IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 11THAPRIL, 2019 SUIT NO: NICN/AK/50/2014
BETWEEN
MICHEAL OGUNLEYE ………………….CLAIMANT
AND
1. ONDO STATE GOVERNMENT
2. ATTORNEY GENERAL & COMMISSIONER
FOR JUSTICE (ONDO STATE) ………………..DEFENDANTS
3. OWENA MOTELS LTD
REPRESENTATION
Kehinde Aladedutire with him; C.A Gbogi, Boluwaji Awofolaju, Baba Omojola and J.A Akinsunola for the claimant
R.A Akinseye Principal Legal Officer Ministry of Justice, Ondo State for the 1st and 2nddefendants.
J.I Adeyanju with him, Tope Falana (Mrs), Dayo Akindejoye and Temiloluwa Ogunmoyero for the 3rd defendant
JUDGMENT
This suit was instituted by the claimant vide a General Form of Complaint on the 31st October, 2014 and by a Further Amended Statement of fact dated 26th of June, 2018, the following claims were claimed against the defendants:
a. The sum of N5,161,363.59 (Five Million, One Hundred and One Thousand, Three Hundred and Sixty Three Naira, Fifty Nine Kobo) only being the correct amount of money owed the claimant by the defendants as at 31st October, 2014 in respect of:
* Retirement benefitsN776,551.20
* GratuityN2, 150,449.20
* Redundancy benefitsN1, 720,359.76
* Accumulated unpaid salaries and N491,815.76
* Year 2013/2014 Leave AllowanceN 22,188.07
N5,161,363.59
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 claimant in his testimony stated that he was employed as a Driver by the 3rd defendant effective from 29th January, 1996, the appointment was confirmed by a letter dated 13th August, 1996, he was promoted from GL 05 step 2 to GL 05 step 3 effective from 01/01/2000 and by a letter dated 18th May, 2006, his emolument was reviewed upwards by 13% increase on entry point, thus increasing his salary per year to N310, 620.48. That his appointment and that of some other staff were wrongfully terminated and that he was owed 19 months’ salary arrears inclusive of three months’ salary in lieu of notice as at 31st July, 2014 when he was informed not to report for duty. That his final entitlements between January 1990 and October, 2014 are yet to be paid in spite of several demands, the entitlements are made up of the following:
i. RETIREMENT BENEFITS
According to Sections 52, 53 & 54 of the company’s Junior staff conditions of service:
Gross salary as at 31/07/2014=N310,620.48
Retirement benefits for 18 years of service=N(310,620.48 x 2.5)
=N776,551.20
ii. GRATUITY
Annual Gross salary=N310,620.48
One week Gross salary=N(310,620.48 ÷ 52)
N5,973.47
20 week’s Gross pay=N(5,973.47 x 20)
=N119,469.40
Gratuity for 24 years=N(119,469.40 x 18)
=N2,150,449.20
iii. REDUNDANCY
Gross annual salary=N310,620.48
One week’s gross pay=N(310,620.48 ÷ 52)
=N5,973.47
16 week’s gross pay=N(5,973.47 x 16)
=N95,575.52
Redundancy for 18 years=N(95,575.52 x 18)
=N1,720,359.36
iv. UNPAID SALARIES
Annual gross salary=N310,620.48
Monthly salary=N(310,620.48÷ 12)
=N25,885.04
Unpaid salaries for 19 months up to October
2014 (16 months up to 31/07/2014 and 3
months in lieu of notice)=N(25,885.04 x 19)
=N491,815.76
v. OUTSTANDING LEAVE ALLOWANCE
(Year 2013/2014)
(Section 30 of the conditions of service)
Annual basic salary=N147,920.48
15% of basic salary=N22,188.07
GRAND TOTAL=N5,161,365.59
It is his statement that the above calculations are based on year 2003 Conditions of service approved by the Board of Directors of Owena Motels Ltd and not by Private Managers.
It is the 1st and 2nd defendants’ amended statement of defence wherein the 1st and 2nd defendants admitted that the 1st defendant is a subscribed shareholder in the 3rd defendant but not the owner of the 3rd defendant. It went on to state that the 3rd defendant is registered in its corporate name and can sue and be sued, which has its separate legal personality and not an appendage of the 1st defendant. They continued that they do not play any role in the 3rd defendant and at no time did their agent urged the claimant to stop coming to work. They went on to state that the claimant and his colleagues are not their staff, hence they cannot respond to their demand notice. According to the 1st and 2nd defendants, the 1st defendant only relationship with the 3rd defendant was the lease agreement it entered into with it to lease a portion of its premises to Developers of Akure Mall. They therefore deny any liability to the claimant and urged the Court to dismiss the claimant’s case.
During trial, the claimant testified for himself as CW1, one Leye Adebayo and the Permanent Secretary Ministry of Commerce and industries, Dr. Mrs Oshofomie who testified alongside as CW2 and CW3. They adopted their sworn depositions as their evidence in the case and frontloaded some documents which were admitted and marked as Exhibits M-M9 and LA. The Court ruled that the evidence of CW2 in the sister case in suit No NICN/AK/49/14 is adopted in this case. The 1st and 2nd defendants filed their defence but did not call any witness on the other hand the 3rd defendant failed and refused to file any process in this suit.
The 1st and 2nd defendants, in conformity with the rules of Court, filed their final written address and put together two issues for determination:
1. Whether having now been ceased of all the facts material to this case and considering all exhibits relevant thereto this Court can in the face of hard fact evidenced by documentary evidence now before it again resolve that there exist privity of contract between the claimant and the 1stand 2nddefendants.
2. Whether the nature of interest of the 1st defendant being a shareholding Director in the 3rddefendant creates an inseparable parallel of a mutual legal existence and liability with the 3rddefendant.
The learned counsel for the 1st and 2nd defendants under reference submitted that from the examination of the documents before the Court, it is clear that they were never a party to the claimant’s contract of employment and that should the general provision on privity of contract be followed, the claimant’s claim fails against them while reliance was placed on the case of Agbareh v. Mimra [2008] 2 NWLR (Pt. 1071) pg. 378 SC at 412, para G. He also submitted that the 3rddefendant being a creation of statute is a juristic person who can sue and be sued in its own name and conversely enter into contractual agreement in its own name as the subject of the legal capacity of the contracting parties is fundamental to the validity of any contract. It is further argued that by Section 37 of the Company and Allied Matters Act, the 3rddefendant is a company limited by shares, also that the claimant entered an exclusive contract with the 3rddefendant, it follows therefore that the 1stand 2nd defendants who also are distinct juristic persons by the creation of relevant statute, not being privy to the contract between the claimant and 3rddefendant, ought not to have been made a party to this suit, the Court is urged to so hold. See Makwe v. Nwakor [2001] 14 NWLR (Pt. 733) pg. 356 at pg. 372, para B-F.
It is the submission of counsel on issue two that, the 1st and 2nd defendants opined that there is sufficient evidence before the Court chronicling the involvement of the 1st defendant in the 3rd defendant’s affairs making it more than just an ordinary bystander in matters relating to the 3rd defendant and that this does not and cannot subsume the legal personality of the 3rd defendant into the 1st defendant and vice versa. That the 1st defendant therefore runs no parallel with regards to legal identity interest and liability with the 3rd defendant. The following cases were cited: Alphonsus Oriebosi v. Andy Sam Investment Company Ltd [2014] AELR 4743 and Okolo vs. U.B.N Ltd [2004] 3 NWLR (Pt. 859) pg. 87 at 119 – 120. They urged the Court to base its reasoning on the law, to divest the interest and liabilities of the 1st defendant from that of the 3rd defendant in the interest of justice. They thus submitted that the case of the claimant in the ordinary circumstance of this suit lies against the 3rd defendant and not the 1st defendant as there is no evidence before the Court that suggest to the contrary that the 3rddefendant is no longer a going concern and again urged the Court to so hold.
Consequently the Court was urged to dismiss this suit against the 1st and 2nd defendants, the case of the claimant having not disclosed a sustainable cause of action against them, same thus being incompetent.
In the claimant’s final written address filed on 14th January, 2019, three issues were raised for determination:
a. What is the position of Ondo State Government vis-a-vis its supervisory role of the 3rd defendant?
b. Whether the claimant has been able to discharge the burden on him on balance of probability to prove his entitlements to his claims per year 2003 conditions of service as contained in paragraphs 30, 52 to 54 of the Junior Staff conditions of service as follows:
*Retirement benefits-N776,551.20
* Gratuity-N2,150,449.29
* Redundancy-N1,720,359.36
* Unpaid salaries-N 491,815.76
* Outstanding leave allowance-N 22,304.36
Total-N5,161,363.59
c. Whether the Court can grant reliefs B and C of the claimant.
It is the position of the learned counsel to the claimant that the Ondo State Government is the controlling shareholder of the 3rd defendant. That this position is true as DW1 and DW2 concede that the 1st defendant holds a minimum of 70% equity in the 3rd defendant, moreso, that by Exhibits JB4- JB9, it is established that the officials of the State Ministry of Commerce and Industry and the Governor’s office were directly involved in the grading and promotion of the staff as well as in the direct running of the 3rddefendant. He further buttressed his point by the testimony of CW3 (Mr. Leye Adebayo) that he handed over all the assets and liabilities of the 3rddefendant to the officials of the State Ministry of Commerce and Industry, which DW1 admitted the receipt on behalf of the 1stdefendant,hence facts admitted need no further prove. For his submissions, he relied on the cases of Attorney General, Lagos State v. Eko Hotels Ltd &Oha Ltd [2006] ALL FWLR (Pt. 342) pg. 1472; P.I.P.C.S Ltd v. Viachos [2008] 4 NWLR (Pt. 1076) pg. 1 @ 20, paras D and Section 123 of Evidence Act among others. Counsel therefore contended that if the 1stdefendant has taken over all the assets and liabilities of the 3rddefendant, it then becomes incumbent on it to pay the final entitlements of the disengaged staff of the 3rd defendant.
On issue two, the learned counsel posited that having claimed before this Court that the claimant has served the defendants for a period of 18 years as at 1st of August, 2014 when the 3rd defendant was bull-dozed by the order of 1st defendant and that as at that time he was due for the entitlement as claimed, that the entitlements are based on Exhibit M5 (a &b) which were tendered and accepted as Exhibits and which were never controverted by the defence counsel during cross examination, the entitlements ought to have been paid on his last day in office as per Sections 52 – 54 of year 2003 Junior Staff Conditions of Service. It is his argument that this matter is in all fours with the case of Aondohemba AgbaInjo& 4 Ors v. Benue State Government & 3 Ors in NICN/MKD/45/2014 delivered on 3rd of July, 2016. He therefore urged the Court to grant his severance allowances based on the year 2003 Junior Staff Conditions of Service as per detailed calculations in paragraphs 19 (i – v) of his Amended Statement of Facts and paragraph 23(i – v) of the written statement on oath.
On issue three, it is contended that the claimant’s demand for the sum of 25% interest on the total amount in relief B from the 1st November, 2014 until judgment is delivered follows the Latin maxim of ubi jus, ibi remedium and moreso, as it is the law that when money is owed and a party is driven to the Court to recover same, interest will be awarded from the time the amount is withheld. The authority of National Bank of Nigeria v. Savol W/A [1994] 3 NWLR (Pt. 333) pg. 435 @ 463, paras C-D was relied upon. He contended further that the Court should not allow the defendants to go unpunished for holding on to his final entitlements for years and for all manner of delay tactics when this case started. Furthermore, that the amount in relief A should attract interest at the CBN going rate, while placing further reliance on Jegede v. Bamidele [2006] ALL FWLR (Pt. 315) pg. 109 ratio 3, he urged the Court to his grant relief B. In regard to relief C, the claimant referred to Order 47 Rule 7 of the National Industrial Court Civil Procedure Rules 2017 and the case of Ewhubare Joshua & 4 Ors v. Bredero Pipeline Services Ltd NICN/BEN/31/2015 and equally urged the Court to grant relief C.
On the issues raised in the 1stand 2nddefendants’ written address, the claimant contended that the issue of privity of contract and other issues canvassed in their preliminary objections were struck out since 17thof May, 2017 and decision was not appealed by the defendants under reference, it is therefore preposterous to request that the Court should upturn its decision as where a case or an issue has been argued and the Court has decided which party is right, the Court becomes functus officio in respect of that issue.
The claimant went further to state that the 1stdefendant having paid the entitlements of the other staff of the 3rd defendant (Exhibit PS), having succeeded in running down its business, also having taken over its assets and liabilities, ordered its demolition (Exhibit LA) and admitted having its minimum of 70% equity, that this is a situation where the veil of incorporation should be removed and the 1stdefendant which has been admitted by their counsel to be a Director should be made to pay the entitlements of the disengaged workers of the 3rddefendant.
Conclusively, he urged the Court to grant his claims taking into consideration the totality of the evidence adduced at the trial showing the unfair labour practice perpetrated by the 1stdefendant and more particularly the rules of equity and substantial justice that guide the Court in the process of its adjudication pursuant to Section 15 of the National Industrial Court Act 2006, which accords with the decision of the Apex Court in Wassah v. Kara [2015] 4 NWLR (Pt. 1449) pg 374 @ 385.
After a careful examination of the processes filed by the parties and the supporting documents, their respective written submissions as posited by counsel on both sides; it is my humble view that the issue that would best determine this suit is:
Whether or not the claimant is entitled to his reliefs?
On the preliminary it is important to discuss the issue raised by the 1st and 2nd defendants, it is the learned counsel’s contention that when the Court ruled on the issue of privity of contract between them and the claimant there was paucity of material evidence to establish it. He stated however that now the Court is now being seized of the material facts to prove that the 1st defendant does not have any privity with the claimant as the 3rd defendant does, hence he urged the Court to take a second look at the presupposition on this regards. Learned counsel for the claimant posited that where a case for an issue has been argued and the Court has decided which party is right, the Court becomes functus officio in respect of that issue and cannot reach a different decision on the issue in the same case. Counsel submitted that the 3rd defendant is 100% owned by the Ondo State Government. He stated 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 argued 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.
Now it is pertinent to say that the 1st and 2nd defendants on the 11th of March, 2015 filed a notice of preliminary objection on the grounds that it has no privity of contract between the 1st defendant and the claimant; writ of summons was not lawfully endorsed, writ of summons filed by the claimant was not in compliance with Sections 96, 97 and 98 of the Sheriffs and Civil Processes Act, the writ of summons filed by the claimant was not in compliance with the provisions of Order 4 rules 1and 5 of the National Industrial Court Rules 2007. On the 9th of May, 2015, counsel to the 1st and 2nd defendants orally applied to withdraw the Notice of Preliminary Objection. The Court on the 9th of May, 2017 struck out the Notice of Preliminary Objection. It is apposite to state that the withdrawal of the Notice of Preliminary Objection by the 1st and 2nd defendants. Raising same issues as already withdrawn by them is to say the least the most unconscionable, irritating and an improper use of the judicial process. The attitude of learned counsel strikes the Court as an unstable one. Whilst in a breath it raised issues and in another breath withdrew it and then raised the same issues it the 2nd time. The law is trite that an unstable minded person is not fit to obtain any benefit from the Court. This is equally an affront to the judicial process of the Court and equally annoying to the opposing party. A Counsel cannot be allowed to blow hot and cold at the same time on the same issue/s, it makes a mockery of the legal profession and irritating to the ears of a reasonable man. He cannot be allowed to prevaricate, to approbate and reprobate, and to suit his conflict positions in the same case. See the case of Nyako Vs Adamawa State House of Assembly & Ors (2016) LPELR – 41822 SC, where the Apex Court held that Counsel cannot blow hot and cold, at the same time, or approbate and reprobate on the same issue just as one cannot eat his cake and have it. See also Suberu Vs State (2010) LPELR – 3120 SC. It is in the light of all stated that I discountenance the preliminary issue raised by the learned defence counsel in his final written address as being an abuse of the process of this Court and unmeritorious. I so hold.
Another germane issue that I need to consider is one argued by learned counsel for the 1st and 2nd defendants in his final written address, wherein he extensively contended 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, 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 at the instant will occasion injustice to the claimant. 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 Ministry of commerce and Industries 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 as evinced on exhibit PS1, 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 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 as disclosed by exhibit PS1 and CW3’s testimony. 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 all of them. To hold otherwise will occasion a grave injustice first, to the course of justice and secondly, to the claimant in this case. I so find and hold.
Now, to the crux of this suit, it is the claimant claim that he is entitled to the sum ofN5,161,363.59 (Five Million, One Hundred and One Thousand, Three Hundred and Sixty Three Naira, Fifty Nine Kobo)only being the correct amount of money owed the claimant by the defendants as at 31st October, 2014 in respect of:
* Retirement benefitsN 776,551.20
* GratuityN2, 150,449.20
* Redundancy benefitsN1, 720,359.76
* Accumulated unpaid salaries and N 491,815.76
* Year 2013/2014 Leave AllowanceN 22,188.07
N5,161,363.59
It is learned claimant’s counsel argument that the basis of this suit is on the fact that the claimant has served the defendants for the period of 18 years that from 29th of January, 1996 to 31st of July, 2014 and upon his disengagement from service that is the 31st of July, 2014, he was entitled to have been paid his entitlements as per the provisions of 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 Mr. Edward Nwadinobi &ors v Monier Construction Coy Nig Ltd [2016] 1 NWLR (Pt. 1494) 427; SMAB Inter Trade Ltd v Bulangu [2013] LPELR 21414 CA; Inua v FBN Plc [2016] 2 NWLR (Pt. 1495) 89 CA. The claimant in prove of his case tendered Exhibit M5 that is Conditions of Service for Junior Staff, 2003.
According to the claimant by paragraphs 10, 11 and 12 of his further amended statement of claim that on the 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, that they were barred from entering the premises of the 3rd defendant from the morning of 1st of August, 2014 and this to him means that his employment has been constructively and wrongfully terminated by the defendants. This was corroborated by the CW2 when he posited that on the 31/5/14 the Company was closed down vide a memo (Exhibit LA) written to him intimating him that the Ondo State Government has intention to lease part of the 3rd defendant’s premises to top services to operate a shopping mall. That he was also instructed to move the properties of the 3rd defendant and ask the staff to vacate the premises but that the SSG promised to pay the staff their 16 months salary in arrears.
Now, what is the propriety of terminating the employment of the claimant orally? 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 the law of labour and employment law that an employer who has the right to hire has the corresponding right to fire however, this right is not Omnipotent as it is limited to the fact that such power wielded by the employer is subject to the terms of agreement binding on the both the employer and the employee. By Exhibit M5 Clause 48(i) provides for Termination and it states that;
“i. The Company reserves the right to terminate the contract of employment of a junior staff by giving one month notice or one month payment in lieu thereof.
Now there is nothing on record evincing the fact that the claimant was issued one months’ notice in writing and there is equally nothing showing that he was paid one month salary in lieu of notice when he was asked to stop coming to work. The defendant contrary to the provision of Exhibit M5 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 hence and in consequent that I find that the oral termination of claimant’s employment by the defendant is wrongful and in effect he is entitled to be paid his one month salary in lieu of notice in the sum of N24,358.59. I so hold.
With respect to the claimant’s claim for Retirement benefits in the sum of N776,551.20. 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 eighteen years in the service of the defendants. It is germane to posit that by clause 50, the claimant is eligible to retire voluntarily having served the defendants for Eighteen 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 upon this premise that I find that the claimant having failed to prove vide substantial and credible evidence that he duly retired from the employment of the defendants as claimed is not entitled to the sum of N776, 551.20 I so find and hold.
Claimant also claims for Gratuity in the sum of N2, 150,449.20. It is the claimant’s position that he is entitled to this sum having worked with the defendant for a period of Eighteen (18) years. It is obvious that the claimant’s employment was terminated though wrongfully vide paragraph 12 of his further amended statement of fact and it is evident from clause 53 of Exhibit M5 at page 27 that the claimant in this case having served the defendants is entitled to a claim of gratuity. It is apt to state that Exhibit M5 provides the modus operandi for the calculation of gratuity at Clause 53 and it provides that 16 – 20 years continuous service is entitled to 20 weeks gross pay per each completed year of service. Now it is apparent to say that the claimant vide paragraph 7 of his further amended statement of fact that he was on Grade level 6 step 8. I find no evidence on record to prove that. The document before the Court, i.e. Exhibit M2 shows that the claimant on the 1st of January, 2000 was promoted from Grade level 5 Step 2 to Grade Level 5 step 3. By Exhibit M4,the salary structure for Grade 5 step 3 is in the sum of N24, 358.59. To get the gross salary of the claimant per annum the sum of N24,358.59 multiplied by 12 will give the total of N292, 303.08. To get the weekly gross of the claimant the total sum of N292,303.08 will be divided by 52 weeks in a year to give the sum of N5,621.21. To arrive at the claimant’s 20 weeks gross pay the sum of N5, 621.21 will be multiplied by 20 weeks to give the sum of N112, 424.26 and the sum of N112,424.26 will be multiplied by his 18 years of service to give the sum of N2, 023,636.71. In all, I find that the claimant is entitled to the sum of N2,023,636.71 as his gratuity. I so find and hold.
It is the claimant’s claims that he is entitled to the sum of Redundancy benefits N1, 720,359.76 as Redundancy benefits. 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 cases of Union Bank v Salaudeen [2017] LPELR 43415 CA; Isheno v Julius Berger Nig. Plc [2003]14 NWLR (Pt. 840) 289.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 to evince 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 supra. The claimant having been terminated of his service simplicter and not on the ground of redundancy as he claims, cannot be entitled to his claim for redundancy in the sum of N1, 720,359.76, thus it fails.
It is claimant’s claim that he is equally entitled to accumulated unpaid salaries in the sum of N 491,815.76. The claimant by paragraph 19 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 month ‘salary in lieu of notice. I have held supra that the claimant as a junior staff is entitled to his one month 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 CW2 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. The defendants did not challenge this assertion by the CW2 and it is instructive to point out the in the sister case of Adekunle Jegede v Ondo State Government & 3 ors Suit No AK/49/2014, DW1 equally admitted the fact that the 1st defendant told the staff that it will pay them their 16 months’ salary in arrears as their full and final settlement. It is the law that admitted facts needs no further proof. Faturoti v. University of Lagos [2016] 65 NLLR (Pt. 233) 783. It is on this premise that I find that the claimant is entitled to his 16 months unpaid salaries in arrears in the sum of N389,737.44.
The Claimant also claims the sum of N 22,188.07 as his 2013/2014 leave Allowance. A keen perusal of Exhibit M5 stated at clause 26 that;
“i. On completion of a leave earning period of 12 months, the Company’s junior employees shall enjoy paid annual leave as follows:
05 – 07- 28 days- working days”.
I must state that CW2 under his examination in chief stated that upon assumption of office, he defrayed the unpaid leave bonus, two months’ salary arrears and other allowances as corroborated by exhibit M7. It is the law that he who asserts must prove and the claimant in this case has not proven vide credible evidence to substantiate his claim for 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 23,653.73 as his 2013/2014 leave Allowance fails. I so hold.
The claimant claims 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 clear 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 Josco AG. Global Resources Ltd & Anor v AMCON [2018] LPELR 45637 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 20% annual interest.
In summary, the Claimant claims succeed in part and for avoidance of doubt I order as follows that;
That the 1st, 2nd and 3rd defendants are liable to the claims of the claimant.
That the oral termination of claimant’s employment by the defendants is wrongful.
That the claimant is entitled to one month salary in lieu of notice in the sum of N24,358.59
That the claimant’s claim on retirement fails.
That the claimant is entitled to the sum of N2, 023,636.71 as his gratuity.
That the claim for redundancy fails.
That that the claimant is entitled to his 16 months’ unpaid salaries in arrears in the sum of N389, 737.44.
That the claimant’s claim for his 2013/2014 leave Allowance fails.
That claimant’s claim b fails.
Cost of N25,000 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 attracts10% interests per annum.
Judgment is accordingly entered
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
