IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
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Suit No: NICN/CA/71/2013 Petitioner: ANTHONY AGUM And Respondent: UNITED CEMENT COMPANY LTD. (UNICEM) ANOR Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION: P.O. ARIKPO for the claimant U. UGOGADI for the defendant J U D G E M E N T The claimant filed this Complaint on 2nd December, 2014 and dated same day along with the Statement of Facts, Witness Statement on Oath, List of Witness and List of Documents, claiming against the defendants as follows: Three Million, Twenty Four Thousand Naira (#3,024,000) only as balance of salaries for the period the claimant served the defendants. Four Hundred and Eighty Thousand Naira (#480,000) only as leave allowances for the period of four years. One Hundred and Fifty Two Thousand Naira (#152,000) only as Christmas bonuses for four years. The sum of One Million One Hundred and Fifty Two Thousand Naira (#1,152,000.00) only as hazard allowances for four years. Five Million Naira (#5, 000, 000.00) only against the defendants for the wrongful termination of contract of employment. Thirty Million Naira (#30, 000, 000.00) only as general damages. Claimant’s Case The Claimant was employed by the defendants and was working with them as an employee until when the defendants unlawfully without notice or payment, terminated the employment of the claimant. Aggrieved by the act of the defendants, the claimant approached this Honorable Court with his Amended Statement of Facts. The defendants in response filed their STATEMENT OF DEFENCE OF THE 1ST DEFENDANT on 16th December, 2014. Responding to paragraphs 1, 3, 4. 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17 and 18 of the Amended Statement of Facts, 1st defendant stated: that by Agreement dated 1st September, 2008, the 1st defendant entered into a service contract with MS Outsourcing Services to provide and manage the provision and management of Drivers, Cooks and Stewards and that it was the 2nd defendant who employed the claimant as assigned him to the 1st defendant. the defendants maintain that there is no contract of employment between the claimant and the 1st defendant and that the payment of the claimant’s salary was the sole responsibility of the 2nd defendant. That the 2nd defendant who engaged the services of the claimant is an Independent Contractor to the 1st defendant. Furthermore that the claimant has persistently failed to report for duties since he was recalled by the 1st defendant while maintaining that the payment of the claimant’s terminal benefit is not the responsibility of the 1st defendant. To the 1st defendant, the claimant is not entitled to any of the reliefs sought for, the same being speculative and an abuse of the process of court and should be struck out with substantial cost against the claimant. At the trial the claimant testified as CW adopted his written statement on oath and tendered three (3) other exhibits. Under cross examination CW further testified that was employed as a staff of the 1st defendant on the 1st of January 2008 and was offered a salary of N1000, 000.00 which he accepted. And that the 1st defendant issued him a letter of employment which was seized or withheld by them and he was pushed into a contract, maintaining that he was not a contract staff. He also admitted at this stage that the only letter of appointment he had was Exhibit C4, The defendants in turned called one witness Leo Edet Akanem who testified as DW adopted his written statement on oath which was marked Exhibit D1 and informed the court that he was appearing in court and made D1 with the authority and consent of the 1st defendant. we went on to state that he filed a list of documents and the agreement between the 1st and 2nd defendant which was marked Exhibit D2. DW testified under cross examination that the 2nd defendant was the same company as MS Outsourcing Services and that the 2nd defendants employed the claimant and paid his salaries. He denied that the 2nd defendants employed the claimant on behalf of the 1st defendant describing the 2nd defendants as ‘vendors’. And that the claimant was seconded to them. At the close of trial parties were directed to file their Final Written Addresses accordingly. 1ST DEFENDANT’S FINAL ADDRESS was dated and filed on 24th May, 2016. Wherein the 1st defendant formulated the following issues Whether the claim being joint and several, the claimant’s failure to serve the 2nd defendant with the Amended Complaint and other originating processes does not constitute a fundamental vice that robs this Honorable Court of the jurisdiction to adjudicate on this matter? Whether the claimant by facts or otherwise has proved his case to be entitled to the reliefs sought in this suit? ON ISSUE 1 Whether the claim being joint and several, the claimant’s failure to serve the 2nd defendant with the Amended Complaint and other originating processes does not constitute a fundamental vice that robs this Honorable Court of the jurisdiction to adjudicate on this matter? Learned Counsel for the defendant U. Ugogadi Esq. submitted that it is the responsibility of each to prepare, produce and serve his pleadings and other originating processes upon the opposite party. ORDER 7 RULE 1 of the NATIONAL INDUSTRIAL COURT RULES, 2007; P.S.J. LANGAN, MAXWELL ON THE INTERPRETATION OF STATUTES (12th ed.) (INDIA: LEXISNEXIS BUTTERWORTH, 1969) P. 328; UNITED NIGERIA PRESS v. ADEBANJO (1969) ALL NLR 431, per Fatayi-Williams, JSC; SKEN CONSULT v. UKEY (1981) 1 SC 6. And that the failure to serve means a lack of fair-hearing, impinging on the jurisdiction of the court to hear the matter. NIIT, ZARIA v. DANGE (2008) 9 NWLR (PT. 1091) 127. It is counsel’s submission that a party alleging agency in a particular relationship must specifically plead it before he is allowed to tender evidence in support. JALLCO LTD. v. OWONIBOYS COMMERCIAL SERVICES LTD. (1995) 4 SCNJ 256. ON ISSUE 2 Whether the claimant by facts or otherwise has proved his case to be entitled to the reliefs sought in this suit? 1st defendant’s Counsel urged the Court to be guided by the provisions of Sections 131 & 133 of the Evidence Act, 2011, in the unlikely event that the Court reaches the decision that it can exercise jurisdiction. Professor I.E. Sagay in Nigerian Law of Contract (2nd ed.) (Ibadan: Spectrum Books Limited, 2000) P. 1.Contending that such an official quasi-adjudicatory body should have a record of proceedings as to agreements reached, concessions made and the decision of the body. He asked the questions: “why were these not given in evidence to prove the co-employment claimed; or why was the 1st defendant or any of her staff or representative not invited to such administrative body?― SEC. 167 of the EVIDENCE ACT. Counsel for the 1st defendant submitted that generally, an admission against the interest of the person making it is admissible in evidence against such person. OWIE v. OGHINI (2005) ALL FWLR (PT. 248) 1726 (SC). He argued that where the maker had peculiar means of knowing the matter stated and such statement is against his pecuniary or proprietary interest and (a) he had no interest to misrepresent that matter; or (b) the statement, if true, would expose him to either civil or criminal liability. SEC. 42 of the EVIDENCE ACT, 2011. It is counsel’s submission that the parole evidence rule stated that a contract is written, then that writing is the whole contract and the parties cannot adduce extrinsic evidence and especially oral evidence to “add to, vary or contradict that writing―. SEC. 128 (1) EVIDENCE ACT; UBN LTD. v. SAX (NIG.) LTD. (1994) 8 NWLR (PT. 361) 150 (SC).However, that there exists exceptions as well as the court’s power to imply certain terms, nevertheless. TAI HING COTTON MILL LTD v. LIU CHONG HING BANK LTD. (1986) AC 80; J. POOLE, TEXTBOOK ON CONTRACT LAW (6th ed.) (Oxford: Oxford University Press, 2000) P. 171. Arguing further that the courts do not have unfettered power to intervene in contracts and impose terms arbitrarily or create a contract wholly unintended by the parties and that the power of the courts to imply terms in contract is exercisable within certain guidelines or rules. That the controlling test is as stated by MAKINNUN, L.J. in SHIRLAW v. SOUTHERN FOUNDARIES LTD. (1939) 2 K.B. 206 @ 227 (CA). Counsel submitted that no court would base a decision in a case on speculation rather, that it is upon evidence before the court that determines the case. KANUMBU v. BUNU (2006) ALL FWLR (PT. 300) 1709 (CA). Furthermore, that it is an allied rule in evidence and pleadings that the averments must correspond, at least reasonably so, with the evidence. UBN PLC v. ERIGBUEM (2003) FWLR (PT. 180) 1365 CA HELD 8. It is counsel’s submission that the only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128; UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664, per Mohammed, JCA in OLANIFIMIHAN v. NOVA LAY-TECH. LTD. SUIT NO: CA/B/120/97; (1988) 4 NWLR (PT. 547) 608 @ 620. He submitted that the remedy of an employee wrongly terminaed or dismissed is to sue for damages and the measure of damages is always the salaries for the length of accordance with the contract of employment. OBO v. COMMISSIONER OF EDUCATION, BENDEL STATE (1993) 2 NWLR (PT. 273) 46; NIGERIAN PRODUCE MARKETING BOARD v. ADEWUMI (1972) LPELR-2033 SC; WESTERN NIGERIA DEVELOPMENT CORPORATION v. ABIMBOLA (1966) NMLR 381, per Akpiroroh, JCA (P. 14, PARAS. A-C). 1st defendant’s Counsel submitted that the law is settled that in an action for breach of contract of employment, the claimant where he succeeds is not entitled to any award for general or special damages, all that an employee is entitled to his salary in lieu of notice and all other allowances payable to him and no more. GABRIEL ATIVIE v. KABLE METAL NIG. LTD. (2008) 9 NSCR (VOL. 1) P. 42 RATIO 1 @ 55, PRA. C; UNIVERSAL INSURANCE COMPANY LIMTED v. T.A. HAMMOND (1998) 9 NWLR (PT. 565).He submitted that the contract of service is the bedrock on which the claimant’s case for wrongful termination must succeed or fall and that an employee alleging wrongful termination must place the terms of the contract before the court. GATEWAY BANK OF NIGERIA PLC v. ABOSEDE (2001) FWLR (PT. 79) 1316 @ 1333 (CA). Furthermore, that the claimant must plead and lead evidence on the terms of the contract of employment and staff condition of service and go to show how the defendant breached those terms, of which the claimant has not even approximated standard of minimal proof. FEDERAL MORTAGE FINANCE LIMITED v. EKPO (2005) ALL FWLR (PT. 248) 1667. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 14th October, 2016. Wherein the claimant formulated the following issues; 1. Whether the claim being joint and several, the claimant’s failure to serve the 2nd defendant with the Amended Complaint and other originating process does not constitute a fundamental vice that robs this Honorable Court of the jurisdiction to adjudicate on the matter? 2. Whether the claimant has proved his case from the evidence before the Court as to be entitled to the reliefs sought? Whether the claim being joint and several, the claimant’s failure to serve the 2nd defendant with the Amended Complaint and other originating process does not constitute a fundamental vice that robs this Honorable Court of the jurisdiction to adjudicate on the matter? Learned Counsel to the Claimant P. Arikpo Esq. submitted that fair hearing is not that a party must be heard, no. Instead fair hearing means that a party must be given opportunity to be heard. F.H.A. v. KALEJAIYE (2011) ALL FWLR (PT. 562) 1633 @ 1638, HELD 8. ON ISSUE 2 Whether the claimant has proved his case from the evidence before the Court as to be entitled to the reliefs sought? Responding in the affirmative, counsel submitted that by Exhibit D2-D213, both 1st defendant and 2nd defendant are in agreement as Evidence in Exhibit D2-D213 tendered by the defence. Furthermore, that DW1 stated that the 2nd defendant employed the claimant and assigned him to the 1st defendant, and that as such, by Sec. 123 of the Evidence Act, 2011 as amended, fact admitted need no further proof. Claimant’s counsel also submitted that in civil matters, the burden of proof is on a preponderance of evidence and that claimant carries a lighter burden where the defendant leads no credible evidence in support of his case or where as in the instant case, the defendant failed to put credible evidence on the other side of the imaginary scale of justice. NEW BREED ORGANISATION LIMITED v. ERHOMOSELE (2006) ALL FWLR (PT. 307) 1076 @ 1103, PARAS. C-D. On the 18th October 2016 parties adopted their written addresses and adumbrated their respective positions and this matter was adjourned for judgement. In response to the Court directives, the parties filed additional addresses on the issue and import of the co-employment to the case. The Defendants filed their Further Address on the 23rd January, 2017; The Claimant filed Further Address on the 23rd January, 2017 dated 20th January, 2017. Both parties adopted their addresses accordingly. The 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 claimant and the 1st defendant raised the very same issues as those to be determined and as such these issues as so raised by the claimant shall be the issues for determination in this suit: 1. Whether the claim being joint and several, the claimant’s failure to serve the 2nd defendant with the Amended Complaint and other originating process does not constitute a fundamental vice that robs this Honorable Court of the jurisdiction to adjudicate on the matter? 2. Whether the claimant has proved his case from the evidence before the Court as to be entitled to the reliefs sought? With regard to issue one the court record clearly reveals that the originating processes were duly served on both the 1st and 2nd defendant, the court record also displays that the 2nd defendant neither entered any appearance nor filed any process and this matter proceeded to trial. The claimants from the court record also served their amended complaint on the 1st defendants and the 2nd defendant yet only the 1st defendant eneter4ed appearance and filed a def4ence. Now the 1st defendants is asking the court whether non-service of the Amended Complaint to the 2nd defendant with the and other originating process does not constitute a fundamental vice that robs this Honorable Court of the jurisdiction. Firstly the court record does show that the 2nd defendant was in fact served and secondly the position of the law is that “Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person effected by any order but was not served with the process would be entitled “ex debitio justice― to have the order set aside as a nullity KIDA Vs. OGUNMOLA [2006] 13 NWLR (Pt. 997) p377 at 393 Para G-H The learned Jurist of the Court of Appeal Amizu JCA in the case of ACHUZIA Vs> OGBONNA [2004]AFWLR Pt 227 Page 508 at 521 Para E, held that “The right of a party to fair hearing within a reasonable time imposes a correlative duty on a Court not to allow itself be bogged down by the antics of a party who by his own action had voluntarily opted out of trial, a hear the case before it within a reasonable time….― Furthermore the claimant in using the term jointly and severally which is defined to mean the defendants are both responsible and equally liable. See the Online Dictionary 2017, translates to ; that the claimant is making a case against both of the defendants for their joint acts and both defendant are liable for his claim either one or both are liable. This in fact dovetails into is the substratum of the claimant coming to Court and I shall deal with that aspect in issue 2. I resolve the issue 1 in favour of the claimant having been satisfied that the 2nd defendant was indeed served. With regard to issue 2, whether the claimant has proved his case from the evidence before the Court as to be entitled to the reliefs sought? The Claimant’s reliefs are as follows Three Million, Twenty Four Thousand Naira (#3,024,000) only as balance of salaries for the period the claimant served the defendants. Four Hundred and Eighty Thousand Naira (#480,000) only as leave allowances for the period of four years. One Hundred and Fifty Two Thousand Naira (#152,000) only as Christmas bonuses for four years. The sum of One Million One Hundred and Fifty Two Thousand Naira (#1,152,000.00) only as hazard allowances for four years. Five Million Naira (#5, 000, 000.00) only against the defendants for the wrongful termination of contract of employment. Thirty Million Naira (#30, 000, 000.00) only as general damages. The position of the law is that in determining the rights and duties of parties to an employment contract, the Court will consider the terms of contract of service between an employer and an employee. These terms of agreement are binding on both parties. See CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC and FMC IDO-EKITI v. OLAJIDE (2011) 11 (PT. 1258) 256. The claimant in bringing this suit frontloaded and tendered his letter of appointment from the 2nd defendant Exhibit C4, his pay slip Exhibit C3 and his identity card from the 1st defendant. From the documents presented to this court I find that the claimants relationship with the defendants is one of employer/ employee also known as Master and Servant relationship the 1st defendant maintain that the claimant was never their employee but was employed by the 2nd defendant their vendors and assigned or seconded to work with them the 1st defendant arguing that at all time the 2nd defendant paid the claimants salary,. The 1st defendant also pleaded that there was no privity of contract between them and the claimant This naturally raises the legal question whether this fact doe not give rise to a co-employer status between the defendants on the one hand and the claimant on the other hand. In appropriate cases, the courts have upheld the fact of co-employer status between two employers in relation to an employee as was the case in ONUMALOBI V. NNPC AND WARRI REFINING AND PETROCHEMICAL COMPANY [2004] 1 NLLR (PT. 2) 304. From the submission of the claimant that he was employed by the 1st defendant and posted to work with the 2nd defendant a position also admitted by the defendants I find raises issues of the relationship between the parties (the 1st defendant, the claimant and the 2nd defendant) i.e. whether it is not one of a triangular employment relationship. In PENGASSAN V. MOBIL PRODUCING NIGERIA UNLIMITED [2013] 32 NLLR (PT. 92) 243 NIC, this Court acknowledged the reality of triangular employment relationship. See the unreported ruling in SUIT NO. NICN/LA/576/2013 MR. KELVIN ASHUMAN VS. U-CONNECT TELECOMMUNICATION NIGERIA LIMITED delivered on 1st July 2014. From the foregoing I find that the parties have a co employment or triangular employment relationship. This means that the argument of the 1st defendant regarding the absence of privity of contract cannot be upheld. And that being the case I find that the claimant would be well within their right to bring this action against the defendant jointly and severally as he has done. Now the next question is whether the claimant has proved his entitlement to the reliefs sought. Reliefs 1-4 are for various sums of money; salaries and other working entitlements such as Three Million, Twenty Four Thousand Naira (#3,024,000) only as balance of salaries for the period the claimant served the defendants, One Hundred and Fifty Two Thousand Naira (#152,000) only as Christmas bonuses for four years and One Million One Hundred and Fifty Two Thousand Naira (#1,152,000.00) only as hazard allowances for four years The claimant has presented this court with Exhibit C4 which puts the claimant’s salary at N19, 433.00 a fact borne out the claimants Exhibit C3 his pay slip. The claimant testified and pleaded that he was placed on a salary of N100, 000.00 but presented no evidence whatsoever in support of this amount., neither did he present any evidence as to the entitlements to any additional Christmas bonus or hazard allowance apart from the amount provided in Exhibit C4 In law “He who asserts must prove. It is the claimant who is asserting the existence of the contract of employment, that has the burden to prove same and not the defendant―. GEORGE Vs. FIRST BANK OF NIGERIA PLC (2014) 41 NLLR (PT. 126) 264 NIC @ 271 In fact “in a claim for payments of salaries and other benefits, such salaries and other benefits must be specifically pleaded and proved. IHABUHMB Vs ANYIP [2011]12 NWLR (pt.1260)1. The claimant has not shown to the court how he arrived at these sums of money, the figures are not supported by the exhibits before the court and if there is any other Contract of service containing these terms that document has not been brought before the court and hence the court cannot rely on it,. The claimant put the 1st defendants on notice to bring forward the contract of employment between the 1st defendant and the claimant. Having put them on notice the law entitles the claimant to present whatever evidence he has of such any document/ agreement and this he has not done. I find therefore reliefs 1-3 cannot be granted and fail Relief 4 is for Five Million Naira (#5, 000, 000.00) only for the wrongful termination of contract of employment. The law is well established that; “where an employee is able to establish that his appointment was wrongly terminated, he would be entitled to damages, and this would be what was due to him for the period of notice. ILUPEJU v. PZ CUSSONS NIGERIA (2014) 47 (PT. 152) 266 NIC @ 274, per B.B. Kanyip, J (Page 304, PARAS. A-E) ISIEVWORE v. NEPA (2002) 13 NWLR (PT. 784) 417 SC . This court in the case of OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224Held that Courts do not award general damages in actions founded on breach of contract of employment. Relying on the case of UNIVERSAL INSURANCE COMPANY LIMTED v. T.A. HAMMOND (1998) 9 NWLR (PT. 565) And went on to hold that “ In ordinary contract of employment, the amount of damages due to an employee whose employment has been wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements at the time the employment was determined―. GABRIEL ATIVIE v. KABELMETAL NIG. LTD. (2008) LPELR – 591 (SC). Relief 6 therefore fails. But in order to be entitled to this award of salary to the period of notice the claimant must have proved he was wrongfully terminated. The claimant case was that the was informed verbally in February 2012 that his employment has been terminated on the authority of 1st defendant and that he was asked to proceed on leave in March 2012 having worked for the months of January, February and March 2012 without salary and continued to so work until June 2012 when he was informed to stop coming and that his entitlement would be given to him, but this was not done. The 1st defendant in their response made a general denial and the position of the law is that such general denial amount to admissions. See the case of MR. JEZREEL ELO MAYOR V. ECO EXIM ALLIED LIMITED & ANOR UNREPORTED SUIT NO. NICN/LA/651/2013 the judgment of which was delivered on October 29. Where this court held that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, 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. Bearing in mind that a claimant is required to prove the basis of his claim and not rely on the weakness of the opponents case MR. BENJAMIN BILLIE v. MULTI-LINKS TELECOMMUNICATION LIMITED SUIT NO: NIC/LA/175/2011 There is nothing before the court to substantiate that the claimant was given the notice he was entitled to by Exhibit C4 which is two weeks’ notice or the corresponding payment in lieu of notice. The defendants argument that the claimant contract determined when the 2 defendants contract ended in 2012 is not tenable considering the provisions of paragraph 5 of the 2nd page of Exhibit C4, which reads “……it should be made clear that the period of this employment is indeterminable and would subsist for as long as the client is in existence……―. The claimant therefore is entitled to his notice and as the court is satisfied that he was not given the said notice he is entitled to damages under the law. Relief 5 therefore succeeds in part. For avoidance of doubt reliefs 1, 2, 3, 4, and 6 hereby fail and are dismissed. Relief 5 succeeds but only thus far The defendants shall pay to the claimants the sum of N 16,602.11 being two weeks’ salary in lieu of notice Cost of this suit is put at N50, 000.00 All sums to be paid to the claimant within 30 days. Thereafter an interest of 10% will attach. This is the court’s judgment and it is hereby entered. ……………………………………….. E. N. Agbakoba Judge
