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National Industrial Court

MR. ASINYETOGHA ALLISON & 5 ORS -VS-BONNY UTILITY COMPANY

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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: 14th day of January, 2020                  

SUIT NO:   NICN/PHC/88/2013

 

BETWEEN

  1. MR. ASINYETOGHA ALLISON
  2. MR. OBIBI DAPPA
  3. MR. SAMUEL B. ALLAPUTA
  4. MR. CHARLES F. JUMBO
  5. MR.TAMUNOIPO NAM ALLISON
  6. MR.FRED BANGO —————————————– CLAIMANTS

AND

  1. BONNY UTILITY COMPANY LIMITED
  2. MR. JOHN EBINUM
  3. NIGERIAN LIQUIFIED NATURAL GAS LIMITED
  4. SHELL PETROLEUM DEVELOPMENT COMPANY

OF NIGERIA LIMITED ———————————-DEFENDANTS

Representations:

C.J. Adhalakpo for the Claimants.

Thompson Dede for the Defendants.

Judgment.

This suit was initially filed before the High Court of Rivers State sometime in 2011 before same was transferred to the National Industrial Court sometime in 2013. Claimants then initiated this suit by way of a General form of Complaint originally filed before this Court on the 29th of January, 2014 at the Calabar Division before same was transferred to Yenagoa division before Justice Agbadu Fishim. The said suit was finally assigned to this Court sometime in January 2019 upon which the Claimants filed a Further Amended General Form of Complaint on 30th of January, 2019 along with an affidavit of verification, further amended statement of fact, witness statement on oath, list of documents and copies of the listed documents to be used at trial.

Arising from the Amended Complaint and Statement of fact, the Claimants’ claims against the Defendants are:

  1. A declaration of court that the claimants’ contract of employment with the 1st defendant have not been lawfully terminated or determined in compliance with their (claimants) condition of service or contract of employment, especially having not been given any formal letter of termination except being locked out and told by the 2nd defendant that they (claimants) have been sacked/terminated from the service of 1st defendant company at the instance and behest of the 2nd defendant which is wrongful and illegal and as such claimants are entitled to their respective monthly salaries, xmas, (sic)  leave allowances, IBTC allowances etc, from the month of July 2010 till the month and year that judgment is delivered in this case.
  2. An order of court directing the defendants to pay the claimants their respective monthly salaries from the month of July, 2010 till the month and year when judgment is delivered  in this case and thereafter a post judgment interest of 10% per month on the judgment sum pending payment by the defendants to the claimants i:e.
  3. The 1st claimant be paid the sum of N7,858,500.00 at N120,000.00 per month by the 1st defendant calculating from the month of July, 2010 till the month and year 2015 when judgment is delivered on the case and a post judgment interest sum of 10% monthly on the judgment sum pending payment by the defendant
  4. The 2nd claimant be paid the sum of N7,858,500.00 at N120,900.00 per month as his unpaid monthly salary by the 1st defendant calculating from the month of July, 2010 till the month and year 2015 when judgment is delivered in the case and payment by the 1st defendant to the 1st claimant.
  5. The 3rd claimant be paid the sum of N785,500.00 at N120,900.00 per month, as his unpaid monthly salary by the 1st defendant calculating from the month of July, 2010 till the month and year 2015 when judgment is delivered in the case and payment by the 1st defendant to the 1st claimant.
  6. The 4th claimant be paid the sum of N785,500.00 at N120,900.00 per month as his unpaid monthly salary by the 1st defendant calculating from the month of July, 2010 till the month and year 2015 when judgment is delivered in the case and payment by the 1st defendant to the 1st claimant.
  7. The 5th claimant be paid the sum of N6,328,419.5 at N978,360.3 per month, as his unpaid monthly salary by the 1st defendant, calculating from the month of July, 2010 till the month and year 2015 when judgment is delivered in the case and payment by the 1st defendant to the 1st claimant.
  8. The 6th claimant be paid the sum of N105, n6,328,419.5 at N978,360.3 per month as his unpaid monthly salary by the 1st defendant, calculating from the month of July, 2010 till the month and year of 2015 when judgment is delivered in the case and payment by the 1st defendant to the 1st claimant.
  9. An order of court directing the defendants to pay each claimant starting from year 2010 till when judgment is delivered in this case, their respective annual leave allowance i:e:

1st claimant the sum of N106,434.50 as annual leave allowance

2nd claimant the sum of N106,434.50 as annual leave allowance

3rd claimant the sum of N106,434.50 as annual leave allowance

4th claimant the sum of N87,982.78 as annual leave allowance

5th claimant the sum of N77,406.91 as annual leave allowance

6th claimant the sum of N96,758.64 as annual leave allowance respectively and a further order for the 1st defendant to pay the respective claimants their x-mas bonus i:e

1st claimant the sum of N88,695.50 as x-mas bonus,

2nd claimant the sum of  N88,695.50 as x-mas bonus,

3rd claimant the sum of N72,568.98 as x-mas bonus,

5th claimant the sum of N64,505.98 as x-mas bonus,

6th claimant the sum of N80,632.20 as x-mas bonus, respectively, thus the defendants should pay back to the claimants their respective IBTC annual pension scheme which the claimants have paid to the 1st defendant yearly from 2007 to 2010 i:e

  1. 1st claimant be re-paid the sum of N586,041,12 as his 3 years cumulative IBTC pension scheme contribution to the 1st defendant at the sum of N195,347.04 from 2007 to 2010.
  2. 2nd claimant be re-paid the sum of N586,041.12 as his 3 years cumulative IBTC pension scheme pension contribution to the 1st defendant at the sum of N195,347.04 from 2007 to 2010.
  3. 3rd claimant be re-paid the sum of N586,041.12 as his 3 years cumulative IBTC pension scheme contribution to the 1st defendant at the sum of N195,347.04 from 2007 to 2010.
  4. 4th claimant be paid the sum of N455,417.28 as his 3 years cumulative IBTC pension scheme contribution to the 1st defendant at the sum of N151,805.76 from 2007 to 2010.
  5. 5th claimant be re-paid the sum of N455,417.28 as his 3 years cumulative IBTC pension scheme contribution to the 1st defendant at the sum of N151,805.76 from 2007 to 2010.
  6. 2nd claimant be paid the sum of N549,699,84 as his 3 years cumulative IBTC pension scheme contribution to the 1st defendant at the sum of N183,233.28 from 2007 to 2010.  (see b above still on the 2nd claimant)
  7. A declaration of court that the claimants are entitled to their pay-off and an order of court directing the defendants to pay the claimants i:e the 1st claimant the sum of N1,064,345.24 as a year pay-off, 2nd claimant the sum of N1,064,345.24 as a year pay-off, 3rd claimant the sum of N1,064,345,24 as a year pay-off, 4th claimant sum of N1,064,345,24 as a year pay-off, 5th claimant the sum of N1,064,345,24 as a year pay-off, 6th claimant the sum of N1,064,345,24 as a year pay-off.
  8. The sum of N200,000,000.00 (Two Hundred Million Naira) as general damages for the hardship caused the claimants for the unlawful, wrongful and unjustifiable termination of claimants’ job and the psychological trauma caused the claimants.

In reacting to the Claims, Defendants filed their joint statement of defence on the 31st of March, 2014 along with list of witnesses, list of documents, witness statement on oath and copies of documents to be relied upon at trial.

Trial commenced before this court on the 5th of March, 2019 with the Claimants opening their case and calling one witness in person of Samuel Alaputa who was called as CW1 and adopted his witness statement on oath marked as C1.  Thorough the said CW1, 13 documents were tendered and admitted in evidence as Exhibits C2-C14. While  exhibits C4, C5, C6 and C13 were properly so admitted in evidence, others were admitted under protest.

Arising from the amended statement of fact and witness statements on oath, the case of the Claimants is that they were employees of the 1st Defendant Company until their employment was purportedly terminated without any notice or letter. They averred that they were at different dates between the years 2002 – 2005, employed into the 1st Defendant company through a recruitment agency known as AGACOX Nig. Ltd on behalf of the 1st Defendant and upon the incorporation of the 1st Defendant, the relationship between the 1st Defendant and the said AGACOX Nig. Ltd has been severed. They added that the letters of employment as staff of the 1st Defendant and they were interviewed by the 1st General Manager of the 1st Defendant. They added that they were confirmed as permanent staff with full entitlement and allowances as the staff condition of service was issued to them. The Claimants averred that when the 2nd Defendant took over as general manager of the 1st Defendant, he took a turn for the worse and particularly asked staff of the 1st Defendant to reapply for their jobs when they solicited for salary increase. They averred that when they asked why they should reapply, they were informed by the 2nd Defendant that he has lost staff file and upon expressing their dissatisfaction, they were victimized by being stopped from work since 1st July, 2010 and were locked out by policemen and Joint Task Force. They contended that the action amounted to wrongful termination of their employment and in violation of their condition of service. Claimants averred that they have demanded for compensation at the sum of five hundred million naira for unlawful termination as they were expected to have worked for 30 years but the Defendants have ignored their demand hence this suit.

Upon cross examination, CW1 admitted that himself and other Claimants were not employed on the same day and they have different employment letters. He also admitted that throughout their employment, everyone received his own pay. He stated that the content of the letters of employment mentions 1st Defendant. CW1 confirmed that Exhibit C7 is the document that reviewed his monthly remuneration and he has a copy. He added that himself and other Claimants were chased away with Army and Mopol but they are still working till date while confirming that they received July 2010 salary. CW1 also admitted that 1st Defendant was incorporated in 2007 and added that the letter of review was issued to them after the incorporation by both the 1st Defendant and Integrated Ventures while Exhibit C2 shows that they applied for job.

Upon discharge of CW1, the Claimants closed their case while the Defendants opened theirs by calling one witness in person of Hafis Ismaila as DW1 who adopted his witness statement on oath which was marked as D1. Through the said DW1, six documents were tendered and admitted under protest as Exhibits D2 – D7 except for Exhibit D6(a) – (f) which is properly admitted in evidence.

Arising from the statement of defence and witness statement on oath, the case for the Defendants is that the Claimants were employees of Integrated Ventures Nigeria Limited who were deployed to work for the 1st Defendant and were never employed by the Defendants neither were their contract of employment terminated by the Defendants while their contracts of employment were terminated by Integrated Ventures Nigeria Limited as they were all issued termination letters. The Defendants added that the Claimants’ salaries, medical bills, bonus and pension contributions were paid by Integrated Ventures Nigeria Limited while Identity Cards were only issued to the Claimants to enable them access into the 1st Defendant’s facility. The Defendants further averred that upon the incorporation of the 1st Defendant in 2007, it conducted a recruitment exercise to employ suitable and qualified persons and following the placement of job adverts by the 1st Defendant, the Claimants applied for employments into the Defendant. However, On June 30, 2010, whilst conducting a job selection test, the Claimants for no justifiable reason disrupted the exercise and left the venue of the test. Some of the Claimants later apologized for their conduct. They added that the Claimants  were denied access to the 1st Defendant’s facility as their identity cards had expired and were not renewed because their contracts of employment was already terminated by their employer and denied liability for all the Claimants’ claims.

Upon cross examination, DW1 stated that he was deployed from NLNG to become GM in January 2019 while insisting that the Claimants are not staff of the 1st Defendant as they were employed by another company and deployed to 1st Defendant. He also insisted that I.D. Cards were issued to the Claimants  for the purpose of getting access into BUC facility while asserting that he is not aware that BUC sent the Claimants on vocational training where the 2nd Claimant won the prize for Best BUC staff. He also insisted that BUC did not terminate the Claimants’ employment as it was done by Integrated Ventures although he claimed he knew that the Claimants disrupted the interview process based on available record. He also added that the remuneration of Claimants were paid through Integrated Ventures and that the Organogram of BUC was only meant for hierarchy of the organization and not for confirmation of staff. He concluded that Claimants were denied access into 1st Defendant when their employment with Integrated Ventures had expired and their ID card were not renewed.

Upon discharge of DW1, case of the Defendants was closed and matter was adjourned for adoption of final written addresses while the Defendants on the 9th of October, 2019 filed their final written address which was adopted on the 12th of November, 2019 and wherein Counsel to the Defendant, Thompson Dede Esq., formulated three issues for determination to wit:

  1. Whether the Claimants have disclosed a reasonable cause of action against the 2nd, 3rdand 4thDefendants?
  2. Whether some of the Claimants’ documents marked as Exhibits C2, C3, C7, C8, C9, C10, C11, C12 and C14 are admissible in evidence, the said documents having not being tendered via the maker?
  3. Whether from the totality of the pleadings and evidence before this Honourable Court, the Claimants are entitled to the reliefs sought in this suit?

In arguing issue one, counsel submitted that the Claimants have failed to disclose a reasonable cause of action against the 2nd — 4th Defendants to justify their being made parties to this suit. counsel cited the case of Paulinus Chukwu v. Mathew Akpelu (2014) 13 NWLR (Pt. 1424) 359 on the meaning of cause of action before submitting that in determining the existence of a cause of action against a defendant, the court must restrict itself to the statement of claim, without recourse to the defendant’s statement of defence or other extraneous factors.

Counsel contended that the Claimants’ allegations are solely directed towards the 1st Defendant and it is apparent from the Claimants’ own averments particularly as contained in paragraphs 4, 5 and 7 of their Amended Statement of Claim that the only reason for the institution of this suit against the 3rd and 4th Defendants is the unfounded allegation that the Defendant is jointly owned by the 3rd and 4th Defendants and nothing more

With regards to 2nd Defendant, counsel contended that assuming without conceding that the Claimants’ employment were indeed terminated by the 2nd  Defendant, it is instructive to state that the 2nd Defendant who acted in his official capacity, did so as an agent of a disclosed principal. Counsel cited the case of Barrister Anieken Ukpana v. Surveyour Asuquo Ayaya (2011) 1 (NWLR (Pt. 1227) 61.

Counsel concluded on the issue by reiterating that this action cannot be successfully maintained either against the 2nd Defendant (being an agent of a disclosed principal), or the 3rd and 4th Defendants, (being separate and distinct legal personalities from the 1st Defendant), and he urged the Court to so hold.

In arguing issue two, counsel cited section 83(1) and (4) of the Evidence Act to contend that the documents admitted under protest were not made by CW1 through whom they were tendered. He specifically stated that aside the offer letter dated May 19, 2003, none of the other documents admitted under protest as Exhibit C2 was made by the CW1; aside the Identification Card with reference Ind.BUC/24, none of the other documents listed as Exhibit C3 was made by the CW1; aside the letter dated August 21, 2007, none of the other documents admitted under protest as Exhibit C7 was made by the CW; aside the latter dated September 7, 2007 from IBTC Pension Manager Limited, addressed directly to the CW1, none of the other documents admitted under protest as Exhibit C10 was made by the CW1 and aside the Leave Application Form issued by the CW1, none of the other Leave Application Forms admitted under protest as Exhibit C11 was made by the CW1. He added that Exhibit C14 was also not made by the CW1.

Counsel further contended that the requirement of tendering a document through its maker is subject to exceptions which are contained in the proviso of Section 83 (1) (b) and Section 83 (2) of the Evidence Act but added that no attempt was made by the CW1 to explain the where about of the makers of the document and it is on record that the 1st, 2nd, 4th, 5th and 6th Claimants, who in law are deemed the makers of the document have appeared before this Honourable Court on several occasions to witness proceedings, including the proceedings of March 5, 2019 when the CW1 applied to tender the documents. Hence, the failure of the Claimants to tender the referenced documents could not have been due to the inability to secure their attendance in Court.

Counsel then urged the court to reject the said exhibits admitted under protest and mark them accordingly as rejected.

In arguing issue three, counsel posited that the law is trite that a claimant must provide concrete evidence to establish his case against a defendant i.e., a claimant is obligated to lead credible evidence in proof of the defendant’s wrong-doing occasioning harm before he will be entitled to any relief(s) therefrom. Counsel cited Sections 131, 132 and 133(1) of the Evidence Act 2011 and the cases of C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493 @ 539 — 540 (Ratio 14); AG. Anambra State v. A.G., Fed (2005) 9 NWLR (Pt. 931) 572 @ 635; Buhari v. Obasanjo (2005) 13 NLWR (Pt 941) 1 @ 122 and Organ v. NLNG Ltd. (2013) 16 NWLR (Pt. 1381) 507@538—539.

Upon the foregoing, counsel posited that to be entitled to the reliefs sought, the Claimants are required to prove the following, that:

  1. They were employed by the 1stDefendant;
  2. The terms and conditions of their employment;
  3. The way and manner and by whom they can be removed;
  4. The way and manner the terms and conditions of their employment were breached by the Defendants.

Counsel cited the case of Morohunfola vs. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 406 and Ziideeh vs. R.S.C.S.C. (2007) 3 NWLR (Pt. 1022) 554 @ 570 to contend that when an employee complains that his employment has been wrongfully terminated, he has the onus to place before the Court the terms of the contract of employment and to prove in what manner the said terms were breached by the employer.

Counsel added that Exhibit C2 and C7 which the Claimants intended to rely on were neither authored nor issued by the 1st Defendant and referred to the testimony of DW1 while contending that the Claimants cannot rewrite the content of Exhibit C2through oral evidence. He cited the case of Ikpeazu v. Ogah (2017) 6 NWLR (1562) 439@491 Para E.

Counsel also referred the court to Exhibit D6 and D7 in attempt to argue that Claimants are employees of Integrated Ventures Limited deployed to work with the 1st Defendant. counsel further contended that contrary to the Claimants’ allegation that the Claimants’ were rolled over upon the incorporation of the 1st Defendant, the evidence on record shows irrefutably that even upon the incorporation of the 1st Defendant, their salaries were at all material times paid by Agacox and Integrated Ventures.

Counsel concluded that upon a review of all the facts of this case as established by evidence and the position of the law, the Claimants failed to prove their case hence this suit against the Defendants must necessarily fail. Counsel urged the Court to dismiss this suit with cost as same is baseless, lacking in merit and a gold digging exercise.

Reacting to the Defendants’ final address, Claimants filed their final address on the 4th of November, 2019 wherein Counsel to the claimant C.J. Adhalakpo, Esq. formulated three issues for determination to wit:

  1. Whether from the totality of the exhibits tendered and the fact that the claimants were interviewed by the 1st defendant and were deployed to work with the 1st defendant through a manpower agency, known as Agacox Nig. Ltd., and Integrated Ventures Ltd., whether the claimants would not be rightly be said to be the 1st defendants staffs or employees.
  2. Whether claimants have not been able to prove their case by reason of their pleadings and evidence led so as to be entitled them to judgment.
  3. Whether the claimants employment with the 1st defendant was properly terminated and if not whether the claimants are not entitled to the payment of their salaries from when they were prevented from accessing their work place till when judgment is given, including the payment of their other benefits and entitlements.

In arguing issue one, counsel submitted that from the totality of the claimants exhibits tendered by the claimants through CW1, it can be rightly be said and is indeed obvious, that the claimants are indeed the employees, workers and staffs of the 1st defendant. Counsel referred to Exhibit C2(a) –(e) to contend that where the wordings and/or terms of a contract of employment or any agreement or document generally, are clear, express and unambiguous, they must be given their literal and ordinary meaning in interpreting them. Counsel cited the cases of Williams v. Williams (2014)15 NWLR (Pt. 1430) 213 at 234, paras. B. and BON LTD. V. Aliyu (1999) 7 NWLR pt. 612 Pg. 622, pg.633 para. G-H. to posit that parties are bound by the contents of a document.

Counsel added that the National Industrial Court is a very specialised court and by the very nature of this court and the spirit and letters of the enabling law and rules establishing and governing the practice and procedure of this court, this honourable court is empowered with the jurisdiction and authority to be informal and flexible with respect to its application of the rules of evidence in the ultimate interest of justice.  Counsel cited section 12 (1) and 2(b) of the National Industrial Court Act 2006 and order 5(3) of the National Industrial Court rules 2007.

Counsel argued further that the I.D. Cards issued to the Claimants tendered as Exhibit C3 are also proof that they are employees of the 1st Defendant while DW1 gave contradictory testimony and the court cannot pick and choose which to believe. Counsel cited the case of ORIENT PHOTO NIG TD v. ECO BANK PLC (2018) LPELR-44764(CA) and OMEREDE v. ELEAZU (1996) 6 NWLR (PT. 452)1, (1996) LPELR – 2637 (SC) AT 10-11.

Counsel added that exhibit C4 was tendered to show or evidence the fact that the 1st defendant was incorporated in the year 2007 and that before the incorporation of the 1st defendant company in 2007, the 1st defendant has been using Agacox Nig. Ltd., and Integrated Ventures as fronts in sourcing for jobs or manpower and to shield the 1st defendant from being sued for any wrong doings.  However, soon after the incorporation of 1st defendant, it started recruiting workers in their own name and the 1st defendant has since dispense with Agacox Nig. Ltd., and Integrated Ventures Ltd.

Counsel also referred to page 4 particularly paragraph 2.1.5 of exhibit C5  to contend that the provision of the 1st defendant rules and regulation has finally laid to rest or put paid to all the hullabaloo, speculation and misleading argument of the defendants in their claim that the claimants are not the staffs of the 1st defendant. Counsel added that assuming without conceding that the claimants are deployed to work in the 1st defendant company, by virtue of exhibit C5, the claimants are recognised as staffs of the 1st defendant by literal rule of interpretation of plain or ordinary words of meaning.

Counsel also referred to the relevance of Exhibits C14, C7 – C12 in finding that the Claimants were staff of the 1st Defendant.

In arguing issue two,  counsel contended that it is settled law that a party who sued for wrongful termination of his employment like in the instant case, has the burden to prove the following:

  1. That he is an employee of the defendant (as shown and proved by the claimants by the foregoing exhibits stated under issue 1) sic.
  2. How he was appointed and the terms and condition of his employment or appointment
  3. Who can appoint him and also who can remove him
  4. What are the circumstances under which his appointment can be determine or terminated.

Counsel cited the case of Nigerian Gas Co. Ltd V. Dudusola (2005) 18 NWLR Pt 957 pg. 292,  Igbinovia V. UBTH (2000) 8 NWLR pt. 667, page 53, and Dr. F. O. A Okhomma V. Psychiatric Hospital Management Board (1997) 2 NWLR Pt. 485, 75.

In arguing whether the forgoing has been proved, counsel recounted the arguments made on issue one and in addition urged the court to discountenance whatever purported termination letter said to have been issued by Integrated Ventures Ltd., since Integrated Ventures were not the claimants’ employers rather they are mere vessels or transporters through which the claimants got to their employers.

Counsel also added that the circumstance under which an employee can be terminated are well spelt out in exhibit C5 being the 1st defendant code of conduct under page 6 paragraph 5, 5.1, 1-5, 14 spelt out the circumstances under which the appointment of an employee can be determine or terminated. Counsel also cited sections 12 and 13 to posit that they are plain words which are not ambiguous, and the law is that where the terms of a written contract of service are clear and unambiguous , the parties are bound by those terms and they cannot move out of them in search for more favourable terms.  Counsel cited the case of CBN V. ACHIBONG (2001) 10 NWLR PT. 721 pg. 492 at 507.

With regards to the termination of Claimants’ employment, counsel contended that the 1st defendant is not the maker of exhibits D2 (A-E) and neither was the said document addressed to the 1st defendant hence the exhibits should be jettisoned by the court. He cited section 83 (1) (b) and (4) of the evidence Act 2011. Counsel added that exhibit D3 (A-F) could not also meet admissibility test in that the exhibits were never signed by the purported makers of the document allegedly and purportedly made by the claimants and urged the court to discountenance same.

Counsel also added that Exhibit D5 was never signed by any of the 1st Defendant’s Personnel while exhibit D6 and D7 were considered to have been forged.

Counsel submitted thereon that claimants ought to be paid salaries in view of wrongful termination of their employment. He added that though the claimants are not seeking for reinstatement but that having shown that the termination of the contract of employment of the claimant is wrongful, unlawful and a nullity, the claimants are still in the service of the defendant and thus entitled to damages in the sum of monthly salary from the time of the purported termination of his employment until judgment is given.  Counsel cited the case of Akudo v. Guinness (Nigeria) Plc. (2012) 15 NWLR (Pt. 1322) 150 at 171.

With regards to issue three, counsel adopted the arguments on issue two and posited that the employment of the Claimants with the Defendants was not properly terminated and as such they are entitled to the payment of their salaries, IBTC pension scheme and other emoluments.

With regards to the admissibility of Exhibits C2, C3, C7, C10, C11 and C14, counsel submitted that the documents were addressed to the Claimants while the Defendants have admitted that Exhibit C3 was issued to the Claimants to enable them access into the 1st Defendant Facility.

Counsel concluded buy urging the court to grants the Claimants’ claims in their entirety.

By way of reply on point of law filed on the 12th of November, 2019, counsel to the Defendants Thompson Dede Esq, submitted that the Claimants failed to lead evidence of unfair labour practice. He also cited section 23 to 26 of the Labour Act to contend that the law governing labour practice in Nigeria recognizes recruitment by one company for another.

With regards to Exhibits D2, D3 and D4, counsel contended that the hallmark of admissibility is relevance and that the Claimant is burdened to prove fraud beyond reasonable doubt.

Counsel added that arguments cannot take the place of pleadings and that the failure to sign a document merely affect the weight and not its admissibility.

Counsel concluded by urging the court to uphold the Defendants’ arguments and to strike out this suit.

In view of all the foregoing, I have carefully evaluated and understood 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 in evidence.

I have also taken into account the reliefs sought vis-à-vis the submissions of learned Counsel to both parties in their respective final written addresses and arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for the determination of this suit are to wit:

  1. Whether or not in view of the circumstances of this case, the Claimants are employees of the 1st Defendant.
  2. Whether or not in view of the facts and evidence before this court, the Claimants are entitled to the reliefs sought.

Before addressing the foregoing issues, it is pertinent to determine the status of the exhibits admitted under protest. In the course of trial, Exhibits C2, C3, C7-C12 and C14 which were tendered in evidence through CW1 were admitted under protest on the grounds contended by Counsel to the Defendants to the effect that the exhibits were not tendered by the makers except for the documents bearing the name of CW1. Counsel placed reliance on section 83(1) and (4) of the Evidence Act.

In response to the objection of counsel to the Defendants, counsel to the Claimant contended that the foundation for admissibility of a document is predicated on relevance and whether the document is pleaded.

 In addressing the foregoing, I have taken a look at the exhibits in question and find that exhibit C2 is a collection of letters of offer of employment addressed to the Claimants and signed by either the CEO, Integrated Ventures Nigeria Limited or the Manager of Agacox Nigeria Limited.

Exhibit C3 are Identity Cards of the Claimants as issued to them by the 1st Defendant. Exhibit C7 is a document titled, BUC Benefit Direct Scheme Staff 2007 while Exhibit C8 is BUC Organizational Chart. Exhibit C9 is a collection of Basic Salary Review letters addressed to the Claimants and all bearing the date 21st August, 2007. Exhibit C10 on its part is a collection of letters written to the Claimants by IBTC Pension Managers all bearing varying dates from 7th September, 2007 while Exhibit C11 is an employee leave application form filled by Samuel Allaputa. Exhibit C12 is a PAYE form filled by four of the Claimants while exhibit C14 is an image of the 2nd Claimant captioned as Employee of the Month.

The foregoing finding rightly shows that the Documents in question were not made by the Claimants but were either addressed to them as their terms of their employment or filled out by them.

In addition, the said documents were pleaded by the Claimants and in view of the contents of the said documents which in one way or another relates to the employment of the Claimants, this implies that the documents are relevant as contended by counsel to the Claimants.

I have taken into consideration the provisions of section 83 (1) and (4) of the Evidence Act as contended by counsel to the Defendant and which states that:

(1). In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied-

  1. If the maker of the statement either-

(i) had personal knowledge of the matters dealt with by the statement;

(ii) where the document in question is or forms part of a record purporting to be a continuous record made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters; and

  1. if the maker of the statement is called as a witness in the proceeding:

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

(4)For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.

Upon a careful review of the foregoing provision, quite apart from the fact that the documents in question were not particularly made by CW1, the said provision is not to the effect that the said CW1 cannot tender in evidence documents addressed to him or to somebody else particularly his co-claimants. Hence, counsel to the Defendants has made a misapplication of the provisions of section 83(1) and (4) of the Evidence Act.

In addition to the foregoing, this court is clothed with the discretion to depart from the rule of evidence in deserving cases in the interest of Justice. See section 12 (2) (b) of the National Industrial Court Act, 2006.

Upon a consideration of the foregoing, i.e. the relevance of the exhibits in question to the determination of this suit, the inapplicability of the sections of the Evidence Act relied upon and the discretion of the Court as provided in NIC Act, it is the considered view of this court that the objection of counsel to the Defendants lacks merit and same is overruled. The said exhibits C2, C3, C7-C12 and C14 are accordingly admitted in evidence.

On the part of the DW1, counsel to the Claimants objected to the admissibility of exhibits D2(a-e), D3(a-f), D4(a-d), D5(a-c) and D7. With regards to D2 and D7, counsel contended that the documents were not made by the 1st Defendant hence, DW1 cannot tender same. He added that D3 and D5 were not signed by the 1st Defendant and that Exhibit D3, D5 and D7 were forged for the purpose of this proceeding.

In response to the objection, counsel to the Defendants contended that the hallmark of admissibility is relevance, particularly as Exhibit D2 is relevant to the termination of the Claimants’ employment. Counsel added that the law is that fraud must be proved beyond reasonable doubt. With regards to exhibit D3, counsel posited the said document was signed and that signature merely affects weight and not admissibility counsel argued in respect of Exhibit D5 that the Claimants have failed to show that the Defendants were required under the law/practice to counter sign Exhibit D5.

In view of the foregoing, contention, I have taken a look at the said exhibits in question and find that the said Exhibit D(a-e) are indeed letters of termination of employment addressed to the 1st to 5th Claimants, all dated 27th May, 2010. The said letters were signed by CEO of Integrated Ventures Nigeria Limited. While the said letters were neither written by nor addressed to the 1st Defendant which makes it to be caught up by the provision of section 83(1) of the Evidence Act even though the document tendered is not the original, I am mindful of the fact that one of the issues before this court centers on whom the employer of the Claimants are and the name of the said Integrated Ventures Nigeria Limited is involved. Therefore, the documents relating to the termination of the Claimants’ employment becomes relevant. Although same is not tendered by an officer of Integrated Ventures Nigeria Limited,  I find strength in the provisions of section 12(2) (b) of the National Industrial Court Act, to exercise discretion in admitting the said document in order to properly evaluate same for a just determination of the instant suit.  The same goes for Exhibit D7 which is a letter dated 8th July, 2010 purportedly written by Integrated Ventures Nigeria Limited and addressed to Bonny General Hospital.

With regards to the contention that the Exhibit D3 and D5 were not signed, I have taken a look at the said documents and find that D3 are application letters purportedly written by the Claimants and addressed to the 1st Defendant. Each letter at the complimentary close bears the signature of the writer save that bearing the name of the 2nd Defendant who merely wrote his name at the complimentary close. Exhibit D5 on its own is a list of names of certain persons, their signatures and the position applied for.  While Exhibit D5 contains signatures of the names mentioned therein, there is no other place requiring any signature that is out of place while Exhibit D3(a-f) also meets the requirement of admissibility as they have been duly signed.

With regards to the contention that exhibits D3, D5 and D7 were fraudulently forged, Counsel did not state how the forgery was carried out so as to prove same. That is not to mention the requirement of the law that fraud or forgery as a criminal allegation must be proved beyond reasonable doubt as the court in ADEBIYI & ORS. V. ADEOSOLA (2012) LPELR-9248(CA) held that:

“Fraud or forgery is a criminal allegation. The full particulars of the alleged fraud or forgery must be pleaded and proved beyond reasonable doubt. Per IKYEGH, J.C.A. (P. 18, paras. A-F).

Consequent upon the foregoing, it is accordingly reiterated that this court is possessed of discretion to depart from the provision of the Evidence Act in the interest of justice. In that light, I find it appropriate to exercise the said discretion to admit all the Exhibits tendered by the Defendants through DW1 and the said exhibits D2(a-e), D3(a-f), D4(a-d), D5(a-c) and D7 are accordingly admitted in evidence.

In addition to the foregoing, I find it apposite to add that admissibility of evidence is one thing while the weight to be attached is another.  In this regard, the court in the case of ELEMORO & ANOR v. ABIODUN (2014) LPELR-23195(CA)  held that

“Admissibility of a document is different from weight to be attached to the document. It has been settled by the Supreme Court in a plethora of cases that admissibility is one thing while weight is another, see ABUBAKAR V CHUKS (2007) LPELR 52 (SC) where the apex court explained the difference in the following way: The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. Relevancy and weight are in quite distinct compartments in Nigeria’s Law of Evidence. They convey two separate meanings in Nigeria’s adjectival law and not in any form of dovetail. Per NIMPAR, J.C.A (Pp. 37-38, paras. E-F).

Bearing the foregoing in mind, I then turn to the issues for determination, the first of which is predicated on the contention of whether or not the 1st Defendant is the Employer of the Claimants. Before addressing this contention, I must first posit that I take cognizance of the issue formulated by counsel to the Defendants as to whether there is any reasonable cause of action against the 2nd, 3rd and 4th Defendants. Counsel argued that the only reason why the Claimants instituted this action against the 3rd and 4th Defendant is because the Claimants holds the notion that the 1st Defendant is jointly owned by the 3rd and 4th Defendants. Counsel however argued that the 1st Defendant is a distinct company and assuming without conceding that it is a subsidiary company, it still does not justify the inclusion of the 3rd and 4th Defendant in this suit.

With regards to the 2nd Defendant, counsel contended that the 2nd Defendant acted in official capacity as an agent of a disclosed principal. Counsel urged the court to hold that this action cannot be successfully maintained against the 2nd Defendant who acted as agent of 1st Defendant and the 3rd and 4th Defendants as distinct entities.

In the light of the foregoing, I have taken consideration of the fact that counsel to the Claimant made no argument with regards to 3rd and 4th   while he conceded to the argument that the 2nd Defendant acted in capacity of agent to the 1st Defendant.

With regards to the 3rd and 4th Defendants, I reckon rightly so that there are no facts in the entire statements of facts establishing any wrongdoing against the 3rd and 4th Defendants to make for any cause of action against them. Also, there is no piece of evidence before this court showing that the 3rd and 4th Defendants jointly own the 1st Defendant.

While that is the finding of this court, I must add that as a distinct entity, the 1st Defendant is sufficient to bear the liability for its actions if any such liability is established even where there is an establised Parent-subsidiary relationship. The court in Musa v. Ehidiamhen [1994] 3 NWLR (pt.334)  held categorically clear that:

“…a subsidiary company is not an agent of the parent company, but is an entirely different entity. Its acts are not the acts of the parent company and the parent company is not responsible for its acts or defaults in the absence of special provisions in some contract between the parties”.

In addition, the court in Gbenga v Maersk Nig, Ltd (2013) 30 NLLR (Pt.87) at 484 where the court held that:

“A parent company may be treated as a separate and distinct legal entity from a subsidiary company in which case an employee of one company cannot be imputed to another, each must be held accountable for its actions”.

In view of the foregoing authorities and the facts of the instant case, this court holds that the 2nd 3rd and 4th Defendants are not answerable for the claims in the instant suit.

Having said that, I now turn my attention to the determination of issue one as to whether or not the Claimants are employees of the 1st Defendant. The contention as to whether or not the Claimants are employees of 1st Defendant arose from the facts averred by the Claimants that they were employed into the 1st Defendant through a recruitment company known as Agacox Nig. Ltd, consequent upon their applications to the 1st Defendant as (Bonny Utility Service Company).

The Defendants in reaction posited that the Claimants were not employees of the 1st Defendant but they were employees of Integrated Ventures Nigeria Limited while they were deployed to work for the 1st Claimant. The Defendants added that their contract of employment was terminated by Integrated Ventures Nigeria Limited and they were all issued termination letters.

In view of the foregoing, I must state that it is incumbent on he who asserts a fact to prove same. This position was restated in Dankula v. Shagamu (2008) ALL FWLR (Pt.413) 1280 at Pp. 1308 – 1309, paras H – B (CA).

“The burden of proof lies on the party who alleges the affirmative of a fact. In other words, it is the primary duty of the party who alleges or asserts a fact he relies on to prove it in order to succeed in the case. See Okechukwu & sons v. Ndah (1967) NMLR 368; Abiodun v. Adehin (1962) 1 All NLR 550; George v. U.B.A. (1972) 8-9 SC 264; Ojoh v. Kamalu (2006) All FWLR (Pt. 297) 978, (2006) 6 WRN 110.” Per Ariwoola JCA.

In addition to that, proof of fact asserted can only be achieved via the evidence placed before the court. In this regard, the court in Shona-Jason Ltd. v. Omega Air Ltd. (2006) 1 NWLR (Pt.960)1 held that:

“Facts are proved by oral testimony of the persons who perceived them, by the production of documents and inspections of things or places. Facts can also be proved by admissions, confessions, judicial notice, presumptions and estoppel.” Per MUHAMMAD, J.C.A. (P. 76, paras. B-C).

In an attempt to prove the assertion that the 1st Defendant is the Employer of the Claimants, several exhibits were presented before this court which includes the letter of employment of the Claimants collectively tendered as exhibit C2;  Identity Cards of the Claimants as issued to them by the 1st Defendant tendered as Exhibit C3; a copy of certificate of incorporation of the 1st Defendant Company tendered as Exhibit C4; Rules of Conduct for BUC staff tendered as Exhibit C5; Certificates and Identity Cards of 3 of the Claimants issued by Bonny Vocational Center tendered as Exhibit C6;  a document titled, BUC Benefit Direct Scheme Staff 2007 tendered as Exhibit C7, BUC Organizational Chart tendered as Exhibit C8; a collection of Basic Salary Review letters addressed to the Claimants and all bearing the date 21st August, 2007 tendered as Exhibit C9; a collection of letters written to the Claimants by IBTC Pension Managers all bearing varying dates from 7th September, 2007 tendered as Exhibit C10;  an employee leave application form filled by Samuel Allaputa tendered as Exhibit C11; a PAYE form filled by four of the Claimants tendered as Exhibit C12 and an image of the 2nd Claimant captioned as Employee of the Month tendered as exhibit C14.

I have evaluated the forgoing exhibits which the Claimants places reliance on in contending that the 1st Defendant is their employer. I reckon that Claimants acknowledged that the employment letter was given to them by Agacox Nig. Ltd, but that the said Agacox is merely a recruitment company hence the issuance of the letter was done on the directives of the 1st Defendant to employ them. They also relied on the fact that the I.D. Card they used was issued to them by the 1st Defendant and their names were included in the 1st Defendant’s organogram as shown in exhibit C8.

Reacting to the evidence tendered by the Claimants, Defendants tendered Exhibits D2(a) – (e) which comprises the letter of termination of appointment issued to the Claimants  headed in the name of Integrated Ventures Nigeria Limited. The Defendants also tendered Exhibits D6(a-f) which comprises Zenith Bank/IBTC Pensions Deposit slip, a list of IVNL staff and their designations, a letter dated 26th September, 2007 addressed to the General Manager of BUC Ltd on the employer/employee pension contribution for the month of June to August 2007 and a schedule of the said contributions for the various staff.

Upon a proper evaluation of the totality of the exhibits before the court, there is no gainsaying that there is incongruity as to the exact employer of the Claimants. This is firstly because the letter of offer of employment issued to the Claimants was signed and issued to them by Agacox Nigeria Limited. Taking the letter issued to 1st Claimant for instance, the relevant part of the said letter dated the 22nd of April, 2002, which for the purpose of the instant issue, reads thus:

With reference to your application for appointment as a TECHNICIAN in Bonny Utility Company (BUC) through the manpower Agency (Agacox Nig. Ltd). we are pleased to inform you of your successful performance in the interview conducted. Your appointment as a technician takes effect from 22nd April, 2003. 

From the language of the foregoing, it is clear that the Claimant applied to Bonny Utility Company but did so through the company known as Agacox Nig. Ltd. I must mention that at the time of the said appointment, 1st Defendant had not been incorporated as it only became an incorporation in 2007 as evidenced by Exhibit C4 tendered by CW1. The effect of which is that as at the time the Claimants were employed, 1st Defendant had no capacity to conduct an employment as it was not an entity in law. In other words, the 1st Defendant was non-existent in 2003. Arising from the averments of the Claimants, 1st and 3rd Claimant were employed in 2003, 2nd, 5th and 6th claimants were employed in 2002 while the 4th Claimant was employed in 2005.

While Exhibit C4 shows that the 1st Defendant was incorporated on the 6th of June, 2007, I find that the salaries of the Claimants were reviewed on 21st of August 2007 and the letter which notified them of the increase was written to them by Integrated Ventures Nigeria Limited not the 1st Defendant.

I am also mindful of another offer of employment dated the 24th of October, 2007 addressed to the 5th Claimant wherein the Claimant was notified thus:

Further to your application for employment, and the interview with you, we are pleased to offer you employment as Technician on Job Group E. you will be deployed to work at the Bonny Utility Company, Bonny during your employment with us, which is effective from Monday 8th October, 2007. The terms and conditions of your employment are as follows: (emphasis mine).

The foregoing indicates that even after the incorporation of the 1st Defendant in 2007, the employment of the 5th Claimant was still carried out by a company other than the 1st Defendant and he was specifically notified that he is to be deployed to the Bonny Utility Company.

That notwithstanding, the incongruity on the employment status of the Claimants was made pronounced upon the consideration of exhibit C10 which is the letter addressed to the Claimants by IBTC Pension Managers Limited wherein the 1st, 3rd, 4th and 5th Claimants were notified of their pension details. By the said notification, the Pension managers reckoned the 1st Defendant as the employer of the stated Claimants. This, contrary to the content of Exhibit D6 (a-f) particularly the schedule of contribution which was prepared by Integrated Ventures Nigeria Limited which mentions the employer of the listed names in the schedule to be Integrated Ventures Nigeria Limited and not the 1st Defendant.

In the face of the foregoing incongruity, the only fact that remains constant is that the Claimants were from inception employed by Agacox Nigeria Ltd with intent that they would work under the 1st Defendant and this nature of employment has been recognized as a tripartite employment under the Nigerian Labour law. The Nature of employment has a basis under the Labour Act Cap L1, LFN 2004 which defines an ‘employer’ under section 91 thus:

“any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer” (underline mine)

The foregoing definition of employer clearly portrays what transpired between the Claimants and  Agacox Nig. Ltd/Integrated Ventures Nigeria Ltd. as the Claimants were employed by the said Agacox Nig. Ltd/Integrated Ventures Nigeria Ltd not for themselves, but for Bonny Utility Company.

Beyond definition, the recognition of this nature of employment was manifested in the case of PENGASSAN v Mobil Producing Nig. Unlimited (2013) 32 NLLR (Pt.92) 243 where the court held that:

“A look at the actual relationship of the members of the appellant vis-à-vis MPNU [Mobil Producing Nigeria Unlimited] and the Forum of Contractors will reveal that the relationship yields to what the International Labour Organisation (ILO) terms disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers). See generally the ILO Report titled, The Scope of the Employment Relationship (ILO Office: Geneva), 2003 at pages 24 – 25. In the instant case, the disguised employment relationship of the parties comes in the form of a triangular employment relationship (paragraph iii of the ‘Conclusions Reached at the end of a Mediatory meeting between PENGASSAN/NUPENG and MPN Labour Contractors Forum’, which held at the Minister of Labour’s Conference Room, Abuja on 25th January 2007 attests to this). By triangular employment relationship is meant a relationship that occurs when employees of an enterprise (the ‘provider’) perform work for a third party (the ‘user enterprise’) to whom their employer provides labour or service. The triangular employment relationship comes in a variety of forms the best known of which (and which relates to the instant appeal) is the use of contractors and private employment agencies.” Per Kanyip J (as he was then, now PNICN).

After identifying the nature of the employment, the court went further to hold 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).

In applying the primacy of facts to the instant case, I must state that the identification of the employer in the instant case is not for the mere purpose of identification but for the purpose of establishing who bears liability for the claims made by the Claimant.

Having said that, I find that the Claims of the Claimant is in respect of claims for wrongful termination, payment of monthly salaries, leave allowance, pension contribution and payoff. The question that arises is whether the 1st Defendant can be held liable for the said claims in view of the triangular relationship existent between the Claimants, Agacox Nig. Ltd/Integrated Ventures Nigeria Ltd who are not made parties to this suit and the 1st Defendant?

In answering the foregoing question, this court is guided by the primacy of facts, and particularly in view of the fact that the evidence before the court points to both Agacox Nig. Ltd/Integrated Ventures Nigeria Ltd and 1st Defendant to be the employers of the Claimants as seen in Exhibits C2 and C10 respectively. Also, after the incorporation of the 1st Defendant in 2007, the 1st Defendant was documented as an employer of the Claimants with the Pension Fund Administrators in charge of the Claimant’s pension contribution part of which is deducted from Claimants’ salaries and the other part as contributed by the employer. In this regard, I must state that I am not oblivious of exhibit D6(a-f) tendered through DW1 in attempt to prove that the pension contribution of the Claimants was made by Integrated Ventures Nigeria Limited. However, Exhibit C10 tendered by CW1 which is a document emanating from the Pension Fund Administrators which named 1st Defendant as the employer of the Claimants carries more weight and is more convincing that the 1st Defendant was the one represented as the employer of the Claimants for the purpose of their pension.

Consequent upon the foregoing, this court finds that all attempt by the 1st Defendant to avoid responsibility over the Claimants in respect of this suit is unsuccessful as the 1st Defendant is by available facts and evidence before the court, the employer of the Claimants for the purpose of answering to the claims before the court and I so hold.

The effect of the foregoing is that issue one is resolved in favour of the Claimants and against the 1st Defendant.

I then turn to issue two which is to determine whether the Claimants are entitled to the reliefs sought. The resolution of the said issue is therefore dependent upon a consideration of the reliefs sought by the Claimants vis-à-vis the facts and evidence placed before this court.

That said, I find that the 1st and 4th reliefs sought by the Claimants are declaratory reliefs which the grant is dependent on the success of the Claimants proving that they are entitled to same. In this wise, The Supreme court in the case of EMENIKE V. PDP & ORS. (2012) LPELR-7802(SC) asserted with authority that:

“In Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (pt. 119) 361 at 373-374 this court pronounced with force that the burden of Proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.” PER FABIYI, J.S.C at P. 27, Paras. D-G.

Having said that, relief 1 as sought by the Claimants read thus:

“A declaration of court that the claimants’ contract of employment with the 1st defendant have not been lawfully terminated or determined in compliance with their (claimants) condition of service or contract of employment, especially having not been given any formal letter of termination except being locked out and told by the 2nd defendant that they (claimants) have been sacked/terminated from the service of 1st defendant company at the instance and behest of the 2nd defendant which is wrongful and illegal and as such claimants are entitled to their respective monthly salaries, xmas, (sic)  leave allowances, IBTC allowances etc, from the month of July 2010 till the month and year that judgment is delivered in this case”.

In view of the foregoing relief, I must state clearly that the nature of employment that ensued between the Claimants and the 1st Defendant is one of master-servant relationship, the termination of which can only  be declared wrongful where same is not in compliance with the terms of employment as agreed to by the parties and the remedy that is obtainable is what is stated in  the agreement as terminal benefit. This position was reckoned by the courts 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)

In the instant case, the Claimants contended that the 1st Defendant on 1st of July 2010 locked them out of its premises at the behest of the 2nd Defendant after they demanded for increase in salary upon which the 2nd Defendant asked them to reapply for their jobs. Claimants contended that the termination of their employment was in contravention of the condition of service issued to them which was tendered as exhibit C5.

On the part of the Defendants, they contended that after the incorporation of the 1st Defendant in 2007, it conducted recruitment exercise and following the job advert by the 1st Defendant, the Claimants applied for employment into the 1st Defendant but on the 30th of June, 2010 when the job selection test was ongoing, the Claimants for no justifiable reason disrupted the exercise and left the venue of the exercise, a conduct for which they later apologized. Defendants tendered the names of persons for Job selection quiz as exhibit D5(a-c). They also tendered application letters purportedly written by the Claimants as Exhibit D3(a-f) while the apology letters were tendered as Exhibits D4(a-d). With regards to the exhibits tendered by the Defendants, I must state that the job selection list bears 3 dates. Exhibit D5(a) is dated June 30, 2010 while 5(b) and 5(c) are respectively dated September 22, 2010 and October 15, 2010. I must state that the facts before this court as presented by both parties do not extend beyond July 1st 2010, hence there are no facts relating to Exhibit D5(b) and (c).  With regards to the application letters, I find that there is no nexus between the facts before the court as presented by the Defendants and the said application letters tendered as Exhibits D3 (a-f) in view of the fact that the application letters are dated between 16th – 18th August, 2010 while the facts in relation to the relationship with the Claimants ended on 30th June, 2010.

Notwithstanding the incongruity of the defence, I must state that it is established that the Claimants were stopped from working with the 1st Defendants on the 30th of June 2010 and what is most significant for the sake of the declaratory relief sought by the Claimants is that they acknowledge having not been working with the Defendants since 1st July 2010. With regards to this fact, there is no basis upon which the Claimants can be said to be any longer entitled to salaries, allowance or pension contributions which is usually paid from salary earned. This is the position of the law even where the termination of the employment is wrongful. For sake of clarity, salaries are paid under master servant employment for work done and not simply an entitlement for the fact that it has been stated in a letter of appointment. According to Black’s Law Dictionary, tenth edition, at page 1537, Salary is “an agreed compensation for services”. The said dictionary also defines accrued salary to be a “salary that has been earned but not yet paid”. The Labour Act on its part adopts the word ‘wages’ instead of salary and defines wages thus:

“wages” means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.

The effect of the foregoing is a clear indication that the Claimants have themselves posited and admitted that they were stopped from working from 1st July 2010. I must state that I am not oblivious of the effort of CW1 who stressed during cross examination that they have been working for the 1st Defendant while also admitting that they were chased away since July 2010.  He also admitted that they (the Claimants) received salaries for July 2010. The bottom line is that the Claimants have not been working for any of the Defendants since July 2010 when they were stopped from working perhaps summarily. Therefore, to seek a declaration that they are entitled to their respective monthly salaries, xmas, (sic)  leave allowances, IBTC allowances etc, from the month of July 2010 till the month and year that judgment is delivered in this case is an incompetent and unmeritorious relief which cannot be granted.

Having said that, I turn to the determination of whether the termination of the Claimants’ employment was wrongful. To ascertain that, I reckon and reiterate that the 1st Defendant did not issue a letter of employment to the Claimants and the letters of offer of employment issued to them were issued by Agacox Nigeria Ltd/Integrated Ventures Nigerian Ltd. however, the Claimants contended that their employment was in violation of clause 5 of exhibit C5. I have taken a look at exhibit C5 and fond that said document which is titled ‘Rules of Conduct for BUC Staff’ was issued on 17/4/2002.   This clearly means that the Claimants are placing reliance on a condition of service issued in the name of an unincorporated entity. The said document in view of Exhibit C7 (certificate of incorporation of 1st Defendant in 2007) can only mean that it is a pre-incorporation contract which is not binding on the 1st Defendant unless ratified. In the locus classicus case of EDOKPOLO & CO. LTD. V. SEM-EDO WIRE IND. LTD & ORS. (1984) LPELR-1017(SC) the court held that:

“It is now a settled principle of company law that a company is not bound by a pre-incorporation contract being a contract entered into by parties when it was not in existence. No one can contract as agent of such a proposed company there being no principal in existence to bind.” Per Nnamani, J.S.C (P.19, paras. C-E).

The Supreme Court however noted in the same case that the pre-incorporation contract can be ratified by another contract when it stated that:

“But there is nothing preventing the company after incorporation from entering into a new contract to put into effect the terms of the pre-incorporation contract. This new contract can be in express terms or can be implied from the acts of the company after incorporation as well as from the minutes of its general meetings and board meetings. Touche v. Metropolitan Railway Warehousing Co. (1871) 6 CH. App.671.” Per Nnamani, J.S.C (P. 20, paras. C-E).

In the instant case, the Claimants did not place any such evidence of express ratification before the court to bring into effect the condition of service as a binding document between the Claimants and the 1st Defendant. That notwithstanding, I must posit that by primacy of fact, the 1st Defendant’s act of absorbing the Claimants in the form of the continued triangular employment can be said to be acts from which an implied ratification can be inferred.

Consequently, the said exhibit C5 is binding on the 1st Defendant and I take into consideration the said clause 5 of the said exhibit which stipulates the disciplinary procedure and by 5.1.3 states to the effect that “if after two warnings setting forth briefly the reason for BUC’s satisfaction, a third offence is committed by the staff, his/her employment shall be terminated”. I reckon that the contention of the Claimants that their agitation leading to the lock out/termination of their employment was a result of demanding increase in salary and refusal to apply for a job they have long been doing. I also reckon that they contended that they were not issued either warning letter or formal letter of termination.

In the face of Claimants’ contention, I must state that I am not unmindful of exhibits D2(a-e) which are letters of termination issued to the Claimants by Integrated Ventures Nigeria Limited. While I reckon that the letters are dated 27th of May, 2010, the content of the letters makes no reference to the relationship of the Claimants with the 1st Defendant as stated in their letters of employment. For sake of clarity, one of the said letters reads:

“Sequel to the impending expiration of our manpower Service contract with NLNG Ltd, we regret to inform you that your services will no longer be required by 30th June, 2010. Consequently, we hereby give you 30 days’ notice for the termination of your appointment with us in accordance with the terms of your engagement.”  (underline mine)

The said letter I must state is not the effective means by which the Claimants’ employment with the 1st Defendant was terminated, rather, it was through the oral communication of the termination made by 2nd Defendant on the 30th of June, 2010 and thereby bringing to an end, the relationship between the Claimants and the 1st Defendant.

In addition to the foregoing, the Claimants were paid salary for the month of July 2010, which perhaps serves as the quantum of damages the Claimants would earn in the face of failure of the 1st Defendant to give the Claimants notice of termination of their employment. In this regard, the court in Nze v. N.P.A. (1997) 11 NWLR (Pt. 526) held that:

“The measure of damages for wrongful termination of employment or wrongful dismissal is the amount equivalent to the period of notice that the affected person ought to be given as stipulated by the contract which in the instant case, is one month’s salary. See also the case of Nigerian Marketing Board v. Adewunmi (supra).” Per ROWLAND, J.C.A. (P. 21, paras. E-F).

Consequent upon the entirety of the circumstance of this case, the facts and evidence before this court, the Claimants are not entitled to relief one as sought and same is accordingly refused.

Relief 2 is a claim for the salaries of the Claimants from the month of July, 2010 to the date judgment is delivered in this suit and post judgment interest on the sum granted. With regards to this claim, I have earlier declared the impropriety of the claims for salaries for days which the Claimants no longer carried on work for the 1st Defendant and same is the exact claim made by the Claimants in relief 2. Consequently, there is no basis upon which the Claimants are entitled to salaries from July 2010 and the said relief 2 is accordingly refused.

Relief 3 is various sums computed for annual leave allowance and x-mas bonus from the year 2010 till when judgment is delivered in this case.  The said relief suffers the same fate as the claim for salaries. For the sake of clarity, the Claimants no longer enjoy benefit of allowances and bonuses from the moment their employment was terminated.

I reckon that the said relief 3 incorporates a claim for the court to direct the 1st Defendant to pay back to the Claimants the contributions made to the 1st Defendant from 2007 to 2010 for their IBTC annual pension scheme. With regards to this claim, I find it apposite to clarify that the contributions were made for onward transfer to the Pension Fund Administrators which is IBTC Pension Managers Ltd and as the Claimants have themselves tendered Exhibit C10 which proves that a pension scheme was set up for them, then the claim for the contribution should be directed towards the Pension Fund Administrator save there is fact and proof that the 1st Defendant did not make the said contribution to the Pension Fund Administrator. In other words, the claim for the directive to refund pension contribution is also incompetent and cannot be granted. Consequently, relief 3 according fails and same is refused.

Relief 4 is for a declaratory relief for the entitlement to pay-off and an order for the payment of same to the Claimants. The entire facts set before the court makes  no reference to how pay-off is earned against the 1st Defendant and consequently, relief four as a declaratory relief fails and same is accordingly refused.

Relief 5 is for the sum of N200,000,000.00 as general damages for the hardship caused the claimants for the unlawful, wrongful and unjustifiable termination of claimants’ job and the psychological trauma caused the claimants.

For the umpteenth time, it must be said that damages for the termination of  a master servant employment does not take into account the inconvenience for loss of job. This was reiterated by the court in the case of SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC) where the Supreme court held that:

“The damages recoverable usually in cases of wrongful dismissal/termination have well been pronounced upon by our courts in several decided cases, such damages are said to be the losses reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other. Certainly, they do not include or take account of speculative or sentimental values. The court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the employee having been dismissed makes it more difficult for him to obtain fresh employment.” Per MUHAMMAD, JSC. (Pp.35, Paras.G-C).

The CW1 in the instant case admitted to have been paid salary for the month of July 2010 after they were stopped from working on the 30th of June, 2010. The said damages is reckoned as paid and nothing more can be ordered. Consequently, the claim for general damages is spent and same is accordingly refused.

Having addressed all the claims, it is safe to say that issue two is resolved against the Claimants to the effect that upon a careful consideration of the entire facts and circumstance of this case, the Claimants are not entitled to the reliefs sought.

In the final analysis, I find the claims of the Claimants to be unmeritorious. The said  claims must fail for lacking in merit and they are accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE

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