IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE OYEBIOLA O. OYEWUMI
DATE: 11TH APRIL, 2019 SUIT NO: NICN/AK/49/2014
BETWEEN
ADEKUNLE JEGEDE ……………………….CLAIMANT
AND
ONDO STATE GOVERNMENT
ATTORNEY GENERAL/COMMISSIONER
FOR JUSTICE (ONDO STATE)……………..DEFENDANTS
OWENA MOTEL LTD
REPRESENTATION:
C.A Gbogi with him Baba Omojola, Kehinde Kolawole Esq, A.J Akinsunmola Esq, Omosalewa Omotenise, Amos Ilari Esq for the claimant.
R.A Akinseye (PLO, Ministry of Justice, Ondo State) for the 1st and 2nd defendants.
J.I Adeyanju with him Dayo Akindejoye Esq. Mrs Tope Falana and Temiloluwa Ogunmoyero for the 3rd defendants.
JUDGMENT
It is the case of the claimant by his amended statement of fact filed on the 26th June 2018,, that he was in the employment of the 3rd defendant between January 1990 to July 2014 when the company was forcefully closed down by the officials of the 1st and 2nd defendant on the 31st July 2014, he averred that he was employed as a laundry man on the 1st February 1990 and his employment confirmed vide another letter dated 17th July 1990 with effect from 1st August 1990. On the 3rd of August 2005, he was promoted to the position of a supervisor II on Grade level 8 Step 1 and by another letter dated 16th January 2008; he received 12.5% increment in his annual basic salary. 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 and were barred by security operatives on the instruction of the 1st defendant from entering the premises of the 3rd defendant. He stated that by the wrongful act of the 1st defendant, his employment was constructively and wrongfully terminated and that he is entitled to his full entitlement between January, 1990 and October, 2014 (24years) are yet to be paid as contained in the defendant’s 2003 condition of service. He contended that he had made several demands on the defendants after his purported termination on the 31st July, 2014 for the payment of his final entitlement without success and consequently instructed a letter of demand dated 22nd September, 2014 to be written by his Counsel for the payment of his final entitlement which was not responded to.
It is against this backdrop that the claimant claims against the defendants as follows:
The sum of N15,803,034.04 (Fifteen Million, Eight Hundred and Three Thousand, Eight Hundred and Thirty-Four Naira, Four Kobo being the true and correct amount of money owed the claimant by the defendants as at 31st October 2014 in respect of:
Retirement benefits N2,435.400.00
Gratuity N7,493,538.48
Redundancy Benefits N4,995,691.20
Accumulated unpaid salaries N856,900.00
Year2013/2014 Leave Allowance N22,304.36
N15,803,834.04
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
The 1st and 2nd defendants on their part pleaded that the 3rd defendant is not an appendage of it or an agency under it but an independent legal personality on its own, that they did not play any role whatsoever in the operations and management of the 3rd defendant and there was no time the secretary of the 1st defendant or any of their official verbally or in writing inform, engage or communicated with the claimant or any of the staff from reporting to duty and neither did they instruct security operative from preventing him or any other staff from entering into the premises. They stated further that they have no power to terminate the appointment of the claimant or his colleagues because the 3rd defendant and not them are their employer and that they not been the claimant’s employers cannot be obligated to respond and/or act upon the claimant demands notice.
The 3rd defendant failed to file his defence in this suit after given more than enough opportunity in the overall interest of justice by this Court to enable him file his defence. It is consequent upon this that the Court invoked the provisions of Order 38 Rules 2 (1-4) and 16 of National Industrial Court Rules, 2017 wherein the 3rd defendant’s right was foreclosed.
During trial, the claimant testified for himself as CW1 and through one R.A Alonge Director Investment, promotion and Commerce Ministry of commerce and industries (A subpoenaed witness) as CW2 and Leye Adebayo, General Manager of the 3rd defendant appointed vide a letter from the 1st defendant in 2013 (as CW3), CW1 adopted his sworn deposition on oath made 1st July, 2015 and 16th July, 2015 respectively as his evidence in the case. CW1 tendered some documents which were admitted by the Court as Exhibits AJ-AJ8, CW2 and CW3 also tendered some documents which were admitted and marked Exhibits AJ9 and LA respectively. The 1st and 2nd defendants recalled R.A Alonge as DW1 and thereafter closed their case.
At the close of trial parties in compliance with the Rules of this Court, caused their final written addresses to be filed, the 1st and 2nd defendants filed theirs on the 28th December 2018 and canvassed two sole issues for the determination of the Court while the claimant filed his on the 14th January, 2019 and argued three issues also for the Court’s determination; important parts of which would be referenced in the course of this judgment.
Upon an in-depth examination of the processes filed by parties, their supporting documents, the testimonies of witnesses, documents tendered in buttressing their case and the written submissions of counsels, it is my respective view that the sole issue that would best determine this suit is;
Whether or Not the Claimant has proven his case to be entitled to the reliefs sought?
I will like to consider first an issue raised by the 1st and 2nd defendants before going into the substance of this suit. It is the 1st and 2nd defendants’ contention 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 cases 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 Management 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 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 being 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 posited 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 and Oha Limited [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 of liability. 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 pertinent to state at this juncture, that this Court in its ruling delivered on the 17th of May, 2017 has addressed the objection raised by Learned Defence Counsel on the issues the 1st and 2nd defendants raised in their written address. I am hence surprised 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”
It is obvious from the above, 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 and it is trite that 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 17th May, 2017 as part and parcel of this judgment and discountenanced the preliminary issue raised by the learned defence counsel in his final written address. I so hold.
The learned counsel for the 1st and 2nd defendants in his final written address argued extensively also 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 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. 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 CW3 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 CW3 evidence. 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 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 to first the course of justice and secondly, the claimant in this case. I so find and hold.
Respecting the claimant’s claim, It is the contention of the claimant that he is entitled to the sum of Fifteen Million, Eight Hundred and Three Eight Hundred and Three Thousand, Eight Hundred and Thirty Four Naira Four Kobo (N15, 803,834.04) only being the correct amount of money owed him by the defendants as at 30th October 2014 in respect of
Retirement benefits N2,435.400.00
Gratuity N7,493,538.48
Redundancy Benefits N4,995,691.20
Accumulated unpaid salaries N856,900.00
Year 2013/2014 Leave Allowance N22,304.36
A careful perusal of the pleadings before this Court clearly shows that parties are at par with the fact that Claimant was indeed an employee of the 3rd Defendant. It is the claimant’s case that he was employed as a laundry man in the 3rd defendant vide a letter dated 25th January 1990 and that his employment was confirmed vide another letter dated 27th July, 1990, sequel to which he was promoted to the position of Supervisor II on the 3rd defendant’s senior staff cadre Grade Level 8 Step 1 vide the letter Reference number OIH/ADM/PSL/16-002/159 dated 3rdAugust, 2005 as evinced in Exhibit AJ. It is also the evidence of the claimant that his employment is governed by the Conditions of Service for Senior Staff of Owena International Hotel Limited Akure (Exhibit AJ4) and that of 31st of July, 2014, his employment with the 3rd defendant was constructively terminated as he and all other staff were callously and unceremoniously sent out and prevented from entering the premises. 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 defendant 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 JB15 that is 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 important to also state that the claimant by paragraph 10 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 1st defendant that they should not report for duty again from the 1st day of August, 2014. This was corroborated by CW3, 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.
It is germane at this juncture to consider the proprietary or otherwise of the termination of the claimant’s employment orally. As earlier stated, CW stated by his averments that his employment with the 3rd defendant was orally terminated, CW3 also stated under cross-examination that on the 31stof July, 2014, the Company was closed down and Exhibit LA was written to the 3rd defendant informing them of the Government’s intention of shutting the company down and that he was informed by then Secretary to the State Government, Mr. Rotimi Ademola and some of the labour leaders who came to his office that the premises as be given to Top Service Limited to operate a Shopping Mall and directed that all the company properties should be removed and staff to vacate the premises with the promise that the Government will pay their sixteen (16) months’ salary arrears and at some point the Ministry of Commerce took over the assets and liabilities of the 3rddefendant. Parties are ad idem that the claimant was indeed asked to stop coming work from 1stof April 2014 on the basis of the letter dated 21st of May, 2014 Exhibit LA. This is 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 show otherwise. It is a radical principle of law in labour and employment relations that an employer who has the right to fire has the corresponding right to fire to the extent/subject to the terms of agreement binding on the both the employer and the employee. By Clause 83 of Exhibit AJ4 which provides for Termination
. 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”(Underlining mine for emphasis)
From the above supra, the claimant ought to be given three months’ notice in writing or three months’ salary in lieu of notice when he was asked to stop coming for work, it is clear that there was a violation of the provisions of his condition of employment(Exhibit AJ4). The defendants failed to issue the claimant 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. See the case of Keystone Bank Limited v. Micheal Femi Afolabi [2017] LPELR-42390 (CA). The Claimant by paragraphs 10 and 11of his deposition on oath stated that he was a Supervisor II on Grade level 8 step 1 as at 3rdAugust 2005. It is in consequence that I find that the oral termination of the claimant’s employment by the defendants without notice or payment of salary in lieu of notice is wrongful. He is accordingly, entitled to be paid his 3months salary in lieu of notice, claimant’s monthly salary by exhibit AJ3 is N45, 100.18, therefore his three months’ salary in lieu of notice is N135, 300.54. I so hold.
The Claimant is also, claiming the sum of Two Million, Four Hundred and Thirty Five Thousand, Four Hundred Naira (N2,435,400.00) as retirement benefits from his employment with the 3rd defendant. 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 so 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.
Retirement connotes the end of service/employment of a person upon the attainment of the requisite age or years of service which is usually 60 years as provided in exhibit AJ4. 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 employee or vice versa depending on the type of retirement. It is clear by clause 87 (b), of Exhibit AJ4 that the claimant is eligible to retire voluntarily having served the defendants for twenty four (24) years as disclosed in paragraph 17 of his written statement on oath. However, there is no shred of evidence on record to the fact that the claimant validly retired from the employ of the 3rd defendant, it is clear from the record before this Court vide paragraphs 14 and 15 of CW1’s deposition on oath that himself and other staff were verbally informed by the secretary to the 1st defendant in conjunction with other top officials of the 1stdefendant that they should not report for duty again from 1st day of August 2014 as their employment had been constructively terminated. 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/constructively 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. It is upon this premise that I find that the claimant has failed to prove by credible and irrefutable evidence that he validly retired from the employment of the 3rd defendant and as such I find that his claim for the sum of Two Million, Four Hundred and Thirty-Five Thousand, Four Hundred Naira (N2,435,400.00) as Retirement benefit cannot be granted. It is therefore dismissed. I so hold
The Claimant is equally claiming the sum of Seven Million, Four Hundred and ninety Three thousand, Five Hundred and Thirty Eight Naira, Forty-Eight Kobo (7,493,538.48) as gratuity for having worked with the 3rd defendant for twenty-four (24) years. By Clause 89 of Exhibit AJ4, any employee who has worked with the 3rd defendant from 21 years and above is entitled to 30 weeks per each completed year of service and any fraction above six months after two years in service would be treated as a year in calculation. Now it is clear that the claimant was before his disengagement on Grade level 8 step 1 and by Exhibit AJ2, the claimant’s basic salary is N45,100.18, to get the claimant’s gross salary per annum, the sum of N45,100.18 multiplied by 12 months amounting to the sum of N541,202.16. To get the Claimant’s weekly gross, the sum of N541,202.16 will be divided by Fifty-two (52) weeks in the year amount to the sum of N10,407.73. To arrive at the Claimant’s 30 weeks gross pay, the sum of N10,407.73, will be multiplied by 30 weeks to give the sum of N312,232.02 and this amount multiplied by his 24 years of service to give of N7.493,568.37. In all, I find that the claimant is entitled to the sum of N7, 493,568.37 as his gratuity having worked with the 3rd defendant for twenty-four (24) years. I so hold.
The Claimant is again claiming the sum of N4, 995,691.20 as redundancy benefit; he argued that the defendants unilaterally closed down the company with flagrant disregard to Sections 90 and 91 of the conditions of service. Hence he is entitled to receive his redundancy benefits as appropriate, that by Section 91(ii) of Exhibit AJ4 stated that service for 11 years and above attract 20 weeks gross pay for each completed year. 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 off 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 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 disclosing the fact that he was declared redundant as by paragraph 12 of the claimant’s statement of fact claimant pleaded that the defendant 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 N4,995,691.20 fails.
It is claimant’s claim that he is equally entitled to accumulated unpaid salaries in the sum of N 856,900.00.The claimant by paragraph 9 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. Having 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 16months salary it is apposite to say that the CW3 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., DW1 equally admitted the fact that the 1st defendant told the staff that it will pay them their 16 months’ salary in arrears. 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 upon this premise that I find that the claimant is entitled to his 16 months unpaid salaries in arrears in the sum of N721, 602.88, this is based on his monthly salary of N45,100.18. I so find and hold.
It is the claimants contention that he is entitled to the sum of N22, 304.36 as his 2013/2014 as his leave allowance. By Clause 30 of Exhibit AJ4that 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 has failed to substantiate his claim to entitle him to the sum claimed. It is thus in this light that I find that his claims for the sum of`23,653.73as his 2013/2014 leave Allowance fails. I so hold.
The claimant claims the sum of 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 Ashaka v Nwachukwu [2013] LPELR 20272 CA.. By Order 47 Rule 7 of National Industrial Court of Nigeria 2017which 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.
On the whole, it is obvious that the claimant’s claims succeed in part and for the avoidance of doubt, I declare and Order as follows;
That the Ruling of this Court delivered on the 17th of May 2017 is hereby adopted as 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 claimant’s claim for sum of Two Million, Four Hundred and Thirty-Five Thousand, Four Hundred Naira (N2,435,400.00) as Retirement benefit owed him fails
That the oral termination of the claimant’s employment by the defendants is wrongful.
That the claimant is entitled to be paid his three (3) months’ salary in lieu of notice in the sum of N135, 300.54.
That the claimant is entitled to the sum of N7, 493,568.37 as his gratuity having worked with the 3rd defendant for twenty-four (24) years.
That the claim on redundancy fails.
That the claimant is entitled to his 16 months’ unpaid salaries in arrears in the sum of N721,602.88.
That his claims for the sum of` 23,653.73 as his 2013/2014 leave Allowance fails.
That claimant’s claim b fails.
Cost of N25,000.00 is awarded against the defendants jointly and severally.
All Judgment sum awarded is to be paid within thirty (30days) of this judgment, failing which it is to attract 10% interests per annum.
Judgment is accordingly entered
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
