IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 27th day of January, 2020 SUIT NO: NICN/PHC/45/2018
BETWEEN:
MONDAY LOVEDAY GBARAKA ……………….……………………………..CLAIMANT
AND
- ZENITH SECURITIES LIMITED
- PEOPLEPLUS MANAGEMENT SERVICES LIMITED…………….………….DEFENDANT
Representations:
Gobari Deebom for the Claimant.
Emenike Ebete with H. Okwukwu and C.M. Chukwu for the Defendant.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 4th of April, 2018 along with a verifying affidavit, statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.
Arising from the complaint and statement of fact, the Claimant claims against the Defendants jointly and severally as follows:
- A DECLARATION that the purported termination of the claimant’s employment dated the 28thday of August, 2017 by the 1stDefendant and acted upon by the 2nd Defendant: the Claimant’s employer (sic) is null and void and of no legal effect whatsoever.
- AN ORDER of this Honourable Court that the Claimant is entitled to his monthly salaries of N63,000.00 (Sixty Three Thousand Naira) and other entitlements from September, 2017 till judgment delivered and same complied with upon payment by the Defendants.
- AN ORDER for the payment of the Claimants one month salary of the sum of N63,000.00 in lieu of notice.
- Payment of the sum of the unutilized leave day part of terminal benefit for 4 years from 2013, 2014, 2015 and 2016 wrongfully omitted by the Defendant in the purported termination of appointment letter which is N131, 010. 24.
- Payment of the sum of N480, 000.00 (Four Hundred and Eighty Thousand Naira) being an arrears of Claimants promotion from US III to US I -of N5,000.00 addition with effect from March, ending 2010 to 2014 and April, 2010 to March, 2013.
- N2,000,000.00 (Two Million Naira) as damages for the inconveniences and public harassment caused the claimant at the Stanbic IBTC Pension office that he falsify termination letter from 1stDefendant when the 2ndDefendant is his employer who is supposed to terminate his employment.
- The sum of N2,000,000.00 (Two Million Naira) as general damages for the wrongful termination of his employment.
In reacting to the foregoing claims the Defendants on the 4th of March, 2019 entered conditional appearance before filing Statement of Defence on the 14th of March, 2019 and accompanying same with list of witnesses, witness statement on oath, list of documents and copies of the documents to be relied upon at trial.
Trial of the case commenced on 5th of February, 2019. In opening his case, the Claimant himself as sole witness was called as CW1 and he adopted his witness statements on oath marked as C1. Through the CW1, 9 documents were tendered and admitted in evidence as Exhibit C2 – C10.
Arising from the statement of claim and witness statements on oath of the Claimant, the case of the Claimant is that on the 10th day of March, 2006, the 1st Defendant offered him employment into its company as a US III (personal driver) to be on probation for one year. He was not confirmed within the one year period and his employment was transferred to the 2nd Defendant sometime in 2007 and his working relationship with the 1st Defendant ceased. Claimant averred further that 2nd Defendant confirmed his employment on the 17th of August 2007 and has since been responsible for payment of his salaries, payment of 13th month salary on every 15th of December, deduction of pension contribution to Stanbic IBTC pension scheme and tax dues while he also takes directives from the said 2nd Defendant. He added that the 2nd Defendant posted him to Bayelsa on the 22nd of July, 2016. Claimant averred that he worked with the 2nd Defendant for 12 years and that he was entitled to promotions from USIII to USII and then to USI which attracts N5000 per promotion which was never paid. He added that he was shocked to receive a termination letter from the 1st Defendant who had ceased to be his employer and same being honoured by the 2nd Defendant and the letter of termination omitted his unutilized leave allowance for 4 years while the letter issued by the 1st Defendant has prevented him from accessing his pension with Stanbic IBTC who recognizes the 2nd Defendant as his employer.
Upon cross examination, CW1 admitted it is true that he was employed by the 1st Defendant but the 1st Defendant transferred his services to the 2nd Defendant in 2007. He added that the 2nd Defendant issued him a confirmation letter which is the 2nd offer letter but his duties with the 2nd Defendant did not change while payment changed. He insisted he is owed allowances and that is why he is in court. CW1 further stated that it is not correct that his confirmation letter is pursuant to the letter of employment but admitted that his letter of employment stated that he could be seconded to any of the sister companies. He admitted that he signed the letter of termination issued to him by 1st Defendant but that same was signed under duress and that he had approached his pension managers for his pension which he would have collected if it was processed. CW1 in conclusion asserted that he was promoted and was not properly remunerated by 1st Defendant.
Upon the discharge of CW1, Claimant closed his case while the Defendants opened theirs by calling a sole witness in person of Salako Olutayo Babajide as DW1 whose witness statement on oath was adopted and marked as D1. Four documents were tendered through DW1 and same were admitted in evidence as D2- D5 except for D4(b) that was admitted under protest.
Arising from the statement of defence and witness statement on oath, the case for the defendant is that the Claimant was employed by the 1st Defendant and only seconded to 2nd Defendant for reasons of administrative convenience and in line with the terms of his offer. The Defendants denied that the Claimant’s employment was transferred to the 2nd Defendant and in principle, he remained a staff of the 1st Defendant that hired him and issued his one and only offer document while stating that both 1st and 2nd Defendants are affiliated to Zenith Bank Plc. The Defendants also averred that the Claimant was not promoted but had his salaries reviewed periodically and as at the time of his exit he was not owed any amount as his salaries and allowances were paid. The Defendants averred further that it was the Claimant who chose his Pension Fund Administrator in accordance with the Pension Act and that he willfully collected and duly acknowledged his termination letter and terminal entitlement without exhibiting any shock, protest or disapproval and he was paid one month basic salary in lieu of notice. They added that the Claimant enjoyed his leave for the year 2013 and 2014 while the policy of monetizing unutilized leave was jettisoned in 2015 hence the Claimant is not entitled to any relief.
In the course of cross examination, DW1 stated that the Claimant is currently an employee of the 2nd Defendant although he had worked with the 1st Defendant while both are separate companies. He admitted that 1st Defendant never confirmed the employment of the Claimant while with the 2nd Defendant and that after the confirmation, 1st Defendant still paid the Claimant. DW1 stated that the offer of employment is all that is needed to register with PFA. He confirmed that Exhibit C5 and C8 says nothing about 1st or 2nd Defendant and that the Defendant are not in any way indebted to the Claimant. He asserted that the letter of employment clearly shows that the Claimant can be seconded to another company while Exhibit C10 does not apply to the Claimant but someone else.
Upon re-examination, DW1 clarified that at the time he deposed to the witness statement on oath, he was working with the 1st Defendant.
Upon discharge of the DW1, the Defendants closed their case and case was adjourned for adoption of final written address.
The Defendants filed their final address on the 7th of October, 2019 and same was adopted by counsel to the Defendant, Emenike Ebete Esq., on the 20th of November, 2019. Arising from the said final address, counsel to the Defendant formulated two issues for determination to wit:
- Whether the Claimant’s employment was duly terminated by the 1stDefendant; and
- Whether the Claimant has proved any or all of his claim on his terminal benefits.
In arguing issue one, counsel contended that it is not in dispute that the Claimant was employed by the 1st Defendant on the 10/03/2006 vide a letter of appointment dated 10/03/2006 which was tendered as EXHIBIT C2. He added that Claimant was seconded to the 2nd Defendant in accordance with paragraph 2 of the Claimant’s letter of conditional employment where it was clearly stated that the Claimant’s services could be seconded to any of its customers and/or sister companies.
Counsel contended further that the Claimant did not tender any letter of employment from the 2nd Defendant and that other documents tendered by the Claimant cannot avail him. He added that exhibit C7 is undated and urged the court to attach no weight to it. He cited the case of GLOBAL SOAP & DETERGENT IND. LTD v. NAFDAC (2011) LPELR-4202(CA).
With regards to Exhibit C8, counsel posited that it was the Claimant who chose his Pension Fund Administrator as stipulated by section 11 of Pension Reform Act while Exhibit C10 is not a document belonging to the Claimant.
Counsel argued that in a claim for wrongful termination, the Claimant has to prove that he is an employee of the Defendant. He cited the cases of AJUZIE v. FBN PLC (2016) LPELR-40459(CA) pp. 33-34, paras. C-E and WAEC & ORS v. IKANG (2013) LPELR20422(CA) pp. 26-28, paras. F-A to contend that the documents tendered by Claimant on the face of it do not show that the Claimant was employed by the 2nd Defendant.
Counsel added that upon the Claimant collecting his terminal benefit after accepting his letter of termination without objection, the process of termination is complete and the Claimant cannot turn around to say his employment was wrongfully terminated. He cited the case of MOROHUNFOLA V. KWARA TECH. [1990] 4 NWLR Pt. 145 p. 506 @ p. 525- 527, paras. H-A, p.527, paras. B-D.
Counsel also argued that in view of the Claimant’s declaratory relief, he has to succeed on the strength of his case and not on the weakness on the defence. He cited the case of TADUGGORONNO VS. GOTOM [2002] 4 NWLR pt. 757 p. 453 @ p. 476, paras. C-E and urged the court to hold that at all times material, the Claimant was an employee of the 1st Defendant in which case the 1st Defendant has the right to terminate his employment with or without reason.
Counsel further argued that secondment of service is not a full employment but a temporary transfer of one’s service to another similar service. He cited the case of DALHATU V. AG KASTINA STATE & ORS. (2007) LPELR8460(CA) p. 40, paras. B-C and TADUGGORONNO VS. GOTOM [2002] 4 NWLR pt. 757 p. 453 @ p. 476, paras. C-E and urged the court to resolve issue one in favour of the Defendants.
In arguing issue two, counsel contended that the Claimant is not entitled to any of the claims in reliefs 2 to 7 of his Complaint and the Statement of Facts.
With regards to relief 2, counsel posited that Claimant’s monthly basic salary is N60,000 and not N63,000. He referred the court to Exhibit C2 and D2 while in respect to relief 3, he argued that the salary in lieu of notice was paid via exhibit D5 the sum stated in Exhibit D4A as unearned salary.
With regards to relief 4, counsel contended that Claimant did not establish that he is entitled to the sum claimed as unutilized leave as same is a specific damages which require specific proof. He cited the cases of UDEGBUNAM V. F.C.D.A. [19961 5 NWLR pt. 474 p. 449 p.485, para. F.
With regards to relief 5, counsel contended that the Claimant failed to tender any letter of promotion and or evidence that each stage attracts N5,000.
With regards to relief 6, counsel contended that the Claimant is required to plead and lead evidence on the dates he went to Stanbic IBTC, and who harassed and embarrassed him. He added that the Claimant is required to state what manner of harassment and how or who assaulted him.
Counsel posited that the Claimant did not call any witness to testify on who assaulted and harassed him at Stanbic IBTC and one who asserts must prove.
With regards to relief 7, counsel contended that the claims is unknown to labour law as the damages an employee is entitled to for wrongful termination of his employment is salary in lieu of notice which has been paid to him. Counsel cited the case of NWLROGBAJI VS. AREWA TEXTILES PLC. [2000] 11 NWLR pt… pp. 335-336, paras. F-F.
Counsel concluded by urging the court to dismiss the Claimant’s suit with substantial cost.
In reaction to the defendant’s final address, Claimant filed his final address on the 28th of October, 2019 and same was adopted by counsel to the Claimant, Gobari Deebom Esq., on the 20th of November, 2019. Arising from the said final address, counsel to the Claimant formulated two issues for determination to wit:
- Whether as at the 17th day of August, 2017, the Claimant was an employee of the 1stDefendant to be entitled to terminate Claimant’s employment.
- Whether the Claimant has discharge the burden of prove by credible evidence to be entitled to the reliefs sought.
In arguing issue one, counsel submitted that “EXHIBIT 2” which is the “OFFER OF EMPLOYMENT” expressly stated on page 2 that the appointment is subject to confirmation, based upon satisfactory performance of your duties, after a period of one year. He added that the Claimant was in the employment of the 1st Defendant from the 10th day of March, 2006 to 10th day of March, 2007, which was the completion of one year the supposed effective date of the Claimant’s confirmation of his employment by the 1st Defendant. Counsel contended that the 1st Defendant deliberately breached the said “EXHIBIT 2” and refused to confirm Claimant’s employment.
Counsel contended that going by the breach, 1st Defendant has no legal standing to enforce the terms of the said Exhibit 2 which she is in breach of against the innocent Claimant. He added that the law has long been settled that a person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. He cited the case of OGUNDALU VS. MACJOB (2015) 8 NWLR (PT. 1460) 97.
Counsel also contended that the refusal and or failure of the 1st Defendant to confirm the Claimant’s employment after the one year probation period and the subsequent confirmation by the 2nd Defendant presupposes that the Claimant was no longer an employee of the 1st Defendant. He cited the case of SIMEON IHEZUKWU VS. UNIVERSITY OF JOS & ORS (1990) 4 NWLR (PT. 146) 596.
Counsel added the case of AOUAD VS. KESSRAWANI (1956) N.S.C.C. 33 to contend that the law is settled that in construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document.
Counsel also contended that the 2nd Defendant having held itself out to the Claimant as his employer, is estopped from acting in that capacity. Counsel cited section 169 of the Evidence Act, 2011 and the case of CHUKWUMA VS. IFELOYE (2008) 18 NWLR (PT. 118) 204 AT 237-238.
Counsel referred the court to Exhibit C10 and the definition of transfer from Black’s Law Dictionary to posit that the 2nd Defendant transfers her staff to 2nd Defendant and concluded by urging the court to resolve issue one in favour of the Claimant.
With regards to issue two, counsel recounted the fact that Claimant testified before this court and also tendered exhibits C2 – C10. He added that it is the law that in an action for wrongful termination of employment or dismissal, it is necessary for the Plaintiff to plead and tender in evidence his letter of appointment and failure to do so may be fatal to his case. He cited the case of SAVANNAH BANK OF NIGERIA PLC VS. BLESSING A. FAKOKUN (2002) I NWLR (PT. 749) 544 AT 548, RATIO 1.
Counsel also contended that it is the law that a party who seeks declaratory relief is bound to establish his claim on the strength of his case as Claimant has done in this instant case. He cited the cases of INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) VS. HON. EMEKA ATUMA & 2 ORS. (2013) 11 NWLR (PT.1366) 494 AT 500 RATIO 2, NWOKIDU VS. OKANU (2000) 3 NWLR (PT. 1181) 362, DANTATA VS. MOHAMMED (2007) 7 NWLR (PT.664) 176; EKAN VS. BARUWA (1922) ALL NLR 211; UCHA VS. ELECHI (2012) 13 NWLR (1317) 330; DUMEZ (NIG.) LTD VS. NWAKHOBA (2008) 18 NWLR (PT. 1119) 361; CHEWENDU VS. MBAMALI (1980)3- 4 SC 31; BELLO VS. EWEKA (1981) I SC 101; OLUBODUN VS. LAWAL (2008) 17 NWLR (PT. 1115)1; OGUNJUMO VS. ADEMOLU (1995)4 NWLR (PT. 389) 254; OJO-OSAGIE VS. ADONRI (1994) 6 NWLR (PT.349) 131.
Counsel thereon referred to facts stated in the statement of fact and written statement on oath of the Claimant to contend that it is the 2nd Defendant who ought to terminate the Claimant’s employment. Counsel also added that the Claimant being the only credible witness has proved his case to be entitled to judgment in this suit. He cited the case of STEPHEN ONOWHOSA & ORS VS. PETER IKEDE ODIUZOU & ANOR (1999) 1 NWLR (PT. 586) 173, RATIO 5.
Counsel made some reply to the Defendant’s final address and concluded by urging the court to discountenance the submission of counsel to the Defendants as Claimant has proved his case and entitled to judgment in his favour.
By way of reply on point of law filed on the 19th of November, 2019, counsel to the Defendants responded to the submission of counsel to the Claimant.
By the said reply, counsel posited that estoppel is to be used as a shield and not as a sword. He cited the case of ABALOGU V. SPDC (NIG) LTD (2003) LPELR-18(SC) p. 30, paras. C-F, p. 31 paras. D-G, p.32 paras A-G, p. 33 para. A.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and the reply on point of law of the Defendant, the sole issue for the determination of this suit is to wit:
- Whether or not the claimant is entitled to the reliefs sought in view of the facts, evidence led and circumstances of this case?
Before addressing the sole issue, it is incumbent upon this court to address the status of the exhibits D4(b) which was admitted under protest.
With regards to the said exhibit D4(b), the contention of Counsel to the Defendant is that same was not frontloaded.
In view of the contention, while I reckon that counsel to the Claimant did not make any argument in respect of the admissibility of the said document in the final written address, I have taken a look at the said Exhibit D4(b) and found that same is an acknowledged copy of a letter dated 20th September, 2017 and addressed to the Claimant with the title ‘Re:Termination of Employment’. I have also taken another look at the list of documents and found that same was listed as No.3 on the list of documents as part of the documents to be relied upon by the Claimant.
With regards to the objection to admitting the document on the basis of failure to frontload, without much ado, I must state that this court had in the case of Eddie Sunday v Halliburton Energy Services Nigeria Limited (Unreported) Suit No: NICN/PHC/61/2017, delivered on 30th April, 2019 reiterated that the legal position is that documents should not be rejected for failure to frontload same, particularly in view of the fact that the Evidence Act does not make frontloading a document a prerequisite for admissibility. Reliance was placed on the position of the law in OGBORU V. UDUAGHAN (2011) 2 NWLR 538 where the Court of Appeal posited that:
“…there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice.” PER DONGBAN-MENSEM, J.C.A. ( Pp.38-40. E-G).
I find it apposite to adopt the said liberal approach in the instant case having considered the said document to be relevant and pleaded. Consequent upon the foregoing, the contention of counsel to the Claimant is overruled and the said Exhibit D4(b) is accordingly admitted in evidence.
That said, I turn to the sole issue for determination which ultimately touches on the claims made by the Claimant.
With regards to the Claims generally, I reckon that relief 1 is for a declaratory relief and the law is indeed trite as observed by both counsel that the Claimant bears the burden of proof to establish that he is entitled to the said declaratory relief in such a way that he has to succeed on the strength of his case and not the weakness of that of the Defendants. In this regard, the court in IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) held that:
“Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A.
For want of emphasis, the court in OYETUNJI v. AWOYEMI & ORS (2013) LPELR-20226(CA) also held that:
“In line with the general burden of proof as stated above, it is equally trite that in a claim for a declaratory relief a claimant must succeed on the strength of his own case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports his case. See: Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 @ 429 D – E; Kodilinye v. Odu (1936) 2 WACA 336 @ 337; Onwugbufor v. Okoye (1996) 1 NWLR (424) 252; Shittu v. Fashawe (2005) 14 NWLR (946) 671.” Per KEKERE-EKUN, J.C.A. (as she then was) (P. 34, paras. C-E).
In view of the foregoing authority, I must state that I have taken a look at the declaration sought by the Claimant which reads thus:
“A DECLARATION that the purported termination of the claimant’s employment dated the 28th day of August, 2017 by the 1st Defendant and acted upon by the 2nd Defendant: the Claimant’s employer, is null and void and of no legal effect whatsoever”.
In view of the foregoing, I find it apposite to foremost clear the misconception that the termination of an employment of master servant can be declared null and void as same can only be declared wrongful where there is no compliance with the terms of employment. That being the position of the law as stated in the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) where the court held that:
“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).
In the instant case, it is manifestly clear that the 1st And 2nd Defendants are private corporate entities registered under the relevant laws. They are not a creature of any statute hence the employment relationship of the Defendants with the Claimant is not one with statutory flavor and the resultant effect is that the termination of the Claimant’s employment cannot be declared null and void but merely wrongful.
Having said that, I reckon the peculiarity surrounding the claim for the said declaratory relief as sought by the Claimant which is to the effect that he contended that his employment ought to have been terminated by the 2nd Defendant whom he regards as his employer and not the 1st Defendant. Claimant posited that he was employed by the 1st Defendant and transferred to the 2nd Defendant who confirmed his employment and started assigning him duties and postings while also paying his salaries and allowances including his pension contribution and taxes.
In proof of his case, he tendered Exhibits C2 – C10.
The Defendants in reaction contended that the Claimant at all material times remained the employee of the 1st Defendant who appointed him in the first place but that the Claimant was only seconded to the 2nd Defendant for administrative convenience and that was an agreement originally made in the letter of employment issued to the Claimant by the 1st Defendant.
It is in view of the foregoing that it is apposite to evaluate the evidence before the court to ascertain whether or not the 1st Defendant has the capacity to terminate the Claimant’s employment. In other words, whether at any point in time, the 1st Defendant ceased to be the employer of the Claimant.
Foremost is to consider Exhibit C2 which was tendered by the Claimant as his letter of offer of employment dated the 10th of March, 2006 wherein I find that paragraph 2 of the said letter reads:
“The Company is at liberty to second your service to any of its customers and/or sister companies”. (emphasis mine)
In view of the foregoing, I must state that the words in the foregoing paragraph is clear and unambiguous and in that wise, the court in WEMA BANK PLC v. OSILARU (2008) 10 NWLR (Pt.1094) 150 at 177, paras. F-G (CA) held that:
“It is trite that where the language of an agreement is clear and unambiguous, the only interpretative jurisdiction of the court is to make pronouncement on the clear and unambiguous agreement and agree with them. The court is not to interfere at all. See First Bank of Nigeria v. Songonuga (2007) 3 NWLR (pt. 1021) 230.” Per OKORO, J.C.A. (Pp. 28-29, paras. D-A).
Relying on the foregoing authority, the Claimant is deemed to have known from the onset that he may be sent to work under any other organization aside from the 1st Defendant by way of ‘secondment’ and the 1st Defendant is with the discretion of determining the terms of the said secondment.
Although, the Claimant considered himself to no longer be an employee of the 1st Defendant when he was in his words ‘transferred’ to the 2nd Defendant by the 1st Defendant, such notion cannot ordinarily be deduced from the content of exhibit C2.
That notwithstanding, the basis upon which the Claimant considers that he is no longer an employee of the 1st Defendant is as presented to the court in exhibit C4, which is the letter of confirmation issued to him by the 2nd Defendant and dated the 17th of August, 2007. While the Claimant did not state the exact date he was ‘transferred’ to the 2nd Defendant, he was by the letter of confirmation informed that:
“Your appraisal for the first one year of your employment has shown that you have performed satisfactorily well. Your employment is hereby confirmed as a permanent staff of Peopleplus Management Services Limited with effect from August 17, 2007”. (underline mine)
The foregoing without a doubt states that the Claimant is confirmed as a permanent staff of 2nd Defendant notwithstanding the fact that it was the 1st Defendant that issued the Claimant employment letter one year and five months ago. This also indicates that the confirmation was predicated on the period which the Claimant had spent with the 1st Defendant since he is yet to spend one year with the 2nd Defendant.
The inference that the letter of confirmation is predicated on the initial relationship of the 1st Defendant with the Claimant is strengthened by the admission by both the Claimant and the Defendants that the 1st and 2nd Defendants are affiliates of an entity known as Zenith Bank Nigeria Plc.
In view of the foregoing, particularly the content of Exhibit C4, the letter of confirmation, can it be said that the 1st Defendant carried out a secondment and if that was what they did, can it be said that the 2nd Defendant took in the Claimant under secondment or made the Claimant its employee?.
The term secondment is mostly used in the public service which is not the case in the instant suit. That notwithstanding, the Black’s Law Dictionary at page 1555 defines ‘secondment’ as “a period of time that a worker spends away from his or her usual job”. The court in the case of ALHAJI HAMZA DALHATU v. ATTORNEY GENERAL, KATSINA STATE & ORS (2007) LPELR-8460(CA) also reckoned the meaning of secondment as used in the Public service rules when it stated that:
“SECTION 6 – TRANSFERS AND SECONDMENT 02601 – TRANSFER is the permanent release of an officer from one service to another or from one class to another within the same service. SECONDEMENT means the temporary release of an officer to the service of another Government or Body for a specified period.” Per ARIWOOLA, J.C.A. (P.34, paras. A-B).
In the instant case, even though the 1st Defendant reserved the right to second the Claimant to a sister company, there was no specified period within which the Claimant was expected to be with the 2nd Defendant and to return to the 1st Defendant. There were no clear terms guiding the secondment hence it is left to the jaws of implied terms and in the instant case, it can be duly implied that the Claimant was permanently handed over to the 2nd Defendant as an employee of the 2nd Defendant notwithstanding the fact that his original letter of employment was issued by the 1st Defendant. In other words, the implication of exhibit C4 is that while the letter of employment issued by the 1st Defendant contemplated secondment, what was in actual fact done was a permanent transfer of service as the Claimant was absorbed by the 2nd Defendant as a permanent staff.
In addition, while I reckon the contention of counsel to the Defendant that it was the Claimant who chose his pension fund administrator, I must state that the Claimant in choosing his pension fund administrator stated his employer to be the 2nd Defendant as indicated on exhibit C8, which is the Pension Registration Certificate owing to the content of exhibit C4, which is the letter of confirmation of employment issued to him by the 2nd Defendant as a permanent staff of the 2nd Defendant.
Having said that, I am mindful of the fact that the basis upon which Claimant sought for relief one is that he claimed not to be able to access 25% of his pension because his letter of termination which is required to claim the pension bears the name of the 1st Defendant when his employer in the registration of the pension scheme is indicated to be the 2nd Defendant.
I am also mindful of the fact that the Claimant has accepted his terminal benefit as collated and paid by the 1st Defendant via exhibit D4(b) and the copy of the cheque tendered as Exhibit D5 both of which were acknowledged by the Claimant. The said Exhibit D4(b) also contains salary in lieu of notice computed as N6,250. This act of the Claimant in collecting the cheque which was in the name of the 1st Defendant clearly shows that the Claimant had no difficulty with the termination as at the time it happened and that he continued to accommodate both Defendants as his employers. The issue at hand only arose when Claimant was to claim 25% of his pension and needed to tender the letter of termination as he recounted in paragraphs 27 – 31.
The foregoing indicates that the termination of the Claimant’s employment is not wrongful as the Claimant has collected his salary in lieu of notice and the Defendants reserves the right to terminate the contract of employment. This further concretised by the position of the law as stated in SIMEON v. COLLEGE OF EDUCATION, EKIADOLOR BENIN (2014) LPELR-23320(CA) where the court held that:
“Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. As long as he acts within the terms of his employment, the terms of his employment or motive for doing so is irrelevant. See: IDONIBOYE-OBU V. NNPC (2003) 2 NWLR (PT. 805) NWLR (PT. 805) 589.” Per EKPE, J.C.A. (P. 43, paras. C-F).
Furthermore, the determination of relief one requires a holistic consideration of the nature of employment in the instant suit which is akin to a triangular type of employment wherein a person is employed by one to work for another and upon which the court in the case of PENGASSAN v Mobil Producing Nig. Unlimited (2013) 32 NLLR (Pt.92) 243 posited that the employment relationship is to be founded upon primacy of fact in such instance. The court held that:
“The determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. This is known in law as the principle of the primacy of facts, which is explicitly enshrined in some national systems. This principle might also be applied by judges in the absence of an express rule.” Per Kanyip J (as he was then, now PNICN).
Consequent upon the primacy of fact, it is considered that both 1st and 2nd Defendant were employers of the Claimant thereby creating a triangular employment and the only basis upon which relief one is considered is the determination of who should have issued the Claimant with letter of termination of employment between the 1st and 2nd Defendant?.
To make the said determination, I am not oblivious of the fact that the 1st and 2nd Defendants are distinct entities under the law as the principle of separate corporate entity is sacrosanct. See the case of Salomon v. Salomon (1897) AC 22 . However, in view of the fact that their separate existence has put the Claimant in a quagmire and the fact that the letter of termination issued to the Claimant by the 1st Defendant is preventing the Claimant from enjoying the fruit of his labour, I must state that there are circumstances where the veil of incorporation can be lifted. In this wise, the court in NEW NIGERIAN NEWSPAPERS LTD. V. AGBOMABINI (2013) LPELR-20741(CA) held that:
“An incorporated limited liability company is always regarded as a separate and distinct entity from its shareholders and directors. The consequence of recognizing the separate personality of a company is to draw the veil of incorporation over the company. No one is entitled to go behind the veil. This corporate shell shall however be cracked in the interest of justice” Per ABIRU, J.C.A. (Pp. 40-41, Paras. F-E).
In the interest of justice therefore, I find that the employment letter issued to the claimant subsists as his letter of employment upon which the 2nd Defendant confirmed his employment and made him a permanent staff. Consequently, the letter of termination of the Claimant’s employment ought to have been issued by the 2nd Defendant and not the 1st Defendant.
In view of the foregoing, the Claimant is entitled to relief one although not in the exact way the relief was sought. In the interest of justice, this court finds that the Claimant has satisfactorily established that the 2nd Defendant is also his employer and the appropriate body to issue its letter or termination and this court therefore makes:
“A declaration that the issuance of the letter of termination of appointment to the Claimant by the 1st Defendant when it ought to have been issued by the 2nd Defendant who made the Claimant a permanent staff is improper”.
I then move on to consider the next relief which is for AN ORDER of this Honourable Court that the Claimant is entitled to his monthly salaries of N63,000.00 (Sixty Three Thousand Naira) and other entitlements from September, 2017 till judgment delivered and same complied with upon payment by the Defendants.
In consideration of the said relief, I find it inordinate that the Claimant wants salaries from both defendants after he has contended that the 1st Defendant ceased to be his employer after 17th of August 2007. That notwithstanding, I must reiterate that this court has found that the termination of the Claimant’s employment is not wrongful and even if so, the relief the Claimant would be entitled to would merely be the sum payable as salary in lieu of notice and not arrears of salaries from date of termination till judgment is delivered. The Claimant having stopped working for both 1st and 2nd Defendant since 28th of August 2017 has no basis to claim arrears of salaries for no work done. For want of emphasis, the court in the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:
“…where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer, such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).
Consequent upon the foregoing authority and the fact that the termination of the Claimant’s employment was not wrongful, this relief fails and same is accordingly refused.
Relief 3 is for “AN ORDER for the payment of the Claimants one month salary of the sum of N63,000.00 in lieu of notice”.
Upon consideration of the said relief, I had earlier reckoned that the Claimant was paid salary in lieu of notice in the computation of his terminal benefits which the Claimant tendered along with the letter of termination as Exhibit C9. The said document contains entitlement ‘in lieu of notice’ put at the sum of N6,250.00. The Claimant is not contending that the sum is not what he is supposed to earn as salary in lieu, hence I will not bother about the propriety or otherwise of the sum even though he has stated the sum of N63,000.00 as his salary in lieu of notice. This is because the Claimant has not placed any evidence before the court to established that what he earns as salary is N63,000 while the only document relating to salary of Claimant is the letter of employment tendered as Exhibit C2 issued to the Claimant by the 1st Defendant which puts the Claimant’s annual Basic salary as N76,000.
Consequent upon the foregoing, the claim for payment of salary in lieu of notice in the sum of N63,000 is unsubstantiated and same is accordingly refused.
Relief 4 is for Payment of the sum of the unutilized leave-day(s) part of terminal benefit for 4 years from 2013, 2014, 2015 and 2016 wrongfully omitted by the Defendant in the purported termination of appointment letter which is N131, 010. 24.
With regards to the said relief 4, Claimant posited that his unutilized leave days for the years 2013, 2014, 2015 and 2016 were wrongfully omitted from the terminal benefit computed and paid to him. He contended that the said leave allowance amounts to the sum of N131, 010. 24.
The Defendant in denying the Claim contended that the Claimant enjoyed his leave for the years 2013 and 2014 while the policy of monetization of unutilized leave which was an act of magnanimity on the part of the Defendants was jettisoned in the year 2015.
In view of the denial by the Defendants, the burden is on the Claimant to establish that he did not utilize his leave for the years 2013, 2014, 2015 and 2016. In addition, I am not unmindful of the fact that the sum claimed as the total of the unutilized leave allowance is in the realm of special damages which does not only require specific pleading but also need to be strictly proved. In the case of Egom v. Eno (2008) 11 NWLR (Pt.1098), the Court held that:
“In Alhaji Otaru & Sons Ltd. v. Idiris & Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153. In this case, there was no evidence in proof of the various items that made up the N 159,610.00 claimed as special damages.” Per NGWUTA J.C.A. (P. 26-27, paras. E-A).
In the instant case, there is no scintilla of evidence to specifically establish how the Claimant arrived at the sum of N131,010.24 this is in addition to the fact that the Claimant failed to state with particularity the sum accruing to him as leave allowance for each year and the basis upon which the sum was accrued. This becomes necessary upon a consideration of the fact that the years for which unutilized leave allowance were paid, were for specific number of days which vary from year to year as evidently captured in Exhibit C9/D4(b).
Consequent upon the failure to present cogent and convincing evidence in respect of the claim for unutilized leave allowance, relief 4 fails and same is refused accordingly.
Relief 5 is for “the Payment of the sum of N480, 000.00 (Four Hundred and Eighty Thousand Naira) being an arrears of Claimants promotion from US III to USI-of N5,000.00 addition with effect from March, ending 2010 to 2014 and April, 2010 to March, 2013”(sic).
Claimant contended for the purpose of this relief that while he was employed into the position of USIII by the 1st Defendant and since the confirmation of his employment by the 2nd Defendant, he was entitled to promotion which has been approved by the one Vincent Okoli who stated that he, the Claimant was due for promotion from USIII to USII and from US II to USI. Claimant added that each promotion attracts additional N5000 to his salary hence the additional sum having not been paid since March 2010 amounts to the sum of N480,000.
The Defendant in response contended that the Claimant was not promoted in the course of his employment.
Consequently, the burden of proof rests upon the Claimant to establish that he was indeed promoted from USIII to USII and later from USII to USI and to present the basis upon which the said sum of N5,000 accrues to him upon the said promotion. This is predicated on the settled and elementary principle of law that he who asserts must prove. See Ojoh v. Kamalu (2005) 18NWLR (Pt. 958) Pg. 523 at 565 Paras.F – G.
In the instant case, the only evidence in relation to the claim for arrears for promotion is exhibit C7 wherein the Claimant was recommended to be ‘suitable for promotion when opening occurs’. The said evaluation form bears no date to establish what year it was made, when the opening later occurred or when Claimant was recommended for promotion. In addition and most importantly, the said exhibit is not in itself a letter of promotion or recommendation for promotion to say the least. Consequently, there is no iota of proof before this court that the Claimant was indeed promoted and entitled to the sum claimed for the alleged promotion. It is needless therefore to state that relief 5 lacks merit and same is dismissed accordingly.
Relief 6 is for the sum N2,000,000.00 (Two Million Naira) as damages for the inconveniences and public harassment caused the claimant at the Stanbic IBTC Pension office that he falsified termination letter from 1st Defendant when the 2nd Defendant is his employer who is supposed to terminate his employment.
The Claimant predicated the claims merely on his assertion that 6 months of the termination of his employment, he has been perpetually denied access to his 25 percent of his pension savings with the Stanbic IBTC because on presentation of the purported termination letter from 1st Defendant, the Stanbic IBTC refused him that his employer is the 2nd Defendant and not the 1st Defendant. He added that he was harassed, embarrassed and assaulted publicly that he falsified the said document that he is still in the employment of the 2nd Defendant.
The Defendants denied the foregoing while counsel to the Defendant contended that there is no proof that he was harassed, assaulted or embarrassed.
Rightly so, the burden is on the Claimant to establish that he was indeed embarrassed, harassed and assaulted at Stanbic IBTC Pension Office upon presentation of the letter of termination of employment issued to him by the 1st Defendant. In view of the said burden, no evidence has been placed before this court to substantiate the alleged harassment and assault. The mere assertion by the Claimant will not suffice that he suffered such damage. Consequent upon the failure to prove that he suffered any such damage, the claim for the sum of N2,000,000.00 as general damages lacks merit and same is accordingly refused.
Relief 7 is a claim for the sum of N2,000,000.00 (Two Million Naira) as general damages for the wrongful termination of his employment. While I have earlier reckoned that the termination of the Claimant’s employment was not in itself wrongful, I must add for the sake of the said relief 7 that even where a termination is wrongful in a master servant employment, the remedy available is to the extent of what the employee would have earned as salary in lieu of notice. The court in NITEL Plc. v. Akwa (2006) 2 NWLR (Pt.964)391 held that:
“The law is settled, that where an employee’s appointment is terminated wrongfully or otherwise all he is entitled to is what he would have earned over the period of notice required to lawfully terminate this employment. The amount he is entitled to in his case is one month salary in lieu of notice and no more. See International Drilling Co. (Nig.) Ltd. v. Ajijala (1976) 2 SC 115; Akunforile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (supra).” Per SANUSI, J.C.A (P. 42, paras. A-D).
Consequent upon the foregoing authority, there is no factual nor legal basis for the claim of the sum of N2,000,000.00 as general damages for wrongful termination and same is accordingly refused.
Having addressed all the claims, it is safe to say that the sole issue is resolved largely against the Claimant to the effect that upon a careful consideration of the entire facts and circumstance of this case, the Claimant is not entitled to the reliefs 2 – 7 as sought while relief 1 is granted only to the extent at which this court has declared.
In the final analysis, I find the claims of the Claimants to be largely unmeritorious as reliefs 2 – 7 lacks merit and they are accordingly dismissed.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR.
JUDGE
