IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.
DATE: MONDAY 1ST APRIL 2019
SUIT NO. NICN/LA/282/2018
BETWEEN
MR. ADENIRAN SAMUEL DURODOLA
CLAIMANT
AND
THE REGISTERED TRUSTEES OF DAYSTAR CHRISTIAN CENTRE
DEFENDANT
Representation:
R. A. Isinsin appears for Claimant
A. O. Adebayo appears for the Defendant
JUDGMENT
1. Introduction:
Claimant instituted this Suit by a General Form of Complaint on the 7th of May 2018 and claims as follows:
⦁ A declaration that the contract of employment between the Claimant and the Defendant can only be validly terminated by the Defendant in line with its staff handbook and not by any other party.
⦁ A declaration that the purported dismissal of the Claimant from the employment of the Defendant by DCC Estates Limited, a company the Claimant was seconded to and who was not privy to the contract between the Claimant and the Defendant is illegal, null and void.
⦁ An order mandating the Defendant to pay the Claimant forthwith or within 7 days of the delivery of Judgment in this case, the sum of N839, 429.17 (Eight Hundred and Thirty Nine Thousand, Four Hundred and Twenty Nine Naira, Seventeen Kobo) being the Claimant’s unpaid salary for the end of July 2017 and the months of August, September, October and November 2017.
⦁ An order mandating the Defendant to pay the Claimant forthwith or within 7 days of the delivery of judgment in this matter, the sum of N2,989 800.73 (Two Million, Nine Hundred and Eighty Nine Thousand, Eight Hundred Naira, Seventy Three Kobo) being the Claimant’s unpaid gratuity entitlements.
⦁ An order mandating the Defendant to pay to the Claimant forthwith or within 7 days of the delivery of judgment in this matter, the sum of N100,000 (One Hundred Thousand Naira) being the Claimant’s unpaid Children Allowance for the last quarter of 2017.
⦁ An order mandating the Defendant to remit to the Claimant’s Pension Fund Administrator (PFA) forthwith or within 7 days of the delivery of judgment in this case, the sum of N136, 000 (One Hundred and Thirty Six Thousand Naira) being the Claimant’s unremitted pension.
⦁ The sum of N1, 000,000.00 (One Million Naira Only) as cost of instituting this suit.
2. The Defendant in response entered appearance on 23rd May 2018 and filed a Statement of Defence on same 23rd May 2018. The Claimant filed his Reply to Defendant’s Statement of Defence on 7th June 2018.
3. Trial commenced on the 11th of October, 2018. Claimant gave evidence on his own behalf and was cross examined. He tendered fifteen documents as follows:
⦁ Claimant’s employment letter dated 6th October 2009 – Exhibit C1
⦁ Claimant’s letter of confirmation of employment
dated 24th February 2010 – Exhibit C2
⦁ Defendant’s letter of Secondment/Reployment of the
Claimant to DCC Estates Limited dated 27th March, 2012 – Exhibit C3
⦁ DCC Estate Limited letter of appointing the Claimant
Acting Facility Manager of the dated 21st June 2016. – Exhibit C4
⦁ DCC Estate Limited letter of Performance and Salary
Review dated 24th August, 2016 – Exhibit C5
⦁ Claimant’s pay slip – Exhibit C6
⦁ Claimant’s letter of resignation dated 27th October, 2017 – Exhibit C7
⦁ Defendant’s response letter dated 31st October, 2017 – Exhibit C8
⦁ Defendant’s Staff Handbook – Exhibit C9
⦁ Claimant’s Solicitors demand letter dated 17th January, 2018 – Exhibit C10
⦁ Defendant’s response letter dated 30th January, 2018 – Exhibit C11
⦁ Letter of dismissal – Exhibit C12
⦁ Job description – Exhibit C13
⦁ Employees’ Data form of DCC Estates – Exhibit C14
⦁ Salary review of DCC Estates – Exhibit C15.
4. The Defendant opened its case on the 12th of November, 2018 and called two (2) witnesses namely:
⦁ Mrs Amara Ugochukwu, the Head of the Human Resources and Office Management Department of the Defendant – DW1
⦁ Mrs Uwa Agbogun, the acting General Manager of DCC Estates Limited – DW2
These two witnesses were cross examined; and through them, the Defendant tendered the following 15 exhibits:
⦁ Defendant’s Inter-Office Memoranda (Queries) dated the 28th day of April, 2010; the 22nd day of September, 2010; the 9th day of August, 2011 and the 16th day of February, 2012 – Exhibits D1A – D
⦁ Claimant Solicitor’s (Solomon Edoh Esq.) letter dated the 17th day of January, 2018 and Defendant’s response letter dated the 30th day of January, 2018 – Exhibit D2A-D2B.
⦁ Letter of Introduction dated the 30th day of June, 2013 to Diamond Bank Plc, Ogba branch – Exhibit D3A.
⦁ Letter of Introduction dated the 13th day of November, 2015 addressed to the Entry Clearance Manager of the British Deputy High Commission – Exhibit D3B
⦁ Schedule of Pension contributions of DCC Estates Limited for August, 2007 to IBTC Pension Managers and Deposit Slip – Exhibit D4.
⦁ Workmen’s Compensation Insurance Policy for DCC Estates Limited issued by AXA Mansard Insurance Plc dated the 10th day of December, 2015 – Exhibit D5.
⦁ Lagos State Government Electronic Tax Clearance Certificate (e-TCC) number N-5179936 issued on the 23rd day of November, 2017 – Exhibit D6.
⦁ Letters of Query from DCC Estates Limited dated the 1st day of July, 2013 and the 10th day of September, 2014; Letter of Warning dated the 19th day of July, 2012; Letters of Suspension dated the 27th day of February, 2013 and the 6th day of September, 2013 – Exhibit D7A-E.
⦁ Letter of response to query by the Claimant dated the 3rd day of February, 2013 and letter of response to suspension by the Claimant dated the 8th day of September, 2013 – Exhibit D8 A – B.
⦁ Cheque Payment Voucher of Lagos Business School dated the 26th day of August, 2016 and copy of cheque – Exhibit D9 A – B.
⦁ Letter of Introduction dated the 16th day of June, 2013 addressed to the Consulate of the United States Embassy – Exhibit D10.
⦁ Copy of Customer Loan Application Form and Employee Inquiry Form – Exhibit D11A/D11B.
⦁ Employee Undertaking Forms of GT Bank dated the 5th day of November, 2016 and the 6th day of March, 2017 – Exhibit D12 A & B.
⦁ Leave Request Forms of DCC Estates Limited dated the 30th day of June, 2013; the 3rd day of April, 2014; the 27th day of January, 2015; the 27th day of June, 2016 and the 1st day of March, 2017 – D13 A – E.
⦁ Medical Certificate For Duty issued by Duro Soleye Hospitals dated the 16th day of January, 2016 – Exhibit D14.
⦁ Business Card Information Form of DCC Estates Limited – Exhibit D15.
5. Trial closed on 12th November 2018 and the Court ordered parties to file their final written addresses. The Final Written Addresses were adopted on the 18th February 2019, and the Court adjourned for judgment.
6. Facts of the Case:
The Defendant employed the Claimant as Manager; Technical Services in its Management Services Department by virtue of a letter of Offer dated the 6th day of October, 2009. The Claimant worked assiduously and diligently to the satisfaction of the Defendant leading to the confirmation of his appointment via the Defendant’s letter dated 24th February, 2010. Sometime in March 2012, he received a letter from the Defendant dated 27th of March 2012 seconding and/or redeploying him to DCC Estates Limited. It is Claimant’s case that his secondment and/or redeployment to DCC Estates Limited did not affect his job title and responsibilities as indicated in Defendant’s Letter of Employment dated 6th October, 2009. The Claimant states that his secondment and/or redeployment to DCC Estates Limited was done pursuant to the Defendant’s Staff Hand Book and that the said secondment and/or redeployment did not in any way create a new contract of employment between the Claimant and DCC Estates Limited. It is Claimant’s case that as a result of his hard work, he was by a letter dated 21st June 2016, promoted and/or appointed as Acting Facility Manager of DCC Estates Limited to oversee the operations of the Facility Management Department and directly supervise the unit leaders. The Claimant also states that his appointment as Acting Facility Manager of DCC Estates Limited was pursuant to the merger of the Technical Services Unit and the Facility Management Unit of DCC Estates Limited. The Claimant statess that he has been performing his role diligently as the Acting Facility Manager of DCC Estates Limited until sometime in September 2017, when he received a letter from DCC Estates Limited dated 5th September 2017 purporting to summarily dismiss him from its employment having been on suspension without pay since July 2017. The Claimant states that upon his purported dismissal by DCC Estate Limited, he was only paid the sum N105, 393.78k (One Hundred and Five Thousand, Three Hundred and Ninety Three Thousand, Seventy Eight Kobo) (his mid month Salary) out of his salary leaving an outstanding sum of N83, 570.81k (Eight Three Thousand, Five Hundred and Seventy, Eighty One Kobo) (his end of the month salary) which has remained unpaid till date. Claimant alleges that DCC Estates Limited lacks the legal capacity to dismiss or terminate his employment as he was only a seconded staff from the Defendant and he does not have any contract of employment with DCC Estates Limited. Claimant states that he made several efforts to go back to his parent Company/employer but was informed by the Defendant that since his secondment and/or redeployment in March 2012, he had ceased to be their employee. When it was apparent that the Defendant was not ready to listen to him he was left with no choice but to resign his appointment with the Defendant. The Claimant states that there was never the intention of the parties and neither was it contemplated by any written document nor contract between him and the Defendant that his secondment and/or redeployment to DCC Estates Limited had made the Company the Claimant’s new employer.
Defendant, on the other hand, states that in order for the Defendant to focus on its core objective, which is the propagation of the gospel of the Lord, it incorporated DCC Estates Limited as a Facility Management company to carry on the services provided by its Management Services Department. Upon incorporation of DCC Estates Limited, the Defendant scrapped its Management Services Department and redeployed all members of staff working in its erstwhile Management Services Department including the Defendant to DCC Estates Limited as its first set of employees. The Claimant retained his job title and responsibilities upon his transfer to DCC Estates Limited and his remuneration package, terms and conditions of employment remained the same with that of the Defendant as at the time of transfer.The Claimant was later offered appointment as Acting Facility Manager by DCC Estates Limited by virtue of a Letter of Appointment dated the 21st day of June, 2016; which the Claimant accepted. DCC Estates Limited dismissed the Claimant from its employment by virtue of a Letter of Dismissal dated the 5th day of September, 2017. It is Defendant’s case that the Claimant knew that his transfer to DCC Estates Limited was a permanent transfer of employment, as the Defendant no longer had a Management Services Department; and from the time the Claimant was transferred to DCC Estates Limited to the time he was summarily dismissed by the same organisation, all employment related issues including: appointment, remuneration, salary increment, performance review, promotion, application for leave, training, approval, recommendation, pension, insurance, tax payment, discipline and all related documentation involving the Claimant were handled, approved and/or facilitated by DCC Estates Limited and there was no recourse to the Defendant whatsoever.
In Reply to the Defendant’s Statement of Defence, the Claimant maintained that he was never aware that his secondment to DCC Estates Limited made him a permanent employee of the Company in view of the fact that the Company was owned by the Defendant and neither was he at any point in time informed either in writing or orally of the said facts. He contends that the letter dated 21st of June, 2016 appointing him as the Acting Facility Manager of DCC Estates Limited does not in any way constitute or translate to a contract of employment between him and DCC Estates Limited.
7. Arguments of Counsel:
Defendant, in its Final Written Address formulated the following issues for determination:
⦁ Whether or not the Claimant remained an employee of the Defendant upon the following events: first, his successful redeployment to DCC Estates Limited; second, his subsequent appointment as Acting Facility Manager of DCC Estates Limited; and third, the employer-employee relationship that existed between DCC Estates Limited and the Claimant to the exclusion of the Defendant in the circumstances of this suit.
⦁ Whether or not the Defendant can be mandated to pay the Claimant the following: first, salaries from mid-July 2017 to November 2017 for services not rendered to the Defendant and second, gratuity entitlement, allowances and contributory pension for the period when the Claimant was not in the employ of the Defendant in the circumstances of this suit.
8. On the first issue, Defendant submits that Exhibit C3 constituted the basis of the employment of the Claimant by DCC Estates Limited; and was a permanent transfer of employment to which the Claimant duly consented. They also submit that Exhibit C4 was an offer of appointment by DCC Estates Limited to the Claimant, which the Claimant accepted by conduct and in writing by virtue of Exhibit C13. Defendant submits that there is sufficient evidence to hold that the Claimant was no more an employee of the Defendant based on the following: first, his redeployment to DCC Estates Limited on the 27th day of March, 2012; second, his Letter of Appointment as Acting Facility Manager of DCC Estates Limited; and third, the various acts of the Claimant and DCC Estates Limited and supporting documents depicting the existence of an employee-employer relationship between them.
9. On the second issue, Defendant argues that the Claimant did not show proof that he was in the employment of the Defendant from mid-July 2017 to November 2017; neither did he prove that he was entitled to gratuity entitlement, allowances and contributory pension for the period when he was not in the employment of the Defendant. Defendant argues that the amount used by the Claimant to compute his entitlements and gratuity was never received by the Claimant as salary during his employment with the Defendant.
10. The Claimant submits a lone issue for determination:
⦁ Whether having regards to the facts and evidence before this Honourable Court, the Claimant has not proved his case to be entitled to the reliefs sought in this suit.
11. Claimant in his argument on the lone issue submits that in view of the fact that the Defendant in its Statement of Defence alleged that the Claimant was transferred to DCC Estates limited but could not support its averment with any evidence, the Defendant has abandoned its pleadings.
Claimant argues that Claimant was seconded to DCC Estates Limited, and that by the definition of secondment, three fundamental facts to be noted are that:-
⦁ It is a temporary transfer and not a permanent transfer of employment.
⦁ The secondment employer will be responsible for the payment of the employee’s salary.
⦁ The secondment employer has no right to fire the employee.
He further argues that assuming but without conceding that what was done was actually a transfer and not secondment, the transfer cannot be regarded as a permanent transfer of the Claimant’s contract of employment from the Defendant to DCC Estates Limited for lack of compliance with the procedure laid down in Section 10 of the Labour Act which provides that:
10 (1) The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorized labour officer.
(2) Before endorsing the transfer upon the contract, the officer in question
(a) Shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake.
He referred to the case of Ogun State Hotel, Abeokuta & Anor v. HUHPSW (2010) 18 NLLR (PT. 51) PAGE 399 and Fadairo v. LBIC Ltd (2009) 15 NLLR (PT. 40) PAGE 18 AT 39, where it was held that:
The position of the law is therefore clear that no employee can be transferred from one employer to another without his consent.
On if he was redeployed, Claimant submits that an employee can only be redeployed from one department to another within an employer’s organization or an associated employer; and that redeployment does not in any way amount to a permanent transfer of an employment from one employer to another. He referred to the definition of the term “redeployment” by Thomson Reuters Practical Law as contained in paragraph 4.12 of the Defendant Address wherein the term was defined as:
The movement of an employee into a different role or department within the employer’s business or that of an associated employer, often as a means of avoiding dismissal due to redundancy
See www.uk.practicallaw.thomsonreuters.com
Claimant thereafter submits that “Redeployment” only entails the physical movement of the employee from a different role or department within the employer’s business or that of an associated employer; and that the redeployment of the Claimant to DCC Estates Limited by the Defendant, if at all, does not in any way create a new employment relationship between the Claimant and DCC Estates Limited. He submits that the fact that DCC Estates Limited was paying the Claimant’s salary and other entitlements without recourse to the Defendant after the Claimant’s secondment to the Company, does not presuppose that there exists a contract of employment between the Claimant and DCC Estates Limited as the Defendant did not tender any evidence to prove the existence of a contract of employment between the Claimant and the DCC Estates Limited. Claimant further referred to the case of Anike v. SPDCN Ltd (2012) 28 NLLR (PT. PAGE 350 AT PAGE 376 PARAS H-B, where the Court of Appeal stated that:
The existence of a contract of service between one party and the other must be proved by empirical evidence. It cannot be inferred from the evidence or the fact that the salaries and allowances were paid to CPL Sylvester Anike (A seconded staff) by the Respondent (The seconded Company) as the Appellant is suggesting through the evidence of PW. 2.
See also the decisions of the Courts in Nitel v. Oshodin (1999) 8 NWLR (PT. 616) PAGE 528 AT PAGE 545 and Udegbunam v. FCDA (1996) 5 NWLR (PT. 449) PAGE 474 AT PAGE 486.
12. In Reply on Points of Law, the Defendant submits that it did not need to prove that, the Claimant was redeployed or transferred, the Claimant himself having stated in his testimony that he was seconded and/or redeployed to DCC Estates Limited; and that facts admitted or facts not disputed need no further proof – Phoenix Motors Ltd v. Ojewunmi (1992) 6 NWLR (Pt. 248) 501; Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182.
Court’s decision:
13. I have considered the processes filed in this matter, the evidence led and the arguments of Counsel. I adopt the following issues for determination, to wit:
⦁ Who was Claimant’s Employer as at the 5th September 2017 when he was dismissed; and 27th October 2017 when he resigned.
⦁ Whether Claimant is entitled to his Claim.
14. Parties are agreed that Claimant was employed by the Defendant on 6th October 2009; and in March 2012, he was sent to work for DCC Estates Ltd; a Company established by Defendant. The crux of the dispute between parties is the effect of the secondment of the Claimant to DCC Estates Ltd. Whereas Claimant argues that he continued to be the employee of the Defendant, Defendant argues that Claimant ceased to be its employee and became the employee of DCC Estates upon his transfer to DCC Estates.
A Court must decide based on evidence before it, and not based on conjecture. As held in Adegbite v. State, (2017) LPELR-42585(SC)
It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B.
Claimant in proof of his case that he remained a staff of the Defendant tendered exhibits C1 which shows his employment in 2009. Exhibit C2 is evidence of the confirmation of Claimant’s employment. Exhibit C3 dated March 27, 2012 is the letter of “SECONDMENT TO DCC ESTATES LIMITED”. It provides that:
We are pleased to inform you that management has approved your secondment to DCC Estate Limited while your job title and responsibilities remain the same.
After stating the Claimant had been seconded to DCC Estate Limited, the letter further states that:
This redeployment takes effect immediately.
This document uses both ‘secondment’, and ‘redeployment’. Secondment is defined as “a temporary transfer to another position or organisation”. The Black’s Law Dictionary 10th Edition defines it as, “A period of time that a worker spends away from his or her usual job, usually doing another job or studying”. In the case of Dalhatu v. Attorney Gen. Kastina State (2007) LPELR-8460(CA) secondment is defined as:
The temporary release of an officer to the service of another Government or Body for a specified period.
To be on secondment is to be sent to another department or office of government in order to do or carry out a different job for a short period of time.
According to Cambridge Advanced Learner’s Dictionary & Thesaurus, it is :
A period of time when an employer is sent to work somewhere else temporarily, either to increase the number of workers there, to replace a worker or to exchange experience and skills.
In the case of Anike v. SPDCN Ltd (2012) 28 NLLR (PT.81) PAGE 350, the Court of Appeal stated, with respect to the effect of secondment that:
Section 41(1)(c) of the Workment’s Compensation Act, Cap. 470, Laws of the Federation, 1990 appears to address this issue when it provides:
“Where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall for the purpose of this Act be deemed to continue to be the employer of the workman whilst he is working for that other person. In this instant case, whilst CPL Sylvester Anike was on secondment to the respondent from the Nigerian Police Force, his employer remains the Nigerian Police Force and not the respondent.
The above definitions and positions taken by the Courts show that a secondment is a temporary arrangement for an employee to go and contribute in another department or organisation usually at the express directive of the employer. It presupposes that the seconded employee retains his original employment, until otherwise agreed by both parties. This to me, is the understanding of the Defendant, when it ends exhibit D3 with:
We wish you a fruitful career in your new department
It does not say ‘in your new job’ or ‘in your new employment’. Redeployment, which also appears in exhibit C3 is the act of moving employees, to a different place or using them in a more effective way(https://dictionary.cambridge.org/dictionary/english/redeployment) It is usually done within the same organisation. I find that exhibit C3 did not indicate a transfer of employment, as asserted by Defendant. Assuming it were to be so, it is required by law that before an employee can have his employment transferred to another employer, such an employee must consent to such a transfer. See section 10 of the Labour Act. In the case of Dunmonye v. UBA Plc & Anor . (2014) 45 N.L.L.R (PT. 142) PAGE 108, this Court held that,
By virtue of section 10(1)(2)(a) of the Labour Act, no employee can be transferred from employer to another without his consent. The said consent must be freely given.
Both parties agree that the provision of the Defendant’s Handbook is binding on the Claimant. The Handbook provides as follows in clause 2.15:
Redeployment
All employees undertake as a condition of employment to accept redeployment, secondment or transfer as deemed appropriate by the organisation’s management, in furtherance of the overall corporate objective of the organisation.
The provision above does not in any way suggest transfer of employment, as argued by the Defendant.
The Defendant again relies on Exhibit C4 as evidence of the transfer of Claimant’s employment to DCC Estates Limited. Exhibit C4 is a letter informing Claimant of his promotion within the structure of DCC Estates Limited. It states as follows:
Dear Mr. Durodola,
DCC ESTATES INTEGRATIONS: APPOINTMENT AS ACTING FACILITY MANAGER
We are glad to inform you that to position us for the next level and to align with global standards in the Facility Management Industry; Management is integrating all facility management related operations. This means that there is a merger of the present Technical Services Unit and the Facility Management Unit to become one department, to be known and called THE FACILITY MANAGEMENT DERARTMENT.
There will no longer be any discrimination between the present Technical Services Unit and the Facility Management Unit.
With this change, Management is happy to inform you of your appointment as the Acting facility Manager of DCC Estates Ltd. This office will afford you the opportunity to oversee the operations of the Facility Management Department and directly supervise the unit leaders. You will continue to report to the General Manager.
Though details of your new job description are attached, it is pertinent to state that your performance indices will also include your ability to lead the new team with integrity, improve operational processes and reduce cost.
The appointment is an acting position. Your performance will be reviewed after six months; if satisfactory, you will be confirmed as the substantive Facility Manager of DCC Estates; if not, another three months will be given to improve performance. Failure to meet up with expectations after all opportunities will result in the recruitment of a new Facility Manager. Your remuneration remains the same for now.
Management believes in your ability to excel in this new role and is ready to render any assistance you will need to do well on the job. You are advised to give this, therefore, your best effort.
We congratulate you on this milestone and wish you continued success in your career with DCC Estates Ltd.
Yours sincerely
For: DCC Estates Ltd.
Tunde Adisa
General Manager
In my opinion, and in line with the finding that Claimant was seconded to DCC Estates, and that secondment does not envisage a transfer of employment, exhibit D4 does not purport that Claimant’s employment with the Defendant has ended, and that DCC Estates Limited has begun a new employment with Claimant. It only informs the Claimant, that within the context of his secondment, his status had been elevated.
In all these, I find that Claimant’s employment with Defendant had not ceased, and he continued in all these years to be a seconded staff to DCC Estates Limited. I hold that Claimant, at the time of dismissal and resignation of his employment, was a staff of the Defendant.
The next issue for consideration is whether the Claimant is entitled to his Claims. Claimant’s first claimed relief is for a declaration that the contract of employment between him and the Defendant can only be validly terminated by the Defendant in line with its staff handbook and not by any other party. I have considered the provision of exhibit C9 , the Staff Handbook. It provides at paragraph 2.16 for Employee Exit. There is no evidence that Defendant has complied with the provision of the Hand book to terminate the employment of Claimant; or that Defendant in fact took any steps to determine the contract of the Claimant. The Law is very well settled that parties are bound by the agreement they enter into, and the duty of the court is to interpret the terms of the agreement to reflect the intentions of the parties. On no account can the court be allowed to rewrite agreement for the parties. See the cases of : Daniel M. Ogbaje v. Abuja Investment and Property Development Company Limited(2007) LPELR-11855(CA), Union Bank (Nig.) Ltd. v. Ozigi 1994 3 NWLR Pt. 333 p. 385; P.A.N. Ltd. V. Oje 1997 11 NWLR Pt. 530 p. 625; Amodu v. Amode 1990 5 NWLR Pt. 150 p. 356.” Per RHODES-VIVOUR, J.C.A (Pp. 48-49, paras. F-A).
I therefore, by virtue of the contract between the Claimant and the Defendant, declare that the contract of employment between the Claimant and the Defendant can only be validly terminated by the Defendant in line with its staff handbook and not by any other party. However, it is in evidence that Claimant has resigned his employment by exhibit C7. That determined the employment relationship between Claimant and the Defendant as required by exhibit C9.
Relief B sought by Claimant is for a declaration that the purported dismissal of the Claimant from the employment of the Defendant by DCC Estates Limited, a company the Claimant was seconded to and who was not privy to the contract between the Claimant and the Defendant is illegal, null and void. It has already be found that Claimant remained the employee of the Defendant, and never had his employment transferred. By virtue of that finding, DCC Estates Limited lacks the locus to determine the contract of the Claimant, by any means. I therefore find and declare that the purported dismissal of the Claimant by DCC Estate Limited is null and void and of no effect.
Claimant’s third relief is for an order mandating the Defendant to pay the Claimant forthwith or within 7 days of the delivery of Judgment in this case, the sum of N839, 429.17 (Eight Hundred and Thirty Nine Thousand, Four Hundred and Twenty Nine Naira, Seventeen Kobo) being the Claimant’s unpaid salary for the end of July 2017 and the months of August, September, October and November 2017.
I have considered the pleadings and evidence of Claimant, and do not find how and where this sum was arrived at. There is not place the basis of this claim was stated and how the sum was arrived at. I do not know whether it is founded on Claimant’s original contract with Defendant or the subsequent remuneration by DCC Estates Limited. Claimant did not give evidence on which salaries were paid, and those not paid by, for instance, the production of a statement of his account. I therefore decline this relief for lack of proof.
The fourth relief is for an order mandating the Defendant to pay him forthwith or within 7 days of the delivery of judgment in this matter, the sum of N2,989 800.73 (Two Million, Nine Hundred and Eighty Nine Thousand, Eight Hundred Naira, Seventy Three Kobo) being the Claimant’s unpaid gratuity entitlements. This Claim, according to Claimant’s pleadings and evidence is founded on its provision in the Defendant’s Staff Handbook. However, evidence before me shows that Claimant calculated his entitlements based on the salary paid by DCC Estates Limited without justifying the basis for relying on DCC Estates Limited’s conditions for the computation of his entitlements against the Defendant. Claimant has clearly in this suit disowned DCC Estates Limited and their ability to determine issues relating to his employment. In my view, Claimant must be consistent on which relationship he relies on. He cannot pick and choose which conditions of DCC Estates he wants to apply to him. ‘It is trite law that parties as litigants are not permitted to approbate and reprobate in the conduct of their case See; Abeke v. Odunsi & Anor. (2013) LPELR-20640(SC) see also Ezomo v. AG Bendel (1986) 4 NWLR (Pt 36) 448 at 462; Kayode v. Odutola (2001) 11 NWLR (Pt.725) 659; (2001) 7 SCM 155 Osuji v. Ekeocha (2009) 10 SCM 72 at 93. I do not find it appropriate for Claimant to, in one breath state that DCC Estates Limited cannot determine his conditions of service, not being his employer; and in the same breath seek to enforce certain employment conditions of DCC Estates Limited, against the Defendant, who had not given those conditions. Based on this, I find and hold that Claimant has not proved this relief against the Defendant in this case.
Claimant also seeks an order mandating the Defendant to pay to the Claimant forthwith or within 7 days of the delivery of judgment in this matter, the sum of N100,000 (One Hundred Thousand Naira) being the Claimant’s unpaid Children Allowance for the last quarter of 2017. Again, Claimant led no evidence in proof of how this relief has become due to him. For instance, if Claimant had tendered evidence showing payment of previous sums as children allowance, and the non-payment of that for the quarter sought, then this Relief would have been established, subject of course, to its entitlement against the Defendant. In the absence of proof, this relief is declined.
The third, fourth and fifth reliefs above all appear to be dependent on the conditions (salaries) reviewed and paid by DCC Estates Limited. Claimant has not established the basis for suing the Defendants based on transactions attributable to DCC Estates. I therefore I find that the Reliefs have not been established against the Defendant in this case.
On the relief for an order mandating the Defendant to remit to the Claimant’s Pension Fund Administrator (PFA) forthwith or within 7 days of the delivery of judgment in this case, the sum of N136, 000 (One Hundred and Thirty Six Thousand Naira) being the Claimant’s unremitted pension, again, no evidence was led to show the deduction of the said amount and its non-remittance. This relief is also declined.
In summary, only reliefs one and two succeeds as already declared. Reliefs three to seven fail. I make no order as to cost.
Judgment is entered accordingly.
…………………………………………………
Hon. Justice Elizabeth A. OJI, PhD
