IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 20TH MAY 2019
SUIT NO: NICN/ABJ/98/2017
BETWEEN
ABDULIAHI TIJANI ……………………………………… CLAIMANT
AND
GLOBACOM TECLECOMMUNICATION LIMITED
ABDULLAHI MUHAMMED ……………………………… DEFENDANTS
REPRESENTATION
ABDULLAHI AWWAL MUHAMMAD for the Claimant
A. BENJAMIN for the Defendant
JUDGEMENT
The claimant, by a General Form of Complaint with the accompanying frontloaded documents filed on 30th March, 2017, approached the Court for the following reliefs:
Declaration that the action of the defendants in failing to pay the claimant’s salary from 7th July, 2014 till date is breach of contract of employment.
A declaration that the employment of the claimant is still subsisting, valid and effective till date.
A declaration that the claimant is entitled to his salary of N45, 000:00 (forty- five thousand naira) only from July 2014 till date the contract of employment of the claimant is validly and lawfully terminated by the defendants.
An order of this 1-lonourable Court directing the Defendants to jointly and severally pay the claimant his salary which is (forty five thousand naira) N45, 000 monthly from 7th July, 2014 till October, 2016 which amount to N1, 215,000 (one million two hundred and fifteen thousand naira) and thereafter the sum of N45, 000 per month from November 2016 till when the employment of the claimant is validly determined by the defendants.
General Damages in the sum of Twenty Million Naira (N20, 000,000.00) against the defendants.
The sum of 10% interest from the amount of the salary judgment sum till liquidation.
Cost of action.
Claimant’s Case
The Claimant averred that he at all material time has been a staff of the 1st Defendant who works under the direct supervision and instruction of the 2nd Defendant, who was also a staff and activation manager of the 1st Defendant.
Claimant stated he drove the 1st Defendant activation vehicle with Reg. Number YA 589 FST for Federal Capital Territory 1, wherein the claimant ply Abuja and outside F.C.T. and that he resumed work on 7th July, 2014 for the defendants as a driver for Federal Capital Territory 1.
The claimant averred that he was verbally informed by the 2nd defendant on behalf of the defendants, that his salary is Forty Five thousand Naira (N45, 00000) per month, however, that since the inception of his employment with the defendants he was never paid his salary.
The claimant stated that when he wrote an application for employment as a driver to the 1st defendant, he also submitted Guarantors form duly completed by two guarantors; and that the defendants have since the claimant’s employment failed, neglected and or refused to pay his salary of Forty Five Thousand Naira (N45,000.00) monthly.
Claimant stated that he approached his counsel in the law firm of A.A. Muhammad & Co. and a letter of appeal to pay his emoluments dated 25th May, 2015 was written and sent to the Defendants which was duly acknowledged on 26th May, 2015 by the 1st Defendant. After the refusal of the defendants to yield to the claimant’s appeal, the claimant instituted an action against the Defendants jointly and severally.
1ST DEFENDANT STATEMENT OF DEFENCE filed on 20th December, 2017.
The 1st defendant admitted paragraph 4 of the claimant’s statement of facts to the extent that the claimant applied for employment as a driver to its branch office, at Abuja, not to the appropriate department saddled with responsibility of employing it staff and the said application is not receive by personnel and Human Resources department of the 1st defendant; and that at no time employed the claimant as its driver, let alone post or deployed the claimant to the 2 defendant.
The 1st defendant averred further that it did not employ the claimant on a monthly salary of Forty-Five Thousand Naira (N45,000.00) and at no time authorized or instructed the 2 defendant to employ the claimant orally or verbally as employment of 1st defendant’s staff is vested strictly on Human Resource Department. The 1st defendant stated that it’s not the practice of the 1st defendant to request for guarantors from an applicant rather those employed are usually given guarantors forms, since the claimant was never employed, he was never given guarantors forms for the two persons named as Tijjani Abuh and Idris Abdullahi and same were never submitted to the 1st defendant. The 1st defendant avers that the claimant was not entitle to any form of salary or emolument as his name is not in the 1st defendant pay-roll because he was never employed by the 1st defendant hence the claimant is not entitled to a sum of Five Hundred and Forty Thousand Naira (#540,000.00) as arrears of salary and emolument from 7th July, 2014 to date as the 1st defendant never employed the claimant by the Human Resources Department of the 1st defendant.
WHEREOF, the 1st defendant prays this Honourable court to dismiss the claimant’s claims in its entirety as the claim:
Constitutes abuse of use of court processes.
Frivolous, Gold digging and lacking merit.
Cost of #500,000.00 general damages.
At the trial, the claimant testified on his own behalf as CW; while Charles Okwunbua, Legal Officer testified for the defendant, testified as DW.
The Claimant in giving evidence was clear and concise, answering question lucidly without evasive conjecture and rigmarole. Whereas I found the defendant witness, vague and not forthcoming with h responses. This court has often decried the habit of defendants calling official witnesses not directly involved with the incident or activity before the court such as in the instant case, calling a legal officer to testify in a matter involving the recruitment and service driver where a co-driver of the Head of driver would have been more relevant and forthcoming of the organizations practice. The party that calls an unsuitable witness usually bears the legal brunt of that choice. I found the claimant’s evidence mote coherent and believable than that of the defendant witness DW.
Thereafter parties were asked to file and serve their respective written addresses starting with the defendants as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007; and the matter was adjourned for adoption of written addresses. The defendant’s final written address is dated and filed on 7th August, 2018, while the claimant’s is dated and filed on 28th August, 2018. The defendant’s reply on points of law was filed on 4th October, 2018.
1st DEFENDNT’S FINAL WRITTEN ADDRESS filed on 7th August, 2018.
ISSUES
1. Whether or not the claimant from his pleadings was able to established that he was employed by the 1st defendant
2. Whether plaintiff having failed to prove his claim, 1st defendant is entitled to Judgment.
ON ISSUE 1
Whether or not the claimant from his pleadings was able to establish that he was employed by the 1st defendant.
Learned Counsel submitted that it is trite that a claimant who claim to have been employed by the 1st defendant and his employment is subsisting must plead and prove such facts as;
That he is an employee of the 1st defendant
How he was appointed and the terms and conditions of his appointment
Who appoints and can remove him
The circumstance under which his appointment can be terminated.
That his appointment can only be terminated by a person or authority other than the 1st defendant. B.A. MOROHUNFOLA V Kwara State College of Technology. (1990) 4 NWLR (Pt145) 506 at 525-526, Per Karibi-Whyte, JSC.
He submitted further that for an action for wrongful termination of appointment, the plaintiff or claimant who fails to plead and prove the facts of his appointment is not entitled to the declaration that his appointment subsists, neither can he be granted an order that he is entitled to his emolument until the determination of the suit and thereafter, till he is legitimately relieved of his appointment. B.A Morohunfola v Kwara State College of Technology (Supra), per Belgore, JSC (as he then was) at page 518, paras B-D; Bruce v Odhum press Ltd (1936) 1 ALL E.R 187; Shell B.P petroleum Dcv. Co. of Nig. Ltd & Sors V MS. Onasanya (1976) I ALL NLR (P11) 425 at 429.
It is counsel’s submission that the claimant has woefully failed to prove that he was employed by the 1st defendant having failed to tender the contract/letter of appointment with its terms and conditions of employment, in other words, that the claimant has failed to disclose a cause of action against the 1st defendant. Patrick Zhdeeh v Rivers Slate Civil Service Commission (2007) 1 SCNJ. 299 at 309, ratio 5, Per M. Mohammed, JSC; Katto v Central Bank of Nigeria (1999)6 NWLR (Pt607) 390 at 405; Amode v Amodu (1990) 5 NWLR (Pt150)356 at 370; Nigerian Institute of International Affairs V Mrs. T. 0. Ayanfalu (2011) 24 NLLR (Pt67) 1 at 24.
ON ISSUE 2
Whether plaintiff having failed to prove his claim, 1st defendant is entitled to Judgment.
Learned Counsel submitted that the Court of Appeal in the case of Mr. P.C. Nzondu V Union Bank of Nigeria Pie (2011) 22 NLLR (Pt. 63) 392 at 410 stated the ingredients employee must plead and prove which includes:
That he was employed by the defendant
That the terms and conditions of his appointment including duration and termination.
Who can appoint and remove him.
The circumstance under which his appointment can be terminated.
That his appointment can only be terminated by a person or authority other than the defendant.
CLAIMANT’S FINAL WRITTEN ADDRESS filed on 28th August, 2018.
ISSUE
Whether the claimant proved his matter on the balance of probability of preponderance of evidence to make him entitle to the reliefs Sought.
Learned Counsel posited that contract of employment can be oral or written, express or implied by the parties to the contract. Section 91(1) of Labour Act; JOHNSON AND MOBIL PRODUCTION (N1G) UNLTD [20101 7 NWLR (PT 1194) 462 Ratio 15. Claimant counsel pointed out that the DW1 stated in paragraph 4 of his written statement on oath that the claimant did not apply to the appropriate department, which was human resource and that during DW1’s cross-examination, he testified that Drivers were not employed by the Defendants. Consequently, he argued that this evidence be rejected by the Honourable Court. EKWEOZOR AND REG. TRUSTEES, S.A.C.N. 12014] 16 NWLR (PT 1434) 433 Ratio 23 at 475.
On the argument of 1st Defendant was that the claimant was not given letter of appointment and that the internal memo Exhibit C3 does not constitute a contract of employment, counsel submitted that with the provision of Section 91(1) of Labour Act above and decided case of JOHNSON AND MOBIL PRODUCTION (NIG) UNLTD (Supra), there was existence of contract of employment between the Claimant and the defendants. And that a court of law is hound to enforce a statutory provision and that it is mere technicality. IKECHUKWU AND NWOYE [2014] 8 NWLR (PT 1397) 227 Ratio 5 per OGUNB1YI, JSC. Claimant Counsel maintained that it is trite law that an uncontroverted averment is deemed admitted, urging the Court to so hold. MABAMIJE AND OTTO (2016) 13 NWLR (PT 1529) 171 at 203 Ratio 10 per PETER-ODlLl, JSC. He further submitted that it is trite that general damages are such type as the law will presume to be direct, natural or probable consequence of wrong complained of, as in the instance matter. Per Galadima, JSC in the case of M.M.A. INC AND N.M.A. 120121 18 NWLR (PT. 1333) 506. Claimant Counsel contended that the evidence before the Honourable Court shows that the 2nd Defendant is an employee of the 1st defendant. Thus, it follows that the claimant’s claims against the defendants are under vicarious liability in line with decided authorities. ODEBUNMI AND ABDULLAHI (1997] 2 NWLR (PT489) 526 at 529.He urged the court to hold that the 2nd Defendant is a servant of the 1st defendant and thus liable to the 2nd Defendant’s act. CHUKWU AND SOLEL BENOH NIG. LTD [1993] 3 NWLR (PT2BO) 246.
On the issue of cost, counsel argued that the act of the Defendant resulted to the litigation having refused to act on the demand letter Exhibit C6, therefore, that the money for litigation and especially the mobilization of hearing notice served on the defendants before the claimant brought application pursuant to Rules of this Honourable Court, were all cost at the expenses of the claimant. ERO AND TINUBU (2012) 8 NWLR (PT 1301) 104 Ratio 13.
1st Defendant’s Reply on points of law to plaintiff final written Address dated 27th August, 2018 (filed on 4th October, 2018).
Counsel noted that the Claimant in paragraph 6.21 stated that 1st defendant is liable under vicarious liability for the wrong act of the 2nd defendant, submitting that it is settled law that any unauthorized act of an agent cannot bind the principal. Cover V. Wickife Vol. 17 WIR110; Obaseke v African Continental Bank & Ors. (1996) NMLR 35; Mrs. Florence Omotayo Labode V. Dr. Godfrey Otubu & 1 Or. (2001) 5 NSCQR 722 at 753, per Okey Achike, JSC. Defence Counsel submitted that an agent who act within the scope of his authority carries out his obligation to his principal and succeed in binding his principal into legal relationship with the third party. But that an agent who exceeds his authority may by so doing render himself liable to the third party. And in such case, his principal will not be bound to the third party in respect of the matter in excess of the authority. Ataguba company v Gura Nig Ltd (2005) Vol. 18 WRN 1 at 25; lyare V Bendel feed Floor Mill Ltd (2008) 12 SCNJ 412-430, Per I.I. Muhammad, JSC.
To the 1st Defendant, the scope of 2nd defendant duty is to sell, activate and sell 1st defendant recharge and sim cards and not to employ any person. Therefore, that the 2nd defendant exceeded his authority when he employed the claimant to drive his official car with registration No. YA 589 FST, thus, that the 1st defendant is not liable to the claimant since it does not fall within the scope of the 2nd defendant authority. First Bank of Nigeria Plc. V Aleyander Orokwere (2013) 12 SCNJ 280 at 314 per W.S.N. Onnoghen, JSC as he (then was).
On 6th December 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.
Court’s Decision
I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is the issue formulated by the Claimant;- Whether the claimant proved his matter on the balance of probability of preponderance of evidence to make him entitle to the reliefs sought.
The case of the claimant is that he had worked with the 1st defendant between 27th July 2014 – 26th May 2015; – 11 months without receiving the contracted salary of N45 000.00 per month.
The defendants contend that they are not owing the claimant this or any particular salary at all as they never employed, the continued that in their establishment, they do not employ Drivers and that the employment of drivers are personal to the officer. The claimant in support of his case tendered five documents which were marked C2-C7.
The Claimant’s Application for Employment as a Driver dated 8th July 2014, a copy of his Drivers Liscence, a hand written application and his Curriculum Vitae (Exhibit C2).
Drivers Employment Clearance Form dated 5th July 2017 together with an internal memo requesting authorization to employ the Claimant dated 27th January 2015 (Exhibit C3).
Two sets of Guarantor Letters with identity cards of the guarantors and Guarantors forms. (Exhibit C4).
Two sets of Solicitors letters dated 25th May 2015 and 6th July 2015 marked as Exhibit C5 and Exhibit C6 respectively.
Form E Notice of Owner’s Intention to apply to Recover Possession dated 7th September 2015 Exhibit C7.
The claimant maintains that he worked for the 1st defendant driving the 2nd defendant for 11 months without pay. DW testified that the 2nd defendant worked for the 1st defendant’s Sales department. The position of the law is that an employee who complains of wrongful termination of his employment must place before the Court the terms of the contract of employment and then prove how the terms were breached by the employer. See KATTO V. CBN [1999] 6 NWLR (PT. 607) 390 SC.
Looking at the claimants documents particularly Exhibits C3 and C4, these contain documents branded by the 1st defendant showing that the claimant applied for and worked for the defendants Exhibit C3, (1) the internal memo requesting authorization to employ the Claimant dated 27th January 2015 reproduced below; –
GLO Unlimited
Internal Memo
To: Head Administration
Attn: Michael Nwaokeafor, Admin
From: Undersigned
Date; 23rd January 2015
Subject: Recruitment of a Driver for FCT 1- Abuja Division.
The above subject matter refers
We humbly request your kind approval to employ Mr. Abdullahi Tijani driver for the activation of vehicle YA 589fstFST for FCT 1.
MR ABDULLAHI TIJANI was engaged on the 7th July 2014 for FCT 1. and
Has been working for FCT 1 to date.
Please it would be appreciated if you could kindly process his employment with effect from 7th July 2014 as per attached documentation
Thank you.
(Signed) (Signed)
Nwakulu Eugene Uzor Bello Bashir.
Bearing in mind that in law “a contract may be made wholly by word of mouth or wholly in writing, or partly by word of mouth and partly in writing,” See JEGEDE v. MAYOR ENGINEERING COMPANY LIMITED (2013) LPELR-20284(CA). I find that the lack of documentation or a letter of Employment does not without more amount to a lack of contractual obligation as the law recognizes oral contract.
It has been proved that the claimant applied for a job with the defendant I find that the contention of the DW during trial that the defendant does not employ drivers and that drivers were personal to their officers flies in the face of this fact and Exhibit C3(1) above.
Similarly, the contention that the Claimant did not apply to the correct / proper department is also at variance with the Exhibit C3(1).
Without any direct evidence contradicting this piece of evidence as well as the admission of the 1st defendant that the vehicle in question belongs to them and the 1st Defendants averment that the said exhibit is a mere requisition to employ the claimant” and that “the said exhibit was never forwarded to the Human Resource Department” falls short of the legal requirement of an effective traverse of a signed document. The law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details… all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246; JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 183) 586; LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460; UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 288; OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1; LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620; DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170; SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214; EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 AND IDAAYOR V. TIGIDAM [1995] 7 NWLR (PT. 377) 359.
I am satisfied that the claimant worked for the 1st defendant All of these facts are pointers that the relationship between the claimant and the 1st defendant was one of an employment relationship. Given all these facts, therefore, I have no hesitation in holding that the claimant was a staff of the 1st defendant; and I so find and hold.
From the nature of the evidence before the court I find that the employment relationship between the claimant and the defendant is one of Employer/Employee relationship popularly referred to as Master and Servant.
A contract of master and servant is subject to both statutory and common law rules. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all. See C. I. OLANIYAN & ORS. V. UNIVERSITY OF LAGOS & ANOR(1985) LPELR-2565(SC).
The position of the law is as was stated in the case of OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224. “The courts view the employer’s obligation in respect of payment of wages as a key element of the employment contract. “in reality it is difficult to exaggerate the crucial importance of pay in any contract of employment. In simple terms, the employee offers his skills and efforts in exchange for his pay: that is the understanding at the heart of the contractual arrangement between him and his employer”… . Douglas Brodie, THE EMPLOYMENT CONTRACT: LEGAL PRINCIPLES, DRAFTING, AND INTERPRETATION (New York: Oxford University Press, 205) at page 85 referred to.]
An employer has an obligation to pay wages when due and on the due date. “With regard to pay, however, the obligation is a particularly strong one. This means that any failure to pay that which is contractually owing, or any particular element of it, is likely viewed as a fundamental breach of contract entitling the employee to walk out and claim constructive dismissal, as the Court of Appeal has recently reminded us in CANTOR FITZGERALD INTERNATIONAL v. CALLAGHAN … In general, however, pay (including additional amounts such as bonus or commission) is likely to be such a basic element of the contract that any interference with it by the employer will be legally dangerous.” (Ian Smith & Nicholas Randall in CONTRACT ACTIONS IN MODERN EMPLOYMENT LAWS: DEVELOPMENT AND ISSUES (London: Butterworths LexisNexis, 2002) at page 65 referred to.]
All this means is that in situations where an employer fails to pay his employee due wages when due amounts to a breach of contract. Relief a succeeds. In a master/servant relationship, a breach of contract will definitely attract damages which will be calculated on the basis of the length of notice required to properly terminate such a contract. ADEBAYO v. ANL & ANOR. (2015) 52 NLLR (PT. 175) 374 NIC @ 377
One of the consequences of a Master/ Servant relationship is that it cannot be held to continue after the determination. Relief b therefore fails. Furthermore, under this category of employment the claimant is only entitled to the money he earned for work done. Relief c and d succeed in part.
For avoidance of doubt the Claimants case succeeds but only thus far; –
it is hereby declared that the action of the defendants in failing to pay the claimant’s salary from 7th July, 2014 to 26th May 2015 is breach of contract of employment.
It is hereby declared that the claimant is entitled to his salary of N45, 000:00 (forty- five thousand naira) only from July 2014 to 26th May 2015 being 11 months N495, 000.00.
The defendants are hereby ordered to jointly and severally pay to the claimant the sum of N495, 000.00. being his salary which is (forty five thousand naira) N45, 000 monthly from 7th July, 2014 to 25th May 2015.
The defendants are hereby ordered to jointly and severally pay to the claimant General Damages in the sum of Forty Five thousand Naira.
Cost of this suit is put at N100, 000.00
All sums payable within 30 days thereafter of 10% interest will attach till liquidation.
This is the court’s judgement and it is hereby entered accordingly.
…………………………….
Hon. Justice E. N. Agbakoba.
Presiding Judge.
