JOSEPH ENUGUNUM & ORS v. CHEVRON NIGERIA LIMITED (2014)

JOSEPH ENUGUNUM & ORS v. CHEVRON NIGERIA LIMITED

(2014)LCN/7554(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/L/15/12

RATIO

LABOUR: CONTRACT OF EMPLOYMENT; WHETHER THE TERMS OF THE CONTRACT OF SERVICE OF EACH EMPLOYEE IS DIFFERENT FROM EACH OTHER AND THEY CANNOT HAVE A COLLECTIVE RIGHT TO SUE FOR BREACH OF TERMS OF THEIR CONTRACT OF EMPLOYMENT
The position of the learned trial judge needs not be subjected to any further discourse because the law is fairly settled on seemingly endless judicial decisions that contract of employment is personal to each employee, employees cannot therefore have a collective right to sue for breach of terms of their contract of employment jointly and severally. SEE: BOSSA v. JULIUS BERGER PLC, (supra). In BEMIL NIGERIA LTD v. EMERIBE & ORS, CNN203/ 2005. Abba Aji, JCA, said as follows:
“The Respondents therefore do not have a common interest or a common right against the Appellant. The terms of their contract of service are different from each other and each signed a separate contract of employment with the Appellant.
In the circumstance, the Respondents cannot bring an action jointly and severally against the Appellant in respect of their contracts of employment. Their contract of employment is personal to each of them and where there is breach the Respondents do not have a collective right to sue the appellant jointly and severally, see BOSSA v. JULIUS BERGER PLC (2005) 15 NWLR (Pt. 948) 409, CCB (NIG.) PLC v. ROSE (1998) 4 NWLR (Pt. 544) 37″. per. TIJJANI ABUBAKAR, J.C.A.

LABOUR LAW: TERMINATION OF EMPLOYMENT; WHAT A SERVANT WHO COMPLAINS OF WRONGFUL TERMINATION OF EMPLOYMENT MUST FOUND HIS CLAIM ON

LABOUR LAW: TERMS OF EMPLOYMENT; WHETHER THE PAYMENT OF SALARY IS ONE MAJOR TERM OF EMPLOYMENT
One major term of employment is the payment of salary. See the case of OKOEBOR v. POLICE COUNCIL (supra), it is the claimants case the claimants received salaries from the defendant through their Bank Accounts. This piece of evidence was not substantiated with documentary evidence such as pay slip, Bank statement or payment schedule. The claimants ought to have presented to the court their pay slips showing proof that payments were made by the defendant at different times in form of salaries or tender Bank Statements to buttress these facts. Failure by the claimants to do this is fatal to their case. CW1 Mr. Chris Nwaoboro, under cross examination stated that they received their salaries at Union Bank and that they do not know who pays it into the various Accounts at the Bank. This corroborates the evidence in chief of DW2, Mr. Ismail Bashorun in this regard”. per. TIJJANI ABUBAKAR, J.C.A.

Before Their Lordships

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria

YARGATA B. NIMPARJustice of The Court of Appeal of Nigeria

Between

JOSEPH ENUGUNUM & ORS
(For and on behalf of 87 Drivers)Appellant(s)

AND

CHEVRON NIGERIA LIMITEDRespondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Lagos State High Court, delivered on 1st July 2011 by Dabiri, J. In brief, Appellants were drivers to the Respondent; Respondents officers invited, interviewed, and subsequently employed them. The officers of the Respondent subjected them to medical examination; they were eventually given Drivers handbook each, which they all thought was their letter of appointment. Respondent was responsible for their appraisal and discipline. Respondent gave them uniforms bearing their logo, and granted them access to their canteen and paid their salaries, even though they were not issued with any salary slips.
On the 8th day of August 1999, two different Companies issued Appellants letters of termination of appointment. Appellants said the Respondent was apparently aware that letters of termination were served on them by the Companies; they were eventually relieved of their appointments without any pay-off. This action naturally offended the Appellants, they protested without success. They eventually resorted to filing an action against the Respondent at the Lagos State High Court on 16th May 2002 claiming as follows:
1. A DECLARATION that the purported termination of the Plaintiffs appointment conveyed by the Defendants letter dated the 8th day of August, 1999 is wrongful, null and void and of no effect whatsoever and howsoever.
2. AN ORDER of Court directing Defendant to pay the Plaintiffs all their outstanding salaries, allowances and other benefits accruable to a staff of the Plaintiffs caliber in the Defendants employment forthwith.
3. AN ORDER of perpetual injunction restraining the Defendants whether by its self, servants, agents and/or privies from further acting and or implementing the contents of the letters dated the 8th of August 1999 in any manner whatsoever and howsoever.
The matter went to trial and at the conclusion of trial; the learned trial Judge gave Judgment in favor of the Respondent against the Appellants. They became aggrieved and therefore filed Notice of appeal against the said decision on 27th September 2011. Appellants Notice of Appeal is at page 587-591 of the record of appeal. The grounds of appeal and their particulars are also reproduced as follows:
GROUND 1
The learned trial Judge erred in law by holding that the Claimants action cannot be brought in a representative capacity.
GROUND II
The learned trial Judge erred in law and misdirected himself by holding that the Claimants failed to render any contract of agreement which stipulates the conditions of service that will entitle them to the relief sought and as such held that there is no employer/employee relationship between the Claimants and the Defendant.
GROUND III
The learned trial Judge erred in law and misdirected himself when he held that the Defendant has successfully shown to the Court that they are not employers of the Claimants as they were all either employed by one A.T. AMUSSAH & SONS or DELOG with whom the Defendant had a contract of service.
GROUND IV
The learned trial Judge erred in law and misdirected him when he held that the totality of the evidence adduced and the exhibits tendered by the Claimants are not enough to establish a contractual relationship between the Claimants and the Defendant.
GROUND V
The learned trial Judge erred in law and misdirected him by holding that the Claimants failed to show how they arrived at the sum of N800 million.
GROUND VI
The learned trial Judge erred in law and misdirected himself by holding that Exhibits JE2, JE10, JE14 and JE16 which are all handbooks issued by the Defendant to the Claimants do not contain any contract or condition of service.
GROUND VII
The learned trial Judge erred in law and misdirected himself when he held that the failure by the Claimants to produce relevant pay slips that may be in their possession shows that they have something to hide.
GROUND VIII
The learned trial Judge erred in law and misdirected himself when he held that all the Defense set up and argued by the Defendant have been discredited by the Court and still went on to find in favor of the Defendant.
GROUND XI
The learned trial Judge erred in law and misdirected himself by holding that N75,000.00 cost should be paid to the Defendant in view of the age of the suit.
Learned Counsel Chief Nnamdi Osadebe filed this appeal on behalf of the Appellants, he also filed Appellants brief of argument on the 15th day of March 2012. Appellants nominated from their grounds of appeal eight issues for determination and submitted argument on each. The issues nominated by the Appellants are reproduced as follows:
1. Whether the learned trial Judge was right by holding that the Claimants action cannot be brought in a representative capacity.
2. Whether the learned trial judge was right by holding that the claimants failed to tender any contract of agreement which stipulates the conditions of service that will entitle them to the reliefs sought and as such held that there is no employer/employee relationship between the Claimants and the Defendant.
3. Whether the learned trial Judge was right when he held that the defendant had successfully shown to the Court that they are not employers of the Claimants as they were either employed by one T.A. AMUSSAH & SONS OR DELOG, with whom the Defendant had a contract of service.
4. Whether the learned trial Judge was right by holding that the totality of the evidence adduced and exhibits tendered by the Claimants were not enough to establish a contractual relationship between the Claimant and the Defendant.
5. Whether the learned trial Judge was right by holding that the Claimants failed to show how they arrived at the sum of N800 Million.
6. Whether the learned trial Judge was right by holding that Exhibits JE2, JE10, JE14 and JE16 which are all handbooks issued by the Defendant to the Claimants do not contain any contract or conditions of service.
7. Whether the learned trial Judge was right when he held that the failure by the Claimants to produce relevant pay slips that may be in their possession shows that they have something to hide.
8. Whether the learned trial Judge was right by holding that N75,000 cost should be paid to the Defendant in view of the age of the suit.
The Respondent through learned Counsel Ladipo Soetan submitted three issues for determination, while contending that there was proliferation of issues in Appellants brief. The issues submitted by the Respondent are therefore as follows:
1. Whether the lower Court was right in holding that the Appellants action was not well constituted as a representative action.
2. Whether the Appellants had proved their case on the preponderance of evidence to entitle them to their Claims.
3. Whether the trial Court was right in dismissing the Appellants claim for damages injunction and in awarding costs against them.
From the issues crafted by the Appellants it appears there is obvious fragmentation of issues for determination, giving rise to multiple issues for determination which would have been compressed into more convenient and appropriate issues doing away with unnecessary proliferation of issues, the issues nominated by the Appellants in this appeal clearly presents instance of proliferation of issues which this Court frowns against. Where it appears obvious to the Court that there is unnecessary fragmentation of issues for determination, the Court will be at liberty to distill from Appellants grounds of appeal such issues as may appear to it sufficient to adequately and properly resolve the issues in controversy between the parties. See KALU v. UZOR (2006) 8 NWLR (Pt. 981) 66.
I will first without collapsing Appellants issues for determination into more appropriate and convenient units, take the entire argument submitted on behalf of the Appellants, and then consider Respondents issues and arguments canvassed before resolving the appeal. I need to add that, Respondents issues for determination if resolved by this Court are likely to properly and adequately resolve the appeal.
I will start with Appellants argument on issues as canvassed by learned Counsel for the Appellants. Submitting on issue number one, learned Counsel Osadebe referred this Court to page 578 of the record of appeal and said the lower Court dwelt extensively on an unsolicited ruling in finding for the Defendant Respondent at the lower Court, he said when an issue is not placed before the Court, the Court has no business dealing with such issue, that the lower Court has no business making a case for either of the parties before it, and then proceed to enter Judgment on the case so formulated by the Court contrary to the case of the parties before the Court. He referred the Court to, ABBAS v. SOLOMON (2001) FWLR (Pt. 67) 847, OLUSANYA v. OLUSANYA (1983) 3 SC 41 at 56-57, OHONMA v. UNOSI (1965) NMLR 321 at 323, PASCUTO v. ADECENTRO NIG. LTD (1997) NWLR (Pt. 529) 467.
Learned Counsel said if the Respondent had any issue with the way the action was commenced in Representative capacity they should have challenged the mode of commencement by motion on notice in form of preliminary abjection and not by way of defense, more so Respondent did not even raise objection on the mode of commencing the action even in their statement of defense challenging the commencement of the action in representative capacity.
Learned Counsel relied on IFONWU v. EGBUYI (1982) I SC 145, ANABARONYE v. NWAKAIHE (1997) 1 SCNQR 161.
On issue number two, learned Counsel for the Appellants said the learned trial Judge at page 581 said Appellants claim would fail if they failed to produce letters of appointment given to them by the Respondent as forming the basis of the contract between the Claimants and the Respondent. Mr.Osadebe said this conclusion is extraneous because contract of employment does not have to be supported by a particular document to establish the relationship. He said relationship between master and servant is characterized by contract of service which may be by seal,oral or inferred from the conduct of the parties, he said the relationship between Appellants and the Respondent is partly oral, partly in writing and could also be inferred from the conduct of the parties. He relied on NIGERIA AIRWAYS v. GBAJUMO (1992) 5 NWLR (Pt. 244) 735. Appellants said they were interviewed, employed,and posted to various departments and discharged their assigned responsibilities until third party served them letters of termination, they relied on Exhibits JE2, JE10, JE 14 and JE 16 and said Respondents did not deny all these facts, Counsel Osadebe said from the evidence of DW2 at page 574 of the record of appeal, the Respondent admitted that Appellants drivers licenses were kept by the Respondent, that appellants also wore uniforms bearing Respondents logo. Learned Counsel for the Appellants said the two Companies that were said to have employed the Appellants failed to provide any evidence in the form of application for employment passport photographs of the Claimants to indicate that they were well known to the companies, Counsel relied on sections 135 and 137 of the Evidence Act to submit that burden of proof in the instant case is on the party who would have failed if no evidence is adduced.
Learned Counsel referred to the documents produced by the two contractors sought to be relied on as the evidence of contract between the Contractors and the Respondent, which he identified as Exhibits JE18, 19, 20, and 27, and said the documents failed to specify the type of contractual relationship and the service rendered to the Respondent by the two contractors. Counsel said the documents especially Exhibits 21, 27, 28 and 37 were hurriedly doctored to suit a particular purpose, Learned Counsel also said the contractors tendered letters of appointment of the Appellants but failed to tender copies of their written applications for employment. Counsel said the letters of employment were not genuine.
Issue number three as crafted and argued is a reincarnation of issue number two, both issues have to do with whether Appellants were employed by the Defendant or third parties, it may not therefore be necessary to review the submissions of leaned Counsel on this issue since same argument has been canvassed under issue number two.
Issue number four also relates to whether the Appellants were actually employed by the Respondent or not. This issue has substantial bearing with issue number two. Counsel relied on Exhibit JE11, to submit that Respondent sent Appellants on courses page 123 of the record of appeal. Appellants were issued certificates, they were inspected and controlled, they were given queries by the Respondent, that specifically at page 128 of the record of appeal Exhibit JE6 one of the Claimants was issued a query, and was described as staff of the Respondent, learned Counsel for the Appellants said the Appellants were given meals and on environmental sanitation days, Appellants were given letters by the Respondent and were described as staff of the Respondent, and were all given annual leave by the Respondent.
Appellants argued their entitlement to N800 million damages under issue number five and said damages can be awarded for wrongful termination of employment, that in cases of wrongful termination of appointment or dismissal, it is not necessary to distinguish between special and general damages, that all the claimant needs to show is that he is entitled to general damages, Counsel referred this court to SAVANNAH BANK v. FATOKUN (2002) 1 NWLR (Pt. 749), BHOJSONS PLC v. DANIEL-KALIO (2006) 5 MJSC 1-203, and UAC NIG PLC v. SOBODU (2007) 6 NWLR (Pt. 1030) 376.
Appellant’s argument under issue six is that the handbook given to them by the Respondent contains contract of employment and conditions of service. They relied on Exhibits JE2, JE10, JE14 and JE16 and pages 66, 72 and 73 of the record of appeal, where Appellants were referred to as employees of the Respondent. Learned Counsel for the Appellants therefore submitted that the conclusion reached by the learned trial Judge that the handbook given to the Appellants does not contain contract of employment and conditions of service is perverse.
Submitting on issue number seven, Learned Counsel said Appellant gave evidence that they were paid salaries by the Respondent through their Union Bank accounts and that they were not given pay slips evidencing such payment by the Respondent. Appellants said the learned trial Judge prosecuted Respondents case on their behalf as could be seen from some of his remarks in the Judgment. Appellants maintained that the Respondent paid them salaries every month.
Appellants issue number eight has to do with award of cost of N75,000 to the Respondent by the learned trial Judge. Appellants said the cost awarded was totally undeserving because the delay in concluding the matter was partly the fault of the Respondent. Appellants cited instances where the Respondent caused delay at the trial. Learned Counsel for the Appellant said cost is not meant to be a bonus to the successful party and must not be predicated on sentiments, that conduct of the parties at the trial is a material consideration in accessing cost, he relied on UBN LTD v. NWAOKOLO (1995) 4 KLR 919, that cost is awarded to indemnify a person who has suffered loss. Appellant said in the instant appeal it is the Appellants who deserve to be awarded cost.
Learned Counsel Osadebe finally urged this Court to allow the appeal and set aside the Judgment of the lower Court, and in its place entered Judgment in favor of the Appellants.
Respondents brief of argument was filed on the 19th day of April 2012 and deemed properly filed and served on 28th February 2013. As I stated earlier, the Respondents formulated and argued three issues for determination. The first issue is whether the lower Court was right in coming to the conclusion that Claimants/Appellants action was properly constituted as a representative action. Learned Counsel for the Respondent said the issue of competence of Appellants action was raised at paragraph 14 of the amended statement of Defense found at page 165 of the record of appeal. Respondent relied on the decision in BOSSA v. JULIUS BERGER (2005) 15 NWLR (Pt. 948) 426, to submit that the issue of Appellants action being instituted in representative capacity featured clearly at pages 165, 502 and 561 of the record of appeal. That where an issue is raised by any of the parties in litigation, the Court is bound to make a pronouncement on it, that the lower Court was therefore right in taking a decision on the issue. Counsel relied on YUSUF v. ADEGOKE (2007) 11 NWLR (Pt. 1045) 332 at 360, TEGA ESABUNOR v. DR. TUNDE FAWEYA (2008) 12 NWLR (Pt. 1102) 794 at 811, EDET v. STATE (2008) 14 NWLR (Pt. 1106) 52 at 67.
Respondent contended that the Appellant did not deny the issue of bringing the action in representative capacity, and where an issue is raised and the other party does not deny such issue, the Court is bound to take it that the issue is admitted, learned Counsel relied on the decision in OMEGA BANK (NIG) PLC v. O.B.C. LTD (2002) 16 NWLR (Pt. 794) 483 at 507. Respondent said the lower Court was right in coming to the conclusion that Appellants action was not properly constituted based on admitted facts before the Court. Respondent’s second issue is whether the Appellants proved their case on the preponderance of evidence. The Respondent contended that under the Nigerian law, it is a fundamental requirement that whoever asserts the existence of any fact must prove it he referred this Court to the decision in F.I.P.D.C. (NIG.) LIMITED v. E.A.S. LIMITED (2006) 6 NWLR (Pt. 975) 1 at 28 and Sections 135(1) and 136 of the evidence Act. Learned Counsel said Appellants alleged that they had a contract of employment with the Respondent, he said the law requires that they place material evidence before the Court to prove the assertion Appellants resorted to making claims that lack basis in law.
Counsel said Appellants failed to tender their letter of appointment from the Respondent, or provide letters evidencing termination of appointment, provide evidence of payment of salaries, or provide copy of the terms of agreement breached by the Respondent. Appellants failed to provide all the necessary evidence, and the law is settled, that where a party withholds evidence, it will be taken that the evidence is against it.
On the part of the Respondent, it was shown that they called a witness who testified that Appellants were paid their salaries by a third party, they were driving Respondents cars and had access to the premises of the Respondent in order to perform their duties, that the drivers manual given to the Appellants was just for them to perform their duties more efficiently, it was not in any way an appointment letter or conditions of service given to the Appellants to establish contractual relationship. Respondent said burden of proof is on the Claimants, who initiated the action, and Claimants must succeed on the strength of their case and not the weakness of Respondents case, Respondents relied on EGHAREVBA v. OSAGIE (2009) 18 NWLR (Pt. 1173) 299 at 315, AJAYI V., A-G OGUN STATE (2009) 7 NWLR (Pt. 1141) 443 at 473, and MICHAEL ODUNZE v. NWOSU (2007) 13 NWLR (Pt. 1050) 1 at 42.
The Respondent said the law is settled that in a case of wrongful termination of appointment as alleged by the Appellants in this appeal, the Appellants must plead and prove the terms of employment in the contract of employment and particularize the alleged breach if any, which cannot be done by incoherent oral evidence as done by the Appellants in the instant appeal. He relied on UZONDU v. UBN PLC (2009) 5 NWLR (Pt. 1133) 1 at 16. Respondent further contended that Appellants only tendered Exhibits JE 2 and 4 which are drivers handbook and defensive Course certificate, these exhibits are both designed to improve the efficiency of the Appellants at work and secure the vehicles of the Respondent, the exhibits Respondent said do not constitute contract of employment, the lower Court was therefore right in holding that this failure by the Appellants is fatal to their case. Counsel for the Respondents relied on Section 132 (1) of the Evidence act and the decision in AGBAREH v. MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410.
On the part of the Respondents, they argued that they tendered documents at the trial before the lower Court, to show that Appellants were employed by T.A. Amussah Limited and Delog Nigeria limited and not by it. Respondent said a party alleging wrongful termination of appointment must prove that the Defendant employed him; he must have the terms and conditions of his appointment including the duration and the termination, the person who has authority to appoint and remove him, the circumstances under which his appointment can be terminated. That the terms allegedly violated by the employer must be specifically pleaded and established. Learned Counsel said this is only done, by tendering the evidence of contract of service. Counsel relied on ADAMS v. LSDPC (2000) 5 NWLR (Pt. 656) 291 at 316. Respondent submitted that the appellants failed to establish their claim before the lower court, the learned trial Judge was therefore right in dismissing appellants claim.
On whether the lower Court was right in dismissing Appellants claim for award of damages and injunction, and award of cost. Respondent said Appellants claim for N800m damages was a claim for special damage, which ought to be pleaded and proved specifically, that Appellants failed to establish that they were employed by the Respondent, they also failed to establish their monthly emoluments, their claim for special damage was therefore unfounded and the lower Court was right in dismissing the Claim, Respondents Counsel relied on AKINKUGBE v. E.H. (NIG) LTD (2008) 12 NWLR (1098) 375 at page 401, and HYACINTH ORJI v. EZEANI ANYASO (2000) 2 NWLR (Pt. 430) at 32.
On Appellants prayer for injunction, learned Counsel for the Respondent said Appellants were not employees of the Respondent as shown clearly from the evidence of DW1, DW2, and DW3, their evidence showed clearly that Appellants were employed by third party who were service contractors to the Respondent, that injunction would only issue to protect a legal right and the appellants in this appeal failed to show that they had a legal right to protect, the court below was therefore right in refusing to grant an injunction. Respondents Counsel relied on OKEREOCHA v. MINISTRY OF COMMERCE & TOURISM (2001) 1 NWLR (Pt. 693) 126.
On the issue of award of cost of N75,000 in favor of the Respondent, learned Counsel for the Respondent said cost generally follows event, that cost is a pecuniary allowance paid to the successful party recoverable from the loosing party for the expenses incurred by the successful party towards prosecuting or defending the action, and that award of cost is an exercise of discretionary power of the Court, and cannot be questioned unless it is shown there is improper exercise of discretion by the lower court. He relied on ASIM (NIG) LTD v. LOWER RIVER BASIN (2002) 8 NWLR (Pt. 769) 349 at 366.
Respondents finally submitted that appellants failed to establish their claim against the Respondent, and the decision of the lower court was therefore proper, and urged that the appeal be dismissed, and the decision of the lower Court be affirmed.
The first issue to resolve is whether the lower Court was right in holding that Appellants action was not properly constituted. At page 580 of the record of appeal, the learned trial Judge held that said even though the Claimants had common grievance and the consequence of the action might be beneficial to the common interest of all the Claimants, their interest in the subject matter of litigation cannot be the same having regard to their individual contract of employment if any with the Defendant. The learned trial Judge was guided by the decision of this Court in BOSSA v. JULIUS BERGER PLC (2005) 15 NWLR (Pt. 948) 426.
The position of the learned trial judge needs not be subjected to any further discourse because the law is fairly settled on seemingly endless judicial decisions that contract of employment is personal to each employee, employees cannot therefore have a collective right to sue for breach of terms of their contract of employment jointly and severally. SEE: BOSSA v. JULIUS BERGER PLC, (supra). In BEMIL NIGERIA LTD v. EMERIBE & ORS, CNN203/ 2005. Abba Aji, JCA, said as follows:
“The Respondents therefore do not have a common interest or a common right against the Appellant. The terms of their contract of service are different from each other and each signed a separate contract of employment with the Appellant.
In the circumstance, the Respondents cannot bring an action jointly and severally against the Appellant in respect of their contracts of employment. Their contract of employment is personal to each of them and where there is breach the Respondents do not have a collective right to sue the appellant jointly and severally, see BOSSA v. JULIUS BERGER PLC (2005) 15 NWLR (Pt. 948) 409, CCB (NIG.) PLC v. ROSE (1998) 4 NWLR (Pt. 544) 37”.
In the realm of master and servant relationship multitude of persons may be employed the same day, under the same terms of contract, this does not confer any collective right to sue or be represented on the employees, each one of them has his terms of employment personal to him, each employee has domestic rights exclusively personal to him even though they share common terms of employment, representative action is therefore not an option for the Claimants to ventilate their grievance in the circumstance, such option is certainly not available to them. The learned trial Judge made this finding which accords with the extant law on the subject matter, but there is no definite pronouncement by the learned trial judge on what becomes of the action following this finding, In all cases where issues are joined by the parties, there is a duty on the Court to state clearly how such issue has been disposed of See: OZIBE & ORS v. CHIEF ILE AIGBE & ORS (1977) 7 S.C. 1.
Where a Court is required to do something in the discharge of its duties, such may fall within either its discretionary duty or mandatory duty in the determination of the matter before it, See: HARRISON WELLI & ANR v. CHARLES OKECHUKWU & ORS (1985) 6 S.C 132 AT 145-146. Where a court of law finds that an action is not properly constituted in line with the established principles in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 and other numerous authorities on this principle, the Court must hold that the action is incompetent and it must be struck out against the persons represented.
I think the finding by the learned trial Judge that the Appellants as Claimants at the lower Court could not sue in representative capacity cannot be faulted, the decision reached by the learned trial Judge represents the correct position of the law. I would only add that since the lower Court was of the view that the Claimants could not sue in representative capacity, the Court ought to have gone further to pronounce on the competence of the suit as it affects the persons represented, this Court in exercise of the powers conferred on it by Section 15 of the Court of Appeal Act 2004 is empowered to deal and conclude the issue for the lower Court, the suit in respect of the persons represented that is to say from Claimants 34 to 87 having been adjudged incompetent is struck out, the said persons are at liberty to institute their personal actions if their claims are not time barred. This issue is therefore accordingly resolved in favor of the Respondent against the Appellants.
The next issue is whether the Appellants proved their case on preponderance of evidence to entitle them to their claims. This issue has to do with the evidence led by both parties at the trial and the conclusion reached by the learned trial Judge. In summary, the Appellants said they were employed by the Respondent, they were granted unhindered access to the facilities of the Respondent, they were allowed access to Respondents cafeteria for their food, they were given drivers hand book which Appellants mistook for letter of employment, they were granted identity cards especially on sanitation days and described as staff of the Respondent, they were subjected to training and disciplinary control. Appellants said the Respondent and nobody else employed them. Appellants also contended that contract of service could be implied from the conduct of the Respondent. Various exhibits were then tendered by the Appellants to establish their claim against the Respondent.
The Respondent also led evidence at the trial to establish that it had a contract of service with some companies to supply services for the Respondent by way of providing drivers. Respondent also called witness who testified and tendered documents as exhibits. The Respondent above all said the Appellants failed to tendered evidence of employment in form of contract or terms of employment; there was no evidence of termination of appointment by the Respondent. The Respondent also submitted that Appellants failed to tender evidence of payment of salaries. The Respondent also contended that, contrary to the claim by the Appellants that the Respondent employed them, they were actually employed by T.A. AMUSSAH LIMITED and DELOG NIGERIA LIMITED.
At pages 48-63 of the record of appeal, the Claimants listed four witnesses who also offered witness statements on oath. All witnesses deposed to substantially the same statement on oath. Claimants also listed various exhibits to be relied on at page 64 of the record.
At pages 166-175, Defendants four witnesses also offered statements on oath. The witnesses for the Respondent came from staff of the Respondent, one of the recruited and laid off drivers, staff of the labor contractors T.A. AMUSSAH LIMITED and DELOG NIGERIA LIMITED. The Respondent as Defendant also listed various documents to be relied on at the trial; the list is found at page 176 of the record of appeal.
The learned trial Judge gave Judgment at the conclusion of trial and dismissed Appellants Claim. The Judgment is at page 569-586 of the record of appeal. In an action for wrongful termination of appointment, the claimant must plead and prove not only the appointment but also the terms and conditions of such appointment for it to constitute sufficient foundation of the action, SEE: KABELMETAL NIGERIA LIMITED v. GABRIEL ATIVIE (2001) FWLR (Pt. 66) 662 at 675.

Again a servant who complains of wrongful termination of employment must found his claim on the contract of service, and show in what manner the terms were breached. The contract of service is the bedrock of any claim for wrongful termination. It is the duty of the Claimant not the employer to prove that termination was wrongful. SEE: AMODU v. AMODE (1990) 5 NWLR (Pt. 150) 356, KATTO v. CBN (1999) 6 NWLR (Pt. 607), OKOMU OIL PALM CO. LTD v. ISERHIENRHIEN (2001) 6 NWLR (Pt. 710) 660.
I will lift some portion of the Judgment of the lower court, at page 582, the learned trial judge said as follows:
“It is the duty of the claimants to plead in his statement of claim facts, which establish the requirement of the law and upon which this Court can rely in finding in their favor. It is clear from the testimonies and exhibits tendered that the claimants have no letter of appointment given to it by the defendant. This would have enabled the Court to find out which part of the contract was breached by the Defendant.
Where therefore a material averment, that is the letter of employment of the claimants was not pleaded and tendered at the trial, the plain duty of the court, is either to strike out or dismiss the action…”
The law is settled that in a claim for wrongful termination like in the instant appeal the claimant must show that he is an employee of the defendant, that some specific terms and conditions, like person who can appoint and remove him and the circumstances that may ground his removal are necessary facts to be established.
The learned trial Judge in my view saw clearly from the evidence led by the Claimants that they failed to support their claim that the Respondent employed them.
The learned trial Judge considered all the relevant evidence led by the claimants before coming to the conclusion that the Claimants suit had no merit. At page 583 of the record of appeal, the learned trial judge again said as follows:
“I hereby uphold the defendant’s counsel argument in consequently, Exhibit JE 2 (staff Appraisal), Exhibit JE4 (Driving certificate), JE5 (Defendants Physical Inspection of Assigned Vehicle), Exhibit JE6 (Letter of query given top one of the claimants by the Defendants Human Resources Officer) and Exhibit JE7 (Meal ticket given to all claimants by the defendant all do not satisfy the requirement of the law for a valid letter of employment which stipulates the conditions of service between the parties as held in IBINVIA v. UBTH (supra), I am therefore in agreement with the learned counsel for the Defendant in this regard and it is hereby relied upon as being competent.
One major term of employment is the payment of salary. See the case of OKOEBOR v. POLICE COUNCIL (supra), it is the claimants case the claimants received salaries from the defendant through their Bank Accounts. This piece of evidence was not substantiated with documentary evidence such as pay slip, Bank statement or payment schedule. The claimants ought to have presented to the court their pay slips showing proof that payments were made by the defendant at different times in form of salaries or tender Bank Statements to buttress these facts. Failure by the claimants to do this is fatal to their case. CW1 Mr. Chris Nwaoboro, under cross examination stated that they received their salaries at Union Bank and that they do not know who pays it into the various Accounts at the Bank. This corroborates the evidence in chief of DW2, Mr. Ismail Bashorun in this regard”.
I refer to the statement on oath of ONYESOM MONDAY, Defendants witness; the relevant deposition is at page 170 of the record of appeal. This witness said he was one of the drivers recruited by the labor contractors on behalf of the Defendant that the contractors gave him letter of appointment, he worked as a driver to one of the senior staff, and he was paid his full entitlements by the labor contractor, he also denied giving authority to any person to sue on his behalf.
In view of the materials considered by the learned trial Judge, it must be resolved that Appellants failed to prove their claim before the lower Court. I am therefore of the view that the learned trial Judge was right in arriving at the conclusion that Appellants claim lacked merit as they failed to establish their claim for employment by the Respondent. This issue is also resolved in favor of the Respondent against the Appellants.
The next issue is whether the trial court was right in dismissing Appellants claim for damages, injunction and award of costs. From the issues determined so far, it is obvious the Claimants failed to establish their claim against the Respondent, it follows therefore that damages cannot be awarded in the circumstance, the effect of Appellants failure to establish their claim is that, they are not entitled to damages and injunction.
Award of costs is within the discretion of the lower Court, and where discretion is exercised by a court, it is hardly disturbed unless there is evidence that the lower court exercised such discretion without caution, a discretion exercised judicially and judiciously is taken as proper just and appropriate and therefore not open to interference. In the instant case, the lower court awarded costs to the Respondent, and from the judgment, the Respondent being the successful party is entitled to costs unless there are special reasons to justify denial of the entitlement.

Let me refer to the decision of the Supreme Court in F. A. AKINBOBOLA v. PLISSON FISKO NIGERIA LTD & OTHERS (1991) 1 NWLR (Pt. 167) 270, where KAWU, JSC (of blessed memory) said as follows:
“The award of costs is of course always at the discretion of the court, which discretion must be exercised, both judiciously and judicially. It is also well established principle that costs follow events and that a successful party is entitled to costs unless there are special reasons for depriving him of his entitlement”
In this instance I think the learned trial Judge was on course when he awarded costs to the Respondent adjudged to be the successful party at the conclusion of trial.
This issue must also be resolved in favor of the Respondent against the Appellants. It is so resolved. Having resolved all the three issues in favor of the Respondent, it is obvious the appeal lacks merit, it must therefore be dismissed, and I hereby dismiss it. I accordingly affirm the decision of Dabiri J. of the Lagos High Court delivered on the 1st day of July, 2011 in suit No. LD/977/2002.
Parties shall bear their costs.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother TIJJANI ABUBAKAR, J.C.A., and I have nothing extra to add.
My learned brother TIJJANI ABUBAKAR, J.C.A., dealt with the issues in this appeal thoroughly and well, and left no space for further contribution, for the above reasons and the more detailed reasons given in the lead judgment, I too join my learned brother in holding that this issue must also be resolved in favour of the Respondent against the Appellants. Accordingly, it is so resolved. Having resolved all the three issues in favour of the Respondent, it is also obvious that the appeal lacks merit, it must therefore be dismissed, and I too hereby dismiss it. I accordingly affirm the decision of Dabiri J. of the Lagos High Court delivered on the 1st day of July, 2011 in Suit No. LD/977/2002.
Parties shall bear their costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the draft judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA.
I agree with the reasoning and conclusion arrived in the lead judgment.
I just would emphasize that there cannot be representative action in employment and wrongful dismissal cases. It revolves around personal contract and each person is expected to plead and prove the specific contract he has, if any. That was not the only virus that affected the suit but also the fact that there was no contract of employment between the parties.
It is for the fuller reasons given in the lead judgment that, I too dismiss the appeal and abide by the orders made therein.

Appearances

Chief Nnamdi OsadebeFor Appellant

AND

Ladipo Soetan with A. AfadomehFor Respondent