IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HON. JUSTICE SALISU HAMISU DANJIDDA
DATE: 3RD MAY, 2019 SUIT NO:NICN/YEN/25/2017
BETWEEN:
MRS. EKWELEM CHINENYE CLAIMANT
AND
ACRON MEDICAL CONSULTANTS
LIMITED DEFENDANT
REPRESENTATION:
C. P. AGBAEZE FOR THE CLAIMANT
E. C. ONYEUKWU FOR THE DEFENDANT
JUDGMENT
The Claimant filed this suit by way of Complaint on the 17/2/2017. The Complaint was accompanied by statement of material facts, witness statement on oath and other originating processes. The Defendant on the other hand filed its memorandum of conditional appearance, statement of defence and other accompanying processes. It also filed a motion challenging the jurisdiction of the court owing to the alleged failure of the Claimant to comply with sections 97 and 99 of the Sheriffs and Civil Process Act while the Claimant filed a counter affidavit to the said motion. The Defendant thereafter filed a reply on points of law to the counter affidavit. By an order made on the 23/2/2018, the Defendant’s amended statement of defence was deemed as properly filed and served. Meanwhile the Claimant filed a reply to the Defendant’s statement of defence. The Claimant’s claim against the Defendant is as follows;
“1. The sum of N 565,000.00 (Five Hundred and Sixty Five Thousand naira) Only, Being the sum total of the claimant’s three(3)months salaries for September, October & November, 2016, December bonus for 2016 and her gratuity.
2. Interest on the said outstanding sum Claimed at the rate of 10% calculated from the date of filing this suit on a monthly basis until judgment is delivered and thereafter on a 10% per annum from the date of judgment until final liquidation of the judgment debt.
3. AN ORDER mandating/ directing the defendant to release the tax receipts of payments deducted from the claimant’s salary as TAX within the twenty- four (24) hours from the date judgment was delivered.
4. The sum of Five Hundred Thousand Naira (N 500, 000.) as general/exemplary damages.
The Claimant in proof of her case testified as CW1 and tendered 9 Exhibits while the Defendant called DW1 and tendered 4 Exhibits. It also tendered 2 Exhibits through CW1.
CASE OF THE CLAIMANT
Claimant testified as CW1 and adopted her statements on oath dated 17/2/2017 and 9/11/2017 respectively as her evidence in chief wherein she testified that she was employed as a Nurse by the Defendant sometime in the year 2010 and continued working with the Defendant for over six (6) years and six (6) months. That being a certified Nurse and employed as such, her job specification which was contained in her appointment letter was purely to work as a Nurse at the Afam VI Power Station in Oyigbo Local Government Area of Rivers State.
That the Defendant sometime in the year 2013 issued her with an appointment letter which contains and reflects all that the Defendant told her upon resumption of work at the Defendant Company. CW1 testified that she is married and had her first child while in the Defendant
company and was then paid all her salaries then without any deduction during her 1st maternity leave period. However, during her pregnancy for the second child towards the month of delivery, she applied for maternity leave and the Defendant impliedly approved and allowed her to go on the maternity leave for three (3) months i.e. (September, October and November).
It is the testimony of CW1 that upon the completion of the period of the maternity leave when she sought to resume work at the Afam VI Power Station as clearly stated by her appointment letter, the Defendant immediately upon the said resumption wrote her a letter dated the 14th of September, 2016 posting her out of the Afam VI Power Station where she was initially employed to work. That the said posting letter automatically implies a clear reduction in her salary scale as her salary at Afam VI was N 80,000(Eighty Thousand Naira) Only. That according to the CW1, the transfer was made to punish her. That she rejected the posting and rather filed in a resignation letter which is Exhibit 3. That she requested for her gratuity, salaries for the three (3) months period of maternity leave and the December bonus from the Defendant but instead of responding to her request in full, the Defendant having paid the three (3) months’ salary already to her, wrote her a letter (Exhibit) 4 informing her that the said three months salaries would be deducted from her gratuity/entitlement.
She testified that instead of the Defendant paying her the sum of Five Hundred and sixty five thousand naira only (N 565, 000) in full, it presented to her with a cheque of One Hundred and Fifty Five Thousand Naira only (N 155, 000), which she rejected as it was an error from the Defendant. CW1 stated that a clearer break down of the entitlements due to her as a staff who has legitimately resigned are as follows;
a. The gratuity for the first year was N 75,000.00
b. For the remaining five years and six months it is N 440000.
c. December bonus of N 80,000 for the year 2016
d. N 50, 000 for nineteen (19) days she worked in December, 2016. A deduction of N 80, 000 as one (1 )month salary in lieu of one month notice.
Thus the ground total sum to be paid to her by the Defendant as her total entitlement is N 565, 000.00(Five Hundred and Sixty Five Thousand Naira) only, with interest.
CW1 stated that the Defendant was making a deduction of N 1, 250 (One Thousand Two Hundred Fifty Naira) only monthly from her salary, starting from the month of November 2013 till the month of November 2016 as TAX (making a total of N 46, 250), and after making repeated demands by Exhibit 5 for the release of receipts/proof of payment of the tax made supposedly in her favour by the Defendant, same proved abortive.
That in a bid to recover her whole money, she briefed her solicitors, who wrote to the Defendant through Exhibit 8 demanding the total sum claimed.
The Defendant through their Solicitors wrote Exhibit 7 in reply to Exhibit 5 while the Claimant’s Solicitors wrote Exhibit 8 in response to the Defendant’s letter.
Claimant further stated that Exhibit 9 which is her Bank statement of account establishes that she was paid her salaries during her 1st and 2nd maternity leave. That she did not abdicate her duty and the Defendant was aware of her maternity leave.
Under cross examination, CW1 testified that she started working with the Defendant in June, 2010 as a registered Nurse. That her initial location was Afam VI power plant Onyigbo and she did not move from that location throughout her stay with the Defendant. That Onyigbo power plant is not the base location but the Defendant has a site Clinic there. That she was employed and posted there as a result of a contract that the Defendant had with NetcoDietsMann. That her contract with the Defendant was renewable every year and she was not given a contract of employment for each year that the contract was renewed. That when she was engaged in 2010, she was given a letter of appointment but she could not remember whether she was given one in 2011, but she was given a letter of appointment in 2013 and she signed and collected the letters of 2010 and 2013 which contain terms and conditions of employment. According to the CW1, she was not given a letter of appointment in 2015. She stated that one of her grounds of resignation was that she was redeployed from Afam VI power plant to the base hospital but she did not resign because she was not given maternity leave but for the reason that her maternity leave allowance was deducted. That the reason she came to court is that her maternity leave allowance and her Christmas bonuses were deducted and for the release of tax receipts deducted from her salary. That she got married in 2014 while in the employment of the Defendant and she had two children between the time she got married and the time she resigned. That she used to go for maternity leave when she gave birth to her two children. Though there is no provision for maternity leave in Exhibit 1 but maternity leave was granted to her by the Defendant and paid for that for all the two times she delivered and that was not out of any magnanimity because she had a meeting with her Director who told them that once one is pregnant, she could apply for a maternity leave.
It is the evidence of CW1 under cross examination that she did not bring to the hospital any person in her place during the period of her maternity leave. That she applied for the two maternity leaves which were approved. That she wrote the application in 2016 before she delivered in August, 2016. That she was entitled to 15 working days as her annual leave and she applied for same in 2015 and 2016. The applications were admitted as Exhibits 10 and 11. According to CW1, she did not resume work after her annual leave because she applied for her maternity leave separately from the annual leave and she was supposed to resume on 16/12/2016. That the Defendant used to give a verbal approval for both annual and maternity leaves. That she gave the Defendant one month’s salary in lieu of notice upon her resignation. That she collected Exhibit 4 alongside the cheque of her entitlement which she rejected.
CW1 under Re-examination stated that she was paid her maternity leave in 2014 which was not deducted.
CASE OF THE DEFENDANT
Defendant called one Moses Onwuchekwa who is its manager as DW1 wherein he adopted his statement on oath and testified that the job location of the Claimant was not limited to the Afam VI Power Station at Oyigbo Local Government Area of Rivers State and that the Defendant had a renewable annual contract with NetcoDietsmann for the provision of medical services under which the Defendant outsource nurses to Afam VI Power plant base of NetcoDietsmann at Oyigbo Local Government Area of Rivers State. The service Contract was admitted in evidence as Exhibit 12. That it was under Exhibit 12 that the Defendant by a letter dated 6/10/2010 (Exhibit 13) engaged the Claimant as a site Nurse at the Shell Petroleum Development Company Afam VI project site at Oyigbo. That in 2011 when the contract between NetcoDietsmann and the Defendant was renewed, the Claimant was issued with another letter of appointment dated 14/11/2011 (Exhibit 14) which set out some of the terms of her contract with two copies of a memorandum regarding the terms of her appointment together with the letter of appointment which constitutes the contract of service between the Claimant and the Defendant. That according to DW1, the relationship between the Claimant and the Defendant is that of contract of service based on the Claimant Letter of Appointment which incorporated the terms of the contract between the Defendant and NetcoDietsmann for supply of site Nurses at Afam VI Power Plant Oyigbo. That after the contract was renewed; the Defendant by a Letter of Appointment dated 7/11/2015 (Exhibit 15) appointed the Claimant as a staff Nurse in the hospital but was seconded to Afam VI project site. By that letter, the Claimant services as a staff Nurse of the Defendant was no longer limited to Afam VI project site but could be redeployed to the base hospital. It is the evidence of DW1 that the Claimant at no time applied for maternity leave from the Defendant and the Defendant did not impliedly or expressly or at any time under any guise approve any maternity leave for the Claimant and did not allow the Claimant to go on such leave in the month of September, October and November, 2016. That the Claimant couldn’t have applied for maternity leave from the Defendant because under the contract of service between the parties there was no provision for maternity leave or payment of salary during maternity leave. To the DW1, the Claimant was awol during the month of September, October and November, 2016 and abdicated her duties. And although the Claimant subsequently claimed that she was on maternity leave during that period which was without the consent and approval of the Defendant, the Defendant Accountant erroneously paid in three months’ salary to the Claimant. When these facts were brought to the attention of the management of the Defendant by the Accountant, the Defendant by a letter dated 23/12/2016 informed the Claimant that the three months’ salary erroneously paid to her would be deducted from her entitlement as well as one month salary in lieu of notice of resignation. DW1 also testified that the Claimant was entitled to annual leave of 15 working days in August, 2016 and at the end of her annual leave she did not resume work at her duty post until the 15/12/2016. That prior to the resumption of work by the Claimant after her annual leave, on the 14/9/2016, due to an ongoing reorganization in the Defendant company, the Defendant wrote to the Claimant through Exhibit 2 informing her of her redeployment from Afam VI project site to the base hospital at No.1 Acron Avenue, Stadium Road, Port Harcourt but the Claimant rejected the posting and by Exhibit 3 resigned her appointment and stopped work on that same day. That the resignation of the Claimant was effective from the 19/12/2016 and not 15/1/2017 as stated in her letter because the Claimant stopped working for the Defendant on the 19/12/2016 till date. That under the contract of service between the Claimant and the Defendant, the Claimant is only entitled to annual leave of 15 working days which she applied for in 2015 and 2016 and was approved and granted as contained in Exhibits 10 and 11.
It is the evidence of the Defendant that the agreement between the Claimant and Defendant is purely a contract of service and that the Defendant is a medical facility and not an industrial, commercial or agricultural undertaking or venture. That apart from the Claimant’s salary, she is entitled to one month salary for annual leave, one month salary as Christmas bonus and gratuity calculated on leaving the Defendant employment as one month salary for each year the Claimant worked for the Defendant and the Claimant worked for 6 (six) years less 11 (eleven) days which makes her gratuity N 475, 000 (Four Hundred and Seventy Five Thousand Naira) from which the Defendant by way of set off deducted the sum of N 240, 000 (Two Hundred and Forty Thousand Naira) being the 3 month salary erroneously paid to the Claimant for the month of September, October and November, 2016 and N 80, 000 (Eighty Thousand Naira) being one month salary in lieu of notice of resignation, leaving a balance of N 155, 000 (One Hundred and Fifty Five Thousand Naira). According to the Defendant, the Claimant is not entitled to Christmas bonus from the Defendant for the year 2016 as the Claimant resigned her appointment with the Defendant before the Christmas bonus was due and is not entitled to Christmas bonus after her resignation. That the Defendant is not a tax authority and so cannot issue a tax certificate to the Claimant.
Under cross-examination, DW1 stated that NetcoDietsMann still has an existing contract with the Defendant. That the Claimant was paid her salary during her maternity leave for the months of November and December, 2014 and January, 2015. That the appointment letter given to the Claimant when she was employed emanated from the Defendant and the job specification of the Claimant was that she was a Nurse at site Clinic. That there is no mention of NetcoDietsMann in the Claimant’s appointment letter dated 6/10/2010. Afam VI project site mentioned in Exhibit 13 is the NetcoDietsMann. It is the evidence of DW1 that it is not correct that they did not issue letter of appointment to the Claimant yearly but they did not issue a letter of appointment to the Claimant in 2012. DW1 said that it is not correct that the Claimant is not privy to Exhibit 12. That it was clearly stated in Exhibit 13 that Exhibit 12 exists. That there was no written reply to Exhibit 15 by the Claimant. DW1 further said that the Defendant does the business of rendering medical services and is always paid from the services and that it was deducting payee tax from the Claimant’s salary and the Claimant requested for the tax receipt evidencing the deductions made from her salary. It was on the ground of non-performance that the Claimant was transferred to the head office. That Exhibit 15 was accepted by the Claimant by conduct because she continued working with the Defendant though there was no written reply from her. It is the evidence of DW1 that from 2010 to 2015, the Defendant never disengaged the Claimant and that the Claimant is not a staff of NetcoDietsMann.
SUBMISSION OF THE DEFENDANT ON PRELIMINARY OBJECTION
The Defendant filed a preliminary objection by way of motion on notice dated and filed on the 31/1/2018 and prayed for the following reliefs;
“I. An order setting aside the service of the originating processes comprised in the general complaint form issued on the 17/2/2017 out of Bayelsa state and served on the Defendant/Applicant in Rivers state without compliance with section 97 and 99 of the Sheriff’s and Civil Process Act.
II. AN ORDER striking out the suit for failure to comply with section 97 and 99 of the Sheriffs and Civil Process Act.
III. AND for such further order(s) as this Hon. Court may deem fit to make in the circumstances.”
Defendant filed a 14 paragraph affidavit in support of the motion as well as a written address which is incorporated in the Defendant’s final written address.
Defendant raised a sole issue for determination namely;
“whether the failure to comply with the mandatory provisions of sections 97 and 99 of the Sheriffs and Civil Process Act renders the service of the complaint on the Defendant void and liable to be set aside”
Defendant referred to Sections 97 and 99 of the Sheriffs and Civil Process Act Cap S6 LFN, 2004
Defendant submitted that the Courts in a plethora of decided cases have consistently held that the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act are mandatory and that failure to comply with the provisions renders the issuance and service of the writ of summons (complaint) void. Defendant cited the case of Stirling Civil Engineering Nigeria Vs. Nwosu (LPELR)- 8162 (CA), where the Court of Appeal held that by virtue of sections 97 & 99 of the Sheriffs and Civil Process Act, the writ should carry the endorsement for service outside jurisdiction, while the time limited for answering to the summons would be 30 days after service. And if the writ of summons served out of jurisdiction requires a defendant to cause an appearance to be entered for him within 8 days, this does not comply with the provisions of section 99 of the Sheriffs and Civil Process Act and so will be declared null and void. See Skenconsult Vs. Ukey (1981) 1 SC 6; Ezomo Vs. Oyakhire (1985) 2 SC 260; Adegoke Motors Ltd us. Adesanya & Anor (1989) 3 NWLR (Pt. 109),
Bello vs. National Bank of (Nig) Ltd (2002) 6 NWLR (Pt. 246) at 217 -218
Defendant submitted that it is not in dispute that the complaint in this suit was issued in Bayelsa State for service out of Bayelsa State on the Defendant in Rivers State. That it is equally not in dispute that the complaint does not have on it the required endorsement as stipulated under section 97above. Also it is not in dispute that the Defendant was given only 14 days to enter appearance in the case rather than 30 days stipulated under section 99 above.
It is the submission of the Defendant that the law is settled that there must be compliance with the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act and the implication of non-compliance is that a Court of Law has no jurisdiction to deal with a matter which fails to comply with the requirements of section 97 and 99 of the Act. Therefore, any proceedings against a party without compliance with the provisions of the above sections of the law no matter how beautifully conducted is a nullity.
In Owners of the MV Arabella Vs. N.A.I.C (2008) 11 NWLR (Pt. 1097), P. 182 at PP 207-208 paras C-E, the Supreme Court held that the failure to endorse the required notice on a writ of summons for service outside of a State where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent; hence goes to the root of the jurisdiction and affects the competence of a Court.
Defendant conceded that the leave of court is no longer required before the issuance of the writ under the relevant rules of the court but its point of objection is that the proper endorsement as required by law was not complied with. A distinction must be drawn between leave to issue the writ out of jurisdiction and endorsement to be made on the writ to be issued and served out of jurisdiction. While the former is no longer a requirement of the law, the later is still a mandatory requirement of law that must be complied with by the party taking out the writ.
Defendant contended that it is of no moment that the defendant had taken some steps in the proceedings. That non-compliance with the Act was not a mere irregularity but a fundamental defect which went to the root of the jurisdiction and competence of the Court. This is against the backdrop that parties cannot by consent confer jurisdiction on the court where none exists. See Adesola Vs. Abidoye (1999) 14 NWLR (Pt. 637) p. 28 at 52 A-B.
Defendant therefore urged this Honourable Court to uphold the grounds of objection and set aside the issuance and service of the complaint.
RESPONSE OF THE CLAIMANT TO THE PRELIMINARY OBJECTION
The Claimant in her response to the preliminary objection filed a counter affidavit on 19/2/2018 and raised one issue for determination which is;
“Whether having regard to the provisions of the National Industrial Court of Nigeria Rules 2017, which derived its powers from the National Industrial Court of Nigeria Act 2006 and the 1999 Constitution of the Federal Republic of Nigeria as amended, service of the complaint and statement of facts on the defendant in the matter was not valid.”
Claimant referred the court to section 254 F (1) of 1999 Constitution of the Federal Republic of Nigeria as amended and submitted that the provisions of the above section of the Constitution clearly empowered the President of the National Industrial Court to make rules that will bind and regulate its proceedings and it was based on that the President has so made the National Industrial Court of Nigeria (civil procedure) Rules.
Claimant argued that by virtue of Order I Rule 10(1) of National Industrial Court of Nigeria Rules 2017, “out of jurisdiction” “means out of the federal republic of Nigeria” and Section 21 of the National Industrial Court Act 2006 provides that the Court shall have and exercise jurisdiction throughout the federation and for that purpose, the whole area of the federation shall be divided by the president of the Court into such number of judicial divisions as the president may from time to time, by instrument published in the federal gazette or decided and may designate any such judicial division or part thereof by such name as he thinks fit.
It is the contention of the Claimant that Sheriffs and Civil Process Act is not applicable to cases where the service of originating process is within the same jurisdiction which covers the entire state of the federation of Nigeria as provided for by the Rules of the National Industrial Court.
Claimant contended that It is trite law that, where the provision of a statement or rule is clear and unambiguous, it must be given its ordinary meaning. See Ardo V. Nyako (2014)10 NWLR PT.1416,Pg591@628
Claimant argued that the complaint served on the defendant is competent and proper, as no leave is required, taking into cognizance the fact that Rivers state and Bayelsa state are states within Nigeria and under the jurisdiction of the National Industrial Court of Nigeria.
Claimant also argued that the case of owners of the MV Arabella V.N.A.I. C cited by the Defendant cannot apply in the instant matter, because, the Supreme Court in the case based its decisions on the fact that there was nothing in the Federal High Court Act or Rules that excluded the applicability of the provisions of the Sheriff and Civil Process Act as regards obtaining leave and endorsement of originating process for service.
Claimant submitted that the Rules of Court that were dealt with in the cases of Stirling Civil Engineering Nig. V. Nwosu, Bello V National bank of Nig ltd, NEP A V. Onah cited by the defendant in his address, lack the presence of the definition of “outside jurisdiction” and they were decisions reached before the coming into existence of the Federal High Court Rules (2009) and National Industrial Court Rules (2017).
Claimant argued that assuming but not conceding that the Court tends to hold that the sheriffs and civil process Act applies, the defendant had already taken part/steps in the matter by filing its statement of defence, and other processes and also filed a motion on Notice dated and filed on 8112/2017 for amendment of their statement of defence, as same amounts to a clear waiver of their right to have objected timeously. See, National Bank ltd V. Shovoye(1977)5SC 181, N.U.B LTD V.Samba pet.Co Itd (2006)12 NWLR PT.993,Pg98.
In its reply on points of law, Defendant argued that Rules of court are subsidiary legislation and subservient to the main Act. Defendant cited section 18 of the Interpretation Act and Re:Uba (2008)
DECISION OF THE COURT ON THE NOTICE OF PRELIMINARY OBJECTION
In considering the Notice of Preliminary Objection, it becomes necessary to refer to the provisions of the Sheriffs and Civil Processes Act, and the rules of this Honourable Court which talk about issuance and service of originating process.
Sections 96, 97 and 99 of the Sheriffs and Civil Process Act provide as follows;
Section 96
“(1) Every writ of summons issued out of or requiring the defendant to appear at any court of a state or the Capital Territory may be served on the defendant in any other state or the Capital Territory”
(2) Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the state or the Capital Territory in which the writ was issued.”
Section 97
” Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall in addition to any other endorsement or notice required by the law of such state or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)……. ”
Section 99
“The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period ”
Order 7 rules 15 and 16 and order 1 rule 10 of 2017 rules of this court provide as follows ;
Order 7 rule 15
“(1) The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria, and is only divided by the President of the court into judicial Divisions or Registries for adjudicatory and administrative convenience.
(2) All originating processes or other court processes filed by any party before the court shall be served on any other party in any part of the Federation without leave of court.”
Order 16
” All originating processes or other court processes filed by any party before the courts which are to be served on any other party outside the Federal Republic of Nigeria shall be with the leave of the court. ”
Order 1 rule 10
“……’out of Jurisdiction’ in these rules means out of the Federal Republic of Nigeria. ”
It is pertinent to state that the above provisions of the rules of this court were made pursuant to section 254 of the 1999 as amended. Order 7 rule 15(2) has categorically said that any process shall be served in any part of the country without leave of the court but leave is only required when the process is to be served outside the country. By the combined effect of order 1 rule 10 and order 7 rules 15 and 16, I came to understand that these provisions were deliberately designed and made to avoid imagining that a party has to seek for leave to issue and leave to serve initiating process outside any state of the country. These rules were not only made and meant to be obeyed but binding on the parties and having them been clear and unambiguous, they must be given their plain and ordinary meaning. The Supreme Court in the case of Owners of the MV Arabella vs. N.A.I.C (supra) Per Ogbuagu JSC said that rules of court are not mere rules, but they partake of the nature of subsidiary legislations by virtue of section 18 of the Interpretation Act and therefore have the force of law. Though there is a difference between leave to issue and leave to serve but in any event, if a writ of summons is to be served within jurisdiction there will be no need for endorsement to be placed on the writ or leave to serve outside jurisdiction. Thus it is out of place to think of endorsement on the writ if the writ would be served within jurisdiction as contemplated by our rules. The argument of the Defendant that it is only challenging the issue of endorsement and not the service is, I think misconceived, because though endorsement and service outside jurisdiction are two different things but you can only talk of endorsement when the writ is to be served outside jurisdiction.
I have had a critical look at sections 96 and 97 of the Sheriffs and Civil Process Act both from the narrow and broader perspectives and I understand that the National Industrial Court is not contemplated by the said provisions. Learned Counsel for the Defendant relied on the case of
Owners of the MV Arabella vs. N.A.I.C (supra) and I wish to say that a case is only an authority for what it decides. In the above case, the provisions of order 7 rules 15 and 16 of 2017 rules of this court were not contemplated by the trial court or the appellate courts. But rather order 10 rule 14 of the Federal High Court (Civil Procedure) Rules, 1976 was considered by the Supreme Court, which required leave to issue and serve writ out of jurisdiction.
It is worthy of note that the provision of Section 97 of the Sheriff and Civil Process Act is not absolute. Sections 99 and 103(2) of the said Act make Section 97 subject to the Rules of Court. Section 103 (2) provides thus:
“Such service may, subject to any rules of court which may be made under this Part, be effected in the same way, and shall have the same force and effect, as if the service were effected in the State or the Capital Territory in which the process was issued.”
By its very wording, it makes the issues of service subject to the provisions of the respective rules of Court on Civil procedure. Suffice it to note that Order 7 Rules 15 and 16 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 are instructive on this point.
From the combined reading of the foregoing provisions, it is the respectful opinion of this Honourable Court that non-compliance with Section 97 of the Sheriffs and Civil Process Act, particularly in the light of the provision of Section 103(2) which makes Section 97 subject to the Rules of this court, there can be no gainsaying that operation of Section 97 does not derogate from the jurisdiction of this Honourable Court to hear and determine this suit. The National Industrial Court of Nigeria is one court whose jurisdiction covers the entire country and the various divisions of the Court are for administrative convenience only. See Section 21(1) of the National Industrial Court Act which says as follows ;
“The court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the president of the court into such number of judicial divisions as the President may from time to time, by instrument published in the Federal Gazette decide.
In the light of the foregoing, the preliminary objection filed by the Defendant and the argument made in support of same are refused and consequently dismissed.
SUBMISSION OF THE DEFENDANT ON THE SUBSTANTIVE MATTER
Defendant filed its final written address on 3/8/2018 wherein it raised 4 issues for determination which are as follows :-
“I. Whether the parties in this suit are bound by the terms and conditions of the contract of employment voluntarily entered into between them.
ii. Whether it was right for the Claimant to have purportedly proceeded on maternity leave without application and approval of the Defendant.
iii. If the answer to issue (ii) hereof is in the negative whether the Claimant is entitled to salary for the period of time she did not work for the Defendant.
IV. Whether the Claimant is entitled to a tax clearance certificate or receipt from the Defendant.”
In arguing issue No.I, Defendant submitted that while the legal burden of proof in civil
proceedings lies on the Claimant, the burden is discharged on preponderance of evidence adduced by both parties. See Warigbelegha V. Owerre(2011) LPELR- 4454(CA); Agbi v. Ogbeh (2006) 11 NWLR (Part 990) 65. That on the preponderance of evidence before the Court the Claimant has not discharged the legal burden of proof placed on her against the Defendant to warrant the court to grant the reliefs sought.
The Defendant submitted that civil cases are determined on “preponderance of evidence” which connotes that the evidence or case of the party on whom lies the burden of proof is more likely to be true or more probable than that of the adverse party. This entails putting the totality of the evidence adduced by both parties on an imaginary scale of justice, the evidence of the Claimant on one side of the scale and the evidence of the Defendant on the other side, then weighing them together to find out which side is heavier or preponderates. See the case of Oyinloye vs. Esinkin(1999) 10 NWLR (Pt. 624)540 at 549 A-C.
It is the submission of the Defendant that the moment a new Appointment Letter is issued to the Claimant by the Defendant, the new Appointment Letter cancels the earlier one issued. This means that the terms and conditions of the employment are regulated by the new Appointment Letter issued in the current year and no longer the previous year. And this is akin to an amended process of court which once it is amended; the previous process is no longer before the court. What is before the court is the amended process and not the earlier process. The Court cannot make reference to a previous process in the face of an amended process. In the same vein, once Exhibit 15 was issued and accepted by the Claimant, Exhibits 1, 13 and 14 became of no moment and the contract of employment between the Defendant and the Claimant was then regulated by Exhibit 15.
Therefore, the redeployment of the Claimant by the Defendant from the Afam VI Power Plant, Oyigbo to the base hospital in Port Harcourt was within the Contract of Employment between the parties and the Defendant was not bound to give additional reasons for such redeployment as it is simply to give room for cross posting of other nurses.
The Defendant Contented that the law is settled that parties are bound by their contract and the relationship between the Claimant and the Defendant was in the form of master and servant relationship. Where a master and servant relationship has been put down in writing and accepted by the parties, it creates a sanctity of contract which the court must respect and give effect to at all times. Defendant cited the case of A.G. Rivers State vs. A.G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248 31 at 83, paras. B-C, where the Supreme Court held thus: “Where parties have entered into a contract or agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement.”
Defendant further contended that a contract of employment is like any other form of contract which binds the parties therein. In Alhassan vs. A. B. U. Zaria (2011) 11 NWLR (Pt. 1259) 417 at 470 paras. C- D, ‘ it was held that parties are bound by the terms and conditions of the contract of employment between them”.
By the provisions of Exhibit 15 there was no provision under the contract for maternity leave.
Defendant submitted that it is the duty of court to give effect to the provisions of the contract voluntarily entered into by the parties. The court has no jurisdiction to rewrite the contract of the parties or import extrinsic factors that are not part of the contract entered in to by the parties.
Defendant referred to the case of Babatunde vs. B. O. N Ltd (2011) 18 NWLR (Pt. 1279) 738 at 761 paras. B-H where the Supreme Court held thus:
“A court of law must always respect the sanctity of the agreement reached by parties. It must not make a contract for them or rewrite the one they have already made themselves. Written contract agreement freely entered into by the parties is binding on them. A court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement, the court cannot go outside that document to give effect to the intention of the parties”.
Again, the Supreme Court in Idufueko vs. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 115 paras. C-E, emphasized the need for the court to respect sanctity of contract and give effect to the contract freely entered by the parties. That It is so settled a point of law that the court lacks the power to add or subtract from the contract the parties entered into.
Defendant referred to the cases of Gold Const. Co. Ltd vs. Stateco (nig) Ltd (2104) 8 NWLR (Pt. 1408)171 at 195-196, William vs. William (2014) 15 NWLR Pt. 1430) 213 at 244.
It is the argument of the Defendant that the Claimant’s counsel much reliance on section 54 of the Labour Act to argue that the Claimant is entitled to maternity leave is grossly misconceived in law. It is lame and cannot fly in the absence of any agreement to that effect. This is because the relationship between the Claimant and the Defendant is that of contract of service based on the letter of appointment which incorporated the terms of the contract between NetcoDietsmann and the Defendant for supply of site nurses at Afam VI Power Plant. That neither the contract between NetcoDietsmann and the Defendant nor the one between the Defendant and the Claimant made provision for maternity leave.
According to the Defendant section 54 of the Labour Act applies to industrial, commercial and agricultural undertakings; hence section 54 does not apply to the Defendant which is a medical facility. Defendant also contended that assuming but not conceding that, section 54 of the Labor Act applies to the Defendant; it would have been incorporated into or embodied in the contract of service between the Claimant and the Defendant to effect the intentions of the parties by reference. Defendant referred to Babatunde vs. B. O. N. Ltd (supra) where the Supreme Court held that Where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument and the court could not resort to the Auctioneer’s Law of Northern Region applicable to Kwara State which is not embodied in the Deed of Legal Mortgage executed by the parties to effect the intention of the parties. And Since the Auctioneer’s Law Cap. 10 Laws of Northern Nigeria applicable to Kwara State does not form part of the agreement between the appellant and respondents, the court has no business in considering the provisions of the law.
According to the Defendant, in applying the principles of law enunciated in the above case to the facts of this case, the Defendant therefore submits that the provisions of section 54 of the Labour Act are inapplicable to the facts of this case, because the provisions of section 54 of the Labour Act were not embodied in the contract of service between the parties, either expressly or by reference. The court cannot import the provision of section 54 of the Labour Act into the contract of service between the parties being extrinsic evidence that will add, vary or contradicts the terms of the contract of service voluntarily entered by the parties.
Defendant argued that the Claimant duly accepted the offer contained in Exhibit 15 because it is a trite law that a contract can be created expressly in writing or impliedly by conduct. Exhibit 15 was written on the 7/11/2015. The Claimant on the face of Exhibit 15 acknowledged receipt of same on the 8/11/2015. The Claimant continued in the employment of the Defendant from the 8/11/2015 when Exhibit 15 was acknowledged by her till the 19/12/2016 when she resigned her employment by Exhibit 3.
It is the further argument of the Defendant that the failure of the Claimant to reply to Exhibit 15 raises an irrebutable presumption that the Claimant accepted the offer in Exhibit 15. Defendant cited the cases of Vaswani vs. Johnson (2000) 11 NWLR (Pt. 679) 582 at 589 paras. A-F, Gwani vs. Ebule (1990) 5 NWLR (Pt. 149) 201 at 217 paras. G-H and Joe Iga vs. Amakiri (1976) 11 SC.
Defendant submitted that apart from the Claimant accepting the offer in Exhibit 15 by conduct or representation, the Claimant equally took advantage of Exhibit 15 which contains provision for Annual Leave and payment of salary. See A.G. Rivers State vs. A.G. Akwa Ibom State (supra)
Defendant urges this Honourable court to resolve issue (i) in its favour.
In arguing issues II and III, Defendant contended that even though the contract of service between the Defendant and the Claimant does not make provision for maternity leave, the Defendant as a responsible corporate organization allowed the Claimant as well as other staff to go on maternity leave each time she was due and applied for same. That in 2014, when the Claimant gave birth to her first child, she applied for maternity leave and it was approved. The Claimant was told to bring some body to replace her during the period which she did. The Claimant brought one Miss. Phina G. Ojiako who worked for her till she resumed. The Claimant was paid and she in turn paid the nurse, however in 2016, the Claimant did not apply for maternity leave and it was never approved. The Claimant only applied for annual leave for 15 working days which commenced on the 19/8/2016 and elapsed on the 9/9/2016. The Claimant who was expected to resume work on the 9/9/2016 never showed up at work until December, 2016. Upon resumption of work, the Claimant claimed she had been on maternity leave. The question that then arises is, was the Claimant on maternity leave with the consent and approval of the Defendant? Assuming but not conceding that the contract between the parties made provision for maternity leave, was the Claimant not supposed to apply and obtain approval from the Defendant before proceeding on such leave?
Defendant submits that maternity leave is not embarked upon as a matter of cause. A staff of any organization seeking to proceed on any kind of leave must first of all apply for and get the necessary approval from the organization before embarking on such leave. This is a standard practice all over the world even where maternity leave is provided in the contract of service. It also applies to employment contracts with statutory flavour.
Defendant submits that maternity leave and indeed any kind of leave is not one of the things a court can take judicial notice of under section 122(m) of the Evidence Act, LFN, 2004.
Maternity leave is relative and peculiar to individual pregnant women based on her due date. Therefore, a pregnant woman due for maternity leave must apply and obtain the necessary approval of her employer prior to her due date before proceeding on such leave in order not to jeopardize her employer’s work or allow it suffer unnecessary hardship due to her absence.
According to the Defendant, Exhibits 10 and 11 are the Claimant’s application and approval for 2015 and 2016 annual leave respectively but there is no evidence of the Claimant’s application for maternity leave.
Defendant submitted that in the absence of any evidence showing that the Claimant applied and obtained approval from the Defendant before proceeding on the purported maternity leave in 2016, it raises an irrebutable presumption that she abdicated her duty for the months of September, October and November, 2016, and as such was never entitled to salary for the period under review.
That a court of law is not permitted to speculate on evidence that is not before it. See Ikenta Best (Nig) Ltd vs. A. G. Rivers State(2008) All
FWLR (Pt. 41) pg at 10 and Overseas Construction Co. (Nig) Ltd V. Creek Enterprises (Nig) Ltd (1985) 3 NWLR (Pt. 13) pg 104.
Defendant contended that its grouse was not that the Claimant purportedly went for maternity leave in 2016 but it’s grouse is that the Claimant abdicated or absconded from duty without the consent, knowledge and approval of the Defendant while still receiving salary thus not entitled to salary for the period she did not work for.
The Defendant, In view of its above submission urges this Honourable court to resolve issues (ii) and (iii) in its favour by holding that the Claimant purportedly went to maternity leave without the consent and approval of the Defendant and as such is not entitled to salary for these period.
On Issue (iv) for determination by this court, Defendant contended that the Claimant is obviously confused as to what she actually wants from the Defendant. In one breath the Claimant requested for Tax Clearance Certificate and in another breath she is requesting for tax receipts.
Defendant argued that the law regulating taxes in Nigeria is the Taxes and Levies (Approved List for Collection) Act, Cap. 1’2, LFN, 2004 and while the law imposed an obligation on the Defendant to deduct from the Claimant’s salary (source), Personal income tax and remit same to the Rivers State Government it did not impose any such obligation on the Defendant to issue tax clearance certificate or tax receipt to the Claimant. Sections 81(1), 82 and 85(1) of the Personal Income Tax Act, Cap. P8, LFN, 2004.
Defendant argued that the law is clear and unambiguous that it is only a tax authority that can issue a tax clearance certificate to a tax payer upon demand. The Claimant did not demand for her tax clearance certificate from the tax authority being the Rivers State Board of Internal Revenue Services but from the Defendant.
It was submitted that the Defendant not being a tax authority cannot issue a tax clearance certificate or receipt to the Claimant.
The Defendant urges this Honourable Court to resolve all the issues in its favour and dismiss the suit for lacking in merit.
RESPONSE OF THE CLAIMANT ON THE SUBSTANTIVE MATTER
Claimant on the other hand filed her final written on 21/9/2018 and raised a sole issue for determination as follows ;
“Whether or not having regard to the claims of the claimant and the surrounding evidences(Sic) led, the claimant is not entitled to her claims as contained in the statement of facts.”
Learned Counsel for the Claimant submitted that, it is trite law that a party who enters into an agreement is clearly bound by the terms, dictates and provisions of the agreement and cannot seek for a better terms midstream or when the agreement is a subject of litigation, when things are no longer at ease. See the case of IDONIBOYE-OBU V. NNPC (2003) 2 NWLR (Pt. 805) 589 SC.
Counsel further submitted that the Supreme Court in its wisdom added that although a party may seek for better terms, the court is bound by the original terms of the agreement and will interpret them in the interest of justice. See IDONIBOYE-OBU V. NNPC (Supra).
It is the contention of the Claimant that the original agreement of the parties in the instant case is Exhibit 13 which is the letter of employment first issued to the claimant dated the 6th day of October, 2010 spelling out expressly her job specification and location as well as all and sundry, as the original terms of the contract of service made by the parties. It was submitted that Exhibits 1 and 14 also agreed with the said stipulations as to the claimant’s job specification and location.
It is the submission of the Claimant that the Supreme Court, amongst other things, enjoins the court to be bound by the original terms of the agreement in the case of disparity as in the instant one.
Claimant argued that the defendant’s assertion in Paragraph 5.4 of its final address that exhibit 15 which is the later contract cancels all others, cannot stand as it was not stated expressly in the said exhibit 15 (letter of re-engagement), as it was made midstream, same not varying the express terms of the original contract between the parties, thus amounting to a breach.
Claimant argued that, assuming but not conceding that Exhibit 15 is the existing contract between the parties, since the Claimant was not disengaged as stated under cross examination by DW1, then a letter of re-engagement could not have been issued to the claimant without first disengaging her or invalidating the earlier contractual agreement. Claimant referred to the
case of GOV. OF KWARA STATE V. OJIBARA (2006) 18 NWLR (Pt.l012) Pg 645 SC where the court held that re-instatement involves putting a specified person back in law and fact in the same position as he occupied in the contract before the employer terminated it.
Claimant contended therefore that the reason for Exhibit 15 cannot be underemphasized. It is likened to putting something on nothing and expecting it to stand, as it does not in any way have any effect on the claimant.
It is the contention of the Claimant that, it is clear that a variation in Exhibit 15 is intended to frustrate the claimant, which amounts to breach of the said contract of service. That the action made by the defendant of transferring the Claimant from Afam VI power plant to the base hospital which is not covered in the original contract between the parties, is an upheaval, which amounts to a breach of the said contract.
Claimant contended that Exhibit 13, which is the 1st and original letter of employment issued to the claimant, clearly spelt out her job location and specification at Afam VI power plant and nowhere else, hence, her accepting the job as it is close to her place of residence, therefore, any other stipulation cannot be said to counter or cancel the said contract and the likelihood of same, amount to a clear breach of the terms of the contract of service.
Claimant submitted that a contact of service is an agreement between an employer and an employee, to render service to or to work for an employer in a specific place and description, in return of wages and salary. See business law dictionary.
According to the Claimant, where a contract of service occurs, the stipulated job specification and location is important in a contract of service. As such, where the above changes or varies, it amounts to a breach of the said contract.
Claimant further submitted that the defendant’s assertion in paragraph 5.18 of its final address that a contract exists between the parties by conduct of the claimant by virtue of Exhibit 15, which is the letter of re-engagement issued to the claimant cannot be the true position of law as one can clearly see that the said Exhibit not only breaches the contract between the parties consequent upon its variation, but also it does not even have any effect on the claimant as from the evidence, it is clear that the claimant was never disengaged in the first place, to give life to the said exhibit.
Claimant argued that the application of the ratio in the case of GWANI V. EBULE (1990) 5 NWLR (Pt. 149) 201 & 217 para. G-l, as stated by the counsel for the defendant in his final address cannot be justified in this instant matter as the claimant and the defendant are expressly bound by the contractual agreement by way of the letter of employment issued as Exhibit 13.
Claimant referred to the case of FIRST INLAND BANK V. JEKS (NIG.) LTD. (2014) 16 NWLR (Pt. 1434) 567 @ PP.582-583, paras. H-C; where the Court of Appeal held that once a party to a contact establishes to the court that the other party has committed a breach of contract, the most common claim is that of damages. See also EMIRATE AIRLINE V. NGONADI (NO.l)(2014) 9 NWLR (pt. 1413) 429 CA, MTN (NIG.) COMMUNICATIONS LTD V. SADIKU (2014) 17 NWLR Pt. 1435,282 CA.
In response to the Defendant’s assertion in paragraph 5.22 of its written address, Claimant submitted that the argument cannot stand as the claimant’s action was done in compliance with the already existing contract as stipulated in Exhibits 13, 1 and 14 and the payment of the Claimant’s salary from those dates mentioned by the Defendant’s counsel, till she resigned on the 19-12-2016 were in strict compliance and adherence to the afore said Exhibits and not exhibit 15 as relied upon heavily by the defendant.
Claimant contended that posting the claimant out of the job specification and description automatically breaches the contract of the parties, hence the resignation which is also in total compliance with the law.
It was the submission of the Claimant that based on the foregoing, the defendant is purely in breach of the contract of service made with the claimant by its actions consequent upon which the claimant is entitled to her claim for damages.
Claimant argued that a contract of service, no matter how fancifully written, cannot override a statutory provision of the law. Hence the contract of service entered between the claimant and the defendant cannot in anyway override a statutory provision, which is a mandatory statutory obligation incumbent on the defendant, as it relates to S.54 of the Labour Act, CAP LI LFN 2004, relating to maternity leave as the claimant is a married woman and thus her right granted her by an Act cannot be waived or thrown away by the Defendant.
Claimant argued that the fact that the defendant did not tender the application for maternity leave as same is in their company file, clearly shows their intent was to frustrate/pervert justice, as they are clearly aware that the issue of maternity leave was germane to the claim of the claimant and their attitude clearly amounts to withholding of evidence by virtue of Sec.167 of the evidence Act, 2011, which was enunciated upon in the case of ADEGBO V. OGBANJE (2014) 10NWLR, Pt 1416@ Pg. 541 @ 557
It is the argument of the Claimant that the issue of maternity leave, being enshrined in the Act is a right of any employee in as much as the person is a woman as it is a mandatory right which cannot be waived by any employer. And assuming but not conceding that the Claimant was not granted maternity leave from September to November as asserted by the defendant, then the question that comes to mind is Why was the claimant not queried or any disciplinary action meted against her by the defendant?
Claimant asserted arguably that it clearly shows that the defendant cannot deny the fact that the claimant was on maternity leave and cannot deny that they were not aware.
Also submitted by the Claimant is that Section 54 of the Labour Act cannot be over emphasized as it relates to maternity leave accorded to a worker or employee and the defendant cannot hide behind the contractual agreement between parties to vary or neglect a statutory provision and thus, must be construed in the manner provided for. See the cases of ARDO V. NYAKO (Supra) and AKINTOKUN V. L.P. D.C. (2014) 13 NWLR Pt. 1423 Pg 1 SC.
Claimant contended that Sect. 54 of the labor Act binds the Defendant as well as the employees under its employ and it cannot be allowed to shy away from that fact being a commercial company that renders medical services for the purpose of profit.
Claimant stated that it is clear from Exhibits 5 and 8 that the Claimant made a request/demand of the proof of the deduction and payment of her PAYE by the defendant and finally urged the court to resolve the sole issue in her favor.
In its reply on points of law, Defendant contended that the contract of employment between the parties is renewable annually upon NetcoDietsMann’s renewal of its contract with the Defendant. That the Claimant was awol for 3 months and could not have been issued query when she was not available, however according to the Defendant, part of the disciplinary measures taken against the Claimant upon showing up in December was redeploying her to the base hospital.
DECISION OF THE COURT
I have gone through the pleadings of the parties, the evidence adduced and the submissions of their counsel and wish to state that the issue of whether the claimant is entitled to the reliefs claimed can conveniently answer all the questions raised for determination in this case.
The issue raised by the Claimant is akin to the above while the issues raised by the Defendant are distilled from the reliefs sought by the Claimant.
I observe that there are 4 different letters of appointment issued by the Defendant to the claimant. They are Exhibits 1,13,14 and 15. Exhibit 13 which is dated 6/10/2010 is the initial letter of appointment while Exhibit 15 dated 7/11/2015 is the last letter issued to the claimant. The main dispute of the parties with regards to these documents is the job location of the claimant. Defendant argued that Exhibit 15 which gives the Defendant the right to transfer and or post the claimant to its base hospital is the current and binding contract between the parties but the claimant contended that Exhibit 15 cannot override her initial or subsequent contracts with the Defendant. Defendant also argued that its contract with the Claimant was renewable because of its renewable annual contract for service with NetcoDietsMann in Exhibit 12.
I wish to also observe that none of the letters of employment refers abrogates, invalidates or amends the other.
Contrary to the position of the Defendant, I find that the Claimant will have nothing to do with the agreement between the Defendant and NetcoDietsMann. I find that the Claimant is not privy to exhibit 12. It is self-evident principle of the law that a Contract as a general rule does not confer rights or obligation on persons who are not parties to it. See Mobil Oil (Nig.) Ltd V N. O. C. M. (2000) LPELR 6872(CA).
Now, since none of these documents specifies duration of any of the contracts, then it implies that this is a contract that involves several documents and the court can only determine the issues before it on the basis of those documents including the conduct of the parties. It is settled that in the interpretation of a contract involving several documents, the documents must be read together. See C.B.N.V Igwilo (2007) LPELR – 835(SC).
Interestingly, any time that the Defendant issued any of these contracts of employment to the claimant, none of the parties ever thought that the contract came to an end, because the claimant was not given her terminal benefit at the end of any of the Contracts. None of the contracts cancels the other. I wish to disagree with the Defendant that once a new contract was given to the claimant, it automatically canceled the earlier one given. This all depends on the intention of the parties especially that none of the documents alluded to that. I find that Exhibit 15 cannot be said to have canceled the earlier contracts given.
Coming to the issue of maternity leave, it becomes necessary to refer to section 54 of the Labour Act which provides as follows:-
Section 54(1) “In any public or private industrial or commercial undertaking or any branch thereof, or in any agricultural undertaking or any branch thereof, a woman –
(a) shall have the right to leave her work if she produces a medical certificate given by a registered medical practitioner stating that her confinement will probably take place within six weeks;
(b) shall not be permitted to work during the six weeks following her confinement;…….”
Section 91 of the Labour Act, 2004 defines contact of employment as any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. It also defines a worker as any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour.
By the provisions of the above section, it is clear that worker’s contractual terms may be express-which is oral or written, and implied- which may include custom and practice terms. Terms may be implied into a contract of employment by statute.
Generally, parties are bound by the terms of their contract and the terms shall be read as they are without embellishments. And once parties enter into a contract, extraneous terms should not be read into the contract. See A. G. Rivers State V Akwa-Ibom State (2011) 3 SC 1.
However by the provision of section 54 of the Labour Act, Maternity leave is a statutory right enjoyed by women to leave their work for 12 weeks with the sole aim of attending to their personal health arising out of pregnancy. Defendant had cited the case of Babatunde V BON(supra) and argued that maternity leave is not incorporated into the contract of the parties
and therefore the court cannot make a contract for the parties. I find that case distinguishable from the case on hand. In the case of Babatunde, the Court said that Auctioneers Law of Northern Nigeria should not be made part of the parties’ agreement which is an option but in the instant case maternity Leave is a right inherent and intrinsic in the employment relationship. The fact that it is not specifically mentioned in the parties’ agreement is of no moment. That is why section 58 of the Labour Act punishes any person who contravenes section 54 of the said Act. Section 58 provides as follows:-
58(1) “Any person, who, being the proprietor, owner or manager of any industrial, commercial or agricultural undertaking, contravenes any provision of section 54 of this Act shall be guilty of an offence and on conviction shall be liable to a fine not exceeding N 200 or to imprisonment for a period not exceeding three months, or both. ”
In Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA), the Court of appeal said as follows:
” 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.”
On this note therefore, it is an illegal contract of employment for the parties to waive a duty imposed on employer by statute. In the case of Wheeler V. Merton Board Mills Ltd (1933) 2 K.B 669, the court held that an employer cannot take benefit where there is a breach of statutory duty.
Section 54 of the Labour Act is in line with the International Labour Organization standards which guarantee a woman a right to be entitled to maternity leave.
Section 42 of the 1999 Constitution of the Federal Republic of Nigeria prohibits discrimination against Nigerian Citizens on basis of their community, ethnic group, place of origin, sex, religion, political opinion or circumstances of birth. And by this therefore, all forms of discrimination including discrimination based on an employee’s sex or pregnancy status is prohibited.
Defendant conceded that even though it’s contract of service with the Claimant does not make provision for maternity leave, but it allowed the Claimant as well as other staff to go on maternity leave each time she was due and applied for same. That in 2014, when the Claimant gave birth to her first child, she applied for maternity leave and it was approved and the Claimant brought one Miss. Phina G. Ojiako who worked for her till she resumed and the Claimant was paid and she in turn paid the nurse.
On this, I wish to state that the statement that the Claimant brought one Miss G. Ojiako to work for her and pay her in turn is not substantiated and supported by any evidence. It is a mere submission of counsel and it is settled that submission of counsel no matter how brilliant cannot take the place of evidence or pleadings.
I also find and hold the conduct of the Defendant in allowing the claimant to go for maternity leave in 2014 will still apply to her subsequent contracts and the court will presume that the Claimant went for her maternity leave with the consent and knowledge of the Defendant in 2016. Defendant cannot pretend that it was not aware that the Claimant was on maternity leave in 2016. The Defendant’s conduct shows that the Claimant went for her maternity leave with its consent and knowledge. Exhibit 4 written by the Defendant alluded to that.
According to the Defendant in Exhibit 4, the salary of 3 months given to the claimant was made in error because the claimant was awol and that was why it deducted the salary from the gratuity of the claimant. I find that statement very surprising and strange or funny I would say. It does not appear to sound logical. If the Defendant felt that the Claimant was awol, it could have explored the disciplinary measures contained in their contract of employment and not deduction of her salary. The Defendant could have also stopped the salary before that time. I consider the act of the Defendant as condonation of whatever infraction the claimant is said to have committed, if at all she committed any infraction in the first place. See Nigerian Army V Brig.Gen. Maude Aminu Kano [2010] LPELR-2013 SC. But by its conduct of allowing the salaries of 3 months to be paid to the claimant when the claimant could not be seen means that the Defendant was aware that the Claimant was on her maternity leave. It was just an afterthought. I find and hold that, the deduction was wrong and illegal. See section 1 and 5 of the Labour Act. The claimant is entitled to her salary during the 3 months period of her maternity leave and entitled to her maternity leave as well.
On the 10% prejudgment interest, the Courts have persistently held that a claim for pre Judgment interest must be pleaded, set out in the Writ of Summon and Statement of Claim and filing fees calculated and paid on same and evidence must be laid to substantiate the claim in the pleadings before the claim succeeds. It is not granted as a matter of routine. Infact, it has to be based on contract or Statute. See Henkel Chem. Ltd V A. G Ferrero & Co (2003) NWLR Pt. 10 pg 306, FBN PLC V EXCEL PLAST IND LTD (2003) NWLR PT.837 pg 412.
From the above therefore the pre judgment interest claimed is hereby refused.
For the Claimant’s claim for the release of tax receipts of payments deducted from the Claimant’s salary, It appears that even the Defendant admitted that it used to deduct the claimant PAYE tax and remit same to the Rivers state Government. I don’t think much needs to be said with regard to this. I therefore order the Defendant to furnish the claimant with the tax receipts and or evidence of the remittal of the tax to the Tax authority. I believe that the Defendant cannot pay the Rivers state Government PAYE Tax without being given acknowledgement receipt of that payment.
On the whole, I hold that the Claimant is entitled to her claim and I order as follows:-
1. That the Defendant shall pay to the Claimant the sum of N 565,000.00 (Five Hundred and Sixty Five Thousand naira) only, being the sum total of her three (3) months salaries for September, October & November, 2016, December bonus for 2016 and her gratuity.
2 The Defendant is directed to release to the Claimant the tax receipts/acknowledgement or evidence of payments of tax to the Rivers State Government deducted from her salary.
3. N 100,000 shall also be paid to the Claimant by the Defendant as the cost of this action.
4. The above sums shall be paid within 30 days from the date of this judgment, failing which it shall attract 10% interest per annum.
Judgment is entered accordingly.
………………………………………………..
HON. JUSTICE S. H. DANJIDDA
JUDGE
