IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS
BEFORE HIS LORDSHIP HON. JUSTICE K.I. AMADI
DATED: October 20, 2019 SUIT NO.: NICN/JOS/36/2017
BETWEEN:
JOSEPH OLUBIYI ADETOYE —– CLAIMANT
AND
ZUMA STEEL WEST AFRICA LIMITED —– DEFENDANT
REPRESENTATION
A.A. Adewole with N.O. Adewale and Eric .E. Duniya for the Claimant
Okechukwu Ajunwa with Kenneth Ayang for the Defendant
JUDGMENT
INTRODUCTION
The Claimant commenced this suit by a general form of complaint dated 5th December 2017 and filed 6th of December, 2017. The Claimant claimed against the defendant the following reliefs:
- A Declaration that the contract of employment between the claimant and the defendant still subsist.
- An Order directing the defendant to pay to the claimant the total sum of N103,404.6k only being balance of arrears of half salary owed him by the defendant for nine months from the months of July 2006 to March 2007.
- An Order directing the defendant to pay the claimant the total sum of N2,964,265.2k only being arrears of full salary owed him by the defendant for 10 years 9 months i.e 129 months from April 2007 to date.
- An Order directing the defendant to pay to the claimant the sum of N100,000.00 only being money paid to the defendant by the claimant in year 2006 as rent for the staff quarters occupied by the claimant.
- General damages in sum of N5,000,000.00 (Five Million Naira) only.
- Interest on the judgment sum at the rate of 10% from the date of judgment until final liquidation.
- An Order setting aside the defendant’s internal memo dated 26th January, 2017 and the Notice to Quit dated 3rd August, 2017 and served on the claimant, the same having been issued in breach of the claimant’s contract of employment.
- An Order restraining the defendant from ejecting the claimant from the defendant’s quarters at Zuma Steel Housing Estate, Rayfield, Jos, Plateau state until all his remunerations have been fully paid to him.
- The sum of N600,000.00 (Six Hundred Thousand naira) only being cost of this action. The defendant filed a Memorandum of Appearance dated and filed 22nd January 2018, the Defendant filed Statement of Defence and an Amended statement of Defence dated and filed 23rd July 2018. The Claimant filed a Reply to defendant’s Statement of Defence dated 22nd March 2018 and filed 23rd March 2018.
By an order of this Honourable court and agreement of counsel on both sides of this case, 11(eleven) of the 14 suits filed by the former employees of Jos Plant Rolling Mill, who were later employed by the defendant upon privatization against the defendant were consolidated leaving three suits because of a peculiar issue or fact of that particular case. The sister suits that were consolidated and judgment given thereof are the following: NICN/JOS/27/2017, NICN/JOS/28/2017, NICN/JOS/29/2017, NICN/JOS/30/2017, NICN/JOS/31/2017, NICN/JOS/32/2017, NICN/JOS/33/2017, NICN/JOS/34/2017, NICN/JOS/35/2017, NICN/JOS/37/2017, NICN/JOS/38/2017. I have to state here that these judgments could not be delivered within the 90 days framework for reason I will state to the Chief Justice of Nigeria in my letter in that regard.
This case is one of the other three cases with one distinguishing issue or fact that was not consolidated with the other sister cases aforesaid. In this case the peculiar or distinguishing fact is the claim by the defendant that the claimant herein took up another job with the University of Jos sometime in 2010 as an account. I shall therefore adopt the entire proceedings in the consolidated sister cases which I hereby apply to this case. I shall therefore go straight to the determination of that peculiar issue.
It is the case of the Defendant that the Claimant has since taken up employment with the University of Jos as an accountant. That this piece of evidence was corroborated by the Claimant himself during the fires of cross examination.
The learned counsel argued that one question that comes to mind is; does the Claimant’s act of taking employment with University of Jos since 2010 not amount to a repudiation of his employment, a declaration of loss of interest in the employment of Defendant by conduct and an abandonment of same.
Counsel submitted that the answer to the above poser is in the affirmative. That it beats logic and reasonability for the Claimant to ask this court to declare that his contract of employment with the Defendants still exist even in the face of his clear admission against his interest in corroboration of the case of the Defendant that the Claimant has since jettisoned his employment with the Defendant and has taken up employment with University of Jos.
Counsel submitted further that the action of the Claimant in taking up another employment is a clear case of termination of his employment and abandonment of the rights accruing therefrom. That the Claimant cannot after taking another employment since 2010 and currently being gainfully employed in same come back to ask the court to declare his employment as still in subsistence, that this is clearly against all known labour practice and contract of employment standards. Counsel urged you’re the court to resolve the said issue in favour of the Defendant.
In his own argument in respect of this issue the learned counsel for the claimant argued that Defendant failed to lead even a scintilla of evidence before this Honourable Court to establish that the Clamant has been engaged in any new employment. However, that assuming without conceding that there is evidence to the effect that the Claimant was engaged in another employment, that the Defendant did not lead evidence as to whether the employment he engaged in within the relevant period was temporary or permanent. Therefore, this Court cannot speculate. Counsel referred the court to the case of Olufeagba v Abdul – Raheem (2009) 18 NWLR (Pt. 1173) 384 at 406, R. 25. However, that in the instant case, it is not permanent. Counsel submitted that the Claimant is entitled to look for a job to do to meet his needs.
COURT’S DECISION
The claimant admitted under cross examination that he is presently employed by the University of Jos since 2010 as an Accountant on grade level countis 10. It is trite that admitted facts need no further proof. I therefore find that the claimant actually took employment since 2010 as alleged by the defendant with the University of Jos.
However, the question here is how does the employment of the claimant derogate his claims in this case. The answer is in the negative, because there is no evidence that he was ever recalled. It is only a situation when he was recalled by the defendant and he turned it down that it can be said that he has terminated the contractual relationship. In any case, an employee whose employment was wrongfully terminated or who is forced by circumstances in his workplace as in this case to go on long leave without pay is entitled to find another employment to mitigate his losses, see Obot v. C.B.N. (1993) 8 NWLR (Pt. 310) 140 at 162 – 163, Olatunbosu v Nigerian Institute of Social and Economic Research Council 19981 LPELR-SC 136/1986, and CCB(Nig) Ltd v Nwankwo(1993)4NWLR(Pt.286) 15.
From the foregoing, my finding that the defendant terminated the contractual relationship between the parties wrongfully by conduct still applies. But having mitigated his losses the claimant herein shall be paid one-year salary thereof. All the other reliefs as granted in the consolidated cases are shall apply to this case.
For avoidance of any doubt I hereby order the defendant to pay to the claimant the sum of N275,745.60 being his one year salary for wrongful termination of employment. Thereafter the claimant shall vacate the premises on or before the expiration of 90 days or pay rent as a regular tenant to the defendant.
Judgment is entered accordingly.
……………………………………………
Hon. Justice K. I. Amadi, Ph.D.
(Judge)
