IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 11TH APRIL, 2019 SUIT NO: NICN/AK/52/2014
BETWEEN
JOSEPH .B. OLOGUNWA ………………….CLAIMANT
AND
1. ONDO STATE GOVERNMENT
2. ATTORNEY GENERAL & COMMISSIONER
FOR JUSTICE (ONDO STATE) ………………..DEFENDANTS
3. OWENA MOTELS LTD
REPRESENTATION
C. A. Gbogi with him Baba Omojola, Kehinde Kolawole Esq, A.J Akinsunmola Esq, Omosalewa Omotehinse, 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 defendant.
JUDGMENT
It is the case of the Claimant by his sworn deposition which is in tandem with his pleadings filed on the 26th June 2018 that he was in the employment of the 3rd defendant as an Admin/Personnel clerk between August 1988 and July 2014 having been employed vide a letter dated 1st August 1988 until when the Company was forcefully closed down by the officers of the 1st and 2nd defendants on the 31st July 2014. He stated that he was posted by another letter dated 28th July 1988 to the Ado-Ekiti Branch of the company and by a letter dated 2nd August 1988, he was redeployed as a waiter. Furthermore, his appointment was confirmed sometimes in August 1989 and the purported letter is now missing and all effort to trace same prove abortive and he was later on promoted to the post of Head Waiter by a letter dated 6th January 1993 after he obtained an OND in Hotel and Catering Services, and after his HND in the same discipline, he was promoted to the post of Bar Supervisor on Grade 8 Step 3 with effect from 1st of January, 1999. By another letter dated 21st August 2002, he was promoted to the post of Food and Beverage Manager with effect from 1st August 2002 and he was subsequently elevated to the Grade level 10 Step 5 with effect from 7th April 2003 then Grade Level 12 Step 1 with effect from 1st December 2009. By an Internal memorandum dated 30th November 2009, he was upgraded to the post of Acting General Manager of the Company and his adjustment of his career progression was done for him by another letter dated 6th May 2013 necessitating a change in his salary to Grade Level 14 Step 3with effect from 1st January 2012. The Claimant averred further that between 2011 and 2014, the defendants took several negative decisions that culminated in the third defendant becoming moribund and as a result the 3rd defendant owed him 16 months’ salary arrears as at the end of July 2014 and that on the 31st July 2014, he and other staffs were verbally informed by the Secretary to the 1st defendant in conjunction with top officials of the 1st defendant not to report for duty again from 1st August 2014, hence he and other staffs were barred by security operatives acting on the instruction of the 1st defendant from entering the premises. He stated that by the act of the 1st defendant his employment was constructively and wrongfully terminated, that his final entitlement between August 1988 and July 2014 (26years of Service) are yet to be paid. He noted that he is being owed the total of 19months salary arrears, inclusive of 3 months in lieu of Notice as at 31st July 2014. He contended that he had made several demands on the defendants through his counsel after his purported termination for the payment of his final entitlement without success.
It is against this backdrop that the claimant claims against the defendants as follows:
The sum of N24,749,065.99 (Twenty-Four Million, Seven Hundred and Forty-Nine Thousand, Sixty Five Naira, Ninety-Nine Kobo) being the correct amount of money owed the claimant by the defendants as at 31st October, 2014 in respect of:
Retirement benefits N 3,578,059.44
Gratuity N11,926,864.80
Redundancy benefits N 7,951,242.00
Accumulated unpaid salaries and N 1,258,946.84
Year 2013/2014 Leave Allowance N 33,952.91
N24,749,065.99
b. The sum of 25% interest on the amount (a) supra from the 1st of November, 2014 till judgment is delivered in this suit.
c. The sum of 20% post judgment interest.
The 1st and 2nd Defendants on the other hand by their amended statement of defence dated 6th June 2018 averred that the 3rd defendant is not an appendage of the 1st and 2nd defendant nor an agency under it, that they were not involved or played any role whatsoever in operations and management of the 3rd defendant. They continued that at no time did the secretary of the 1st defendant and/or any of its officials verbally and/or in writing inform, engage or communicate with the claimant or any other staff of the 3rd defendant to stop reporting for their duty on any issue whatsoever. They denied the assertion that they instructed the security operatives from preventing the claimant and any other staff from entering into the premises of the 3rd defendant. They stated that they do not have any power to terminate the employment of the claimant and his colleagues because they are not their employer but the 3rd defendant, therefore they are not obligated to respond or act upon the claimant’s demand notice.
The 3rd defendant by its pleadings filed on the 19th October, 2018 stated that Ondo State Government owes about 70% of the interest of the Owena Motel and not 100% as being propagated by the claimant and that the Ondo State Ministry of Commerce and Industry as the ministry in charge of the Government business only has an oversight functions over the Owena Motels and not directly managing the affairs of the company, it continued that at the time the Ondo State Government through the ministry of commerce and industry allowed private individuals to manage its affairs, the Government never interfered with the day to day Management of the Company. However at some point, the Company was mismanaged by its leadership which led to a protest. It denied the assertion of the claimant that the Government took negative steps which made the Company moribund rather it was a strike/protest embarked upon by staffers of the Company that made it impossible for the Company to break even. The 3rd defendant averred that it’s (the Company) condition of service has been amended by one that takes effect from 1st October 2007. That the claimant at a point in time ceased coming to office thereby breaching his contract of employment and thus technically the claimant is no longer in its employment having disengaged from office. It continued that the claimant was recalled on the 23rd June 2014 but never resumed work or provided services for the 3rd defendant, it became frustrated and the Company ceased to function. It is the contention of the 3rd defendant that the claimant having not provided any service to it is not entitlement to the payment of compensation and the calculation contained in paragraph 32 of the claimant’s statement of fact is at variance with the provisions contained in the Senior Condition of Service 2007 which is the extant documents regulating the affairs of the 3rd defendant with its senior staff. Also, Amended 2007 Condition of Service was duly signed by parties concerned including the claimant and it has since then been operational.
During trial, parties testified for themselves by calling witnesses to buttress their cases, the claimant testified for himself as CW1, he adopted his witness statement on oath made on the 19th May 2015 and 16th July 2015 as his evidence in this case, he also sought to tender some documents which were admitted in evidence by the Court and marked Exhibits JB-JB20, claimant also testified through one Dr. Mrs Dupe Oshofomie (Permanent Secretary, Ministry of Commerce and Industry) as a subpoenaed witness, she tendered some documents marked Exhibits PS1 and PS2 respectively by the Court and also through one Leye Adebayo who testified as CW3 and tendered a document marked Exhibit LA. The 1st and 2nd defendant applied that the testimony of Dr. R.A. Alonge in the sister case, subpoenaed witness in the sister case Suit No: NICN/AK/49/2014 be adopted as DW1 in this suit, the DW1 testified on behalf of the 3rd defendant now as DW2, he adopted his statement made on the 19th October 2018 as his evidence, he tendered a document which was admitted by the Court and marked Exhibit GA.
In compliance with the rules of the Court, parties caused their respective written addresses to be filed, the 1st and 2nd defendant filed their written address on the 28th December, 2018, they formulated two (2) issues for the determination of the Court, the 3rd defendant also filed on the 10th December, 2018 discussing salient issues. The Claimant on the other hand filed his on the 14th January, 2019 and canvassed three (3) issues for the determination of the Court; salient parts of which would be discussed 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?
Before delving into the substance of this suit it is pertinent to address a pertinent issue raised by the defence counsel. It is the 1st and 2nd defendants counsel submission that this Court ruled against its preliminary objection on the issue of lack of privity of contract between it and the claimant when evidence had not be led to establish their reliefs. He stated that now the Court is being seized of the material facts, hence he urged the Court to take a second look at the presupposition on this regards. He continued by positing that the doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights and obligations upon any person who is not a party to the contract. He cited the case of Idufeko v Pfizer Production Ltd [2014] 12 NWLR (Pt. 1420) 96; Makwe v Nwakor [2001] 14 NWLR (Pt 733) 356; Agbareh v Mimra [2008] 2 NWLR (Pt. 1071) 378 SC. It is learned 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 been privy to the contract to the contract between the claimant and the 3rd defendant. He urged the Court to dismiss this suit as it is incompetent and has not disclosed a reasonable cause of action against the 1st and 2nd defendants. Learned claimant counsel 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 the learned defendants counsel, Adeyanju of counsel on the 9th of May, 2017 sought for the leave of Court to withdraw the Notice of Preliminary Objection he filed in respect of the above issues raised by Akinseye of counsel for the 1st and 2nd defendants, and the Court granted Adeyanju Esq application for withdrawal, subsequent upon which the NPO filed by the defendants on 11th March, 2015 was struck out. For the sake of clarity learned defence counsel for the 1st and 2nd defendants having withdrawn the same application in this case as stated supra, submitted here and now 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 deducible 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 defendants had withdrawn this application and also, 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 position of the law that the address of counsel, no matter how beautifully grafted/written cannot take the place of pleadings. See Aina & Anor v. Dada & Anor [2017] LPELR-42553CA. Although, as stated earlier in this judgment the issue has been laid to rest on the 9th of May, 2017. It is however, imperative for me to consider the issue framed and argued by learned 1st and 2nd defendants counsel in his final written address as regards the appropriateness or otherwise of suing both the 1st and 2nd defendants by the claimant.
The learned counsel for the 1st and 2nd defendants in his final written address argued extensively that though the 1st defendant has 70% shareholding in the 3rd defendant, it has no controlling power over the 3rd defendant and thus not bound by claimant’s claims. He equally took a ride through the principle of agency, made a heavy weather about it and submitted that the act of an agent of a disclosed principal is binding on his principal. To the defence, the action of the Director of the 3rd defendant is that of the 3rd defendant and so the 1st defendant is not liable in any way to the claimant. I agree with the learned defence counsel to the extent that the act of an agent of a disclosed principal is binding on the principal, I however, I wish to make a detour and disagree with his contention that the 1st defendant should be absolve from any liability to the claimant, my position is hinged on the legal principle that despite the general principle of a separate Corporate legal entity, the Courts in plethora of legal authorities have held that Courts have the power to lift the veil of incorporation when necessary. “The corporate veil” is defined in Black’s Law Dictionary 9th edition as: “The judicial act of imposing personal liability on otherwise immune corporate officers, directors or shareholders for the corporation’s wrongful acts” A situation may arise as in the instant case where the corporate veil of a Company may be lifted with a view to making either a Director, Agent or both of the Company liable for the Company’s behalf. See Sections 93 and 290 of the Companies And Allied Matters Act, CAP. C20 Laws of the Federal Republic of Nigeria, 2004; J. O. Orojo: Company Law and Practice in Nigeria, 5th Edition @ 88 – 89. Lexis & Nexis, 2008. It is noteworthy that this instant case constitutes a clear exception to the general principle, that an agent of a disclosed principal cannot be joined as a party/or held liable with the principal thereof. The Court of Appeal in its recent decision in Bell Atlantic Telecommunications Ltd & Anor v. Ndon & Anor [2018] LPELR-44431CA; reiterated the trite principle of the law, that shareholders would be treated as the owners of a corporation’s property, as the real parties’ interests, whenever it is expedient to do so to prevent fraud or to do justice. Arguably, that is the backbone and the veritable basis of the alter-ego doctrine. Thus, where, as in the instant case, a Chairman or Director (1st Defendant) can justifiably be treated as the alter-ego or directing mind and will of the Company, the corporate veil of the Company may be lifted or pieced with a view to exposing the real person “behind the ‘Mask’ perpetrating an improper act perpetuated by the Company thereby causing injustice to the other party. It is expedient for this Court to lift the veil of the 3rd defendant’s Company in view of the fact that the 1st defendant is denying liability and to allow that in the circumstances of this case will occasion injustice to the claimant. This is so in view of the fact that the 1st defendant in this case being a major shareholder with 70% shareholding of the 3rd defendant appoints its General Managers, on whose behalf also the Secretary to the State Government acts as the directing mind, the alter ego of the 3rd defendant. The SSG equally promised to pay the claimant’s outstanding salaries and entitlement and infact did paid same. It is equally revealed on record that the 1st defendant acquired both the assets and liabilities of the 3rd defendant. As the majority shareholder. By Exhibits JB4, JB5, JB6, JB7 JB8 and JB9 it discloses that the officials of the State Ministry of Commerce and Industry and 1st defendant’s office were directly involved in the grading and promotion of the claimant. Infact by exhibit JB9, the Ministry of Commerce and Industries gave the GM a spending limit within which he has to operate at the 3rd defendant and must seek for and obtain approval before spending certain amount of money. The 1st defendant vide the ministry of commerce and industries was also involved in claimant’s promotion. 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. It is so lain on record and by the evidence of witnesses on record that the 3rd defendant was at all times the one running the affairs of the 3rd defendant. I equally find strength by the provision of 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, in view of the 70% majority shareholding of the 1st defendant in the 3rd defendant. 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 as full and final settlement of his terminal benefit. 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 and thus held itself out as the employer of the claimant 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 has made the claimant to believe and has indeed held itself out as the employer whose responsibility it is to pay his terminal benefits as well as his salary arrears 16 months’. The General Manager who was drafted from the main stream of the civil service of Ondo State testified as CW3 and stated on oath the Secretary to the State Government invited him and some of the 3rd defendant’s labour leaders to his office and informed them that the 1st defendant has decided to close down the Company, consequent upon which it has leased out part of the Company premises to Top Services Company Ltd to build Akure Mall. He continued that the 1st defendant paid 16 months salary to the staff of the 3rd defendant. This was admitted by the Permanent Secretary of Ministry of Commerce and Industries Ondo State one Dr. Mrs. Dupe Oshofomie (CW2) and corroborated by exhibit PS1 and CW3. 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. CW3 Leye Adebayo equally stated on oath that the 1st took over all the assets and liabilities of the 3rd defendant including the Company’s files and documents which were all taken to the Ministry of Commerce and Industries, this was confirmed by DW1 under oath. 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 instant 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, first to the course of justice and secondly, the claimant in this case. I so find and hold.
On the substantive issue it is the claimant claim that he is entitled to the sum of N24,749,065.99 (Twenty-Four Million, Seven Hundred and Forty-Nine Thousand, Sixty Five Naira, Ninety-Nine Kobo) being the correct amount of money owed the claimant by the defendants as at 31st October, 2014 in respect of:
Retirement benefits N 3,578,059.44
Gratuity N11,926,864.80
Redundancy benefits N 7,951,242.00
Accumulated unpaid salaries and N 1,258,946.84
Year 2013/2014 Leave Allowance N 33,952.91
N24,749,065.99
It is learned claimant’s counsel argument that the basis of this suit is predicated on the fact that the claimant has served the defendant for the period of 26 years and upon his disengagement from service that is the 31st of July, 2014, he was entitled to have been paid his entitlements as per Sections 89 to 91of year 2003 conditions of service, he therefore urged the Court to grant the severance allowances of the claimant based on the year 2003 Senior Staff Conditions of service. It is settled law that the claimant has the onerous duty by law to prove his claims on the strength of his own case not on the weakness of the 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 this case tendered exhibit JB15 that is Conditions of Service for Senior Staff, 2003. The 3rd defendant by paragraph 20 pleaded that the company’s conditions of service for senior officers dated 1st February, 2003 has been amended by the one of 1st of October, 2007. It is pertinent to lay to rest the discord as to which of the Condition of Service for Senior Staff of the 3rd defendant is applicable in this suit. The 3rd defendant vide paragraph 20 of its statement of defence and the Learned 3rd Defence Counsel stated in paragraphs 2.01-2.05 of his written submission contended that the applicable document governing its employment relationship with the claimant is the 2007 Condition of Service and that for a fact the Claimant has already admitted that the 2003 Copy had been amended and that majority of the workers rejected the documents when the provisions of the 2007 document became known to the staff of the 3rd defendant and that those who amended the 2007 Copy had no competence to do that, Counsel argued that the 2003 copy was no longer applicable in view of the existence of the 2007 copy and the claims of the claimant predicated on same fails, he cited the cases of Longe v. FBNPlc [2016] 6 NWLR pt1189 1 SC, Isheno v. Julius Beger Nig. Plc [2008] 6 NWLR (Pt 1084) 582 SC. Learned Claimant Counsel on the other hand relying also on the authority of Longe v. FBN Plc supra, Daodu v. NNPC [1998] 2 NWLR (Pt538) pg 355, Kala v. Potiskum [1998] 3 NWLR (Pt 540) pg 1, and argued that the entitlements of the claimant are based on Exhibit JB15, he posited vide paragraph 6.1 of claimant’s written address that from a graphic demonstration of the Exhibit JB15 and the 2007 Condition of Service that ordinarily a review of the Exhibit JB15 after four years should be an upward review and not downward, learned counsel urged the Court to invoke the provisions of Section 15 of the National Industrial Court Act 2006 in rejecting the submission of the 3rd defendant that the 2007 Condition of Service should be used in calculating the Claimant’s entitlements.
It is settled beyond peradventure that he who assets must prove, See Sections 135-137 of the evidence Act 2011, see also the case of Intercontinental Bank Plc v. Dayekh Brothers Ltd [2014]LPELR-23485 (CA). In civil cases, the burden of first proving the existence or nonexistence of fact lies on the party against whom will fail if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings, see also the case of Adetoro v. Union Bank of Nigeria Plc [2007] LPER-8991 (CA). It is the admission of the Claimant during cross-examination that he was aware that the 2007 Condition of Service had been amended, he however further stated that same was rejected by the staff of the 3rd defendant. DW1 during trial tendered the 2007 Condition of Service which was admitted and marked Exhibit GA. Counsel argued by paragraph 6.2 (ii) that none of the Directors signed Exhibit GA. It is the evidence of the Claimant vide Exhibit JB15 (b) that the Hotel and Personal Service Senior Staff Association, a trade union under trade Union Congress of Nigeria by the Letter dated 27th October 2007 stated that instead of the 2007 Condition of Service to be an improvement of the 2003, it was the direct opposite that it does not favour members of the union and that members have rejected the 2007 Condition of Service in its entirety. In law, to constitute a binding Contract between parties, there must be a meeting of the mind often referred to as a consensus ad idem. An agreement is binding between two or more parties who by so entering into such agreement, they resolve to create obligation or commitment between themselves to do or not to do a particular thing in a contract. See the case of Usman v Ibe [2017] LPELR 43303 CA. It is no doubt that the Condition of Service governing an employment relationship between an employer and an employee is Contractual in nature as the document spells out explicitly the roles of each party in the employment relationship. If parties sign it they make themselves bound by it and thereby becoming enforceable on them depending on the terms agreed upon. It is appropriate to state that the DW under cross-examination admitted that No Director signed Exhibit GA. From exhibit JB 15 (the 2003 conditions of service) at paragraphs 104 it discloses that “Both the representatives of the Board of Director/Management and the HAPSSSA shall from time to time review the foregoing Condition of Service in the light of any general development either at State of National level or at the request of the Association. However, the duration of this agreement shall be two years from the effective date.” A careful perusal of the 2007 conditions of service reveals that the 2007 conditions of service was signed by a representative of the Board of Director one Alhaji A.T.H Adefila who is an (Executive Director, for Finance and Admin Lagos Airport Hotel). Also it is clear from exhibit GA and the admission of the claimant under cross examine that he signed the 2007 conditions of service, the import of which is that he intended to be bound by the 2007 conditions of service and thus bound by it. It is trite by the legal maxim Pacta sunt servanda, which means contracts are to be kept. Or an even better and more incisive maxim, Pacta convent quae neque contro leges neque dolo malo inita sunt omni modo observando sunt, means that agreements which are neither contrary to the law nor fraudulently entered into, should be adhered to in every manner and in every detail. See the cases of Teju Investment and Property Co ltd v Subair [2016] LPELR 40087 CA; Sonnar (Nigeria) Ltd v Partenreedri M.S. Nordwind Owners of the Ship M.V. Nordwind [1987] LPELR-3494 (SC) 1 at 44. It is therefore, evident from the above and in the absence of fraud, misrepresentation and illegality, that the claimant in this case having signed the 2007 conditions of service is bound by the terms therein. This Court cannot make contracts for the parties, rewrite the contract or go outside the express terms of the contract to enforce it. The Court can only give effect to the intention of the parties by interpreting the surrounding circumstances including oral and written statements so as to attest the intention of the parties and this the Court has done in this case. To this end, I find that Exhibit GA (2007 condition of service) is the document establishing the relationship between the claimant and the 3rd defendant in this suit and same is admissible for the calculation of the claimant’s claim. I so hold.
It is pertinent to also state that the claimant by paragraph 23 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 one Leye Adebayo who was the General Manager of the 3rd defendant appointed by the 1st defendant, when he stated under 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.
An In-depth examination into the facts of this case discloses that parties are at per with the fact that the claimant was an employee of the 3rd defendant before his employment was determined. From the evidence before the Court, it is lucid to state going by the evidence on record that the claimant was initially employed as a Clerical Officer in the 3rd defendant Company with effect from1st August 1988 vide a letter dated 21st July 1988 (Exhibit JB) and was subsequently promoted the position of a Purchasing Clerk by the letter dated 5th December 1990 (Exhibit JB3) and Head waiter by another letter dated 6th January 1993, Bar Supervisor on the 31st December 1998. Upon his acquisition of HND, he was upgraded to Grade Level10 Step 5 by the letter reference number OIH/ADM/PSL/14-002/227 dated 5th May 2003 and later on Grade Level 12 by another letter OIH/ADM/PSL/07-001/268 dated 30th November 2009. It is the claimant’s further claim that vides a letter dated 17th April 2013, there was an adjustment of his career progression as follows:
Promotion to the post of Food and Beverage Officer GL10……1/1/02
Promotion to the post of Asst. Food Beverage Manager GL12….1/1/05
Promotion to the post of Snr. Food and Beverage Manager GL13…..1/1/08
Promotion to the post of Food and Beverage Manager GL14….1/1/11
Subsequently, his salary was adjusted to Grade Level 14 Step 3 with effect from 1st January2013 and appointed to the position of the 3rd defendant’s Acting General Manager as disclosed in Exhibits JB3, JB4, JB5 respectively. It is the further evidence of the claimant vide Exhibit JB6 that whilst he occupied the position of a General Manager in the 3rd defendant, he was still receiving the salaries and allowances of a Food and Beverage Manager (Grade Level 12). However, he was suspended from his position vide a letter Reference Number OML/GM/MGT/VOLII/10 dated 24th August 2013 consequent upon a rancor between the Management and Staff which eventually led to allegations of negligence of duty and fraud, he was letter recalled back to duty by the letter Reference Number OML/GM/MGT/VOLII/19 dated 23rd June 2014 to report to duty the next day following the directive of the Ministry of Commerce and Industry (Exhibit JB13). The Claimant argued that the Ministry of Commerce and Industry were mismanaging the affairs of the 3rd defendant as disclosed in Exhibits JB7, JB9, JB17 and JB19 and all these culminated into the 3rd defendant being moribund. On the 31st July 2014, that he and other members of staff were verbally informed by the Secretary to the 1st defendant that they should not report from duty from 1st August 2014 hence his appointment was constructively and wrongfully terminated.
Now, what is the propriety of terminating the employment of the claimant orally without notice? It is noteworthy that parties are ad idem on the fact that the claimant was indeed asked to stop coming to work on the basis of the letter dated 21st of May, 2014 exhibit LA. I say this in view of the fact that there is nothing stating the contrary and there is equally no letter of termination issued to the claimant in this regard to evince otherwise. It is an age long principle in industrial and labour law that an employer who has the right to hire has the corresponding right to fire however, this right is not absolute as it is limited to the fact that such power exerted on the employer is subject to the terms of agreement binding on both the employer and the employee. By exhibit GA, i.e. Condition of service of Senior Staff Clause 90(i) provides for Termination and it states that;
i. Permanent appointment can be terminated by either side by giving three months’ notice or pay three months salary in lieu of notice. The power to terminate the appointment of any senior staff shall be vested in the Board of Directors or Management as the case may be”
Now there is nothing on record evincing the fact that the claimant was issued three months’ notice in writing and there is equally nothing showing that he was paid three months’ salary in lieu of notice when he was asked to stop coming to work. The defendant contrary to the provision of Exhibit GA disengaged the claimant wrongfully when it failed to issue a notice or pay the claimant’s his salary in lieu of notice upon termination. This in the labour and employment law terrain is wrongful and an unfair labour practice. See the case of Keystone Bank Limited v. Micheal Femi Afolabi [2017] LPELR-42390 (CA). It is in consequence that I find that the oral termination of claimant’s employment contrary to the contract of his employment is wrongful. Consequently, I hold that claimant is entitled to be paid his 3 months’ salary in lieu of notice as per clause 90(i) of the claimant’s condition of service exhibit GA. Claimant’s monthly salary is by exhibit JB12, N66,260.36, multiplied by 3 months is in the sum of N198, 781. 08. I so hold.
Respecting claimant’s claim for the retirement benefit in the sum of N3, 579,059.44, 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. This is not limited as an employee may opt to retire upon reaching a certain age or years of service voluntarily. Equally an establishment reverses 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 for the record of the Court that the claimant put in a total of twenty six years in the service of the defendant. It is germane to posit that by clause 94 of exhibit GA, the claimant is eligible to retire voluntarily having served the defendants for twenty six years. However it is appropriate to mention that there is nothing on record showing that the claimant retired from the employment of the defendants or was retired by the defendants. I say so in view of the fact that from the circumstances and facts of this case, the claimant’s employment was terminated albeit orally and nothing from the parties evinces that he was retired either compulsorily or voluntarily. As stated supra, there must be notification of retirement from one party to another, this did not happen in this suit. It is an established principle of law that he who asserts has the onerous burden to prove such assertion as judgment will lie against a person who asserts and fails to prove a given fact as submitted. See Sections 131-137 of Evidence Act, 2011 and the cases of Ruwa v. Manja [2018] LPELR 44939 CA; Fabian Tommy Osukpong & 3 ors v. Raymond Etukudo Eduoika & Anor [2016] 1 NWLR (Pt. 1493) 329; N.N.P.C v. Lutin Investments [2006] 1SC (Pt III) 49, [2006] 2 NWLR (Pt.965) 506. It is on this premise that I find that the claimant has failed to prove by credible and undisputable evidence that he validly retired from the employment of the 3rd defendant and as such I find that his claim for the sum of Three Million, Five Hundred and Seventy-Eight Thousand and Fifty-Nine Naira and Forty-Four Kobo (N3,578,059.44) as Retirement benefit is unmeritorious and therefore, this claim fails. I so hold.
The Claimant is also claiming the sum of Eleven Million, Nine Hundred and Twenty-Six Thousand, Eight Hundred and Sixty-Four Naira, Eighty Kobo [N11,926,864.80] as his gratuity having worked with the 3rd defendant for twenty-six (26) years. By Clause 96 of Exhibit GA any employee who has worked with the 3rd defendant from 21years and above is entitled to 12 weeks per each completed year of service and calculation of gratuity shall be on the basis of total take home pay of the employee. Now it is clear that the claimant was before his disengagement on Grade level 14 step 3 and by Exhibit JB12, the claimants basic salary is N66,260.36, to get the claimant’s gross salary per annum, the sum of N66,260.36 multiplied by 12 months amounting to the sum of N795,124.32. To get the Claimant’s weekly gross, the sum of N795,124.32 will be divided by Fifty-two(52) weeks in the year amount to the sum of N15,290.85. To arrive at the Claimant’s 12 weeks gross pay, the sum of N15,290.85 will be multiplied by 12 weeks to give the sum of N183,490.2 and the sum of N183,490.2 will be multiplied by his 26 years of service to give of N4,770,745.2. In all, I find that the claimant is entitled to the sum of N4,770,745.2 as his gratuity having worked with the 3rd defendant for twenty-four (26) years. I so hold.
The Claimant is also claiming the sum of N7, 951,242.00 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 JB15 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 25 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 N7,951,242.00fails.
It is claimant’s claim that he is equally entitled to accumulated unpaid salaries in the sum of N 1,258,946.84.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 salaries in arrears 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 16 months’ salary it is apposite to say that the CW2, the Permanent Secretary stated under cross-examination that they opted to pay the 16 months’ Salary arrears of the claimant which had and the names of staff due for payment is as disclosed in Exhibit PS. 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 basis that I find that the claimant is entitled to his 16 months unpaid salaries in arrears in the sum of N1,060,165.76. I so hold.
It is the claimants contention also, that he is entitled to the sum of N33, 952.91 as his 2013/2014 as his leave allowance. By Clause 30 of Exhibit JB15 that the “Company senior staff shall be paid 15% of annual basic salary as leave allowance”. . It is the law that he who asserts must prove and the claimant has not proven his case as regards this relief to entitle him to the sum claimed. It is thus in this light that I find that his claims for the sum of` N33,952.91 as 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, held that; “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 2017 which provides that this Court may at time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. It is in view of this that all judgment sums is to be paid within thirty (30) days failure upon which attracts 10% annual interest.
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 1st, 2nd and 3rd defendants are liable to the claims of the claimant.
That the claimant is bound by the 2007 conditions of service.
That the claimant’s claim for the sum of Three Million, Five Hundred and Seventy-Eight Thousand and Fifty-Nine Naira and Forty-Four Kobo as retirement benefits fails.
That the oral termination of claimant’s employment by the defendants without compliance to his contract of service is wrongful.
That the claimant is entitled to be paid his three (3) months’ salary in lieu of notice in the sum of N198, 781.08.
That the claimant is entitled to the sum of N4,770,745.2 as gratuity having worked with the 3rd defendant for twenty-four (26) years.
That the claimant is entitled to 16 months’ unpaid salaries in arrears in the sum of N1,060,165.76.
That the claimant’s claim for redundancy fails.
That claimant’s claim for the sum of` N33,952.91 as his 2013/2014 leave Allowance fails.
That claimant’s claim b fails.
Cost of N25,000 is awarded against the defendants jointly and severally.
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
