MR. INNOCENT OSUAGWU & 4 Ors. -VS-DAME MERCY CHUKWU & 3 Ors

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: 27^th day of March, 2019 SUIT NO: NICN/PHC/41/2018

BETWEEN

MR INNOCENT OSUAGWU
MRS. JANE CHARLES
HOPE KINGSLEY
PRECIOUS NMECHA
KELECHI KENNETH ANYI……………………………………………………………………CLAIMANTS

AND

1.DAME MERCY CHUKWU

SIR OGUNDU CHARLES CHUKWU

3.VICTORY CHILD GLOBAL RESOURCES LTD

VICTORY CHILD ACADEMY/HIGH SCHOOL……………………………………..DEFENDANTS

Representations:

Ben Uzozie for the Claimant

S.C. Emetu for the Defendant

Judgment

This suit was commenced by way of a General form of Complaint filed on the 27^th of March, 2018 along with a verifying affidavit, a statement of complaint, witness deposition, list of documents and copies of the listed documents to be relied upon at trial.

The Claimants are by the Complaint and statement of complaint, claiming jointly against the Defendants the following:

(a) A DECLARATION that the termination of the appointment of the claimants without prior notice is unlawful and a breach of implied terms of their employment agreement.

(b) A DECLARATION that the Complainants travails on behalf of the defendants are worthy of compensation having served the defendants diligently for years.

(c) AN ORDER of court directing the Defendants to pay the sum of N420,500.00 (Four Hundred and Twenty Thousand Five Hundred Naira) only to the Claimants being the arrears of salaries owed the claimants before their unlawful termination in the manner stated hereunder

1) 1st defendant (sic) N122,500.00

2) 2nd defendant (sic) N98, 000.00

3) 3rd defendant (sic) N95,000.00

4) 4th defendant (sic) N52,500.00

5) 5th defendant (sic) N52,500.00

(d) An Order directing the Defendants to pay 10% interest monthly on the Judgment till judgment sum is liquidated.

(e) An ORDER directing the Defendants to pay the claimants the sum of N2.1 million (Two Million One Hundred thousand Naira) being and representing compensation for untold hardship, sufferings and mental agony inflicted on the claimants by the abrupt decision of the defendants without payment of salary arrears, having served the defendants diligently according to the numbers of their years in service and in a manner stated hereunder:

1) 1st defendant (sic) N500,000.00

2) 2nd defendant (sic) N400,000.00

3) 3rd defendant (sic) N300,000.00

4) 4th defendant (sic) N400,000.00

5) 5th defendant (sic) N300,000.00

6) 6th defendant (sic) N200,000.00

(f) Any other Order (s) that this Honourable Court may deem fit to make in the circumstance.

In reaction to the claims, the Defendants filed a joint statement of defence on the 19^th of April, 2018 and accompanied same with a witness statement on oath, list of witnesses, list of documents and copies of the said documents.

The Claimants opened their case on the 29^th of October, 2018 and called three witnesses. Innocent Osuagwu as CW1, Kelechi Kenneth Anyi as CW2 and Mrs Jane Charles as CW3. They adopted their respective witness statements on oath which were marked as C1, C2(i) and C3(i) respectively. Through CW1, four documents were tendered and admitted in evidence as Exhibit C2 – C5.

Arising from the statement of fact and witness deposition on oath of the Claimants, the case of the Claimants is that they have worked blamelessly for the Defendants according to their number of years during which they were never issued with queries nor found liable for misconduct. The Defendants notwithstanding, laid them off from their employment in July 2017 without prior notice and with months of arrears of salaries left unpaid. The Claimants posited that they were not given notice and were not paid salary in lieu of notice. The 1^st Claimant (CW1) posited that he worked for 7 years with a salary of N35,000 and is owed salaries from 1^st April 2017 to mid-July 2017. The 5^th Claimant (CW2) posited that he worked for one year at a salary of N35,000 and is owed salary for the month of April and half of July, 2017 when he was laid off. The 2^nd Claimant (CW3) on her part posited that she worked for two years with the defendants at a salary of N25,000 which was increased to N30,000 in 2017. She posited that the Defendants did not pay her salary for the month of June and July 2016, April and half of July, 2017. The Claimants then pleaded with the Defendants to pay their salaries but the Defendants merely made promises and observed same in breach. The Claimant then approached the Legal Aid Council who set up a mediation where the 1^st Defendant was issued with the names of the Claimants and the arrears of monies owed to them. Still, the monies were not paid hence this suit.

During the cross examination of CW1, he posited that he is a staff employed in 2010 and that Exhibit C3 confirms that he is a staff of the Defendants. He posited that he knows the other claimants and they were employed as teachers. He confirmed that he earns N35, 000 and that the proof of same is with the school as he signs for his salary every month when paid by hand. He posited he wrote exhibit C4 with the consent of other Claimants. He also stated that at the meeting held at the Legal Aid Council, an agreement was reached for payment by the next meeting. He also posited that his employment was terminated when they were told to look for another work. He denied that the reason why he left work was because he allowed students who were owing school fees to partake in exams.

CW2 on his part posited that three people were his witness that his appointment was terminated. He posited that 1^st Claimant interviewed him when he was to be employed and there was no discussion as to giving of notice of termination. He added that he asked for appointment letter and the 1^st Claimant told him the Defendants do not issue employment letters. He further posited that the 1^st Defendant did not attend the meeting at Legal Aid Council but had a representation and they agreed that those who were present will be paid their salaries. He posited that Exhibit C2 was delivered to the 4^th Defendant but he does not know who delivered it. He stated that he signs in a book every time he is paid salaries as same is paid by hand and not through bank.

CW3 on her part posited that the 1^st Defendant did not give her instruction to compile names and amount owed. She also stated that the 1^st Defendant did not attend the meeting at Legal Aid Council but sent a representative and she promised she was going to pay those who were present. She posited that they were employed without appointment letters and had their appointments terminated orally. She added that salaries were paid by hand after entering the name into a book and signed against same. She posited that 1^st Claimant did not acquaint her with duration or notice of termination of appointment when she was interviewed.

The Claimants closed their case upon the discharge of CW3 while the Defendant opened theirs by calling a sole witness in person of Sir Ogundu Charles Chukwu as DW1 who adopted his witness statement on oath which was marked as D1. No document was tendered through the said witness.

Arising from the statement of defence and witness statement on oath of DW1, the case of the Defendants is that the Claimants are not confirmed staff as they are on probation. The defendants clarified that the 4^th Defendant is a business of the 3^rd Defendant having been incorporated in the name of the 3^rd Defendant. They posited that the Claimants’ employments were not terminated but the Claimants without notice abandoned their place of work after July, 2017. They added that the reason why they abandoned their place of work was because the Claimants had disobeyed the instruction of the 3^rd and 4^th Defendants by permitting some of their students to sit for examination without paying their school fees contrary to a circular issued by the 3^rd and 4^th Defendants in that regard and the sum total of fees owed was N1,699,000.00.

The Defendants further posited that in July 2017 after vacation, the employees of the 3^rd and 4^th Defendants including the Claimants were instructed to come back to the school after 7 days for a meeting with the 3^rd and 4^th Defendants regarding the school fees debt of N1,699,000.00 owed the 3^rd and 4^th Defendants. The employees including the Claimants were informed that culpable employees would have the debt withdrawn from their salaries as per each employees’ culpability. The Claimants failed to attend the meeting and had since then absconded from work. The Defendants posited that no agreement was entered into by the 2^nd Defendant on behalf of the 3^rd and 4^th Defendants for payment of salaries to the Claimants and added that the Claimants are not entitled to the claims sought.

During cross examination, DW1 posited that he is the Chairman of the school in question while his wife is the proprietress. He posited that he doesn’t issue documents which shows that Claimants are unconfirmed but as they employ, they issue a form to be filled. He added that it is under their discretion to determine how long it takes to confirm a staff. He asserted that he does not owe the Claimants salary. He posited that there is no document to show how he pays the Claimants salaries and they do not issue condition of service nor letter of employment. He also stated that he does not know if the circular issued to Claimants as employees is before the court. He admitted attending a meeting at Legal Aid Council but denied calculating the salaries owed to the Claimants.

Upon discharge of DW1, matter was adjourned for adoption of final written addresses. The Defendant filed theirs on the 14^th of February, 2019 while the Claimant filed theirs on the 26^th of February, 2019 upon which the Defendants filed a reply on point of law on the 11^th of March, 2019. All the processes were duly adopted as closing arguments of counsel in respect of the suit.

Arising from the Defendants’ final written address, counsel to the Defendants, S.C. Emetu Esq. formulated four issues for determination to wit:

Whether the Claimants in this Suit have placed adequate material before the Honourable Court to enable the Court adjudicate on their Claim.
If issue number One (i) is decided in the affirmative, whether the Claimants have proved their case upon the preponderance of evidence.

iii. Whether in the circumstances of this Case the Claimants are entitled to their Claim of Compensation as shown in paragraph 15(e) of their Statement of Complaint.

Whether in the circumstances of this Suit the Claimants are entitled to their Claim of arrears of salaries.

With regards to issue one, counsel submitted that the Claimants have not placed adequate material before the Honourable Court to enable the Court adjudicate on their Claim. Counsel added that the first relief of the Claimants shows that there is a contract of employment between the parties in this Suit and that the terms of the said contract of employment is not written or express but implied. He further posited that it also shows that notice of termination of employment is an implied term in the said implied contract of employment and the Complaint of the Claimants in this Claim is that the Defendants terminated the employment of the Claimants without following due process by not issuing to them prior notice of termination of employment.

Counsel then submitted that where a party complains of a wrongfully termination of employment and applies to Court to enforce the terms of his contract of employment, the party must place before the Court the terms of the said contract of employment whether expressed or implied to enable him succeed. He cited the case of AMODU V. AMODE (1990) 5 NWLR PART 150 PAGE 356 @ PAGES 367-368 PARAS H-A P370 PARAS D-F RATIO 5 (S.C).

Counsel further posited that the reason for placing the terms of employment sued upon whether express or implied before the Court is because the said terms are the bedrock of any case where the issue of wrongful termination of employment calls for determination. He cited the cases of AMODU V. AMODE (SUPRA) @ PAGE 373 PARAS A-B, LONGE V. F.B.N.PLC(2010) 6NWLR PART 1189 PAGE 1 P.57 PARAS D-E RATIO 18(SC) and NRC V. UMERA (2006) 17 NWLR PART 1008 PAGE 265@ P277-278 PARAS G-D RATIO 1.

He concluded on the issue that the Claimants in the instant case failed to place the implied terms of their employment like duration of employment, its terminability (sic) by notice, the length of notice required to determine it or the time at which notice to determine it may be given, wages, benefits etc before the Court to enable the Court adjudicate on the matter.

With regards to issue two, counsel posited that issue one cannot be determined in the affirmative. Counsel added that while CW1, CW2 and CW3 posited during cross examination that the termination of the Claimants’ employment was orally done, the Claimants did not call any other witness to corroborate the fact. He submitted that the pieces of evidence by CW1, CW2 and CW3 cannot assist the Claimants to show that they were wrongfully terminated because the implied term of oral termination which the witness gave evidence of was not pleaded.

Counsel further posited that Exhibits C2 and C4 which the Claimants mostly relied upon in prove of their case but failed to prove that the said exhibits were received by the Defendants while the law is that an unreplied business letter is evidence to show admission of the contents of the said unreplied business letter. He added that however, there should be prove that the said business letter was received by the person it was addressed to especially where the alleged recipient denies receiving the said letter. He cited the case of NLEWEDIM V. UDUMA (1995) 6 NWLR PART 402 PAGE 383 @ PAGE 394 PARA B (SC).

In arguing issue three, counsel submitted that under the circumstances of this case, the Claimants are not entitled to their Claim of compensation as shown in paragraph 15(e) of their Statement of Complaint. He reproduced the said claim and contended that that the Claim for compensation is not appropriate and must therefore fail because the Claim is speculative and/or sentimental. He added that the Law is that in an action arising from wrongful dismissal of employment, there can be no room for Claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract. He cited the case of UTC V NWOKORUKU (1993) 3 NWLR PART 281 PAGE 295 PAGE 312 PARAS B-C.

Counsel further contended that the Claimants are not entitled to their Claim of Compensation because their evidence is not in harmony with their pleadings. He cited the case of AMODU V. AMODE SUPRA @ P373 PARAS A-B.

With regards to issue four, counsel submitted that the Claimants are not entitled to their Claim of arrears of salaries in this Suit. He reproduced paragraphs 15(e) and 11 of the statement of complaint and posited that the Claim of the Claimants under the paragraphs being a claim for previously earned salary must be pleaded and proved strictly by the Claimants as it is in the nature of special damages. UDEGBUNAM. F.C.D.A. (1996) NWLR PART 449 PAGE 474 @ PAGE 485 PARAT. RATIO 5.

Counsel concluded by urging the Court to dismiss the Claimants’ Suit with substantial Cost awarded in favour of the Defendants.

In reaction to the forgoing, counsel to the Claimants, B. Uzozie Esq., through the final written address of the Claimants formulated six issues for determination to wit:

WHETHER THERE IS A CONTRACT OF EMPLOYMENT BETWEEN THE CLAIMAINTS AND THE DEFENDANTS AND IF PARTIES ARE NOT BOUND BY THE TERMS OF CONTRACT AS IMPLIED BY THE LAW IN THE FACE OF AN OBVIOUS UNWRITTEN CONTRACT.
WHETHER THE CLAIMANTS WERE BONAFIDE STAFF MEMBERS OF THE DEFENDANTS.
WHETHER THE CLAIMANTS HAVE PROVED THAT THE DEFENDANTS OWE THEM ARREARS OF SALARIES AS CLAIMED AS PER THE WRIT OF SUMMONS.
WHETHER THE CLIAMANTS HAVE MADE OUT A CASE AGAINST THE DEFENDANTS TO BE ENTITLED TO DAMAGES AS SOUGHT BY THE CLAIMANTS.
WHETHER THE DEFENDANTS’ SOLE WITNESS, THE DW1 IS A WITNESS OF TRUTH.
WHETHER THE DISMISSAL OF THE CLAIMANTS WAS ARBITRARY.

In arguing issue one, counsel posited that from the totality of evidence adduced, it is established that there is the existence of an unwritten contract between the defendants and the claimants. He added that in view of the testimony of DW1 who stated that the Claimants are unconfirmed staff, it is inarguably correct that the claimants worked for the 4^th defendant according to their number of months and years. He added that the testimony in addition to that of CW1 shifts the burden unto the Defendants to prove that the Claimants are unconfirmed staff.

In arguing issue two, counsel posited that the issue for determination hinges on the uncontroverted Exhibit C3, which establishes the fact that the 1^st Claimant is a staff of the 4^th Defendant. He added that the failure of the DW1 to contradict EXHIBIT C3 amounts to an admission. He cited the case of N.I.D.C v Rabo Farms Ltd (2018)15 N.W.L.R. (Pt. 2643) p.449, paras C-D.

With regards to issue three, counsel posited that DW1 during cross examination, corroborated the evidence of claimants especially the CW1, CW2 and CW3 that the claimants were paid cash upon each of the claimants signing against his or her name in the payment Register.

Counsel cited the case of Mbata v Anzanze (2018) 15 NWLR,( Pt 1643) pg 574 on the treatment of uncontradicted evidence and posited that the weight of evidence goes to show that the claimants receive salaries by hand and signs off same in the salary book domiciled with the bursar whom the defendant failed to call as a witness and who also failed to produce the said salary book.

Counsel urged the court to discountenance the defendant’s contentions and rule that the claimants are owed arrears of salary as claimed.

With regards to issue four, counsel submitted that where there is no written contract, terms of the said contracts are implied and court would rely on the pieces of evidence before it in deciding the matter one way or the other.

Counsel added that if issue 3 is decided in the affirmative, the claimants who have travailed and served the defendants for years with arrears of salaries are entitled to compensation.

In arguing issue five, counsel contended that the logical inconsistency in the evidence of the DW1 and the abandoned witness Deposition of the 1^st defendant points to the issue under review. He cited section 122(2)(m) of EVIDENCE ACT 2011 and urged the court to take Judicial Notice of its record and all the processes before it to uncover the defendants’ inconsistencies.

He concluded that the logical inconsistence and incompatibility of the testimonies of the Defendants’ witness, the DW1 and the statement on oath of the 1^st Defendant on Record leave the balance of justice swaying against the defendant.

With regards to issue six, counsel admitted that it is a settled law that where the terms of a contract are written, the court will not rely on documents outside the terms of contract to find for the parties. He cited the case of SPDC VS NWAKA (2003) ALL FWLR (PT 144) 506SC. He however added that in the instant suit, the terms of the contract of the parties to this suit are implied. He also added that the court shall however not speculate but rely on the pieces of evidence before it to find for the parties on the test of the conduct of a reasonable man.

Counsel further posited that there is no contention on the right of an employer to sack an employee without a reason but a reasonable man would pay the claimants the arrears of salary and at least a salary in lieu hence the dismissal was at the instance of the defendant.

Counsel concluded urging the court to uphold the claims of the Claimants and award exemplary cost.

By way of reply, counsel to the Defendants, S.C Emetu, posited with regards to arguments on issue three as argued by counsel to the Claimants. He posited that the submission of the Claimants is not the position of the law. He added that in the first place, the Law is that a party who asserts the existences of a fact will shoulder the burden of proving what he asserts otherwise he will fail. He cited the case of N.I.I.A V. AYANFALU (2007)2 NWLR PART 1018 PAGE 246 PP269-270 PARkS C-A RATIO 14. He also cited section 85 and 87, 89 and 91 of the Evidence Act to posit that the Claimants are forbidden from giving oral evidence in respect of the register they sign for payment.

He urged the court to dismiss the case of the Claimants.

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 carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:

Whether or not Claimants are entitled to the reliefs sought in view of the facts and circumstances of this case and the evidence before this court.

In resolving the sole issue, I must of necessity state from the onset that I reckon that two of the reliefs sought by the Claimants are declaratory reliefs, the grant of which places the burden of proof on the Claimant. While the rest of the reliefs are for orders dependent on the success of the declaratory reliefs.

With regards to the nature of declaratory reliefs, the court in the case of FRIDAY & ORS V. THE GOVERNOR OF ONDO STATE & ANOR (2012) LPELR-7886(CA) held that:

“Black’s Law Dictionary 9th edition defines “declaratory relief” as “a unilateral request to a court to determine the legal status or ownership of a thing.” See also: Enekwe V. I.M.B. (Nig.) Ltd. (2005) 11 – 12 SC 3 @ 14 and 30. A declaratory judgment merely declares the rights of the parties. However, in seeking a declaratory relief, a claimant may go further in the same action to seek certain consequential orders, which would become enforceable upon the declaration sought being made in his favour.” Per KEKERE-EKUN, J.C.A (as she then was) (P. 40, paras. A-C)

With regard to the declaratory reliefs, the court in IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence led. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A.

It was further posited in the case of SIJUADE V. OYEWOLE (2011) LPELR-4869(CA) that:

“The law is trite that in an action that seeks declaratory relief, admission on the part of a defendant will not independently entitle the plaintiff or claimant to judgment. The plaintiff or claimant, in such circumstances, is not relieved of the burden placed on him to establish his case by positive and credible evidence. See MOTUNWASE V. SORUNGBE (1988) 5 NWLR (pt. 92) 90 at 92. A declaratory relief cannot be granted merely because of default of pleadings or on the admission of a defendant. See AYANRU v. MANDILAS LTD. (2007) ALL FWLR (Pt. 382) 1849.” Per Adumein, J.C.A. (P.32, Paras.B-E)

The question that arises from the foregoing authorities is what is the legal right that the claimant wants this court to declare as arising from the instant suit and has the Claimants proved the existence of same in view of the facts, circumstances and evidence before the court?

In answering the above question, there is no gainsaying that going by the declaration sought by the Claimants, the Claimants want the court to declare that the termination of their employments by the Defendants without prior notice is unlawful and a breach of the implied terms of agreement. In other words, they want a declaration on the legal status of their employment.

To discharge the burden of proof, the law is also settled in terms of what the Claimant should present before the court to be entitled to such declarations when the issue is related to termination of employment. In this regard, the court in U.T.C. NIGERIA LTD. v. PETERS (2009) LPELR-8426(CA) held that

“It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus:

(i) To place before the trial court the terms of the contract of employment;

(ii) To prove the manner in which the said terms were breached by the employer thereof.

See JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.” Per SAULAWA, J.C.A (P. 41, paras. A-D).

The question that necessarily follows is whether the Claimants have placed before this court terms of the contract of employment and whether they have shown the manner in which the terms were breached? The answer that is obvious to all and sundry with respect to the terms and condition of the contract of employment is that the Claimant has not presented any such terms before this court. However, it is clear to both parties that the requirement to present such terms in the form of a document cannot be satisfied since no such express terms were at any time exchanged between the parties.

Consequently, the terms guiding the relationship between the parties are to be implied by this court in view of the circumstances of this suit.

The circumstance of this suit leading to the demand for the declaration is that the Claimants were employed by the 3^rd Defendant to work in the 4^th Defendant but were not issued with any letter of employment. The Claimants through 1^st Claimant as CW1 tendered Exhibit C3 which is titled “to whom it may concern” and dated the 11^th of January, 2016. The said exhibit is a confirmation that the bearer, Innocent Osuagwu (1^st Claimant) is a staff and academic principal of the 4^th Defendant school. The Claimants in July 2017 had their employment terminated without notice and without payment of their arrears of salaries.

The 1^st, 5^th and 2^nd Claimant as CW1, CW2 and CW3 maintained that they were laid off by the Defendants in July 2017 while the CW1 added that they were told to look for another work.

On the part of the Defendants, DW1 posited that while the claimants were unconfirmed staff on probation, no letter of employment or condition of service was issued to the Claimants. The Defendants generally posited that the Claimants’ employment was not terminated but that the Claimants abandoned their work because they were culpable for breaching the Defendant’s circular which directed that no student in debt of school fees should sit for exams.

In view of the burden of proof placed on the Claimant and the circumstance of this suit wherein the employment relationship is largely undocumented, this court takes into cognizance the provision of section 12 (2) (b) of the National Industrial Court Act which provides that:

12 (2) Subject to this Act and any rules made thereunder, the Court:

(b) shall be bound by the Evidence Act but may depart from it in the interest of justice.

The effect of the forgoing is that this court has the discretion to depart from the rule of evidence as stipulated in the Evidence Act in the interest of justice where the occasion and circumstances of the case so demands.

That said, before drawing inference from the foregoing facts and circumstances, it is apposite to mention that the Nigerian Labour Law, through the provisions of section 7 – 20 of the Labour Act prescribes matters that the employer ought to put in writing and given to the employee within three months of the employment. Such matters include the wages to be paid and the manner of payment and the appropriate period of notice to be given by the party wishing to terminate the contract. it must also be noted that Where there is no written agreement as to the period of notice of termination of contract of employment, the notice to be given must be reasonable notice and same can be implied by the court. See UNION BANK OF NIGERIA PLC v. SOARES (2012) LPELR-8018(CA).

The forgoing provision notwithstanding, it must be noted that it is possible for parties to orally enter into a contract of employment as the court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC) held that:

”A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff.” Per MUHAMMAD, JSC. (P.13, Paras.A-C).

Having said that, while it is not in doubt that a contract of employment existed between the Claimants and the Defendants, such writings as expected by the Labour Act was not made in the instant case, therefore this court is to imply the terms where necessary. It is reckoned that it is not entirely out of place for parties not to have their contract of employment in writing but failure to express certain terms would leave the court with the responsibility of implying same as guided by the statute. In this regard, the court in AFRAB CHEM LTD v. OWODUENYI (2014) LPELR-23613(CA) held that:

“In an employer-employee or master-servant relationship, in addition to or to the exclusion of the express terms of the contract, the law imposes certain implied terms into the contract. These implied terms may either be founded on statute, by custom, by practice, public policy or such terms as to ensure that the master does not subdue the servant to a condition of servitude or slavery or like terms. While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q – D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.” Per WAMBAI, J.C.A. (Pp.28-29,paras.A-A)

There is no gainsaying that the court has the power to imply terms which the parties have themselves failed to agree upon but are necessary and would have been stated had the parties adverted their minds to it. See Lister v Romford Ice and Cold Storage Co. Ltd. (1959) WLR 555 at 594.

The question that arises from the forgoing is what are the terms that this court is called upon to imply in view of the express agreement of parties in respect of same and are the Claimants entitled to same in view of the circumstances of the case?

The term which the court has been invited to imply is the implied term as to notice of termination of employment. This is in view of the fact that the Claimants have alleged that the Defendants terminated their employment without notice.

Before implying the term, I find it apposite to resolve the contention of whether or not the employment of the Claimants have been determined by the Defendants. While the Claimants have alleged that the Defendants laid them off and told them to look for work elsewhere, the Defendants have posited that the Claimants abandoned their work in view of the culpability to pay N1, 699,000.00 being the school fees of students who took exams without paying the fees. The defendants have not placed any evidence to establish the said culpability and it is unsustainable that the Claimants abandoned their work in view of student’s failure to pay school fees.

Consequently, in view of the circumstances of the case, the assertion by the Claimants that the Defendants laid them off is plausible, the implication of which is that the Defendants terminated the employment of the Claimants and I so hold.

Having said that, I then turn to the implied terms as to notice of termination. In this regard, the court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC) posited that:

”Where there is no mode of termination of the contract of service by any form of notice, the common law rule will apply. That rule is that the court will imply a presumption that contract of service is to terminate by reasonable notice given by either party. What amounts to reasonable notice will depend on the intention of the parties as revealed by the terms of the contract.” Per MUHAMMAD, JSC. (P.27, Paras.A-C)

In addition, the court in Akumechiel v. B. C.C. Ltd. (1997) (Pt.484) 695 at 703 stated thus: “Where the contract of employment is silent as to the required notice of termination, the court will imply that a reasonable notice is necessary. And it is within the province of the Judge acting as a jury to decide what is reasonable notice, having regard to the following factors:

(a) the nature of the employment

(b) the length of service, and

See also Ogunsanmi v. C.F. Furniture (WA.) Company Ltd. (1961) All NLR 862.

In the instant case, I must state that the terms to be implied are founded on the provisions of the Labour Act of which section 11 stipulates the various length of notice for the determination of an employment with regards to various periods in employment. Section 11 provides that:

(1) Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

(2) The notice to be given for the purposes of subsection (1) of this section shall be-

(a) one day, where the contract has continued for a period of three months or less;

(b) one week, where the contract has continued for more than three months but less than two years;

(d) one month, where the contract has continued for five years or more.

In giving effect to the implied term as to notice of determination, I reckon that the Claimants have put forward various years in their employment with the Defendants thus:

Innocent Osuagwu (1^st Claimant) 7 Years

Jane Charles (Mrs.) (2^nd Claimant) 2 Years

Hope Kinsley (3^rd Claimant) 2 Years

Precious Nmecha (4^th Claimant) 1 Year

Kelechi Kenneth A (5^th Claimant) 8 months

By virtue of the numbers of years that they have worked, the 1^st Claimant is entitled to 1 month notice, 2^nd and 3^rd Claimants are entitled to 2 weeks’ notice, while 4^th and 5^th Claimants are entitled to one week notice respectively.

Arising from the circumstances of the case, I find that the Defendants did not issue any such notice to the Claimants before laying them off i.e. before terminating their employment and that makes the termination wrongful and I so hold.

Having found that the termination of the employment of the Claimant without notice was wrongful, I then turn to the reliefs sought by the Claimants.

Relief (a) is for “A DECLARATION that the termination of the appointment of the claimants without prior notice is unlawful and a breach of implied terms of their employment agreement”.

This court has found that the implied term as to notice of termination of employment of the Claimant was breached in the absence of the any reasonable notice given to the Claimants before their employment was terminated. The Claimants upon the testimony of CW1, CW2 and CW3 proved on a balance of probability that the Defendants laid then off and with that, the burden shifts unto the Defendants to present credible evidence to disprove the Claimants that they abandoned their jobs for any reason whatsoever.

Consequently, I find the Claimants entitled to the said relief and same is granted accordingly.

Relief (b) is for “A DECLARATION that the Complainants (sic) travails on behalf of the defendants are worthy of compensation having served the defendants diligently for years”.

With regards to this relief, the Claimants have failed to place before the court any express term and it is not a term necessary for this court to imply that the Claimants are entitled to compensation for diligent service.

The law is clear as to the remedy that employees are entitled to upon the employment being wrongfully terminated. The court in the case of SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC) 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).

In view of the foregoing position of the law, relief (b) is accordingly refused.

Relief (c) is for AN ORDER of court directing the Defendants to pay the sum of N420,500.00 (Four Hundred and Twenty Thousand Five Hundred Naira) only to the Claimants being the arrears of salaries owed the claimants before their unlawful termination in the manner stated hereunder:

1) 1st defendant (sic) N122,500.00

2) 2nd defendant (sic) N98, 000.00

3) 3rd defendant (sic) N95,000.00

4) 4th defendant (sic) N52,500.00

5) 5th defendant (sic) N52,500.00.

In attempt to prove the said relief, the Claimants posited that their various salaries were usually paid by the Defendants handing them their salaries in cash while they sign against their names in a register. The Claimants did not present the said register although the Defendant through DW1 admitted that he does not have any document to show that he has paid the Claimants’ salaries.

The Claimants tendered Exhibit C4 as a copy of letter dated 9^th of October, 2017, written by 1^st Claimant and addressed to the 1^st Defendant to plead for intervention in paying the arrears of salaries owed to certain staff whose names were listed therein including the Claimants.

In addition to the foregoing, the Claimants in attempt to recover their alleged arrears of salaries, involved the Legal Aid Council who invited the Defendants for mediation via exhibit C5 dated the 13^th of October, 2017. After the first meeting, the 1^st Claimant wrote the Exhibit C5, dated the 8^th of November, 2017 to the 4^th Defendant intimating the defendant that based on the mediation meeting, it was unanimously agreed that the listed disengaged staff will be paid their arrears of salaries.

Arising from the forgoing, I find on a preponderance of evidence, that the Defendants are indeed indebted to the Claimants for arrears of salaries. While I reckon the contention of counsel to the Defendants that the said exhibits were not delivered to the Defendants, I must state that the contention in no way holds water in view of the way the Defendants have dealt with the Claimants by not issuing or keeping any document or correspondence. I also reckon the contention of the Counsel to the Defendant that the claim for salaries is a class of special damages that are to be specifically pleaded and proved and that the Claimants have failed to plead and prove the said salaries. In this regard however, I find it apposite to hold that the failure to keep appropriate record of payment of salaries to the Claimant by the Defendant and the payment of salaries by hand cannot be to the disadvantage of the Claimants.

In addition, the requirement to prove the non-payment of salaries by way of documents can be dispensed with in view of section 12 (2) (b) of the National Industrial Court Act which permits this court to depart from the provisions of Evidence Act in the interest of Justice and in view of the fact that it will amount to an unfair labour practice for the Defendants to deny payment for work done by the Claimants. It is in circumstances such as this, where employers would take undue advantage of employees and be high handed in releasing any document which the Claimants would use against them that the Law makers have relaxed the rule of evidence in the interest of justice and this court is inclined to invoke same in the instant suit.

The circumstances of the case shows clearly that the Defendants owe the claimants salaries in the various sums stated in the reliefs sought totaling the sum of N420,500.00 (Four Hundred and Twenty Thousand Five Hundred Naira).

Consequently, relief (c) is granted to the effect that this court makes:

“an order directing the Defendants to pay the sum of N420,500.00 (Four Hundred and Twenty Thousand Five Hundred Naira) only to the Claimants being the arrears of salaries owed the claimants before their unlawful termination in the manner stated hereunder:

1) 1^st Claimant N122,500.00

2) 2^nd Claimant N98, 000.00

3) 3^rd Claimant N95,000.00

4) 4^th Claimant N52,500.00

5) 5^th Claimant N52,500.00”.

Relief (d) is for An Order directing the Defendants to pay 10% interest monthly on the Judgment till judgment sum is liquidated.

The consideration of this relief is predicated on the discretion of the court as Order 47 Rule 7, National Industrial Court (Civil Procedure) Rule 2017 stipulates that the Court may at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.

It is clear that the benchmark set by the rules of this court is 10% per annum while the Claimants have sought for 10% per month.

In view of the forgoing provision, this court is inclined to exercise discretion in favour of the Claimants and consequently grant relief (d) to the effect that:

this court makes “an order directing the Defendants to pay the arrears of salaries of the Claimants within 30 days failure of which same shall attract 10% interest annually till the judgment sum is liquidated”.

Relief (e) is for An ORDER directing the Defendants to pay the claimants the sum of N2.1 million (Two Million One Hundred thousand Naira) being and representing compensation for untold hardship, sufferings and mental agony inflicted on the claimants by the abrupt decision of the defendants without payment of salary arrears, having served the defendants diligently according to the numbers of their years in service and in a manner stated hereunder:

1) 1st defendant (sic) N500,000.00

2) 2nd defendant (sic) N400,000.00

3) 3rd defendant (sic) N300,000.00

4) 4th defendant (sic) N400,000.00

5) 5th defendant (sic) N300,000.00

6) 6th defendant (sic) N200,000.00

The said relief is dependent on the success of the declaratory relief sought in relief (b) which this court has considered and refused. Consequently, relief (e) is accordingly refused.

Relief (f) is an omnibus prayer for “Any other Order (s) that this Honourable Court may deem fit to make in the circumstance. In view of the prayer, this court has found for the Claimant that the failure to give reasonable notice of termination of the Claimants’ employment is wrongful. In the circumstance of the case, this court deems it fit to make a consequential order to the effect that:

This court makes an order directing the Defendants to compute and pay the sum of salary in lieu of: one (1) month notice to the 1^st Claimant, two (2) weeks’ notice to 2^nd and 3^rd Claimants and one (1) week notice to the 4^th and 5^th Claimants. The said computed sum is to be paid within 30 days, failure of which same shall attract 10% interest annually till the judgment sum is liquidated.

In view of the foregoing, the sole issue is determined largely in favour of the Claimants to the effect the Claimants are entitled to part of the reliefs sought in view of the facts and circumstances of this case and the evidence before this court.

In the final analysis, I find the case of the Claimants to be partly meritorious at the extent to which part of the reliefs sought have been granted while the rest of the claims are dismissed for lacking merit.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE