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National Industrial Court

MR NUMOFEGHA DIEPREYE -VS- ETOPO CONTROL SERVICES

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

              BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: FRIDAY 31ST JANUARY, 2020                                                                     Suit No. NICN/ YEN/ 72/ 2017

 

BETWEEN:

MR NUMOFEGHA DIEPREYE                                           ……………… CLAIMANT

AND

ETOPO CONTROL SERVICES NIGERIALIMITED ………………  DEFENDANT

 

REPRESENTATION

Mr. Ndeze Anthony Esq for the Claimant.

Mr. G.N. Osunde Esq for the Defendant.

 

JUDGEMENT

INTRODUCTION AND CLAIMS

This action was commenced by a way of a complaint dated and filed on the 27th day of November 2017. Accompanying the complaint were the statement of facts establishing the cause of action, witness deposition on Oaths, list of witnesses and list of documents to be relied upon at the trial. The claims of the claimant are set out at the endorsement made on the complaint and paragraph 26 of the statement of facts establishing the cause of action which are as follows:

  1. A DECLARATION that the claimant was employed by the defendant on the 10th day of December 2010 on a monthly salary of N280, 000. 00 (Two Hundred and Eighty Thousand Naira) only.
  2. A DECLARATION that non formalization of the subsisting employment of the claimant by the defendant from the 10th day of December 2010 till date is illegal, unacceptable, null and void, and an unfair labour practice.
  3. A DECLARATION that the defendant non payment of the claimant’s salaries from March 2016 till date without any termination or suspension of his employment is illegal, null and void and unacceptable.
  4. A DECLARATION that the arbitrary deductions of the salary due to the claimant by the defendant is illegal, null, void, unacceptable and an unfair labour practice.
  5. AN ORDER directing the defendant to pay to the claimant the sum of N2, 660,000.00 (Two Million, Six Hundred and Sixty Thousand Naira) only as illegally deducted and withheld salaries from June 2013 to June 2016.
  6. AN ORDER directing the defendant to pay to the claimant the sum of N280, 000. 00 (Two Hundred and Eighty Thousand Naira) only, as his monthly salaries from June 2016 till the date of Judgement.
  7. AN ORDER directing the defendant to pay the claimant the sum of N10, 000,000.00. Only as general damages.
  8. The sum of N500,000.00 (Five Hundred Thousand Naira) only, being cost of litigation.

The defendant enter a memorandum of conditional appearance dated the 15th Day of January 2018 and filed same day and filed along with it her Statement of Defence which is accompanied with the witness deposition on oaths and list of witnesses to be relied upon at the trial. The defendant filed a notice of preliminary objection dated the 29th day of January 2018, objecting to the jurisdiction of this Honourable court to entertain this matter and was opposed by the claimant to which this court rule upon on the 17th  day of April 2018.

By a motion on notice dated the 6th day of March, 2019 and filed on the 12th day of March, 2019, the defendant sought for and obtain leave of this court to amend her Statement of Defence and an additional Written Statement on Oaths. The said Amended Statement of Defence and an additional Written Statement on Oaths was filed on the 12th day of March, 2019.

Upon commencement of the trial, the claimant called one witness in proof his claims who testified as CW1 (Mr. Diepreye Numofegha). in his testimony the claimant tendered 5 documents which are marked as exhibits CWET001, CWET002, CWET003,CWET004 and CWET005 respectively.

At the opening of the defence of the defendant, the defendant called one witness who testified as DW1 (Chief Emmanuel Arikawei) and thereafter close her case.

Parties were then ordered to file their written addresses which were filled and adopted.

CLAIMANT CASE IN BRIEF

The brief fact of the case as contained in claimant’s statement of facts paragraph 1 to 26 is that, the claimant is a professional welder who was,  after duly interviewed and tested was employed by the defendant on the 10th of December 2010. However no employment letter was issued to him, but was only told that he is entitled to a monthly salary of N280,000.00 (Two Hundred and Eighty Thousand Naira) only. That he was issued with an identity card and another identity gate pass for the Nigerian Agip Oil Company (NAOC) with ID number E13. 12. 15. The claimant avers that he diligently carried out his duties assigned to him by the defendant from time to time and site to site and that he requested severally from the defendant to issue him with an employment letter but was always told to hold on that the defendant is processing it. That the claimant believing the defendant to be sincere was carrying out his duties diligently when ever called upon. However, sometime in June 2013, the defendant started paying the claimant the sum of N250,000.00 ( Two Hundred and Fifty Thousand Naira) only without any explanation which is contrary to the original agreement of N280,000.00. That when the claimant probe to know why his salary was reduced, the managing director of the defendant pleaded with him to bear with the defendant as all arrears will be paid in due cause. However, in March 2015 the salary was further reduced to N200,000.00  ( Two Hundred Thousand Naira) only without any explanation nor reason given by the defendant. The said N200,000.00 is what he was paid from March 2015 to February 2016 on the assurance that all the arrears will be paid in a short while. The claimant states that in March 2016 while he was waiting for his salary and the arrears to be paid, he found out that the salary was not paid at all. Then he probe to know why his salary was not paid and he was asked to exercise patience for the management to rectify same. That all effort to rectify any management issue to pay his salary proves abortive. That when his salary was not paid till April 2016, he complained to the managing director of the defendant. But the managing director of the defendant took offence and asked the claimant to live his office. That when the claimant waited till May 2016 and did not see his salary, he complained to the management of the defendant that the act of the defendant is becoming a threat to the wellbeing of the claimant’s family who solely rely on the claimant and he was asked to go home that the management of the defendant will get back to him. The claimant further avers that after being frustrated with wait and neglect of the defendant, he briefed his Lawyer Mr. Ndeze Anthony to write a complaint/request letter dated the 26th day of May, 2016 to the defendant. The defendant wrote a reply to the claimant letter via her counsel, Akoubodo O. and Associates dated the 6th day of June 2016 where the defendant claimed that the employment of the claimant has been terminated. That he had made several efforts to discuss with the management of the defendant over his arrears of salaries deducted and withheld but he was not giving a chance by the defendant. Also, that his deducted, withheld and unpaid salaried from June 2013 to June 2016 amounted to N2,660,000.00 ( Two Million Six Hundred and Sixty Thousand Naira) only. He concludes that the act of the defendant has caused untold hardship to his family and he could not find work anywhere because of the reference letter which they need from his place of former engagement.

Under cross examination, the CW1 stated that he became a professional welder in 1999 and as a professional welder he can be hired by any company. That he had worked for several contractors and it is the companies that always provide the equipments which he used in working for them. He emphases the fact that he was not hired by the defendant but was employed, even though he was not giving an employment letter but was issued with an identity card and a gate pass to an Agip facility at Brass Terminal to enable him carrying on his duties for the defendant company. That since 2016 he has not rendered any services to the defendant because he was not called upon by the defendant. Also, that he did not know a body called the Brass youth body.  And he did not write any application for the job but was tested by the company before he was employed and that it is not true to say that he was employed by the defendant as a community worker. That though he did not have employment letter and condition of service, he have an identity card and a salary of N280,000.00 which was unilaterally reduced by the defendant to a sum of N250,000.00 and N200,000.00 respectively. He also contend that, he is a permanent staff of the defendant and it is not true to say that he only come to work for the defendant when there is work for him to do and it is equally not true to say that the salary he is been paid is based on the quantum of work done for the defendant. That exhibit CWET005 is the bank statement of his account showing the payments from the defendant. He conclude by saying that it is not true to say that the defendant stop him from working because there is no work for them because the defendant are still laying pipes and agreed that the defendant have the right to terminate his appointment but have to follow the laid down Labour Laws.

 

THE CASE OF THE DEFENDANT.

The defendant commenced her defence by calling one Chief Emmanuel Arikawei (DW1). The DW1 averred that he is the Chief Executive Officer of the Defendant and that the claimant was never tested nor employed as a staff of the defendant but was one of the five persons nominated by the Brass youth Committee to work alongside the defendant while carrying out a contract of maintenance on behalf of the Nigerian Agip Oil Company at Brass Local Government Area of Bayelsa State, in 2010. That in line with the defendant’s social responsibility to the host community, the defendant engaged the youth body to nominate youths from the community to work alongside the defendant. He contend that the claimant was being paid along with other four indigenes nominated by the Brass Youth Body base on the agreement with the Youth Body for the Duration of the contract. That the five persons were issued Identity cards to enable them access the Nigerian Agip Oil Company facility and were paid their wages at the end of each month. That the claimant as welder was paid the sum of N280,000.00 like others working with the company and were disengaged and demobilized out of the site after the payment of their wages at the expiration of the contract. That the defendant had another job at Ologbobiri in Southern Ijaw Local Government and the claimant turned up and plead with the operation manager to take him as a general labourer who then brought the claimant to the Chief Executive Officer (CEO) of the defendant and the claimant pleaded with the CEO and the CEO had pity on him and took him on probational basis for the duration of the contract and was paid the sum of N250,000.00 ( Two Hundred and Fifty Thousand Naira) only on monthly basis. And the crew members were also disengaged and demobilized out of site at the expiration of the contract. Also, that later in 2015, the defendant have a surveillance contract at Ogboibiri to clear the right of way at Cloff Creek, the claimant called the CEO directly that he, the claimant, want to be part of the new crew and the CEO instruct the operation manager to include the claimant as part of the crew of persons to work at Ogboibiri on probational basis for the duration of the contract on a monthly wage of N200,000.00 (Two Hundred Thousand Naira ) only. That at the expiration of the contract in 2016 all the crew members were disengaged and demobilized out of site and since 2016 the defendant has not had any job hence no temporary workers were engaged. He concludes that the claimant is not being owed any money by the defendant.

In his additional written statement on oath he contend that, the claimant was never employed as a staff of the defendant but was only engaged by the defendant at different periods as a community worker and general labourer and was paid monthly based on the value and quantity of service rendered. That the claimant as an indigene of Brass Community was engaged as a community worker and did not apply for nor submitted any application letter for employment with the defendant and was not promised any employment letter. That the Identity cards and gate pass issued to the claimant is to enable access the premises of the Nigerian Agip Oil Company (NAOC) and the defendant. It does not change their status of being community workers but only a means of identification. He further contend that the claimant was duly paid for all the services rendered and the salary structure varies monthly with regards to the particular contract or job for which the claimant was engaged. That the claimant was never promised a permanent employment and was not issued an employment letter and condition of service booklet, in line with the company policy, because the claimant is a mere community worker. Also, that the claimant was not entitled to be issued employment letter, suspension nor termination letter because he is not a staff of the defendant. That the claimant was informed verbally, by the operation manager of the defendant  in the presence of the CEO, that the claimant is relieved of his work because there was no contract in March 2016 and since then the claimant has not rendered any job to the defendant.

Under cross examination, he admit that the defendant do employ people when they have a contract and terminate their employment at the expiration of the contract. That they do test the people before engaging them base on the need of the company. That he knows the claimant as a community staff from Brass who was employed as a welder assistant but he was not the one that issued the claimant with the exhibit CWET 001 and exhibit CWET 002 that was why he could not ask the claimant to return the exhibits, but it was issued to the claimant for the purpose of gaining access to NAOC facility not because he is a staff of the defendant. That the claimant was paid by the defendant monthly the sum of N280,000.00 but not base on the quantum of work done by the claimant. That when the claimant goes to NAOC facility to work, he is working for the defendant and all the tools the claimant used in carrying out the job was provided by the defendant. He stated that it was Agip that issued EXHIBIT CWET 002 to the claimant, but it was issued to him because he was working with the defendant. That they received exhibit CWET 003 and instructed their Lawyer to write EXHIBIT CWET 004. That the salaries paid to the claimant were paid into the Claimant’s bank account, however, the claimant is a community staff and his salary was negotiated with the community Youth President. However, that he could not remember the first time he engaged the claimant nor how long the job in Ologbobiri lasted. But that he has been paying the claimant regularly, the second job the claimant was employed as a helper and was paid the sum of N250,000.00 per month and the third job he was employed as a helper and was paid the sum of N200,000.00 per month. That he could not remember the time that the claimant stopped working for him but he did not issue any letter of employment to the claimant.

In all the defendant urge the court to dismiss the claimant’s claim.

At the close of the parties respective cases, this court ordered parties to write their final written addresses, which same were filed and adopted.

 

THE SUBMISSION OF THE DEFENDANT

The Learned Counsel to the defendant formulated four issues for determination to wit;

  1. Was the claimant employed by the defendant and if so what was the nature of the contract of employment between the claimant and the defendant?
  2. Is the claimant entitled to be paid monthly salaries for services not rendered to the defendant?
  3. Whether the defendant deducted monies from the claimant’s salaries while he worked with the defendant?
  4. Did the defendant commit any breach of the contract of employment, if any, for which the claimant suffered injury?

In arguing issue one the learned counsel to the defendant submits that there are basically three categories of contracts of employment. Which are:

(a) Those regarded as purely master and servant.

(b) Those where the servant is said to hold an office at the pleasure of the employer.

(c) Those where the employment is regulated by Statute also referred to as having statutory flavor.

He refer the court to the case of CBN vs IGWILLO (2012) 2 NILR at pg 1 at Pg 20 PARAS F-G RATIO 1.

He contend that the difference between (a) and (c) is that the former is created by Statute where strict compliance with the statutory requirement is necessary in the process of termination of the said employment. The later is a contract of employment between the employee and a master and the master can lawfully terminate the contract of employment with his servant any time and for any reason or for no reason. He refer the court to NITEL Vs L. D. AKWA (2012) 1 NILR 205 at 238 PARAS B – H.

He argued that, in this suit the nature of the relationship fall under item (a) nature of Employer/Master and a Servant relationship. But in this case there is no letter of employment nor condition of service so no contractual terms apart from a verbal assertion by the claimant that he was promised to be paid the sum of N280,000.00 as monthly salary. He therefore submit that it is the duty of the claimant to show the contractual terms of his employment and the claimant has failed to show same. He further contend that the DW1 stated in his evidence that the claimant was employed as a community employee and hence was not given any employment letter and was not entitled to a termination letter as well. That the DW1 further testified that the claimant was verbally informed of the termination by the operation manager and this fact was not denied by the claimant by way of filling a reply to the statement of defence.  Therefore,  it is deemed as admitted and should be acted upon by this court. He referred the court to the case of Bature vs NDIC (supra). He submits that the law is settled that in a purely master and servant relationship devoid of any statutory flavor, termination of an employment cannot be wrongful unless it is in breach of the terms of the contract or the reason is untenable. That once the employer has complied with the terms of the contract it cannot amount to breach.

He further argued that the terms of the contract of employment in this suit is as testified by the DW1, that the claimant was employed as a community worker at a monthly salary of N280,000.00. only in NAOC terminal Brass and was allowed to work with the defendant for the duration of the contract  but this fact was not denied by the claimant. Also, the claimant was paid as negotiated by the respective communities while working at Ologbobiri and Ogoibiri at the rate of N250,000.00 and N200,000.00 respectively. That these facts were not denied by the claimant and the claimant was asked to stop work at the end of the job at Ogoibiri in February, 2016 but was not entitled to be given a letter of termination. He submitted that the defendant was right when the claimant was asked to stop work. That exhibit 004 which is a reply to EXHIBIT 003 is immaterial in the circumstance as there is no relief for unlawful termination of employment. That the defendant who employed the claimant has the right to terminate the employment in accordance with the agreement because a servant cannot be imposed on an unwilling master. That in this suit there are no written terms governing the contract of employment, but that it is obvious that the claimant was employed as a temporary community worker liable to stop work when there is no job. That the claimant was employed as a community worker at a monthly salary of N280,000.00 and later N250,000.00 and N200,000.00 and the claimant worked on that understanding. Also, that the evidence by the claimant that the defendant promised to sort out the differences and pay him is an afterthought. That by relief 2 sought by the claimant it is obvious that the claimant appointment was not formalized by the defendant and there is no term of the contract stating that the contract must be formalize. Also the defendant is not under any duty to formalize the claimant’s employment because the claimant was only employed as a community worker and not entitle to letter of employment nor termination. So it is clear that there was no intention to formalize the employment. He further argue that the defendant cannot be forced to formalize the relationship when it is in fact meant to a temporary employment. He therefore urge the court to dismiss relief 2 and hold that since relief one is merely declaratory, in the absence of a letter of employment and any written terms of contract couple with the fact that the claimant could not state any terms of employment, the court should accept the terms as given in the evidence of the defendant that the claimant was engaged as community worker on temporary basis liable to be terminated at the end of the job or as the defendant may decide.

On issue 2, the counsel to the defendant contend that by reliefs 3 and 6 the claimant is seeking to be paid his salaries from March 2016 till date. That the claimant is claiming payment of salaries owed to him from March 2016 till date but under cross examination, the claimant state he has not rendered any services to the defendant from March 2016 till date. he further submitted that the operation manager of the defendant told the claimant about the termination of his employment in February 2016 and oral notice of termination is effective. He therefore contend that the claimant is not entitled to be paid for the period of March 2016 till date because he did not render any service to the defendant. That this is not a claim for unlawful termination of appointment as the claimant has no subsisting contract of employment with the defendant. He further submitted that even if there was a relief for unlawful termination of employment of the claimant he will still not be entitled to reliefs 3 and 6. He refer the court to the case of Spring Bank PLC vs Babatunde (2012) 5 NWLR Pt(1292) at 101 paras C-D. That the claimant can only be entitled to damages if he is able to prove wrongful termination which is not the case in this suit. he therefore urge the court to dismiss reliefs 3 and 6.

On issue 3, the Learned Counsel to the defendant submitted that reliefs 4 and 5 have not been proved by credible evidence. That the DW1 explained the variation in the salaries paid which were different in the three sites the claimant worked for the defendant. He refer the court to paragraphs 5b, 5c, 5d, 5e, 5f, 5g, 5h, 5i, 5j, 5k of the amended statement of defence and evidence led in paragraphs 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the defendant written statement on Oath which were not denied by the claimant. He therefore submitted that the allegation of deduction has not been proved he therefore urge the court to dismiss reliefs 4 and 5.

On issue 4, Counsel to the defendant submitted that general damages will only arise if the termination is contrary to the terms of the contract of employment between the claimant and the defendant. In this suit there is no such claim, so there is no basis for relief 7. That the claimant claimed he was employed by the defendant but his employment was not formalized and his salary was not paid to him since March 2016 till date, also there were allege deductions from his salaries. He therefore submitted that damages will only flow from a wrong committed on the claimant by the defendant. But in this suit it is not clear where the damages may arise from. That the evidence of the defendant is that the claimant was employed as a community worker and was paid N280,000.00 while working on NAOC Terminal, Brass; N250,000.00 while working at Ologbobiri and N200,000.00 while working at Ogoibiri and that in February 2016 the claimant was asked to stop work. That there was no specified means by which the defendant will stop the claimant from working with the defendant therefore, the claimant could not show that the defendant commit any wrong to warrant the payment of damages. He urged the court to dismiss the claims of the claimant.

 

THE SUBMISSION OF THE CLAIMANT.

The Learned counsel to the claimant formulated one issue for determination to wit:

  1. Whether the claimant is entitled to the reliefs sought

Arguing the issue, the learned counsel submitted that with recourse to the pleadings and evidence the claimant has proven his case on the preponderance of evidence and balance of probability and is entitled to the reliefs sought. That it is trite law that the onus is on the claimant to prove his assertion to warrant the grant of his reliefs. He refers the court to Section 133 of the Evidence Act, 2011 and the case of Imam VS Sheriff (2005) 4 NWLR pt 914 @ 80 CA and Agbi VS Ogbeh (2006) 11 NWLR pt 990 @ 65 SC. He contend that it is the claimant case that he was employed by the defendant on the 10th day of December 2010 as a welder and was issued exhibit CW1001 (identity card of the defendant company) and exhibit CW1002 (Nigeria Agip Oil Company gate pass and identity card) and payment of his Monthly salaries to the effect. That the claimant was paid the sum of N280,000.00 only as monthly salary but the defendant from the month of  June 2013 commenced the deduction of the claimant salaries to N250,000.00 and  was paid the sum of N200,000.00 in March 2015 with repeated pleas to the claimant to exercise patience that the arrears would be paid to him by the defendant and that this evidence were never controverted by the defendant. Also, it is the claimants testimony that after several demands for the payment of the salaries and arrears the defendant having stop paying him in March 2016 and upon the claimant demand and enquiry as to the reason for non- payment the defendant asked the claimant to leave his office hence exhibit CW1003 which was responded by the defendant by exhibit CW1004.

He argued that the defendant has made heavy weather over the non issuance of an employment letter and condition of service to the claimant hence his reference to the claimant as a community worker and not an employee of the defendant but submitted that it is trite that a contract of employment means any agreement, whether oral or written, express or implied whereby one person agreed to employ another as a worker and that other person agrees to serve the employer as a worker. He refer the court to the definition by the Labour Act Cap L1 LFN 2004, which applies to workers strictly defined to the exclusion of management staff and the case of Shena Security Co. LTD VS Afropak (Nig) LTD & 2 Ors (2008) 164 LRCN 36 @ 49. He also contend that the defendant have all through their pleadings and evidence before this court, never rebutted the claimant employment but only classified him as a community worker nominated from Brass community an identity that is unknown to law and a clear after thought as could be decipher from exhibit CW1004. He quote a paragraph of the said exhibit CW1004 and submits that the paragraph clearly show that the claimant is an employee of the defendant contrary to the defendant assertion that the claimant is community worker. The learned counsel to the claimant further  argue that the same exhibit CW1004 stated that the claimant worked for the defendant as a welder when his probation appointment was terminated due to negligence and unprofessionalism in carrying out his duties. He therefore submits that exhibit CW1004 clearly show that the claimant is under a valid employment of the defendant. That it is contravention of Section 7(1) of the Labour Act for the defendant to have kept the claimant’s employment from 10th December, 2010 till March, 2016 under probation. He reproduced the section for the court.

Arguing further, the learned counsel to the claimant contend that it is worthy to note that exhibit CW1004 which was made before the institution of this suit and in response to exhibit CW1003 never said that the deductions and short-payment of the claimant salaries was as a result of the change in contract or jobs but that the claimant’s probation was terminated. He therefore submits that the defendant defense of movement of site and or contracts necessitating the reductions of claimant’s salaries is an afterthought and manifestly unreliable. He urges the court to so hold. That the claimant has established that the defendant unilaterally and without any lawful reason or explanation engaged in the deduction of his salaries as testified in paragraph 9 to 22 of the claimant written statement on Oath.

He contend that the defendant told this court that the claimant was a community worker and paid base on the work done however under cross examination, he admitted that he paid the claimant on a flat rate also the defendant denied issuing exhibit CW1001 and CW1002 to the claimant but admits under cross examination that whenever the claimant went to NAOC facility to work he works for the defendant so It shows a desperation by the defendant to evade liability. Also, under cross examination the defendant told this court that all the equipments the claimant worked with in the course of working for the defendant were provided by the defendant, which clearly shows that the claimant was under the contract of employment with the defendant as his employer. He relied on S.C.C. LTD VS Afropak Nig LTD (2008) 164 LRCN 36 @ 49. Moreover, in affirming the employee status of the claimant, the DW1 under cross examination testified to the fact that the  claimant while working for the defendant, never worked at any other place hence the payment of salaries to the claimant monthly via the claimant first bank account as shown in exhibit CW1005. He submits that the allegation of the defendant that the claimant is not an employee of the defendant for the sole reason of not being given an employment letter is only self deceit. That it is trite law that a contract of employment  may be in any form, and not necessarily in writing, as same could be inferred from the conduct of parties if  it can be shown that such a contract was intended although not express. He refer the court to the case of Mobil Producing Nig Unlimited & Anor VS Udo Tom Udo (2009) All FWLR pt 482 1177 @ 1221. And the defendant having breached the provision of section 7 of the Labour Act, is estopped from relying on the failure of the claimant to tender in evidence his employment letter. He relied on the case of Nwakhobia VS Dumez (Nig) LTD (2004) 3 NWLR pt. 861 @ 484.

The counsel to the claimant further submitted that the claimant has established that he is under the contract of employment with the defendant hence the issuance of exhibit CW1001 and exhibit CW1002. That the claimant has also established the deductions of salaries from N280,000.00 to N250,000.00 and then N200,000.00, and non-payment from June till date. Also, that it is in evidence that the defendant paid the claimant salaries via the claimant’s bank account as contained in exhibit CW1005, which shows the claim of deductions made by the defendant. He therefore submits that exhibit CW1003 and CW1004 buttresses the case of the claimant that he is under a contract of employment with the defendant and the inevitable entitlements of the claimant to the reliefs sought particularly reliefs 1,2,3,4 and 5. That the defendant having not terminated the claimant employment but only asking the claimant to leave his business premises establishes the fact that the claimant remain the employee of the defendant hence is entitled to reliefs 6,7 and 8 respectively. He therefore, submits that the claimant has discharge the onus on him for the grants of the reliefs sought. He relied on Longe VS F.B.N PLC (2006) 3 NWLR pt. 967 @ 228 and Oroji Int. Nig LTD VS Unity Bank PLC (2014) All FWLR Pt. 752 @ 1645 and urge the court to grants the reliefs of the claimant.

COURT DECISION

I have read through all the processes filed, the exhibit tendered by the learned counsels for and on behalf of the respective parties, listened to and observed the demeanor of witnesses who testify before this court and have heard the submissions of counsel to the respective parties in support of their cases. I have carefully formulated this lone issue for determination:

Whether the claimant has discharged the onus placed on him to entitle him to the reliefs sought.

The law is very clear that the burden of proof in civil case is on the claimant to first and foremost lead evidence in proving his case. A party who assert must prove on the authority of section 131(1) of the Evidence Act, 2011, A.G Rivers State VS A.G Bayelsa State (2013) 3 NWLR p.123. However, this burden of proofs is on the balance of probabilities based on the preponderance of evidence which may shift from one party to another depending on the evidence. The burden will rest on the party that would fail if no evidence were led on either side. See Sakati VS Bako & Anor. (2015)LPELR 24739(SC).  When the claimant, by his cogent and clear evidence prove the acts or omissions of the defendant which constitute the infraction, then the burden will shift to the defendant. See Ohochukwu VS A.G Rivers State (2012) 6 NWLR p.53. It is worthy of note that the burden of proof in this proceeding must be connected to the issues raised in the pleadings and the entirety of evidence adduced at the trial.

The claimant allege that he was employed by the defendant hence the issuance of exhibit CWET001 and CWET002 which are the Identity card and Nigerian Agip Oil Company gate pass respectively and payment of his salaries monthly. Also that he was paid the sum of N280,000.00 only monthly but the defendant commenced deduction of the claimant salaries from the month of June 2013 and paid the claimant the sum of N250,000.00 and followed the trend of reduction when the defendant paid the claimant the sum of N200,000.00 only in March 2015, with repeated pleas that the claimant should exercise patience that his arrears would be paid by the defendant. That after several demands for the payment of his salaries and arrears which was stopped in March 2016, the claimant wrote exhibit CWET003 which is a letter of complaint/request and the defendant responded by Exhibit CWET004

The defendant on the other part contend that the claimant’s nature of contract is that of employer/master and servant relationship which was base on a verbal promise of a payment of N280,000.00 monthly salary. That the claimant was not issued any employment letter nor any condition of service or contractual terms according to the testimony of the claimant. That it is because the claimant was employed as a community worker that was the reason why the claimant was not issued any employment letter and hence is not entitled to any letter of termination and that under a purely master and servant relationship in which relationship is purely contractual, termination of an employment by the employer cannot be wrongful unless it is in breach of contractual terms or if the reason for termination is untenable. Also, that it is clear from the evidence of the defendant that the claimant was employed as a community worker at a monthly salary of N280,000.00 only in NAOC Terminal Brass and was allowed to work with the defendant for that duration. That it is the evidence of the defendant that the claimant was paid as negotiated by the respective communities while working at Ologbobiri and Ogoibiri at the rate of N250,000.00 and N200,000.00 respectively. That the claimant was asked to stop work at the end of the job at Ogoibiri in February 2016 and the claimant is not entitle to a letter of termination. He argue further that the claimant did not give evidence as to the term of his contract and did not debunk the terms as stated by the defendant therefore the defendant was right when he asked the claimant to stop work at the end of February 2016 and the reason stated in exhibit CWET004 is not material as there is no relief for unlawful termination of employment. Moreover, that the claimant was only employed as a temporary community worker liable to stop work where there is no job since there are no written terms regulating the contract. That the evidence of the claimant that the defendant promised to sought out the difference in the amount paid and pays him is an afterthought. He urge the court to accept the evidence as stated by the defendant.

In reply to the argument of the defendant, the claimant contend that it is trite law that a contract of employment means any agreement whether oral or written, express or implied whereby one person agrees to employ as a worker and that other person agrees to serve the employer as a worker. He refers the court to the definition as contained in the Labour Act and the case of Shena Security Co. LTD VS Afropak (Nig) LTD &2 Ors (2008) 164 LRCN 36 @ 49. That the defendant have all through their evidence before the court not rebutted the claimant employment but only classified him as a community worker nominated from Brass community an identity that is unknown law and a clear after thought as could be decipher from exhibit CWET004.He further submits that the content of exhibit CWET004 clearly show that the claimant was under a valid employment of the defendant. More so, that for a defendant to keep the claimant’s employment under probation from 10th of December 2010 till March 2016 is in contravention of section 7 (1) of the Labour Act. Also, that it is worthy of note that exhibit CWET004 which was made before the institution of this suit did not suggested that the deduction or short-payment of the claimant by the defendant was due to change of contract or jobs. He therefore submits that the defendant defence of movement of site or contracts necessitating the reduction of the claimant’s salaries is an afterthought and manifestly unreliable.

It’s essential to state here that, the pillar upon which the contract of employment is based on is the terms of the contract for it is an established principle of law that parties are bound by the express terms of their agreement . See the case of OLANREWAJU VS Afribank (Nig) PLC. (2001) 13 NWLR (PT. 731) 691 @ 712. Also, where the terms of the contract of employment are not written down it can be infer from the conduct of parties this is base on the definition of employment by the Labour Act. And in construing the relationship of parties in any contract,  the court must confine itself to the plain words and meanings that can be derived from the terms of the contract. See Ibama VS Shell Petroleum Development Company of Nigeria LTD (2005)17 NWLR (pt. 954)p364 @ p378-379 paras G-E.

Having said the above position of the law, I will proceed to deal with the case at hand as follows:

In the first place, on the question of whether the claimant was employed by the defendant, it is not in doubt that the defendant engages the services of the claimant and issued him with exhibits CWET001 and CWET002 respectively. Also, it is not in doubt that the defendant was paying the claimant monthly salary. Therefore, the argument of the defendant that the claimant was not an employee of the defendant, due to the fact that the claimant was not issued an employment letter nor condition of service or written contractual terms, cannot hold water. This is base on the fact that looking at the totality of the evidence before the court, particularly, exhibits CWET001, CWET002, CWET004 and CWET005 I have come to realize that the claimant was engaged by the defendant, issued identity card and gate pass card, admitted in his reply to the claimant letter that he is employed as a welder and was paid monthly by the defendant. Furthermore, the defendant under cross examination admits the fact that the claimant is paid monthly not according to the volume of work done. It is trite law that a court can presume the existence of a fact from the existence of one or more prove facts if such presumption is irresistible and there is no other reasonable presumption which fits the proved facts. See Section 167 of the Evidence Act, 2011 and ANYANWU & ORS VS UZOWUAKA & ORS (2009) 13 NWLR (PT. 1159) pg 445. I therefore, infer from the proved facts that the claimant is under a valid contract of employment of the defendant. I so hold.

Secondly, on the issue of non-formalization of the claimant’s contract of employment by the defendant, the claimant had argued that on the authority of section 7(1) of the Labour Act, it is illegal for the defendant to keep the claimant under probation from 10th of December 2010 till March 2016 without formalizing the employment of the claimant. The defendant on his part argued that the employment of the claimant was intended to be on a temporary basis and does not need formalization. I have consider the arguments of parties and all the exhibits tendered and come to the conclusion that there is no clear agreement as to when the defendant ought to formalize the employment of the claimant couple with the fact that the contract is a master servant relationship which is not strictly regulated by statute. Therefore, I am not convinced that the defendant has breached any term of the agreement with respect to formalization of the contract of employment of the claimant and I so hold.

Thirdly, on the issue of termination or non termination of the claimant contract of employment, the claimant contended that the claimant contract of employment was not terminated since there was no letter of termination being served on him. But the defendant contend that the claimant did not need termination letter as the contract was a temporary one which was not issued any employment letter nor condition of service and that the claimant was verbally informed of the termination of his contract by the defendant.

From authorities, the master has ample right to terminate the employment of his servant for any reason or no reason subject only to the terms of the contract of employment.  The court cannot force a willing servant on an unwilling master. See Illodibia VS NCC LTD (1997) 7 NWLR (pt.512) pg 174 @187 parasF-G and Araromi Rubber Estate LTD VS Orogun (1999) 1 NWLR (Pt 427) pg 655 paras G-H. The court cannot order for specific performance and even where there is a requirement for notice to be given, the only remedy available to the claimant is damages which are the remuneration over the period of notice. See Odaiase VS Auchi Polytechnic (1998) 4 NWLR (pt546) pg477 @489-490. In light of the foregoing position of the law, I am bound to hold that the employment of the claimant was terminated by the defendant in March 2016. This is base on the fact that the claimant under cross examination stated that he has not render any service to the defendant since then and the claimant did not lead any evidence to show that he was still under the contract of employment of the defendant after February 2016 and he did not have any terms of termination that will determine the mode of termination of the contract. I therefore, hold that the employment of the claimant was terminated by the defendant in March 2016.

Also, on the issue of deductions and unpaid salaries of the claimant by the defendant, the claimant contend that he was employed as a welder and was paid the sum of N280,000.00 as monthly salary but the defendant started reducing the said amount to N250,000.00 and 200,000.00 respectively with the pleas to pay the balance very soon. However, the defendant contends that the said reduction in salary of the claimant was base on the location of the contract. That the claimant was paid N280,000.00 at Brass, N250,000.00 at Ologbobiri and N200,000.00 at Ogoibiri communities base on the agreement with the communities.

On the critical perusal of the evidence before me and the argument of counsels to the respective parties, the question that comes to mind is whether there is enough evidence by parties to warrant the court believing the position of any of the party. The claimant tendered the letter of request he wrote to the defendant to demand the payment of outstanding sum which is the purported deduction from his salaries. He also tendered the reply from the defendant which denied any deductions from the defendant salary but admitted that he usually paid the defendant the sum of N280, 000.00 and the claimant tender his salary account statement detailing the amount paid by the defendant to him. But the defendant on his part did not call any witness or tender any document to show his position. It is therefore, my firm belief that the evidence of the defendant that there was no deduction or withholding of the claimant’s salaries cannot be believed for there is no evidence before the court to convince the court of such.  I endorse the argument of the claimant counsel that it was an afterthought. Also, exhibit CWET004 clearly shows that the claimant was employed to be paid the sum of N280,000.00. I therefore hold that the defendant should pay the claimant the sum of N2,660,000.00 as the amount deducted from the salaries of the claimant.

Finally, on the issue of damages, it is clear from authorities that where the termination of employment is declared to be contrary to the terms of agreement, then damages will be limited to the amount that the claimant would have earned over the period of notice. See Joseph Ifeta Vs Shell Petroleum Co of Nigeria Ltd (2006) 8 NWLR (pt 983) pg 585 @ pg 609-610.

However, in this suit there are no terms as to determine the mode of termination of the contract. Therefore, the issue of damages cannot arise.

I so hold.

In conclusion it is the decision of this court that the claimant has proved the case of valid employment and unlawful deduction against the defendant and I accordingly rule in his favour. I order the defendant to pay the claimant the claimed sum for unlawful deductions from the claimant’s salaries. But on the issues of formalization of contract, payment of salaries from June 2016 till date and damages, the claimant fail to prove same and the claims of the claimant on these reliefs are hereby dismissed.

 

In conclusion, for the purpose of clarity and for the reasons stated in this judgment, I hold as follows:

 

  1.  I declared that the claimant was employed by the defendant on a monthly salary of N280,000.00 (Two Hundred and Eighty Thousand Naira) only.

 

  1. I declare that the arbitrary deductions of the salary due to the claimant by the defendant is illegal, null, void, unacceptable and an unfair labour practice.

 

  1. I order the defendant to pay to the claimant the sum illegally deducted by the defendant from the claimant’s salary from June, 2013 to March, 2016 totaling N2, 660,000.00 (Two Million, Six Hundred and Sixty Thousand Naira) only.

 

  1. Parties are to bear their respective costs.

 

  1. All other reliefs failed, and same dismissed.

 

 

  1. All terms of this judgment are to be complied with by the parties within 30 days. This is without prejudice to the right of appeal against the judgment by any of the parties dissatisfied by the judgment.

 

I so hold.

 

Judgment is hereby entered accordingly.

 

 

 

 

 

 

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HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

YENAGOA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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