IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 4th June, 2018
SUIT NO.:NICN/EN/111/2015
BETWEEN:
ENGR. OKAKA TIMOTHY & 4 ORS================= CLAIMANT
AND
UNIGLOBE CONSTRUCTION ENGINEERING
LIMITED & ANOR============================ DEFENDANT
REPRESENTATION:
- S Okah Esq. for the Claimant
- Iwegbue Esq. for the Defendant
JUDGMENT
The claimants in this suit by a writ of summons filed on the 25th day of November, 2015 claimed against the defendants jointly and severally as follows:
1) An order declaring that the letters of indefinite suspension from the service and employ of the defendants variously dated 10th August, 2015 and 25th August, 2015 with title “Letter of Suspension” upon unfounded allegation of insubordination without payment of salaries/benefits and the defendant’s failure to reverse the said suspension since April till date is illegal, null and void and of no moment in law.
2) A Declaration that the complainants are still in the employ and service of the Defendant until properly terminated.
3) A Declaration that claimant’s salary deductions for Tax and Pension without remittance to Tax Office and Pension Fund Administration (PFA) is illegal and a smack of fraud.
4) An order compelling the Defendants to pay the claimants the total sum of N2, 726,825 being outstanding monthly salaries due to the claimants between the months of April/May 2015 till the day of judgment and henceforth which salaries less PAYE and Pension deductions are assessed as follows:
- a) Timothy Okaka N1,225,461.06k @ N153,182,70k per month for 8 months.
- b)Uyanne Chibuike Nigel N363,461.44k @ N45,432.60k per month for 8 months.
- c)Ejikeme Larry Emeanwu N501,844,88k @ N62,730.70k per month for 8 months
- d)Ayodeji John Odeleye @ N318,28.76k @ N45,432.68k per month for 7 months
- e)John Abiodun @ N318,28.76k @ N45,432.68k for 7 months
5) An order directing the Defedant to pay forthwith to PENCOM the sum of One hundred and fifty seven thousand Naira (N157,000.00) only standing as non-remitted pension deductions made from claimant’s salaries from April/June till date of judgment.
6) The sum of N25,000,000 as general damages against the defendant for unlawful and wrongful determination of claimants appointment.
The defendants entered appearance in this suit on the 14th March, 2016 and filed a defence on that date. The claimant filed a reply to the statement of Defence on the 18th April, 2016. Hearing in this suit commenced on the 8th November, 2017. The 1st claimant testified as CW1 while the 2nd claimant testified as CW2 for the claimants. He adopted his witness deposition and went ahead to tender the following documents in proof of his claims.
Exhibit C1 the Letter of appointment,
Exhibit C1a the letter of nomination of the 1st claimant as site agent.
Exhibit C2 Letter of offer of employment of 3rd claimant as Account officer.
Exhibit C3 Letter of appointment of 4th claimant as Lap Technician
Exhibit C4 Letter of appointment of 5th claimant as Surveyor
Exhibit C5 the pay slip of the 1st claimant
Exhibit C5’a’ the pay slip of the 4th claimant.
Exhibit C5’b’ the pay slip of 5th claimant
Exhibit C5’c’ the pay slip of the 3rd claimant.
Exhibit C6, the demand for salary payment/pension deduction remittance signed by all the claimants.
Exhibit C7 Letter of Suspension of the 1st claimant
Exhibit C7’a’ Letter of Suspension of 3rd claimant
Exhibit C7’b’ Letter of Suspension of 5th claimant
Exhibit C7’c’ Letter of Suspension of 4th claimant
Exhibit C8 Solicitors letter of intention to sue
Exhibit C9 Interim Certificate No 3 of December 2013
Exhibit C9’a’ Interim Certificate No 4 of March 2015
On the 8th November, 2017 CW2 tendered the following documents
Exhibit C10 letter of appointment of 2nd claimant.
Exhibit C11 letter of Deployment of 2nd claimant.
Exhibit C12 Letter of Suspension of 2nd claimant.
Exhibit C13 pay slip of the 2nd claimant.
The claimant closed their case on the 22nd January, 2018.
On the 15th February, 2018 the defence opened and closed their case. Mr. Anselem Ijebor testified as DW1 and the sole witness for the defendant. He adopted his witness deposition and tendered Exhibit D1’a’ ‘b’ ‘c’ ‘d’ ‘e’ ‘f’ and ‘g’
The defendant through their counsel filed their final written address on the 15th March, 2018 while the claimant filed their written address on the 19th April, 2018. Counsel for the parties adopted their final written addresses on the 26th April, 2018.
The case of the claimants are that they were employed by the defendant at the defendant’s construction site at Ohafia-Oso road Abia/Ebonyi States. They were accommodated by the defendant. Following the non payment of their salary, the claimants demanded the payment of the said salaries. This resulted in a letter of suspension dated 10th August, 2015 and 25th August, 2015 served on the claimants which has not been withdrawn and their employment has not been formally terminated. The claimant stopped their services to the defendant. From the facts and circumstances of this case the issues for determination are as follows:
1) Whether the claimants are entitled to their salaries as claimed in relief No 4
2) Whether this court can make the declaration sought for in relieves 1, 2
3) Whether this court can direct the defendants to remit the pension deductions from the salaries of the claimants to PENCOM
4) Whether the claimants are entitled to general damages for wrongful determination of their appointment.
ON ISSUE 1
The 1st claimant who testified as CW1 gave evidence in his witness statement on oath that the 1st defendant employed the claimants as management staff of the 1st defendant branch at Ebonyi State. He tendered the letters of employment of the claimants as Exhibit C1, C2, C3, C4, C10 and the pay slips Exhibit C5, C5’a’, C5’b’, C5’c’ and Exhibit C13.
In his evidence in chief CW1 testified in paragraph 15 of his witness statement on oath that he was owed 4 months salary from April 2015 to 31st July 2015 when they made a demand for the payment of the salary in Exhibit C6. This evidence was also collaborated by CW2 Chibuike Nigel in paragraph 14 and 15 of his witness deposition. CW1 and CW2 also testified that it was Exhibit C the letter of demand for the payment of their salary that evoked the letter of suspensions Exhibit C7, C7 ‘a’ C7’b’, C7’c’ and C12 dated 10th August, 2015 and 25th August, 2015. I have carefully examined the letter of suspension. The letters of suspension placed the claimants on indefinite suspension. It is silent on whether the claimant were to receive any salary during the period of suspension. During cross examination DW1 admitted that up till the time the claimants instituted this suit the defendant had not paid the claimant salary. It is not in dispute that from the 10th August, 2015 and 25th August, 2015 when the claimants were served with letter of suspension they had ceased to work for the defendant. In view of the above I find that the claimants have only been able to proof that the defendant is indebted to the claimant for salaries for 4 month from April to July, 2015. The law is that judgment can only be entered for the part of a claim actually proved to the satisfaction of the court. In Mba Orie & Anor V, Okpan Uba & Anor [1976] LPELR – 2761 (SC).
The Supreme Court per Obaseki held “it is settled rule of law and practice that a party is entitled to judgment for any part of his claim proved to the satisfaction of the court”. Accordingly judgment is hereby entered in favour of the claimants as per the pay slips Exhibit C5, C5’a’, C5’b’, C5’c’, C13 as follows
1st defendant N612,730.8
2nd defendant N181,730.72
3rd defendant N250,922.40
4th defendant N181,730.72
5th defendant N181,730.72
On Issue 4
I have to consider issue 4 along with the above monetary award. The claimants also claim N25,000,000 million as general damages for unlawful and wrongful determination of claimants appointment.
I have carefully examined the letters of suspensions Exhibits C7, C7’a’, C7’b’, C7’c’ and C12 dated 10th August, 2015 and 25th August, 2015 while it is titled “Letter of Suspension” certain paragraphs of the letter which is reproduced here does not portray the letter as letters of suspension
“I am directed to inform you that you have been placed on indefinite suspension with immediate effect.
This is as a result of your action of the following
(1) Instigation workers against management
(2) Insubordination.
Please ensure that all company property in your possession is returned to the admin officer on site.
You are also to vacate the company premises immediately. We regret any inconvenience this may cause you.
Thanks
Yours faithfully,
Terry Ohis
(Admin/logistic Manager)”
The last two underlined paragraphs of the letter clearly shows that the defendant even though titled it “Letter of Suspension” he in fact intended to terminate the appointment of the claimants. This is because a staff on suspension cannot be asked to vacate his residence while on suspension because he is still staff of the company.
In a master servant relationship such as the one between the claimant and the defendant, the court in Spring Bank Plc V. Julius O. Babatunde [2011] LPELR – 4975 (CA) has held
It is trite that a master can terminate the contract of employment with his servant at any time and for any reason or for no reason whatsoever.
It is in evidence that up till today the defendant has not formally terminated the appointment of the claimants or recall them back. The implication of this is that the defendant intended by the letter of suspension to terminate the appointment of the claimants.
This being the case the defendant ought to have complied with paragraph 7 of the Letters of appointment Exhibit C1, C1’a’, C2, C3, C4, and C10 by paying one month salary in lieu of notice.
The law is settled and it is that the quantum of damages awardable in the circumstances is equivalent to the salary which would have been paid in lieu of notice. In Ibama V. Shell Petroleum Development Company of Nigeria Ltd. [1998] LPELR – 6377.
The court of Appeal while considering the effect of failure to give notice to terminate employment held
The law is that failure to do so will amount to unlawful termination for which the damages will in any case, still be the salary and entitlement for that period (of course including other entitlement already lawfully accrued and payable
On the strength of the above cited authority I hold that the claimants are entitled to one month salary in lieu of notice as against the N25. Million claimed by the claimant.
I therefore award the sum of N306,778.66k representing 1 month salary of all the claimants in this suit as per Exhibit C5, C5’a’, C5’b’, C5’c’ and C13 which details the net monthly salaries of the claimants.
ON ISSUE 2
The claimants have also urged the court to declare that the “Letter of Suspension” dated 10th August, 2015 and 25th August, 2015 as illegal, null and void and that the claimants are still in the employ of the defendants.
The question is if I make this declarations what effect would it have on the employment relationship between the claimant and the defendant. It is clear that the employment relationship between the claimants and defendant has gone sour. I have already held in this judgment that the letter of suspension operated as a termination of the employment of the claimants with the defendants the employment between the claimant and the defendant is that of master servant and not one with statutory flavour. Assuming the termination via the letter of suspension was wrongful can this court declare that the claimant is still in the employment of the defendant? The answer is in the negative. The court of Appeal in the case of Omenka V. Morison Industries Plc. [2000] LPELR -10686 while dealing with a situation such as the one in consideration here held:
The court below, as I have said, held that the termination of the appointment of the Appellant was wrongful. But in law, no servant can be imposed by the court on an unwilling Master even where the master’s behavior or motive for removing the worker is wrong or unjustifiable unless the appointment has a statutory flavor or special circumstances have been shown as to warrant the making of an order reinstating the employee.
See Union Beverages Ltd. V. Owolabi [1988] I NWLR (Pt 680) 128. See also Ajayi V. Taxaco (Nig) Ltd [1987] 3 NWLR pt 62 at 577.
The law is also settled that in a master servant relationship the master can suspend the servant from duty when necessary see Amadiume & Anor V. Agnes Solomon Ibok & Ors [2005] LPELR – 5730 (CA). On the strength of the above cited authority. It is the decision of this court that reliefs No 1 and 2 is hereby refused and accordingly dismissed.
ON ISSUE NO 3.
The claimants seek a declaration that the claimants’ salary deduction for Tax and Pension without remittance to Pension Fund Administrator (PFA) is illegal and smack of fraud.
The 1st and 2nd claimant in paragraph 15 and 16 respectively of their witness statement on oath gave evidence that in their letter of demand Exhibit 6, they demanded that the pension deductions should as a matter of urgency be remitted to their respective pension fund administration. The defendant in response to this tendered exhibit D1a to D1e which slows the various remittances of the claimants and other employees’ pension deduction up to the month of March 2016. Long after the claimant has ceased to work for the defendant, I am satisfied that the defendant has been remitting the pension deduction of the claimants. This being the case, the claimant has failed to prove that the defendant neglected in remitting the pension deduction of the claimants. Accordingly, this court will not make the declaration sought in relief No. 3 and the order for in relief No. 5 of the claim of the claimant in this suit. Issue No. 3 is revolved against the claimant and the relief No. 3 and 5 is hereby dismissed.
Judgement is hereby entered in favour of the claimants in the following terms.
1) The defendant shall pay the sum of N1, 408,845.36K being the total unpaid salaries of the claimants covering the period of 4 months from April to July 2015.
2) The defendant shall also pay the sum of N306,778.66K being 1 month salary in lieu of notice to the claimants
The judgement sum shall be paid within 14 days from the date of this judgement.
Hon. Justice I. J. Essien Ph.D
(Presiding Judge)
