IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 11TH OF APRIL, 2019 SUIT NO. NICN/AK/51/2014
BETWEEN
AARON ADHAZOR …………………… CLAIMANT
AND
I. ONDO STATE GOVERNMENT ……………….DEFENDANTS
II. ATTORNEY GENERAL/COMM FOR JUSTICE (ONDO STATE)
III. OWENA MOTELS LTD
REPRESENTATION
C.A Gbogi with him A.J Akinsumola, Kehinde Kolawole, Boluwaji Adefolalu and Baba Omojola, Amos Ilari Esq for the Claimant.
R.A Akinseye Principal Legal Officer Ministry of Justice Ondo State for the 1st and 2nd Defendants.
Adeyanju with him Dayo Akindejoye for the 3rd defendant
JUDGMENT
By a General Form of Complaint, dated 31st October, 2014, the claimant claimed against the defendants the following reliefs:
The sum of N18,019,670.23 (Eighteen Million Nineteen Thousand Six Hundred and Seventy Naira) being the true and correct amount of money owed the claimant by the defendants as at 31st October, 2014 in respect of :
Retirement benefits N2, 527,146.00
Gratuity N8, 747,813.70
Redundancy benefits N5, 831,875.80
Accumulated unpaid salaries and N 889,181.00
Year 2013/2014 leave Allowance N 23,653.73
N 18,019,670.23
The sum of 25% interest on the total amount (a) supra from the 1st of November, 2014 till judgment is delivered in this suit.
The sum of 20% post judgment interest.
It is on record that claimant amended his originating processes twice and thus the extant process is the claimant’s amended statement of facts filed on the 26th June,, 2018.
It is the claimant’s case vide his further amended statement of facts dated 26th of June, 2018 that he was in the employment of the 3rd defendant between 1st of February, 1988 and July 2014 when the Company was forcefully closed down by the agents of the 1st defendant on the 31st of July, 2014. It is his testimony that his employment was confirmed by a letter dated 27th of July, 1990 with effect from 1st of August, 1990. That he rose through the ranks and became the Maintenance Superintendent Grade level 08 step 4 and the post of Maintenance officer grade level 09 step 2. He pleaded that between the periods of 2011 the defendants took several negative decisions that culminated in the 3rd defendant becoming moribund and as a result indebted to him for 19 months salary arrears at the end of July 2014 inclusive of 3 months salary in lieu of notice. He averred that at the end of 31st of July, 2014, he and other staff were verbally informed by the Secretary to the 1st defendant that they should not report for duty again from the 1st day of August, 2014. That his final entitlements between March, 1988 and October, 2014 (27years) are yet to be paid as contained in the defendant’s 2003 condition of service.
It is the 1st and 2nd defendants amended statement of defence wherein the 1st and 2nd defendants admitted that the 1st defendant is a subscribed shareholder in the 3rd defendant but not the owner of the 3rd defendant. It went on to state that the 3rd defendant is registered in its corporate name and can sue and be sued, which has its separate legal personality and not an appendage of the 1st defendant. They continued that they do not play any role in the 3rd defendant and at no time did their agent urged the claimant to stop coming to work. They went on to state that the claimant and his colleagues are not their staff, hence they cannot respond to their demand notice. According to the 1st and 2nd defendants, the 1st defendant only relationship with the 3rd defendant was the lease agreement it entered into with it to lease a portion of its premises to Developers of Akure Mall. They therefore deny any liability to the claimant and urged the Court to dismiss the claimant’s case.
During trial, the claimant testified for himself as CW1 and one Leye Adebayo who testified as a subpoenaed witness as CW2. They adopted their sworn deposition as their evidence in the case and frontloaded some documents which were admitted and marked as Exhibits AA-AA9 and LA. The Court ruled that the evidence of CW2, R.A. Alonge in the sister case in suit No NICN/AK/49/14 is adopted in this case as well as the testimony of the Permanent Secretary one Dr. Mrs Dupe Oshofomie. The defendants on the other hand failed and refused to call any witness, but cross examined all claimant’s witnesses.
It is important to state here that Adeyanju Esq was initially learned counsel for all the defendants until suddenly in May, 2018, he filed a process that his retainership for the 1st and 2nd defendants has been discontinued and left with the 3rd defendant. Learned counsel from the office of the Attorney General took over the prosecution of the case for the 1st and 2nd defendants. Parties were given opportunity to file in the circumstance their separate pleadings, the 1st and 2nd defendants filed as captured supra, however, the 3rd defendant though was given ample opportunity to defend this case but failed or refused to do so. The Court after waiting for several adjournments at the instance of the 3rd defendant without any positive action by it, it closed its case and directed parties to file their final written addresses. Again, the 3rd defendant failed to file any final written address. The excuse has always been that the government has not made money available for filing their processes.
Parties (i.e. the 1st and 2nd defendants and the claimant) caused their written addresses to be filed in compliance with the rules of this Court; the 1st and 2nd Defendants filed their final written address on the 28th of December, 2018 and distilled two issues for the determination of the Court; the claimant on the other hand filled his written address on the 14th of January, 2019 and distilled a three issues. Counsel on both side argued some issues, relevant portions of which would be referred to in the course of writing this judgment.
After a careful consideration of the processes filed by the parties and the supporting documents, their respective written submissions as posited by counsel on both divide, it is my calm view that the issue that would best determine this suit is:
Whether or not the claimant is entitled to his reliefs.
Before delving into the substance of this suit it is pertinent to address pertinent issue raised by the defence counsel. It is the 1st and 2nd defendants’ submission that this Court ruled against its preliminary objection on the issue of lack of privity of contract between it and the claimant when evidence had not be led to establish their reliefs. He stated that now the Court is being seized of the material facts, hence he urged the Court to take a second look at the presupposition on this regards. He continued by positing that the doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights and obligations upon any person who is not a party to the contract. He cited the case of Idufeko v Pfizer Production Ltd [2014] 12 NWLR (Pt. 1420) 96; Makwe v Nwakor [2001] 14 NWLR (Pt 733) 356; Agbareh v Mimra [2008] 2 NWLR (Pt. 1071) 378 SC. It is counsel’s argument that the 3rd defendant is a Company Limited by shares and it is clear that the claimant had his contract of employment solely between the 3rd defendant, therefore the 1st and 2nd defendants who also are distinct juristic persons by the creation of statute who are not privy to the contract between the claimant and 3rd defendant ought not to have been made parties to this suit. Counsel also submitted that the fact that the 1st and 2nd defendants owns 70% percent of shares in the 3rd defendant and also the fact that their efforts and interventions and or infractions might have led at various intervals in the management of the 3rd defendant, which should only connote that the 1st defendant is only more than just an ordinary bystander in the matters relating to the 3rd defendant and this cannot subsumed the legal personality of the 3rd defendant into the 1st defendant. He cited Section 37 of the Companies and Allied Matters Act and the case of Trenco (Nig) Limited v African Real Estate and Investment Company Limited & Anor [1978] All. N.L.R 124. It is counsel’s further position that the relationship between the 3rd and 1st defendants having been clearly defined, it follows therefore that the claimant’s action is not sustainable against the 1st defendant the latter having not been privy to the contract to the contract between the claimant and the 3rd defendant. He urged the Court to dismiss this suit as it is incompetent and has not disclosed a reasonable cause of action against the 1st and 2nd defendants. Learned claimant counsel contended at paragraph 6.6 of his address in response that the arguments of the 1st and 2nd defendants on the issue of privity of contract is puerile as the issue and other issues argued in their preliminary objection were struck out on the 17th of May, 2017. He posited that where a case for an issue has been argued and the Court has decided on it, the Court becomes functus officio in respect of that issue and cannot reach a different decision on the issue in the same case. He cited the case of Augustine Bassey Ene v. Chief Asuquo Asikpo [2010] 10 NWLR (Pt. 1203) 477. Counsel submitted that the 3rd defendant is 100% owned by the Ondo State Government and that by virtue of Section 318 (g) of the 1999 Constitution of the Federal Republic of Nigeria, the claimant is a Public Officer while the 3rd defendant is essentially an institution in the Public Service of Ondo State. He cited the case of Attorney General of Lagos State v. Eko Hotels Ltd & Anor [2006] All FWLR (Pt. 342) p. 1472. He submitted that the Ondo State Government apart from being a majority shareholder were directly involved in the grading and promotion of the staff as well as in the direct running of Owena Motels Ltd also the 1st defendant has taken over all the assets and liabilities of the 3rd defendant. He stated that in this case, the corporate veil of incorporation would be lifted in order to make the people responsible for the reckless mismanaging of the 3rd defendant without any limitation liable. He cited the cases of Adeyemi v Lan Baker (Nig) Ltd [2000] 7 NWLR (Pt 663) 33; International Offshore Construction Ltd v Sin Ltd [2003] 16 NWLR (Pt. 845) 157. Counsel urged the Court to so hold.
It is germane to state at this juncture, that this Court in its ruling delivered on the 7th June, 2017 has addressed the objection raised by Learned Defence Counsel on the issues the 1st and 2nd defendants raised at paragraph 2 (a-e) of their statement of defence and their written address. I am hence startled at this stage why the learned defence counsel will raise same again in their written address. For the sake of clarity learned defence counsel submitted that at that stage there was paucity of material and evidence before the Court and urged it to take a second look the issue since plethora of evidence has been placed before the Court. I must state the trite position of the law, that where a Court has given a decision on an issue, it is functus officio on the issue and the only remedy available to the party against whom the decision was reached is to appeal to the Court of Appeal and not ask the Court to take a second look at its decision, to do such is asking the Court to sit on appeal on its own decision. See the cases of Olowu & ors v. Abolore & Anor [1993] LPELR 2603 SC; John Andy Sons & Company Ltd v. National Cereals Research Institute [1997] LPELR 1619 SC. In the case of Akinwale v Akinwale [2010] LPELR 3690 CA the Court of Appeal per Ogunbiyi JCA (as she then was) held that;
in the case of Arubo v Aiyeleru [1993] 3 NWLR (Pt. 280) 126, for instance, the Supreme Court held that the re-litigation of already decided issues is an abuse of Court’s process, even if the matter is not strictly res judicata: see the case of Stephenson v Garnett [1898] 10 QB 677. See also the cases of Adigun & Ors v Sec Iwo Local Government & Anor [1999] 8 NWLR (Pt. 613) 30”
Suffice it to state here that, to address these issues again will amount to an abuse of Court process of this Court. I find this also preposterous, in that the 1st and 2nd defendants in their amended statement of defence filed on 6th of June,, 2018, did not raise the issue, and one then wonders under what basis/guise this issue was raised again. There is actually no foundation upon which this issue can be found. The separation or better put, the withdrawal of learned counsel appearance for the 3rd defendant could not even work out any magic. It therefore has to fall as it is the known position of the law in Mcfoy v. UAC [1961] 2 All ER 1169 that you cannot put something on nothing and expect it to stand. The import of which is that the contention of the 1st and 2nd defendants cannot stand. The address of counsel, the law is long settled no matter how beautifully grafted cannot take the place of pleadings. See Aina & Anor v. Dada & Anor [2017] LPELR-42553CA. It is in consequence of all stated that I adopt the ruling of the Court delivered on the 7th June, 2017 as part and parcel of this judgment and discountenanced the preliminary issue raised by the learned 1st and 2nd defence counsel in his final written address. I so hold.
The learned counsel for the 1st and 2nd defendants in his final written address also argued extensively that though the 1st defendant has 70% shareholding in the 3rd defendant, it has no controlling power over the 3rd defendant and thus not bound by claimant’s claims. He equally took a ride through the principle of agency, made a heavy weather about it and submitted that the act of an agent of a disclosed principal is binding on his principal. To the defence, the action of the Director of the 3rd defendant is that of the 3rd defendant and so the 1st defendant is not liable in any way to the claimant. I agree with the learned defence counsel to the extent that the act of an agent of a disclosed principal is binding on the principal, I however, I wish to make a detour and disagree with his contention that the 1st defendant should be absolve from any liability to the claimant, my position is hinged on the legal principle that despite the general principle of a separate Corporate legal entity, the Courts in plethora of legal authorities have held that Courts have the power to lift the veil of incorporation when necessary. “The corporate veil” is defined in Black’s Law Dictionary 9th edition as: “The judicial act of imposing personal liability on otherwise immune corporate officers, directors or shareholders for the corporation’s wrongful acts. A situation may arise as in the instant case where the corporate veil of a Company may be lifted with a view to making either a Director, Agent or both of the Company liable for the Company’s behalf. See Sections 93 and 290 of the Companies And Allied Matters Act, CAP. C20 Laws of the Federal Republic of Nigeria, 2004; J. O. Orojo: Company Law and Practice in Nigeria, 5th Edition @ 88 – 89. Lexis & Nexis, 2008. It is noteworthy that this instant case constitutes a clear exception to the general principle, that an agent of a disclosed principal cannot be joined as a party/or held liable with the principal thereof. The Court of Appeal in its recent decision in Bell Atlantic Telecommunications Ltd & Anor v. Ndon & Anor [2018] LPELR-44431CA; reiterated the trite principle of the law, that shareholders would be treated as the owners of a corporation’s property, as the real parties’ interests, whenever it is expedient to do so to prevent fraud or to do justice. Arguably, that is the backbone and the veritable basis of the alter-ego doctrine. Thus, where, as in the instant case, a Chairman or Director (1st Defendant) can justifiably be treated as the alter-ego or directing mind and will of the Company, the corporate veil of the Company may be lifted or pieced with a view to exposing the real person “behind the ‘Mask’ perpetrating an improper act perpetuated by the Company thereby causing injustice to the other party. It is expedient for this Court to lift the veil of the 3rd defendant’s Company in view of the fact that the 1st defendant is denying liability and that at the instant will occasion injustice to the claimant if allowed. The 1st defendant in this case being a major shareholder of the 3rd defendant as admitted appointed the General Manager, on whose behalf also the Secretary to the State Government promised to pay the claimant’s outstanding salaries and entitlement. It is equally revealed on record that the 1st defendant acquired both the assets and liabilities of the 3rd defendant, this was confirmed by CW2 on record as well as the Permanent Secretary of the Ministry of Commerce and Industries. As the majority shareholder, the 1st defendant appoints General Manager who manages the affairs of the 3rd defendant. The 1st defendant equally acted on behalf of the 3rd defendant by executing the MOU leasing parts of the 3rd defendant’s premises to Top Services Ltd the Company that built Akure mall. If indeed the 1st defendant has no business with the administration of the 3rd defendant, one then wonders why the 1st defendant executed the MOU on behalf of the 3rd defendant as stated in exhibit LA. I equally find strength by Section 318 (g) of the 1999 Constitution as amended, which provides that the Public Service of a State means the service of the State in any capacity in respect of the Government of the State and includes service as staff of any Company or enterprise in which the Government of a State or its agency holds controlling shares or interest. See the case of Medical Laboratory Science Council of Nigeria v Kenneth O & Ors [2017] LPELR 42526 CA. Now, by Section 318(g) of the 1999 Constitution as amended, the claimant is a Public servant. No wonder the 1st defendant agreed to pay 16 months’ salary owed the staff of the 3rd defendant. It is evident on record that some of the 3rd defendants staff were infact paid their 16 months’ salary, except the claimant who refused to accept it on the pretext that his entitlement is more than the amount offered by the 1st defendant. All I have stated earlier in this judgment as regards the involvement of the 1st defendant in this case gives credence to the fact that the 1st defendant by conduct has given the claimant the impression that he is the staff of the 1st defendant and thus entitle to claim his entitlement from it. The law is certain specifically by Section 169 of the Evidence Act 2011, that where a party has either by virtue of deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing. The Supreme Court, reaffirming this principle, held in Mabamije v Otto [2016] 13 NWLR Part 1529 Page 171 at 191 Para B-F per Rhodes – Vivour JSC that; “Estoppel is a rule that prevents a person to assert (sic) the contrary of a fact or state of things which he formally asserted by words or conduct. Put in another way, a person shall not be allowed to say one thing at one time and the opposite at another time. Estoppel is based on equity and good conscience, the object being to prevent fraud and ensure justice between the parties by promoting transparency and good faith.” See also the case of Ministry of Agriculture, Katsina State v GTB & Anor [2018] LPELR 44372 CA. Flowing from the above it is crystal clear as the day break that the 1st defendant by conduct have made the claimant to believe and has indeed held itself out as the employer whose responsibility it is to pay him his 16 months’ salary in arrears, this it did by intimating the General Manager CW2 of its intention to so do and it indeed paid some of the staff of the 3rd defendant as admitted by the Permanent Secretary of Ministry of Commerce and Industries Ondo State one Dr. Mrs. Dupe Oshofomie in the sister case suit no NICN/AK/52/2014 and disclosed by exhibit PS1 and CW2. It is equally on record that the 1st defendant gives subventions to the 3rd defendant. CW1, i.e. the claimant stated under cross examination that his salaries was paid by the 1st defendant. I believe the 1st defendant is not a Father Christmas or mother Theresa that doles out cash to staff of the 3rd defendant if it does not have some form of benefits /interest/asserts/liability to bear with regards to the 3rd defendant. The 1st, 2nd defendants at this stage cannot renege or recluse themselves from the liability of the claimant. I say so by reason of the fact that if it can take over the assets and properties owned by the 3rd defendant through the Ministry of Commerce and industries, it should as well take over the liabilities and the Court in this instance finds that the 1st defendant cannot be evasive of its legal responsibility to the claimant, in this instance to ensure that the justice of this case be met. See the case of Tafida & Anor v Garba [2013] LPELR 22076 CA. It is in consequent of all stated above, that I find that the 1st, 2nd and 3rd defendants are necessary parties in this suit and the claims of the claimant can be sustained against them. To hold otherwise will occasion a grave injustice first the course of justice and secondly, the claimant in this case. I so find and hold.
Now, to the substantive issue it is the claimant claim that he is entitled to the sum of N18,019,670.23 (Eighteen Million Nineteen Thousand Six Hundred and Seventy Naira) being the true and correct amount of money owed to him by the defendants as at 31st October, 2014 in respect of :
Retirement benefits N2, 527,146.00
Gratuity N8, 747,813.70
Redundancy benefits N5, 831,875.80
Accumulated unpaid salaries and N 889,181.00
Year 2013/2014 leave Allowance N 23,653.73
N 18,019,670.23
It is learned claimant’s counsel argument that the basis of this suit is predicated on the fact that the claimant has served the defendant for the period of 27 years and upon his disengagement from service that is the 31st of July, 2014, he was entitled to have been paid his entitlements as per Sections 89 to 91 of year 2003 conditions of service, he therefore urged the Court to grant the severance allowances of the claimant based on the year 2003 Senior Staff Conditions of service. It is settled law that the claimant has the onerous duty by law to prove his claims on the strength of his own case not on the weakness of the defendants’ and the Court is urged to review, analyze and appraise the evidence tendered by the claimant in support of his own case even where such evidence is unchallenged to establish whether the same has proved his claim as required law. See the cases of SMAB Inter Trade Ltd v Bulangu [2013] LPELR 21414 CA; Ogunyomi v Ogundipe [2011] All FWLR (Pt. 594)188. The claimant in prove of his case tendered exhibit AA5 that is the Conditions of Service for Senior Staff, 2003 and there is no contrary documents in this regard. This case will therefore be considered based on the 2003 claimant’s condition of service.
It is pertinent to also state that the claimant by paragraph 11 of his statement of claim averred that at the end of 31st of July, 2014, he and other staff were verbally informed by the Secretary to the Government of the 1st defendant that they should not report for duty again from the 1st day of August, 2014. This was corroborated by CW2, who was the General Manager of the 3rd defendant appointed by the 1st defendant, when he stated under his examination in Chief that on the 31/5/14 the Company was closed down vide a memo (Exhibit LA) written to him and intimating him that the Ondo State Government has intention to lease and have indeed leased part of the 3rd defendant’s premises to Top services to operate a shopping mall. That he was also instructed to move the property of the 3rd defendant and also ask the staff to vacate the premises but that the Secretary to the State Government promised to pay the staff their 16 months’ salary in arrears. I need to emphasis here that the 3rd defendant although was represented by Adeyanju Esq failed to file any defence to this suit, ditto written address.
Now, what is the propriety of terminating the employment of the claimant orally? It is noteworthy that parties are ad idem on the fact that the claimant was indeed asked to stop coming to work on the basis of the letter dated 21st of May, 2014 exhibit LA. I say this in view of the fact that there is nothing stating the contrary and there is equally no letter of termination issued to the claimant in this regard to evince otherwise. It is an age long principle in industrial and labour law that an employer who has the right to hire has the corresponding right to fire however, this right is not Omnipotent as it is limited to the fact that such power exerted on the employer is subject to the terms of agreement binding on the both the employer and the employee. By exhibit AA5, i.e. Condition of service of Senior Staff Clause 83(i) provides for Termination and it states that;
i. Permanent appointment can be terminated by either side by giving three months’ notice or pay three months salary in lieu of notice. The power to terminate the appointment of any senior staff shall be vested in the Board of Directors or Management as the case may be”
Now there is nothing on record evincing the fact that the claimant was issued three months’ notice in writing and there is equally nothing showing that he was paid three months’ salary in lieu of notice when he was asked to stop coming to work. The defendants contrary to the provision of Exhibit AA5 disengaged the claimant wrongfully when it failed to issue a notice or pay the claimant’s his salary in lieu of notice upon termination. This in the labour and employment law terrain is wrongful and an unfair labour practice. See the case of Keystone Bank Limited v. Micheal Femi Afolabi [2017] LPELR-42390 (CA). It is in consequent that I find that oral termination of claimant’s employment by the defendants without three months’ notice or three months’ salary in lieu of same is wrongful . Claimant’s monthly salary of N46,799.70 and multiplied by 3 months, in effect he is entitled to be paid his 3 months’ salary in lieu of notice in the sum of N140, 399.1. I so hold.
With respect to the claimant’s claim for Retirement benefits in the sum of N2, 527,146.00. It is the learned counsel to the claimant’s argument that the final entitlement of the claimant ought to have been paid on his last day in office that is the 31st of July, 2014 as per Sections 89 to 91 of year 2003 condition of service. He also posited that Section 101 of the same condition of service specifically stated that in case any staff resigned his/her appointment or his/ her appointment is terminated, his/her final entitlement shall be calculated and paid in full immediately. It is settled position of law in the world of work that parties to a contract may choose to determine the relationship by given notice as prescribed by its terms of contract. It is the law of common that every employee has the right to resign/retire from his appointment whenever he desires and this takes effect when same is communicated or received by the employer even when the employer does not expressly accept it. There is also no need for the employer to reply to the letter of retirement before it becomes effective.
It is paramount to state that a mutual cord that runs through the above cited authorities and Exhibits AA5 is that retirement connotes the end of service/employment of a person upon the attainment of the requisite age or years of service. This is not limited as an employee may opt to retire upon reaching a certain age or years of service voluntarily. Equally an establishment reserves the right to also retire its employee compulsorily. However, it is right to state that there must be notification of retirement from the employee to the employer or vice versa depending on the type of retirement. It is clear from the record of the Court that the claimant put in a total of twenty six years in the service of the defendant. It is germane to posit that by clause 87 (b), the claimant is eligible to retire voluntarily having served the defendants for twenty six years. However it is appropriate to mention that there is nothing on record showing that the claimant retired from the employment of the defendants or was retired by the defendants. I say so in view of the fact that from the circumstances and facts of this case, the claimant’s employment was terminated albeit orally and nothing from the parties evinces that he was retired either compulsorily or voluntarily. As stated supra, there must be notification of retirement from one party to another, this did not happen in this suit. It is an established principle of law that he who asserts has the onerous burden to prove such assertion as judgment will lie against a person who asserts and fails to prove a given fact as submitted. See Sections 131-137 of Evidence Act, 2011 and the cases of Ruwa v. Manja [2018] LPELR 44939 CA; Fabian Tommy Osukpong & 3 ors v. Raymond Etukudo Eduoika & Anor [2016] 1 NWLR (Pt. 1493) 329; N.N.P.C v. Lutin Investments [2006] 1SC (Pt III) 49, [2006] 2 NWLR (Pt.965) 506. The claimant having failed to prove vide substantial and credible evidence that he duly retired from the employment of the defendants as claimed is not entitled to the sum of N2, 527,146.00. I so find and hold.
Claimant is also claiming for Gratuity in the sum of N8, 747,813.70. It is the claimant’s position that he is entitled to this sum having worked with the 3rd defendant for a period of twenty seven years. It is obvious that the claimant’s employment was terminated though wrongfully and it is evident from clause 101 of exhibit AA5 at page 50 that “In case of any staff resigned his/her appointment of his/her appointment is terminated his/her final entitlement be calculated and paid in full immediately”. The defendants failed to controvert or challenged this claim, as there is no iota of evidence on record challenging this claim. Therefore, the claimant in this case is entitled to a claim of gratuity as captured by clause 101 of exhibit AA5 above. It is apt to state that Exhibit AA5 provides the modus operandi for the calculation of gratuity at Clause 89 and it provides that 21 years and above continuous service is entitled to 30 weeks gross pay per each completed year of service. Now it is apparent that the claimant was before his disengagement on Grade level 9 Step 2 and by exhibit AA4 the salary structure for Grade 9 step two is in the sum of N46,799.70. To get the gross salary of the claimant per annum the sum of N46, 799.70 multiplied by 12 will give the total of N561, 596.4. To get the weekly gross of the claimant the total sum of N561, 596.4 will be divided by 52 weeks in a year to give the sum of N10, 799.9, to arrive at the claimant’s 30 weeks gross pay the sum of N10, 799.9 will be multiplied by 30 weeks to give the sum of N323, 997.9 and the sum of N323, 997.9 will be multiplied by his 26 years of service to give the sum of N8, 423,946. In all, I find and hold that the claimant is entitled to the sum of N8, 423,946 as his gratuity for his service for 26 years in the defendants. I so find and hold.
It is the claimant’s claim that he is entitled to the sum of N5,831,875.80 as Redundancy benefits. Redundancy means an involuntary and permanent loss of employment caused by an excess manpower. Redundancy therefore arises where the termination of employment is or is part of a reduction in the workforce. It is therefore a mode of removing an employee from service wherein his post is declared redundant by his employer. See the case of Union Bank v Salaudeen [2017] LPELR 43415 CA. Differently put it is a mode of removing of an employee from service when his post is declared “redundant” by the employee. It is not a voluntary or forced retirement, and it is not a dismissal from service. It is a procedure where an employee is quietly and lawfully relieved of his post, such type of removal from office does not usually carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee so declared. Now is the claimant’s employment terminated on the ground of redundancy? I answer this in the negative as there is nothing on record to evince the fact that he was declared redundant as by paragraph 13 of the claimant’s statement of fact claimant pleaded that the defendants constructively and wrongfully terminated his appointment. It is trite that redundancy can never be claimed alongside termination/retirement and no employee is entitled to both claims at the same time. See the case of Samuel Isheno v Julius Berger Nigeria Plc [2003] 14 NWLR (Pt. 840) p 305-306. The claimant having been terminated of his service simplicter and not on the ground of redundancy as he claims, his claims for redundancy in the sum of N5, 831,875.80 bound to fail and thus discountenance.
It is claimant’s claim that he is equally entitled to accumulated unpaid salaries in the sum of N889,181.00. The claimant by paragraph 20 of his statement of fact averred that he is entitled to be paid salaries in arrears of 19 months that is 16 months and three months ‘salary in lieu of notice. I have held supra that the claimant is entitled to his three months’ salary in lieu of notice thus the issue in that regards have been dealt with. With regards to the claimant claims for 16 months’ salary it is apposite to say that the CW2 the last General Manager before the 3rd defendant was closed down under examination in chief admitted that he was at a meeting informed by the Secretary to Ondo State Government that the staff of the 3rd defendant should vacate its premises and that the government will pay their 16 months’ salary in arrears. The defendants did not challenge this assertion by the claimant as it is instructive to point out that in the sister case of Adekunle Jegede v Ondo State Government & 3 ors Suit No AK/49/2014, DW1 equally admitted the fact that the 1st defendant told the staff that it will pay them their 16 months’ salary in arrears as their full and final settlement. It is the law that admitted facts needs no further proof. Faturoti v. University of Lagos [2016] 65 NLLR (Pt. 233) 783 NIC. It is on this premise that I find that the claimant is entitled to his 16months unpaid salaries in arrears in the sum of N748,795.2. I so hold
Claimant also claims the sum of N 23,653.73 as his 2013/2014 leave Allowance. A keen perusal of Exhibit AA5 stated at clause 30 that the “Company senior staff shall be paid 15% of annual basic salary as leave allowance”. I must state that CW2 under his examination in chief stated that upon assumption of office, he defrayed unpaid leave bonus, two months’ salary arrears and other allowances. It is the law that he who asserts must prove and the claimant herein has not proven his relief to entitle him to the sum claimed. It is thus in this light that I find that his claims for the sum of N23,653.73 as his 2013/2014 leave Allowance fails. I so hold.
The claimant claims sum 25% interest on the total amount (a) supra from the 1st of November, 2014 till judgment is delivered in this suit. It is settled by Order 47 Rule 7 of the National Industrial Court Rules, 2017 that this Court cannot award prejudgment interest. Also in the case of Monier Construction Co Nig. Ltd v. E. Agbejure Enterprises Ltd [2013] LPELR 21167 CA, “Prejudgment interest is either statutory or contractual. The appellant having not proved that the prejudgment interest he had claimed was either statutory or contractual had failed to justify his entitlement to that head of claim”. In this instant case, the claimant has failed to prove that this claim is statutory or part of his contractual terms. This Court can only award interest on judgment as from the date of judgment. It is in this vein I discountenance with Claimant’s claim on prejudgment interests. I so find and hold.
On the sum of 20% post judgment interest, it is trite that post-judgment interest is awarded where there is power conferred by statute on the Court to do so in exercise of Court’s discretion and it is meant to commence from the date of judgment until whole liquidation, See the case of Orojo v L.R. Avionics Technologies Ltd [2018] LPELR 43797 CA. By Order 47 Rule 7 of National Industrial Court of Nigeria 2017 which provides that this Court may at time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. It is in view of this that all judgment sums is to be paid within thirty (30) days failure upon which attracts 10% annual interest per annum.
In summary, the Claimant claims succeed in part and for avoidance of doubt I order as follows that;
That the ruling of the Court delivered on the 7th June, 2017 forms part and parcel of this judgment.
That the 1st, 2nd and 3rd defendants are liable to the claims of the claimant jointly and severally.
That the oral termination of claimant’s employment by the defendants without notice or salary in lieu of notice is wrongful.
That the claimant is entitled to his three months’ salary in lieu of notice in the sum of N140,399.1.
That the claimant is entitled to the sum of N8, 423,946 as his gratuity.
That the claimant is entitled to his 16 months’ unpaid salaries in arrears in the sum of N748,795.2.
That the claimant’s claim on retirement fails.
That the claim for redundancy also fails.
That the claimant’s claim for his 2013/2014 leave Allowance fails.
That claimant’s claim b fails.
Cost of N25,000 is awarded against the defendants jointly and severally.
All Judgment sum awarded is to be paid within thirty(30days) of this judgment, failure upon which attracts 10% interests in the judgment sum
Judgment is accordingly entered
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
