corresponding salary, and without knowing exactly what his salary was except what he saw on the account through the ATM card at the end of the month does not amount to slavery and servitude. That in Uzoukwu v. Ezeonu 11 [1991] 6 NWLR (Pt. 200) 708 the Court of Appeal defined forced or compulsory labour as labour which a person must perform whether he likes it or not. It does not mean that the worker must have no choice to leave. That is to say, it is a choice between doing the degrading work and remaining in the employment. That where the worker is given a choice between either doing the kind of labour which violates his dignity and/or status or to be forced into unemployment, the worker is of course in reality given no option other than forced labour. That globally, forced or slave labour is seriously frowned at. In X v. Federal Republic of Germany Appl 8410/78 (1980) D & R 216 – cited in Abubakar Sadiq Owuche (Ed.), Compendium of Human Rights Law 17, 1sted. (2006), forced or compulsory labour has been held to denote that the work or service is performed by the worker against his will and, secondly, that the requirement that the work or service be performed is unjust or oppressive or the work or service itself involves avoidable hardship. To the claimant, the conditions he was subjected to and the facts of the case at bar satisfies this requirement of slave labour.

 

  1. To the claimant, slave labour in modern times does not constitute any longer in the forms in which it used to be in colonial or pre-colonial times. That from social historians, certain characteristics emerge, referring to Ira Berlin and Philip Morgan eds. Cultivation and Culture: Labour and the Shaping of Slave Life in the Americas 1 (1993). That the facts of the instant case satisfy the elements of modern slave labour which are stated as follows:
  • Overwork: According to Ira Berlin and Phillip Morgan, cit., at page 1, one characteristic of antique and modern slave labour is that “work engaged most slaves most of the time”, referring to internet extract attached. This has been echoed by many modern writers.
  • Surplus extraction: One of the characteristics of slave labour is that the slave master would extract as much as humanly possible from the slave labourer or employee. The facts of the instant case fit this characteristic on all fours. The motive in forcing the claimant to live in the 1st defendant’s premises is to ensure that he had no time of his own and was therefore called upon at any time to do work. He did the work of Transport Coordinator for which he was employed, and equally was forced to do the work of a store keeper, gardener, cleaner, auto mechanic, and messenger. By combining all these duties, the 1st defendant ensured they extracted the utmost from the claimant, saved for themselves the salaries that would have been paid to at least two other workers, all to the 1st defendant’s profit and financial benefits. Even the state was cheated because the personal income tax that would have been paid by at least two other workers were denied the state for the benefit of the 1st defendant.
  • Mode of control: It is also partly from the control exercised on a labourer or worker that the conclusion may be arrived at as to whether it is slave labour. In the instant case, the 2nd defendant in opening an account in the claimant’s name with the 2nd defendant bank, the claimant was given an ATM card. He could withdraw whatever he saw on the account, there was no credit advice given to him. He could not get a statement of the account. The 2nd defendant ensured that he had no access to the documentation of the account even though it was in his name. If this was no slavery, then nothing can be so close to slavery.

 

  1. The claimant continued that in defining “human trafficking”, another form of slave labour, the free online encyclopedia, Wikipedia, states: “Human trafficking is the trade of humans for the purpose of forced labour, sexual slavery or commercial sexual exploitation for the traffickers of other persons…Human trafficking can occur within a country or trans-nationally.Human trafficking is a crime against the person because of the violation of the victim’s right of movement through coercion and because of their commercial exploitation”(https://en.wikipedia.org/wiki/Humantrafficking, page accessed on 19th September 2019;page attached).

 

  1. That the 2nd defendant is also complicit in its role in facilitating the servitude meted out to the claimant. That the 1st defendant secretly connived with the officials of the 2nd defendant, opened an account numbered 2040245256 in the name of the claimant and issued an ATM (Automated Teller Machine) card in the name of the claimant. It is the contention of the claimant that the secret account made it possible for the 1st defendant to pay whatever it liked into the account. That the 2nd defendant was given notice to produce all the relevant documents relating to the Bank Account No. 2040245256, but it never did. In other words, they maintained the secret pact with the 1st defendant even in defiance of the Court and up till the last minute. That there is a presumption that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, citing section 167(d) of the Evidence Act 2011.

 

  1. To the claimant, one of the remedies for breach of a person’s fundamental human rights is the award of damages to compensate the citizen, citingOpuogbo v. CBN [2002] 2 LHCR (Pt. 15) 92 andConcord Press Nigeria Limited v. AGF &ors[l994] FHCLR 144. That the instant case is a proper case to award damages for the breach of the claimant’s fundamental rights; not only should the Court award damages, the Court should award such damages that would act as a deterrent to others. I\hat it is important that the Court bears in mind that the 1st defendant is a company owned or manned by foreign nationals and that in violation of the Constitution of the country and the fundamental rights stated in the Constitution, the 2nd defendant, a Nigerian-owned bank has aided and abetted the unlawful actions of the 1st defendant in perpetrating the slave labour on a Nigerian national. That it is important that the Court uses this case to send out a strong message to the many other companies who are engaged in slave labour of Nigerians. The claimant’s claim under this head is a conservative amount of N20 Million.

 

  1. Issue (2) is whether the dismissal of the claimant by the 1st defendant is fair in the circumstances or whether it is wrongful and contrary to natural justice. To the claimant, a claimant who alleges that the termination of his employment was wrongful must establish by empirical evidence the terms of his employment and show how the said terms were breached by the defendant. That he has established by evidence that the contract of employment with the defendant is oral. That the fact that the contract of employment of the claimant is oral does not in any way reduce or diminish his evidence. The Labour Act Cap L1 LFN 2004 defines a contract of employment to include an oral agreement, referring toShena Security Co. Ltd v.Afropak (Nig.) Ltd &ors [2008] 18 NWLR (Pt. 1118) 77. That he copiously established that his dismissal by the 1st defendant was based on an allegation of misconduct leveled against him. That his evidence is that he was not afforded fair hearing having not been given an opportunity to make a defence to the allegation of misconduct leveled against him, citingL. O. Dudusola v. Nigeria Gas Company Limited [2013] 10 NWLR (Pt. 1363) 423 at 435, which held that where neither party in an employer/employee suit tendered the contract of service, the court can only fall back on the common law principle of master and servant relationship. That though at common law an employer has the unfettered right to terminate or dismiss an employee with or without reason, if the employer contends that the employee was removed or dismissed for a definite misconduct, the removal or dismissal cannot be justified in the absence of opportunity afforded to the employee to explain, justify or defend the alleged misconduct. That the facts of the case at hand reveal that the 1st defendant alleged that the claimant made unauthorized usage of the 1st defendant’s trucks for private business and when the claimant sought to defend himself, he was not allowed to do so but was orally ordered to proceed on suspension which was later converted to expulsion. That it is noteworthy that the 1st defendant did not specifically deny that it did not give the claimant an opportunity to defend himself but only stated in paragraph 31 of its statement of defence and paragraph 31 of the written statement on oath of Mr Richard Oguntoye (DW1) that the 1st defendant acted “in all circumstances fair and done according to its disciplinary procedure”. That under cross-examination, DW1 admitted that the said disciplinary procedure of the 1st defendant was not in a written form but oral. The claimant referred to case law authorities which held that an employee cannot be dismissed without giving the employee the opportunity to be heard:Olafimihan v. Nava Lay-Tech Ltd [1998] 4 NWLR (Pt. 547) 608 SC at 611, UBA Plc v. Mrs D, N. Oranuba [2014] 2 NWLR (Pt. 1390) 1 CA,Yusuf v. Union Bank [1996] 6 NWLR (Pt. 457) 632 SC,Oil Mills v. Daura [l996] 8 NWLR (Pt. 468) 601 andArinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 639) 78. It is thus the claimant’s submission that since the 1st defendant did not give him any opportunity of defending the allegation of misconduct against him, his dismissal on the allegation cannot be justified, citingFederalMedical Centre, Id-Ekiti & ors v. Shuaib Adewole Alabi[2012] 3 NILR 228 CA at 264. That the natural consequence of wrongful dismissal is that the employee is entitled to damages, urging the Court to award the N5,000,000.00 (Five Million Naira) damages the claimant claims here.

 

  1. Issue (3) is whether the claimant is entitled to his claims for leave allowances and other reliefs he is seeking in this case. To the claimant, he has shown by credible evidence that he was in the employ of the 1st defendant for 7 years. That the 1st defendant admitted this fact and also the fact that the claimant is entitled to leave allowance for the 7 (seven) years he served the 1st defendant, referring to Exhibit C9 and Exhibit RO6. That a fact admitted in pleadings require no further proof, citingAghanelo v. UBN Ltd [2002] 7 NWLR (Pt. 666) 534 at 549. That apart from damages for wrongful termination of employment, an employee is entitled to all the salary and other entitlements lawfully accruable and payable up till the date of the termination, citingMr Kunle Osisanya v. Afribank Nigeria Plc[2012] 2 NILR 214. The claimant further contended that the only dispute arising from the leave allowances is in respect of the amount flowing from the salary of the claimant. That he states that the salary he is supposed to be paid is N140,000.00 (One Hundred and Forty Thousand Naira) which conformed with his status and promotion as the Transport Manager and the oral agreement that he was to step into the position of the former transport manager, referring to Exhibit C2, which shows that N140,000.00 (One Hundred and Forty Thousand Naira) was the salary of the person he replaced as transport manager of the 1st defendant. That while the 1st defendant admitted that there was indeed a promotion and a corresponding increase salary to the claimant, it nevertheless stated that increase was from N36,000.00 (Thirty-SixThousand Naira) to N36,000.00 (Thirty-Six Thousand Naira), referring to paragraphs 7 and 20 of the 1st defendant’s statement of defence and paragraphs 7 and 20 of deposition of DW1. That it is also on record that the 1st defendant could not under cross-examination show the Court records of any month where the claimant was paid N36,000.00 (Thirty-Six Thousand Naira).

 

  1. To the claimant, it is the responsibility of the employer to issue the employee with a letter of employment, referring to section 7 of the Labour Act Cap L1 LFN 2004, which provides that an employer shall give to a worker not later than three months after the beginning of a worker’s employment, a written statement specifying, among other things, particulars of the employer and employee, date of employment, notices, wages, manner and periodicity of payment of wages etc. That by section 21 of the Act, the omission on the part of the employer to issue the letter of employment attracts penal consequences. That the 1st defendant vehemently refused to give the claimant a letter of employment despite several demands by the claimant, citingPeter Nwakhoba & 3 ors v. Dumez Nigeria Ltd [2004] 3 NWLR (Pt. 861) 461 at 484, which held that it will be improper to allow an employer who has contravened the provisions of section 7 of the Labour Act to benefit from its own wrong doing. The claimant the urged the Court to admit as true the evidence of the claimant who negotiated his salary as N140,000.00 (One Hundred and Forty Thousand Naira) over the evidence of DW1 who admitted under cross-examination that he was never present when the employment was made and the salary fixed and that he was not present when the promotion salary was fixed. That DW1 only referred to some illusory “company records”;needless to state that the “company records” were never pleaded or tendered before the Court.

 

  1. That that the agreed salary of the claimant being N140,000.00 should be used to compute his leave allowance and other benefits including the unpaid salaries and the one-month salary in lieu of notice. That by virtue of section 18 of the Labour Act, every worker is entitled after twelve months of continuous service to holidays with full pay. That since there is no dispute as to the fact that the claimant was in the employ of the defendant for (seven) years, he is entitled to 7 months’ pay representing his leave allowance, urging the Court to so hold. That it should be borne in mind that the N2,100,000 (Two Million, One Hundred Thousand Naira) asked for under this head represents only the leave allowance for seven years and seven months’ salaries. That the shortfall on his salaries for the period he worked as transport manager could not be reckoned in the special damages because the lack of statement of account made it impossible to remember each of the varied amounts the 1st defendant deposited into the claimant’s named account with the 2nd defendant and from there reckon the shortfall per month. The claimant, therefore, urged the Court to take this into consideration in awarding damages for wrongful termination.

 

  1. That the claimant is entitled to the costs of this action including the solicitor’s fee as claimed.

 

  1. Issue (4) is whether the defendants or any of them has established before this Court any of their counterclaims in this case. To the claimant, in support of its counterclaim, the 1st defendant tendered Exhibits RO1 to RO6. That a counterclaim is an independent cause of action; and that it is a basic principle of law that he who alleges a fact bears the onus of proving the fact, citing sections 131 to 133 of the Evidence Act 2011. That in an attempt to prove its counterclaim, the 1st defendant relied heavily on Exhibit RO3, which is a report made by Mr Ogundiran Akinyemi, DW2. That DW2 admitted under cross-examination that he never saw the alleged goods purportedly carried by the accident bus on the alleged order of the claimant. That DW2 admitted that he only carried out “telephone investigation” and further relied on the evidence of “Motor Boy”. The Motor Boy was not called to testify and was not cross-examined. The claimant then urged the Court to declare the evidence of the “Motor Boy” as hearsay evidence and, therefore, inadmissible; and discountenance same.

 

  1. Furthermore, that the 1st defendant witnesses could not show the Court specifically how and where Exhibit RO3A, the purported pictures of some goods, were taken. Specifically, under cross-examination, DW1 could not show any features of the photograph proving that the photographs were taken at Avielein Delta State as alleged. It is the claimant’s submission that the 1st defendant having failed to prove the allegation that goods were being carried on the order of the claimant, the claimant cannot be liable for the alleged costs of repairs of Truck 880.

 

  1. With respect to the allegations of forgery and stealing, the claimant submitted that these are criminal in nature. That it is trite that in a civil matter, where there is an allegation of crime, the allegation must be proved beyond reasonable doubt, citing section 135(1) of the Evidence Act 2011 andAkeredolu v. Mimiko [2014] 1 NWLR (Pt. 1388) 439. That the question is whether the 1st defendant has proved the allegation of forgery and stealing against the claimant. That the only evidence before the Court in this respect is Exhibit RO1 embodying Exhibits RO1A to RO1KK.Exhibit RO1 is a report made by DW2 while this matter was physically pending in Court. That DW2 has a motive to falsify his evidence as a person interested. That it is essential to note that Exhibit RO1 is another result of DW2’s famous “telephone investigation”. Conversely, the claimant denied that he ever processed the alleged forged vehicle particulars and has never processed vehicle particulars for the 1st defendant. The claimant thus submitted and urged the Court to hold that the 1st defendant has woefully failed to prove a case of forgery or stealing against him.

 

  1. On the 2nd defendant’s counterclaim, the claimant submitted that being a counterclaim, it is subject to the same rule that he who alleges must prove. That the 2nd defendant in its statement of defence and deposition maintained that in opening and operating the account through which the acts of slavery and servitude were facilitated, it only carried out instructions of a “well-known customer”, referring to paragraph 3(c) of the 2nd defendant’s statement of defence and paragraph 5 of the 2nd defendant’s witness statement on oath. That the 2nd defendant further stated that even though account No. 2040245256 and the ATM cards bear the name of the claimant and he is a “beneficiary” of the funds in the account, he has no rights, including the right not to be given any account statement, whatsoever under the account.It is the claimant’s submission that the 2nd defendant obviously has questions to answer and can, therefore, not claim to have no interest over the role it played in the circumstances. That having facilitated the slave labour which the 1st defendant subjected the claimant to, the 2nd defendant should share, jointly and severally, in the civil liabilities in the form of damages. That the N20 Million asked for by the claimant under this head of claim is a conservative demand for the mental anguish, degradation, slavery and forced labour and inhuman and degrading treatment to which the claimant was subjected to for seven years. In conclusion, the claimant urged the Court to grant him his claims and to dismiss the defendants’ counterclaims in their entirety.

 

THE SUBMISSIONS OF THE 1ST DEFENDANT

  1. The 1st defendant submitted a sole issue for determination: whether or not the claimant has proved his case as to entitle him to the reliefs being sought. To the 1st defendant, it is settled law that he who asserts must prove; any person who desires a judgment in respect of a particular matter must prove his case failing which the case would fail, referring to section 136 of the Evidence Act.

 

  1. On the claim relating to slavery and servitude, the 1st defendant submitted that the claimant’s complaints under this heading are at large and seem to consist of allegations that:
  • The claimant’s contract of employment was not in writing.
  • The claimant was not informed in writing of his promotion.
  • The person the claimant replaced as transport coordinator received as salary the sum of N140,000.00.
  • The 1st defendant connived with the 2nd defendant to open an account in the name of the claimant and issued him an ATM card to withdraw money from the account.
  • The claimant was not paid a fixed salary and was made to sign document that he knew not the content.

 

  1. The 1st defendant then submitted that the claimant’s complaints under this heading are totally misconceived, unproved and should be rejected by the Court. That a contract of employment is a species of contract and like all contracts could be oral. That allegation of the claimant being entitled to the sum of N140,000.00 and paid a lesser sum can at best be an allegation of breach of contract and cannot be termed servitude. With regards to opening of bank account for the claimant, that the account was simply a salary account and opened for the benefit and convenience of the claimant. That it is also the evidence before the Court that the account is common practice for the purpose of paying the salaries of workers. It is, therefore, the submission of the 1st defendant that the above complaints of the claimant do not amount to servitude or slavery and are, therefore, unproved and the Court is urged to discountenance the allegations.

 

  1. Regarding the dismissal of the claimant, the claimant has urged upon the Court to declare the termination of his employment as wrongful and contrary to natural justice. To the 1st defendant, the Court should reject this contention and hold that the claimant’s appointment was duly terminated.That there is evidence before the Court by the 1st defendant’s witnesses, Richard Oguntoye and Ogundiran Akinyemi, that the claimant was engaged in acts of gross misconduct while in the employ of the 1st defendant as to entitle the 1st defendant to terminate his employment. That even if the claimant was not involved or engaged in act of gross misconduct, the 1st defendant has the right to terminate his contract with or without reason, in which case the only recourse of the claimant will be salary in lieu of notice where he was not given a notice, citing Union Bank of Nigeria Plc v. Alhaji. A.Y. Saauden[2017] LPELR-43415. That the 1st defendant has given sufficient reason in its Exhibit C8A where reference was made to the letter of 27th May 2017 by claimant’s solicitorand “the findings” made by the 1st defendant as evidenced by the testimony of the 1st defendant’s witnesses. That the 1st defendant’s 2nd witness, Ogundiran Akinyemi, who investigated the accident involving the trucks and the vehicle papers obtained by the claimant also tendered the result of his findings and the fake vehicle papers obtained by the claimant, urging the Court to bold that the employment of the claimant was duly terminated and the only resort left for the claimant was salary in lieu of notice which was duly offered the claimant but was rejected by him, In the circumstance, that the Court should hold that the claimant’s employment was duly terminated and the relief seeking a declaration that the claimant’s employment was wrongly terminated should be refused by the Court.

 

  1. On damages for servitude and slavery, the claimant had in his endorsement before the Court alleged that the condition of service under which he worked for the 1st defendant amounted to servitude and slavery contrary to his fundamental rights as enshrined under the Constitution; and for which the claimant seeks from the Court, amongst other reliefs, declaration and damages in the sum of N20,000.000. To the 1st defendant, in so far the purported claim relating to servitude and slavery is rooted in breach of the claimant’s fundamental rights, the claim is not grantable by the Court, but only in a fundamental right enforcement proceedings, urging the Court to, therefore, refuse the claim. Additionally, that the damages awardable in a contract of employment is within a narrow compass and under the principle of restitio integrum and not in any way related to a claim for servitude and slavery. In effect, that it is awarded only to restore the claimant to the position he was before the breach occurred as far as money can do and not at large as it is being claimed herein, citingIfota v. SPDC Nig. Ltd[2006] All FWLR (Pt. 314) 305 at 329.

 

  1. The 1st defendant also submitted that the acts alleged to amount to servitude and slavery by the claimant cannot in the strict sense of the word amount to servitude and slavery, referring toUzokwu v. Ezeonu II[1991] 6 NWLR (Pt. 200) 708, where the Court of Appeal per Tobi, JCA (as he then was) held as follows on meaning of slavery and servitude in section 31(1)(b) 1979 Constitution:

“Now to section 31(1)(b), the operative words are slavery and servitude. Slavery is the state of being held as a slave. It also conveys the institution of ownership of slaves. A state of being in drudgery. The word ‘servitude’ conveys generally similar meaning. It also means subjecting a person to compulsory labour or subjecting a person to irksome conditions like a slave”.

That the claimant at all time was not compelled to work for the 1st defendant and received wages for his services; and the mere fact that a salary account was opened for him cannot by any stretch of imagination amount to slavery and servitude. It is, therefore, the 1st defendant’s contention that the allegation of slavery and servitude are unproved, urging the Court to reject same.

 

  1. For the claim for N5 Million for wrongful dismissal and breach of contract of employment, and N2,100,000 for special damages, the 1st defendant submitted that these claims are not grantable because granting the claimant both reliefs amount to double compensation, something frowned at by the Courts.Indeed, that such awards are generally held to be unlawful and are usually set aside,referring to SPDC v. Okonedo[2007] All FWLR (Pt. 368) 1104 and UBN Plc v. Erigbuem[2003] FWLR ( Pt. 180) 1365. Furthermore, that damages are not awardable in breach of employment contract. As a consequence, once general damages are not awardable, special damages are also not awardable in cases founded on wrongful dismissal as in the instant case even if a claim for outstanding emoluments is encapsulated therein as special damages are not recoverable in breach of contract cases but only in torts, referring to Texaco Nig. Plc v. Kehinde[2002] FWLR (Pt. 94) 143. That in a claim founded on wrongful dismissal as in the instant case, the measure of damages is prima facie the amount payable during the period of notice to be given by the employer as stipulated in the contract of employment and where there is no period of notice prescribed, then the common law rule of reasonable period of notice would apply which is usually one month or three months depending on the category of staff dismissed, referring to NBN Ltd v. Omotayo[2002] FWLR (Pt. 114) 454 and CCC (Nig) Ltd v. Okonkwo[2002] FWLR (Pt. 97) 637.

 

  1. The 1st defendant continued that he who asserts must prove. That the claimant alleged that the previous Transport Manager that he took over from was on a salary of N140,000.00 and that he was also promised the same salary by the 1st defendant, but that he was never paid the amount. In essence, that the claimant alleged breach of his contract of employment. The 1st defendant then contended that where an employee alleges breach of his contract of employment and wrongful dismissal as in the instant case, the terms and conditions of the contract must be proved. That this the claimant has failed to do and his claim for wrongful dismissal and breach of contract must, therefore, fail.In addition, that the claimant did not say the purported sum of N140,000.00 was agreed, but he merely said he was promised. That a mere promise is not equal to agreement between the parties, urging the Court to discountenance the claim for payment of salary in the sum of N140,000.00 to the claimant.

 

  1. In the alternative and where the Court takes the view that the claimant is entitled to any claim in this suit, the 1st defendant submitted that the claim should be as stated in Exhibit RO6.That the 1st defendant’s pleading and evidence before the Court is that the claimant was its Transport Coordinator on a basic monthly salary of N36,000.00, which could however be more where the claimant puts in extra hour. That save from the ipxe dixit of the claimant that he was promised the sum of 140,000.00, he has not put any evidence before the Court to show that the sum of N140,000.00 was agreed by the parties. It is, therefore, the 1st defendant’s contention that the claim of a promise of payment of the sum of N140,000.00 by the claimant is unproven and should be rejected by the Court. It was also contended by the 1st defendant that the terminal benefits calculated by the claimant at the rate of N140,000.00 monthly should also be rejected by the Court for the same reason. That the 1st defendant’s letter of 27th August 2014 to the claimant(Exhibit RO6) wherein he was offered the sum of N324,000.00 as his terminal benefit represents the agreed terms between the parties, urging the Court to so hold. In conclusion, the 1st defendant urged the Court to reject the claims of the claimant as unproven and hold that he is only entitled to the sum stipulated in Exhibit RO6.

 

THE SUBMISSIONS OF THE 2ND DEFENDANT

  1. The 2nd defendant submitted two issues for determination, namely:
  • Whether on the state of pleadings and evidence of parties before the Honourable Court, the claimant has proved his claim and entitled to judgement.
  • Whether the 2nd defendant has proved its counterclaim against the claimant.

 

  1. On issue (1), the 2nd defendant submitted that the claimant’s claims before the Court are for declarations and monetary damages; and the monetary claims are in the form of special damages, which must not be inferred but deserves to be strictly pleaded and proved, citingUAC of Nigeria Plc v. Madam Irole[2002] FWLR (Pt. 113) 351. That the claimant’s pleading and evidence are lacking in qualitative and credible evidence that does not lend itself to qualification. The 2nd defendant then addressed the claimant’s claims, one after the other.

 

  1. For the claim as to conditions of employment being servitude and slave labour, the 2nd defendant referred to the Chambers Dictionary, 2000 Edition, which defines servitude as “a state of compulsory labour”. To the 2nd defendant, the employment relationship between the claimant and 1st defendant and the conditions of same are both consensual and voluntary. The parties negotiated the terms and reached an agreement upon which the claimant rendered service to the 1st defendant and received payment in return. That assuming (but not conceding) that the relationship snacks of slavery and oppression, the 2nd defendant is not complicit in same as the terms and conditions of the employment relationship had already taken root before the 2nd defendant entered into a banking relationship with the 1st defendant. Furthermore, that there is no privity of contract between the claimant and the 2nd defendant, for which the 2nd defendant will be liable to the claimant for special and/or general damages.

 

  1. Also that the claimant also premised his claim on the breach of his fundamental human rights as enshrined in Chapter IV of the 1999 Constitution. In response, the 2nd defendant submitted that this Court has no jurisdiction to entertain cases that are premised on breach of fundamental right of a citizen of Nigeria.

 

  1. On the claim for solicitor’s fees, the 2nd defendant submitted that it is a claim in special damages for which the claimant is obliged to plead specifically and prove by credible evidence. That the claimant has not furnished the Court with any material evidence in this regard;the Court is, therefore, left with no option than to speculate as the claimant failed to condescend to particulars, urging the Court not to use its own parameters for assessment of the solicitor’s fee in place of credible and substantial evidence. The 2nd defendant concluded by urging the Court to resolve issue (1) in favour of the 1st defendant as the claimant has not proved his entitlement to judgement.

 

  1. Reading issue (2), the counterclaim against the claimant, to the 2nd defendant, the pith and substance of itscounterclaim is as contained in the pleadings. That the 2nd defendant’s counterclaim is one in special damages. That the 2nd defendant in its defence led credible and unchallenged evidence in support of its counterclaim and backed its testimonies with documentary evidence (Exhibits DOO1 and DOO2). That the 2nd defendant also led evidence that it is obliged to pay to its solicitors the sum of N500,000.00, established by Exhibit DOO9.That the law is trite that evidence which is not challenged by the other party is deemed admitted and should be accepted by the Court as true. In concusion, the 2nd defendant urged the Court to dismiss the claimant’s claims and enter judgment for the 2nd defendant as per its counterclaim.

 

THE CLAIMANT’S REPLIES ON POINTS OF LAW

  1. With respect to the 1st defendant’s submissions,and on the contention that the claimant’s claim is only enforceable in a fundamental right enforcement proceeding and not through this Court. the claimant first clarified that his claim is rooted in contract of employment and labour and the complaint as it relates or connects to fundamental human rights relates to the employment. That part of the claimant’s case is that in the process of the employment, there was breach of his fundamental rights in that he was held in slavery and servitude. The claimant was to do his duties as a transport coordinator and at the same time under terror of physical harm and dismissal, forced to do the job of store keeper, gardener, cleaner, auto mechanic, messenger and to work both day and night for 7 years without leave and without corresponding salary, and he received as salary only what he saw on the account through the ATM card given to him at the end of the month. Accordingly, actions brought to enforce fundamental human rights in relation to employment, labour, etc can only be entertained by this Court, referring to section 254C(1)( d) of the 1999 Constitution. That so far as the complaint on breach of the fundamental human right cannot stand on its own without the mention of what led to the breach, it is only ancillary or incidental, citingEgwuonu v. Bornu Radio Television Corporation[1997] 12 SCNJ 99 andRaymond Dongtoe v. Civil Service Commission of Plateau State[2001] 19 WLR 125. Thus, it can only be enforced through this Court since this is the Court that has jurisdiction over employment related matters.Furthermore, that it will be absurd to argue that thisCourt has jurisdiction to entertain issues of breach of fundamental human rights arising or flowing from employment but cannot grant the relief associated with the breach. Thus, so far as the Court has jurisdiction to entertain breach of fundamental rights flowing or resulting from employment, the Court can at the same time grant any relief that naturally flows from such breach, citingLafia Local Government v. Executive Governor of Nasarawa State [2013] All FWLR (Pt. 668) 956 at 987, where the Supreme Court enjoined courts to employ a liberal approach or take what is often called a global view so that the rights of citizens must not be toyed under any guise.

 

  1. On the contention that damages are not recoverable in breach of contract cases but only on torts, the claimant first clarified that Texaco Nigeria Plc v. Kehinde [2002] FWLR (Pt. 94) 143 cited by the 1st defendant did not establish such strange principle. Rather, the case emphasized that where a party has been awarded damages under a relief head, the Court cannot award the same relief under another head. In addition, that there is no Nigerian or foreign case supporting the principle that damages are not awarded in breach of contract. Furthermore, that the appellation given to a relief should not be the deciding factor in the award of damages. That the claimant has specifically asked for and proved unpaid salaries, allowances and one-month salary in lieu of notice;these are specific reliefs which are separable from general damages. That a dismissed claimant is not only entitled to damages but also his earned unpaid salaries, allowances, other entitlements and benefits, citingMr Kunle Osisanya v. Afribank Nigeria Plc[2012] 2 NILR 214 at 243.

 

  1. On the contention that the claimant has not proved the terms and conditions of the contract entitling him to N140,000.00 monthly salary, the claimant submitted that he has established this evidence in the best possible way that he could. That the specified document embodying the details of salary of Mr Eboh, whom the claimant replaced, is in the custody of the 1st defendant. The 1st defendant was given notice to produce this document(s) but it refused or failed to produce same. By the authority of section 167(d) of the Evidence Act 2011, the Court should resolve this issue against the 1st defendant who withheld this document that could be produced.Furthermore, that the claimant never said “he was promised” as alleged by the 1st defendant. Paragraphs 8 and 9 of the claimant’s statement of facts and paragraphs 8 and 9 of the claimant’s deposition are before the Court. That as the claimant was “told” what his salary will be and he accepted by conduct, there is consensus ad idem and a binding contract was thereby established, citingUnitab Nigeria Ltd v. Oyelola [2005] AFWLR (Pt. 286) 825.

 

  1. Regarding the 2nd defendant’s submissions, and on the contention by the 2nd defendant that there is no privity of contract between it and the claimant as it was not party to the contract of employment, the claimant submitted that the contention is not the time the 2nd defendant entered into the fray, as the time of joining in perpetuating the slave labour is not crucial. Furthermore, that the relevant question is whether the 2nd defendant has in any way facilitated the slave labour and servitude. That the facts of the case show that the 1st defendant found the 2nd defendant a ready and willing vehicle to facilitate the slave labour and servitude. By providing the platform through which the “salary” associated to the slavery was paid to the claimant without conforming to banking practices and regulations, the 2nd defendant cannot escape liability, urging the Court to so hold.

 

  1. On the contention that thisCourt lacks jurisdiction to entertain cases that are premised on breach of fundamental rights of a citizen of Nigeria, the claimant simply repeated his response on same issue raised by the 1st defendant.

 

  1. On the contention that the 2nd defendant’s counterclaim was not challenged, the claimant submitted that the counterclaim of the 2nd defendant was seriously and successfully challenged. That through pleadings, the claimant filed a reply and defence to counterclaim to the 2nd defendant’s counterclaim; andby cross-examination, the claimant showed why the counterclaim cannot stand.That the claimant further filed additional deposition which was adopted and therein joined issues with the 2nd defendant. That the purpose of denial in pleadings is that it pushes the proof of the averments back to the party alleging them. That once the claimant has shown that any of his fundamental rights has been infringed, the burden is on theinfringing party to establish that the denial of the right is justified in law, citingDirector of SSS v. Agbakoba [1999] 3 NWLR (Pt. 595) 314 at 358 at 371. That the 2nd defendant having failed to justify its role in the slavery and servitude cannot be entitled to any relief in form of solicitor’s fee.

 

COURT’S DECISION

  1. I have carefully considered the processes and submissions of the parties. Both defendants in their respective addresses raised the issue of jurisdiction especially in the claimant’s submission that his fundamental right against slavery and servitude was infringed upon by the defendants. To the 1st defendant, in so far the claimant’s claim for declaration and damages relating to servitude and slavery is rooted in breach of the claimant’s fundamental rights, the claim is not grantable by the Court, but only in a fundamental right enforcement proceedings, urging the Court to, therefore, refuse the claim. By this submission, the 1st defendant intuits that the claimant should have come by way of the Fundamental Rights (Enforcement Procedure) Rules, and hence the High Court, not this Court, would have the jurisdiction to entertain the suit. The 2nd defendant was more direct and emphatic when it submitted that this Court has no jurisdiction to entertain cases that are premised on breach of fundamental right of a citizen of Nigeria. The question, however, is: is there a rule of law that says all fundamental rights breaches must be claimed through “a fundamental right enforcement proceedings” as the 1st defendant put it? The answer is an emphatic NO. There is nothing that says that a fundamental right breach cannot be litigated through the normal process of a writ of summons or complaint. See University of Ilorin & anor v. Idowu Oluwadare [2006] LPELR-3417(SC); [2006] 14 NWLR (Pt. 1000) 751; [2006] 6 – 7 SC 154 and NUT & ors v. COSST & ors [2005] LPELR-5953(CA); [2006] NWLR (Pt. 974) 590. The idea of the Fundamental Rights (Enforcement Procedure) Rules procedure is to lay down a speedier process for litigating fundamental rights breaches, not that it is the only process through which such breaches must be litigated. The Court of Appeal in SSAUTHRIAI v. Olotu [2016] 14 NWLR (Pt. 1531) 8 acknowledged section 254C(1)(d) of the 1999 Constitution, which provides that this Court shall have jurisdiction over matters “relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine”. However, given section 46(1), (2) and (3) of the 1999 Constitution, this cannot be through the Fundamental Rights (Enforcement Procedure) Rules. It must be through the normal process of complaint. I made this point in Alozie Chimezirim Manasse v. Sterling Bank Plc& EFCC unreported Suit No. NICN/LA/173/2017, the ruling of which was delivered on 16th February 2018. I do not accordingly agree with the defendants that this Court has no jurisdiction over the instant suit. I hold that this Court has the requisite jurisdiction to hear and determine this suit given section 254C(1) of the 1999 Constitution, the matter in dispute being an employment matter.

 

  1. Given the reliefs claimed by the claimant, the claimant’s case can in the main be said to comprise of the following: his conditions of employment amounted to slavery and servitude; his dismissal was unfair and wrongful; and he is being owed unpaid leave allowances, unpaid salaries and one month salary in lieu of notice. For each of these heads of claims, the claimant attached a monetary value that he is claiming: N20 Million for the slavery and servitude claim; N5 million for the wrongful dismissal; N2,000,100.00 for unpaid leave allowances, unpaid salaries and one month salary in lieu of notice; and N2,500,000.00 as cost of the action plus solicitors’ fees. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed; as such,the duty of a claimant is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. I shall accordingly take each of these heads of claims one after the other.

 

  1. The first head of claim relates to the claim that the claimant’s conditions of employment amount to slavery and servitude. The acts of slavery and servitude reeled out by the claimant are: that despite that he was transport coordinator, under the threat of physical harm and dismissal, he was forced to do the job of store keeper, gardener, cleaner, transport coordinator, auto mechanic and messenger, and to work both day and night for 7 years without leave and without corresponding salary;he did all this work without knowing exactly what his salary was except what he saw on the account through the ATM card at the end of the month; and against his will, he was forced to reside at the 1st defendant’s premises for seven years. The claimant relied on section 34(1) of the 1999 Constitution, which provides that every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or inhuman treatment,or held in slavery or servitude,or required to perform forced or compulsory labour.

 

  1. In determining the ambit of this provision especially in the context of employment relations, I must cite the Court of Appeal decision in Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA), which acknowledged that there could be implied terms in a contract of employment as may be necessary. In the words of Amina Audi Wambai, JCA (delivering the leading judgment):

In an employer-employee or master-servant relationship, in addition to or to the exclusion of the express terms of the contract, the law imposes certain implied terms into the contract. These implied terms may either be founded on statute, by custom, by practice, public policy or such terms as to ensure that the master does not subjudge the servant to a condition of servitude or slavery or like terms. While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q – D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.

 

  1. And by Rhodes & anor v. IGP &ors [2018] LPELR-44118(CA) per Ikyegh, JCA (delivering the leading judgment):

What degrades or devalues a person’s exalted estimation of his societal status or standing amounts to an assault on the dignity of that person. But before the conclusion that such person’s dignity has been eroded is reached it must be shown that the act complained of falls within the context of Section 34(1) of the 1999 Constitution, as amended, indicating the act complained of subjected the person to torture or to inhuman or degrading treatment or the person was held in slavery or servitude or the person was required to perform forced labour or compulsory labour.

 

  1. This Court had the opportunity to consider section 34 of the 1999 Constitution within the context of International Labour Organisation (ILO) jurisprudence, laying down in the process the parameters for liability. In the words of this Court at paragraph 20 of Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017:
  2. Section 34 of the 1999 Constitution deals with the right to dignity of human persons. In subsection (1)(c), it provides that every individual is entitled to respect for the dignity of his person, and accordingly no person shall be required to perform forced or compulsory labour. Subsection (2) then goes on to provide the exceptions to the rule against forced or compulsory labour. Section 73(1) of the Labour Act on its part simply prohibits forced labour in terms of the provision of section 34(1)(c) of the 1999 Constitution. Section 34(1)(c) and (2) of the 1999 Constitution (as well as section 73(1) of the Labour Act) is a codification of the International Labour Organization (ILO) Convention Concerning Forced or Compulsory Labour, 1930 (No. 29) otherwise called the Forced Labour Convention, which is one of the eight ILO fundamental conventions, and has been ratified by Nigeria. In paragraph 2 of Article 2, the Convention defines “Forced or compulsory labour” as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. Article 2, para. 2, like section 34(2) of the 1999 Constitution, provides exceptions to the forced labour rule: compulsory military service, provided it is of a purely military character; normal civic obligations; a conviction in a court of law; cases of emergency; and minor communal services performed by members of a community and in the direct interest of the community. By this provision, forced labour is any work or services which people are forced to do against their will under the threat of some form of punishment. It occurs where work or service is exacted by the State or individuals who have the will and power to threaten workers with severe deprivations, such as withholding food or land or wages, physical violence or sexual abuse, restricting peoples’ movements or locking them up. See the International Training Centre – International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators: Forced labour (Turin), 2014. From the definition of forced labour as given by the ILO, there are three elements constituting it i.e. work or service performed; under the menace of any penalty; and for which the person has not offered himself or herself voluntarily. The Committee of Experts for the Application of Conventions and Recommendations (CEACR) of the ILO has explained the ambit of the forced labour provisions as follows: for work or service, there must be worked performed or service provided, although the legality and formality of it is irrelevant; for menace of any penalty, it need not be in the form of penal sanctions but may also take the form of a loss of rights or privileges such as a promotion, transfer, access to new employment, housing, etc; and for voluntary offer, work accepted under the menace of any penalty is not work accepted voluntarily. There is no ‘voluntary offer’ under threat; and where deceit and fraud are involved in the original work offer, the worker’s acceptance cannot be considered knowing and voluntary. So, at all times, a worker’s right to free choice of employment is inalienable. This is because a worker must always be free to choose to leave his or her work. Two key issues are evident here: whether the consent to work was in fact freely given, and whether the worker retains the ability to revoke his or her consent…

 

  1. Going by Afrab Chem Ltd v. Pharmacist Owoduenyi, the question for present purposes is whether servile conditions have been imposed on the claimant by the defendant. Here I must first state that what the Court of appeal called servile conditions would today amount to or be alternatively called unfair labour practice(s), a concept introduced under section 254C(1)(f) of the 1999 Constitution. To answer this question, we may need to take a closer look at the acts of the defendants complained of by the claimant. A look at the statement of facts of the claimant will reveal the following complaints: no staff handbook or manual was given to the claimant (paragraph 7); despite being told that his salary will correspond with his promotion, he was never informed in writing of his promotion (paragraph 8); a virtual salary account (VSA) was opened for him without his consent, and ATM card was thereby issued to him but he cannot access the statement of account (paragraph 10); even as transport coordinator, he was made to work as a gardener, messenger and a driver with threats of being dealt with if he complains (paragraphs 14 and 15); he was compelled to reside in the 1st defendant’s premises (paragraph 16); and for 7 years, he worked day and night and was not allowed to go on leave despite repeated requests (paragraph 17). All of these pleadings are supported by paragraphs 7 to 17 of the claimant’s deposition on oath of 10th March 2015.

 

  1. What is the response of the defendants to all of this? Both defendants confirmed the opening of the VSA (paragraph 3 of the 2nd defendant’s statement of defence and counterclaim, and paragraph 25 of the 1st defendant’s statement of defence). The 2nd defendant’s general denial of the other complaints of the claimant in its paragraph 2 of the statement of defence and counterclaim is no denial as it is not even in a position to deny those complaints aside form the fact that a general traverse of a pleading is not a denial of that pleading. See Akande v. Adisa & anor [2012] LPELR-7807(SC), El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359.

 

  1. It is thus the denial or lack of denial of the 1st defendant that is critical for present purposes. In paragraphs 5 to 7 of the 1st defendant’s statement of defence (and as supported by paragraphs 5 to 7 of the 1st defendant’s witness statement on oath of 14th October 2015), the 1st defendant acknowledged employing the claimant as store keeper; and that while acting as store keeper, several items in his custody got missing as a result of which the 1st defendant transferred the claimant to it transport department where the claimant was promoted to the position of transport coordinator. Something is definitely illogical and hence wrong here. How can the claimant be rewarded with a promotion when as a storekeeper several items in his custody got missing? This is just unbelievable. The 1st defendant would go on to accuse the claimant of committing several acts of misconduct in the transport department e.g. obtaining fake vehicle particulars, loss of 10,000 litres of diesel oil, and unauthorized usage of trucks. And it is for the acts of misconduct that the 1st defendant terminated the employment of the claimant.

 

  1. In paragraph 20 of the statement of defence, the 1st defendant acknowledged that the terms of employment between it and the 1st defendant were oral, which oral terms and conditions were: monthly salary is N36,000; the claimant is entitled to one month notice or one month salary in lieu of notice; in the event of termination, the claimant shall be entitled to one month salary for every year he worked as gratuity; the claimant shall work according to the work hours communicated to him by the 1st defendant; and the claimant shall in carrying out the instructions of the 1st defendant as transport coordinator do all other jobs assigned to him by the 1st defendant. In paragraphs 22 and 24, the 1st defendant denied that the job it assigned to the claimant amounted to slavery and servitude; or that the claimant was forced to live on its premises – instead the claimant voluntarily lived on the premisses so as to take advantage of free accommodation.

 

  1. Do all of this amount to servile conditions (unfair labour practice or practices) imposed on the claimant by the 1st defendant? InMr Olabode Oguntale & 64 ors v. Globacom [2013] 30 NLLR (Pt. 85) 49 NIC, this Court held as unjust, exploitative and unfair labour practice(s) the following:
  • The respondent’s failure to issue the claimants with written particulars of the terms of their contract of employment.
  • The respondent having to stop the issuing of pay-slips to the claimants.
  • The respondent’s failure to allow the claimants go on annual leave, pay leave allowance and overtime allowance.
  • The respondent compelling the claimants to bank with Equatorial Trust Bank, a Bank that the respondent has an interest in, by paying the claimants’ salaries into accounts they were compelled to operate with the Bank since the claimants were not left with any option as to the choice of a Bank.

 

  1. Coming to the instant case, and applying these holdings, it is servile conditions and hence unfair labour practices for the 1st defendant not to reduce to writing the oral terms and conditions of the contract of employment; to work day and night for 7 years without leave (there was no specific denial of this by the 1st defendant); not to be given pay-slip; etc. The opening of a VSA for the claimant requires specific comment. The law is that an employer must pay salaries through bank accounts, the bank chosen by the employee through his own free will. In the instant case, what we have is that the 1st defendant got the 2nd defendant to open the VSA. The claimant had no choice in this. This contravened the law as the 1st defendant thus compelled the claimant to open an account with a particular bank of the 1st defendant’s, not claimant’s, choice. The argument of the 1st defendant that a VSA is common practice does not thereby make it right in the world of employment. There is no rule of law that says that common practice is right or legal or lawful simply because it is common practice. As if this was not bad enough, the claimant did not even know how much was credited into the account as his salary; and he could not even be given the statement of account since the account was not his, but the 1st defendant’s. This is the basis that the 2nd defendant argued that the claimant had no privity of contract with it. I have no doubt whatsoever that the 1st defendant opening a VSA for the benefit of the claimant in an employment relationship is not only unjust, it is exploitative and an unfair labour practice. But this wrong must be held only against the 1st defendant, not the 2nd defendant, given that a virtual account may be useful for other purposes (banking or not); certainly not for employment purposes. The question of the 2nd defendant facilitating the conditions of employment into which the claimant was put accordingly cannot arise. A VSA should never be accepted in our employment and labour relations. It is demeaning to the dignity of the worker or employee; and I dare say offends section 34 of the 1999 Constitution. To this extent, I find and hold that relief (i) of the claimant has been proved but only so far as the 1st defendant is concerned and the acts complained of are servile and unfair labour practices and so offend section 34 of the 1999 Constitution.

 

  1. In relief (iii), the claimant prayed for N20 Million once relief (i) is granted. This claim is separate and distinct from that claimed by the claimant in respect of wrongful termination. Section 19 of the National Industrial Court (NIC) Act 2006 permits this court to grant compensation and damages, a provision Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR85 held should not be applied at large but applied only when supported by the pleadings and evidence. In the instant case, therefore, not only are the pleadings in support, the evidence before the Court as highlighted is also in support. The argument of the defendants that having to grant damages here would amount to double compensation since the claimant is claiming for wrongful dismissal is thus untenable as the two heads of claim are separate and distinct. The claim for N20 Million by the claimant was against the two defendants. I held that the 2nd defendant cannot be held responsible for the servile acts imposed on the claimant by the 1st defendant. For this reason, I do not see any justification to uphold the N20 million as claimed. I reduce it ratably as between the two defendants. In consequence, I award N10 Million against only the 1st defendant in favour of the claimant in terms of relief (iii).

 

  1. The second head of claim is that the claimant’s dismissal was unfair and wrongful. Exhibit C1 dated 15th August 2014 is the letter through which the defendant informed the claimant that “in view of the circumstances surrounding your compulsory leave, and as a result of our findings, the management has decided to terminate your services with the company”. The defendant proceeded in same Exhibit C1 to state that “this is a notice, therefore, that your services are no more required with effect from 18th July 2014”. Realizing that Exhibit C1 made the termination of the claimant’s employment retrospective, the defendant issued Exhibit C8(a) dated 20th August 2014 wherein the claimant was told that “this is a notice, therefore, that your services are no longer required with immediate effect”. By Exhibit C8(a), the claimant remained in employment of the defendant up to 20th August 2014 when the termination of his employment took effect. This means that the claimant is entitled to all his earned entitlements (including salaries and allowances) up to 20th August 2014. See Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018, which held that:

Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal.

 

  1. The law is that where an employer gives a reason for terminating the employee’s employment or even dismissing the employee, the duty is on the employer to justify the said termination or dismissal. In the words of Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC): “although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more”. Exhibit C8(a) was quite emphatic that it is the surrounding circumstances surrounding the claimant’s compulsory leave, and as a result of the defendant’s findings, that the claimant’s employment was terminated. In paragraph 19 of the 1st defendant’s statement of defence as well as paragraph 19 of its deposition of 14th October 2015, the 1st defendant indicated that it is the acts of misconduct perpetrated by the claimant that led to his appointment being terminated. I already held as unbelievable the averment by the 1st defendant that the claimant was transferred from being storekeeper to the transport department because of his misdeeds and yet was promoted to transport coordinator in the transport department.

 

  1. The 1st defendant reeled out the misdeeds that to it were committed by the claimant. The claimant’s case is that he was not given any hearing by the 1st defendant before he was disengaged. I note that the 1st defendant did not specifically deny that it did not give the claimant an opportunity to defend himself. In paragraph 31 of its statement of defence and paragraph 31 of the written statement on oath of 14th October 2015, all the 1st defendant stated was that “the termination of the 1st Defendant was in all circumstances fair and done according to its disciplinary procedure”. Even when the 1st defendant’s witness 1 was cross-examined, all he did was to admit that the said disciplinary procedure of the 1st defendant was not in a written form but oral. Earlier I indicated how the 1st defendant in paragraph 20 of its statement of defence acknowledged that the terms of employment between it and the claimant were agreed orally sometime in 2009. How can a disciplinary procedure be said to be orally? The pleadings and evidence of the 1st defendant here all appear to be an afterthought. It is thus my finding and holding that the 1st defendant did not give any hearing to the claimant regarding the acts of misconduct it accused the claimant of committing. For this reason, the claimant has proved relief (ii), which is hereby granted.

 

  1. Once relief (ii) is granted, the claimant in relief (iv) is asking for N5 Million for the wrongful dismissal. Unfortunately for the claimant, the recent cases of Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85 and Peter Onteachonam Obanye v. Union Bank of Nigeria Plc, and applied by this court in Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018, hold that the quantum of damages for wrongful dismissal “should be limited to the amount which would have been earned by the plaintiff over the period of notice” (Peter Onteachonam Obanye v. Union Bank of Nigeria Plc). What is the monthly salary of the claimant? To the claimant, since he was promoted to transport coordinator (the 1st defendant affirmed this promotion as I indicated earlier) his monthly salary ought to be N140,000.00 given that the last occupant of that office, Ebo Taylor Ernest, as per Exhibit C2 took N140,212.24 as his monthly salary. To the 1st defendant, the claimant’s monthly salary was N36,000 only. In fact vide Exhibit C9 dated 27th August 2014, the 1st defendant calculated the claimant’s final entitlements on the basis of N36,000 as his monthly salary. I just indicated that the 1st defendant affirmed the promotion of the claimant to the position of transport coordinator. Now, promotion cannot be to the detriment of a person. See Ambassador D. C. B. Nwanna v. National Intelligence Agency& 2 ors unreported suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16th December 2013, which held thus:

Generally, one cannot be promoted to one’s disadvantage. In other words, promotion must be for one’s benefit. So where a promotion is disadvantageous to the employee, is that really a promotion?…In any event, Exhibit D14, in introducing a detrimental requirement, since those on notional promotion, not enjoying any financial benefit from the notional promotion, cannot be said to have been promoted to their benefit, means that it (Exhibit D14) cannot be said to have met the requirement that one cannot be promoted to one’s disadvantage…

 

  1. In paragraph 9 of the statement of facts, the claimant gave the 1st defendant notice to produce the salary records of Mr Ebo Taylor Ernest. The 1st defendant did not so produce. The law is that once notice to produce is given, failure to so produce means that the person who issued the notice to produce can then use secondary evidence to prove his case. On this score, I accept Exhibit C2 as proof of the monthly salary of Mr Ebo Taylor Ernest. I so find and hold. Given then that the 1st defendant affirmed that the claimant was promoted to the position of transport coordinator, the promotion cannot be to the detriment of the claimant; as such, I accept the claimant’s argument that his monthly salary ought to be that taken by the last occupant. Exhibit C2 puts this as N140,212.24, but the claimant uses N140,000 instead. Since Courts cannot grant more than what is claimed (Gabriel Ativie v. Kabelmetal (Nig.) Ltd, supra), I have no choice but to take the claimant’s N140,000 as the monthly salary. I accordingly find and hold for the claimant regarding N140,000 as the monthly salary he is entitled to from the 1st defendant. Thus being so, and as transport coordinator, and given that the 1st defendant used in Exhibit C9 one month salary as the basis of payment in lieu of notice, I hold that for relief (iv), the claimant is entitled to only N140,000 being one month’s salary in lieu of notice as the quantum of damages for his wrongful dismissal.

 

  1. The third head of claim is that the claimant is owed unpaid leave allowances, unpaid salaries and one month salary in lieu of notice. In Exhibit C9, the 1st defendant calculated the final entitlements of the claimant using three heads: 1 month in lieu of notice; 6 months salaries representing the claimant’s 7 years of service; and 1 month leave allowance. Since I have already granted the claimant N140,000 being one month’s salary in lieu of notice, it means that the payment of one month’s salary in lieu of notice indicated as the first head in Exhibit C9 cannot again be granted. That will be double compensation. We are thus left with only two heads: 6 months salaries representing the claimant’s 7 years of service; and 1 month leave allowance. At N140,000 times 6 months will give us N840,000 for the first head. For the second head, the evidence before the Court is that for the seven years, the claimant did not go on leave. So instead of the one month leave allowance Exhibit C9 indicated, it should be that amount multiplied by 7 years. This means N140,000 times 7, which will give us N980,000. For relief (v), therefore, I find and so award the sum of N1,820,000 as proved being 6 months’ salary plus leave allowances for the 7 years of service of the claimant. In paragraph 31 of his statement of facts, the claimant used these parameters to calculate what he is claiming as per relief (v), although for salaries, he used 7 months instead of the 6 months that the 1st defendant used. I used the 1st defendant’s parameters given that the claimant in same paragraph 31 talked of the 1st defendant’s admission.

 

  1. The claim for solicitor’s fees remains unproved and so cannot be granted. I so hold.

 

  1. For the claim for interest, this Court does not grant pre-judgment interest. See Mr Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC. Accordingly, the claimant can only get post-judgment interest. I hold.

 

  1. I now turn to the counterclaims of the defendants. I start with the counterclaim of the 2nd defendant, which is for “a declaration that this suit, as it relates to the counterclaimant, is needless and spurious and has exposed the counterclaimant to unnecessary cost and expense” and “the sum of N500,000.00 being the counterclaimant’s cost of the defence of this suit and the prosecution of the counterclaim”. This counterclaim is more of the 2nd defendant’s defence to this action than a counterclaim. I held already that the claims of the claimant are more to the 1st defendant than the 2nd. This being so, the claimant has no case against the 2nd defendant. I so find and hold. The claim for cost, which is a claim for special damages, has not been proved, Exhibit DOO10 being too general to meet the specificity required for the proof of special damages. I so find and hold.

 

  1. The 1st defendant’s counterclaim is for: “a declaration that the Plaintiff failed to performed (sic) and or refused to perform his duties under the employment agreement with the 1st Defendant and his contract of employment with the 1st Defendant was duly terminated for breach of the agreement”; “an order that the Plaintiff pay to the Defendant the total sum of N2,515,000.00, 915,650.00 as refund of all monies spent on the repair of Truck 880 as a result of the Plaintiff’s breach of contract”; and “cost of action”. In submitting a sole issue for determination in paragraph 1.4 of its final written address i.e. “whether or not the Claimant has proved his case to entitle him to the reliefs being sought”, the 1st defendant effectively abandoned its counterclaim.

 

  1. That the 1st defendant said nothing of its counterclaim in its final written address aside, counterclaim (1) seeks a declaration that the claimant did not perform his duties under the employment agreement, which contract of employment was thus duly terminated for breach of the agreement. This is more or less the 1st defendant’s defence to the claimant’s case of wrongful dismissal, which I already held that the 1st defendant could not justify. Exhibit RO2 dated 5th June 2013 and titled “Loss of 10,000 Litres of Diesel Oil” is addressed to the claimant and requires the claimant to state in writing all he knows about the missing 10,000 liters of diesel oil (AGO). The evidence of Richard Oguntoye (the 1st defendant’s witness 1) under cross-examination is that when the claimant stole, the 1st defendant gave him a query i.e. Exhibit RO2. The witness was, however, asked for the response of the claimant to Exhibit RO2. His answer was that he does not have a copy of the claimant’s response to Exhibit RO2. He was also asked whether the claimant was even served Exhibit RO2. His answer was that he does not know if Exhibit RO2 was served on the claimant. If the 1st defendant was not sure that it served Exhibit RO2 on the claimant, how can it make a case baed on it? In any event, this Court was not told what duties the claimant failed to perform. Counterclaim (1) fails and so is dismissed.

 

  1. Counterclaim (2) seeks for N2,515,000.00, 915,650.00 as refund of all monies spent on the repair of Truck 880 as a result of the claimant’s breach of contract. Exhibit RO1 dated 20th March 2015 is a report on fake vehicle document produced by the claimant for years 2014/2015. It is signed by Ogundiran Akinyemi, Transport Manager (1st defendant’s witness 2), who under cross-examination acknowledged being the author and that when he wrote Exhibit RO1, this matter was already in court; and that it was his Logistics Director who instructed that he writes Exhibit RO1. As a general rule or principle, a document made by a party to a litigation or person interested when proceedings are pending or is anticipated as in the case at hand, such evidence is not admissible. See section 83(3) of the Evidence Act 2011 and Ladoja v. Ajimobi&ors [2016] LPELR-40658(SC). This means that Exhibit RO1, written during the pendency of this case, is inadmissible and so cannot be used for purposes of this judgment. I so find and hold.

 

  1. Exhibit RO3 dated 2nd April 2014 is the report on Truck 880 that had an accident on the way back from Abuja with private business load on it and transferred the load to Truck 179. The report at the second page is said to be prepared by Ogundiran Akinyemi, Transport Manager (1st defendant’s witness 2). There is a second signatory, “Motor Boy”, who signed as witness. At the first page of Exhibit RO3 in the entry on “Motor Boy”, it is stated that “the motor boy confirmed he was there when both the driver of 880 and 179 were discussing with Sunday [presumably the claimant] on phone in Igbo language on how to transload the load and one Mr. Emmanuel (08024373408) in Aviele confirm that to me through phone conversation during my investigation of the report”. Who is this motor boy? The Court is not told. As it is, this motor boy remains fictitious. I so find. The evidence accordingly attributable to the motor boy by the 1st defendant remains fictitious and so of no evidential or probative value. I so hold. In fact, as submitted by the claimant, the evidence is hearsay, assuming that is that the motor boy exists in reality. I so find and hold. The evidence of Ogundiran Akinyemi under cross-examination is that he did not visit Aviele, the scene of the accident, but that he orally questioned the Motor Boy physically. And yet he gave no name of the Motor Boy. He went on that his Logistic Director, Mr Sonic, authorised him to investigate the claimant; and that theauthorization was orally; although he made his report in writing.Exhibits RO1(a) to RO1(kk) are said to be the originals of vehicle particulars produced by Ogundiran Akinyemi, who said they were issued to him in March 2015 and to expire in March 2016. To Ogundiran Akinyemi under cross-examination, when investigating the claimant on the issue of fake particulars, he did it by calling the claimant on phone. Mr Ogundiran Akinyemi went on that he knows that forgery is a criminal offence; and yet he did not report to the Police the issue of forgery concerning the documents forged. All of this is not the evidence that can be used to grant counterclaim (2), which incidentally is a claim for special damages that according to NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) cannot be inferred but must be claimed specially and proved strictly. How did the 1st defendant come by “N2,515,000.00, 915,650.00” as monies it spent on the repair of truck 880? This Court is not told. Counterclaim (2) accordingly fails and so is hereby dismissed.

 

  1. Having thus failed in its counterclaim, the question of cost as per counterclaim (3) does not arise. In any event, although cost follows event in litigation, the award of cost is entirely at the discretion of the court. See NNPC v. Clifco Nigeria Ltd,Anyaegbunam v. Osaka [1993] 5 NWLR (Pt. 294) 449 and Obayagbona v. Obazee [1972] 5 SC 247.

 

  1. On the whole, while the claimant’s case succeeds, the defendants’ counterclaims all fail. Accordingly I make the following declarations and orders in terms of the claimant’s case:
  • It is declared that the conditions of employment under which the 1st defendant placed the claimant throughout his employment with the 1st defendant were servile, unfair labour practice and so amounted to servitude and/or slave labour contrary section 34 of the 1999 Constitution.
  • It is declared that the purported dismissal of the claimant by the 1st defendant is unfair, wrongful and contrary to natural justice.
  • The 1st defendant shall pay to the claimant N10,000,000.00 (Ten Million Naira) only as general damages for servile and unfair labour practices, which amounted to servitude and/or slave labour contrary section 34 of the 1999 Constitution.
  • The 1st defendant shall pay to the claimant N140,000.00 (One Hundred and Forty Thousand Naira) only being one month’s salary in lieu of notice as the quantum of damages for his wrongful dismissal.
  • The 1st defendant shall pay to the claimant N1,820,000 being 6 months’ salary plus leave allowances for the 7 years of service of the claimant to the 1st defendant.
  • The 1st defendant shall pay to the claimant cost of this action put at N200,000 only. This is in addition to cost(s) awarded during the hearing of the case.
  • All the sums payable under orders (3), (4), (5) and (6) above are to be paid within 30 days of this judgment, failing which they shall attract interest at the rate of 10% per annum.

 

  1. Judgement is entered accordingly.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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