MR. OREBE AKINBOBOLA VS PARDEE FOODS NIGERIA LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: MONDAY 3^RD DECEMBER 2018

SUIT NO. NICN/LA/122/2017

BETWEEN:

OREBE AKINBOBOLA

CLAIMANT

AND

PARDEE FOODS NIGERIA LIMITED

DEFENDANT

Representation:

LA Omar appears for Claimant

O Okere with C Nweke appear for Defendant.

JUDGMENT

The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 17^th March 2017together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; all dated the 17^th March 2017 and copies of all the documents to be relied on by the Claimant at the trial of the suit. The Claimant claims the following reliefs against the Defendant:

Payment of outstanding salaries from October 2014 to February 2017 amount to N 371,200.00 (Three hundred and Seventy-One Thousand Two Hundred Naira) at the rate of N 12,800.00 (Twelve Thousand Eight Hundred Naira) per month.
Special damages in the sum of N 9,228,800.00 (Nine Million Two Hundred and Twenty-Eight Thousand Eight Hundred Naira) for accident.
The sum of N 15,000,000.00 (Fifteen Million Naira) being general damages for the psychological trauma and untold humongous hardship suffered by the claimant , when the defendant willfully refused and neglected to re-engage the claimant due to the accident and no employer was ready to engage him in his present position.
Interest on the judgment debt at the rate of 21% per annum until payment is made.
The sum of N 500,000.00 (Five Hundred Thousand Naira) being cost of Litigation and Legal Fees.

In response to the claim, the Defendant entered appearance by a Memo of Appearance dated 3^rd April 2017.The Defendant filed its Statement of Defence on 3^rd April 2017 together with a List of Defendant’s Witnesses and Defendant’s Witness Statement on Oath deposed to by Dike Colins Ebegbuzie, List of Documents and copies of the documents to be relied on at the trial.

The Claimant did not file a Reply to the Defendant’s Statement of Defence.

Trial commenced on 3^rd May 2018 and on that day the Claimant testified on his own behalf, adopted his Witness Statement on Oath and was cross-examined. He tendered 4 documents which were admitted and marked follows:

Exhibit A – Identification Card
Exhibit B – Medical Certificate of Fitness Dated 7/4/2015
Exhibit C1 & C2 – Letter from Abidemi Taiwo & Co. dated 2//9/2015 and 2/3/2016
Exhibit D – Letter From L. A. Omar & Co. Dated 30/11/2016
Exhibit E – Staff employment application form and Guarantor’s form of THE Claimant.

On 19^th June 2018, Defence opened its case with Dike Colins Ebegbuzie testifying on behalf of Defendant by adopting his witness statement on oath. He was cross-examined and through him, the following documents were admitted:

Exhibit F – Letter from Jericho Hospital dated 6/12/14
Exhibit G – Payment receipts
Exhibit H – Defendant’s letter dated 9^th September 2015
Exhibit I – Letters from NSITF showing payment of benefits to the Claimant(Exhibit I(1-9).

At the close of trial, parties filed their respective addresses with the Defendant’s final address filed and dated 10^th September, 2018, the Claimant’s final written address dated 11^th October, 2018 and the Defendant’s Reply on Points of Law dated 23^rd October, 2018. The said addresses were adopted on 31^st October, 2018 and the Court adjourned for judgment.

THE CASE OF THE CLAIMANT

The Claimant was employed by the Defendant as a food processing machine Operator in 2014 on a monthly salary of N11,102.50 ( Eleven Thousand, One Hundred and Two Naira, Fifty Kobo) through ORFI M|anagement Service Limited with identification card No. TF847. The Claimant, during the course of his employment with the Defendant, was transferred to another department. He complained to the factory Manager, one Mr. Ramby that he lacked experience in managing the machine in the new department, but the factory manager said he should manage. On the 17^th of October 2014, Claimant’s middle finger got cut accidentally during the course of work and he was rushed to Jericho Hospital at No. 27, Oyede Street, Oju-Ore, Ota Ogun State. He was discharged on the 2^nd April 2015.

Upon discharge from the hospital, the Claimant resumed work. However, one Mr. Femi, the Defendant’s Human Resources Manager informed him that he had been ordered not to allow the claimant to resume work at the Factory. The Claimant states that he informed Mr. Femi that he had been given a letter of discharge and fitness ascertaining confirming him physically fit for work, but he was turned down by Mr. Femi. The Claimant states that he has suffered untold and unbearable hardship as a result of his accident and that in view of the loss of his finger, he has been rejected in all the places he has gone to seek employment.

CASE OF THE DEFENDANT

The Defendant on its part contends that the Claimant was not its employee but rather was the employee of Orfi Management Services Limited sent to work with the Defendant in its factory. That it had no contract of employment of employment with the Claimant, nor did it ever issue to the Claimant, any form of identification or letter of employment.

Defendant confirms that the Claimant suffered an accident in Defendant’s factory for which the Claimant was admitted in Jericho Hospital. The Defendant also admits paying the Claimant’s hospital bills and also processing his compensation from the Nigeria Social Insurance Trust Fund (NSITF). The Defendant denies refusing to re-employ the Claimant and states that by the time the Claimant was discharged from hospital, the Defendant’s contract with Orfi Management Services Limited had lapsed.

The Defendant filed no Reply.

ARGUMENT ON BEHALF THE DEFENDANT

The Defendant raised a sole issue for determination in its final written address, to wit:

Whether having regard to the pleadings and evidence led in this case, the Claimant has proved his case so as to entitle him to judgment in this suit?

In arguing the sole issue raised, the Defendant submits that the Claimant has failed to prove his case so as to entitle him to the reliefs sought against the Defendant as he who asserts must prove. as he who . The Court is invited, review the reliefs sought by the Claimant against the evidence – Sections 131, 133, 136 of the Evidence Act, 2011 and the case of Orji v. D.T.M. (Nig.) Ltd [2009] 18 NWLR (Pt.1173) p. 467 at p.

On the Claimant’s claim for outstanding salaries, Defendant submits that the Claimant has failed to prove the claim for outstanding salaries as the primary material fact which the Claimant is required to establish to support this relief for outstanding salaries is that there was in existence at all material times a contract of employment between the Claimant and the Defendant. The Defendant contends also that the Claimant has failed to establish that the Defendant pays him salaries and the quantum of such salaries. That, Claimant’s contention that he earns a monthly salary of N11,102.50 was not proven by the production of his pay slip which would have established not only the quantum of the salary but also who had the responsibility for paying the salary.

The Defendant notes that the Claimant did not tender any document showing a contract of employment between him and the Defendant and that the Claimant merely tendered in evidence exhibit A issued to him by Orfi Management Services Limited. That, at the back of Exhibit A is clearly written the words; “This is to certify that the person whose photograph and name appear on the ID Card is a staff of ORFI MANAGEMENT SERVICES LIMITED”. Defendant submits that even Exhibit E which is Claimant’s employment form, is of Orfi Management Services Ltd. Defendant argues that Claimant ought to have placed before the Court clear evidence establishing a contract of employment between him and the Defendant from which the Court could determine the terms and conditions of the employment. Defendant urges the Court to refuse the claim for outstanding salaries as the Claimant has clearly failed to prove facts to support this relief.

On the claim for special and general damages, Defendant submits that the claims for special and general damages as formulated in this case are legally flawed and have not been proven by any credible evidence. Defendant referred to the case of Shell Petroleum Development Company of Nigeria Limited v. Chief G. B. A. Tiebo VII & Ors (2005) 9 NWLR (Part 931) 439, where the Supreme Court took time to draw clear distinctions between special and general damages and the principles guiding both classes of damages. Defendant argued that Claimant failed to lead any evidence to support the claim for N9,228,800.00(Nine Million Two Hundred and Twenty Eight Thousand Eight Hundred Naira) as Defendant. That there is clear and uncontroverted evidence before the Court that the Defendant not only paid for the treatment but also went out of its way to process compensation for the Claimant from the NSITF.

Defendant argues that Claimant’s claim for general damages cannot also be sustained as general damages are not awarded based on speculations, sentiments or out of sympathy borne out of extraneous considerations but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury – Adekunle –v- Rockview Hotel Limited (2004) 1 NWLR (Pt. 853) 161 at 174 – 175 para H-G. it argued that in cases of breach of contract, general damages are awarded on the principle of restitutio in intergrum to restore the innocent party to the position he would have been if the contract had been performed by the defaulting party. See G. Chitex Ind. Ltd –v- O.B.I. (Nig.) Ltd (2005) 14 NWLR (945) 392 at 409 – 410 paras H-E. Defendant submits that Claimant’s claim of general damages of N15 million cannot be sustained as the claim is way beyond the Claimant’s salary asserted but unproven monthly salary of N11, 102.50 when calculated for the period in question.

Defendant also states that the claim for interest and cost for the legal action ought to be dismissed as they were not properly pleaded and proven.

ARGUMENT ON BEHALF OF THE CLAIMANT

The Claimant raised a sole issue for determination in his address which is:

Whether or not from the totality of the documentary evidence the Claimant is entitled to his reliefs sought against the Defendant.

The Claimant contends that equity looks to the intent rather than the form and that in view of the Claimant and the Defendant having acted as master and servant [employer and employee] over a course of time, the burden of proof now shifts to the Defendant to disprove same. He refers to section 142 of the Evidence Act 2011.

Claimant relies on Exhibit H particularly line 9 which states that, it is also important to emphasize that Mr. Orebe has continue to earn his salary on monthly basis even though he is not working in the factory at the moment and he is also getting fee medical attention from the company’, as basis that Claimant is the staff of Defendant. He then argues that facts admitted need no further proof.

On the Claim for damages, Claimant submits that where general damages or special damages are claimed, the trial court may proceed to assess, quantify and award the appropriate amount. Furthermore to the Claimant even if special damage are not claimed or where claimed not proven strictly, same will be awarded. He referred to the of Eliochin Nig LTD & 2 ORS V M [1986] 1 ALL NLR (PT 1) 1 AT 16, [1986] 1 NWLR (PT 14) 47 AT 60.

Claimant contends that special damages in the sum of N 9,228,800.00 (Nine Million Two Hundred and Twenty-Eight Thousand Eight Hundred Naira) is for the accident which occurred in the Defendant factory and the sum of N 15,000,000.00 (Fifteen Million Naira) is for general damages for the psychological trauma and loss of finger, untold humongous hardship suffered by the claimant as a result of the defendant’s willful refusal and neglect to re-engage the Claimant and the refusal of other employers to employ him due to the loss of his finger.

Claimant argued that assuming Claimant was not a staff of the Defendant as contended by Defendant, that it will still be bound by the provision of the Employee’s Compensation Act to compensate Claimant for the loss of his finger.

Defendant’s Reply Argument

Defendant, in response to its alleged admission that Claimant was its staff, submits without conceding, that in addition to funding the treatment bills of the Claimant at the hospital, it went further at its own cost to invoke and facilitated the entitlement of the Defendant to a Life Time Insurance benefit in view of the industrial accident he suffered in its factory in compliance with the provisions of sections 56 and 57 of the Employees Compensation Act, Laws of the Federal Republic of Nigeria, CAP.E7A, 2010. Defendant submits that Claimant has not proved that Defendant owes him any unfilled obligation.

On Claimant’s claims and contention for the special damages, the Defendant contends that it is trite law that special damages must be specially pleaded and strictly proved – Refers to the decision of the Court of Appeal, Jos Division in the case of Unipetrol (Nig.) PLC. v. Adirje (W.A.) Ltd. (2005) 14 N.W.L.R. (Part 946) PAGE 563 at pages 572-573.

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses. I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set the following lone issue down for determination:

Whether the Claimant is entitled to his Claims.

I need to first point out that, the Claimant stated in his Final Written Address at paragraph 1.0.2 that after Defendant filed its Statement of Defence, the Claimant filed a Reply. I have gone through the entire Case file and there is no Reply filed, nor is there any record of such Reply. Also, while giving evidence, and in the adoption of his Statement on Oath, no reference was made to any Reply or any further statement made pursuant to it. It is the position that Claimant filed no Reply in this case.

In this case, parties are agreed that Claimant had an accident in the premises of the Defendant while working for the Defendant. Claimant claims to be in the premises and working as the employee of the Defendant and that he was employed by the Defendant through Orfi Management Service Limited. Defendant, on the other hand claims that the Claimant, at all material time, was an employee of Orfi Management Services.

In proof of his employment, Claimant tendered Exhibits A and E. However, these two exhibits bear Orfi Management Services Ltd. Exhibit A is Claimant’s staff identity card as staff of Orfi Management Services assigned to PARDEE FOODS. Exhibit A and E show Orfi Management as being “Recruiters, Trainers and HR Consultants”.

From the evidence before this Court, Claimant was employed by Orfi Management Services in 2014 (January 2014) as shown in Exhibit A, and was assigned to Defendant.

In these days of Triangular Employments, Courts determining employment issues, as this Court, must be careful not to run into quick conclusions on the nature of the relationship. Triangular employment relationship is a relationship that occurs when employees of an enterprise (the ‘provider’) perform work for a third party (the user enterprise’) to whom their employer provides labour or service. The triangular employment relationship comes in a variety of forms, the best known of which is the use of contractors and private employment agencies. See PENGASSAN v. Mobil Producing Nigerian Unlimited (2013) 32 NNLR (pt. 92( 243,. The intention is often to release the real employer from any involvement in the employment relationship and above all from any responsibility to the workers, or to mask the form in which the relationship is established.

Where, as in this case, the company with whom Claimant has a link of employment is clearly incorporated with its core objectives being ‘Recruiting, Training, and HR Consultancy’, the Court must pay close attention to the facts of the case to decipher the contractual relationship between the parties. Having expressed that caution, I now consider, as recommended in the ILO Report on ‘Scope of Employment Relationship, ILO Office, Geneva 2003, the facts of the relationship of the parties. The ILO advised that the judge must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship. See generally The Scope of the Employment Relationship at page 23, as cited in PENGASSAM V. Mobil UNLTD (supra)

I have gone through the evidence led in this case, and exhibits tendered. There is no document linking the Claimant to the Defendant. Claimant’s evidence is that he was employed and seconded to Defendant; and Defendant’s case is that Claimant was outsourced to them. This two position lead to the same conclusion, that is, that Claimant was employed by Orfi Management Services. There is nothing to show the terms and conditions of employment of the Claimant, either with Orfi Management Services, which can be enforced against the Defendant, or with Defendant directly. There is nothing in evidence to show that Defendant was ever involved in the payment of Claimant’s salaries for this Court to imply employment by Defendant.

It is for Claimant who has alleged employment relationship to establish the terms of the contract that exists, either due to direct employment, or by triangular employment, or even by outsourcing. This has not been done. There is also no evidence to show the nature of the relationship between Orfi Management Services and the Defendant.

By virtue of the above lack of evidence, I find that Claimant has not shown that Defendant is his employer. As stated by Claimant, relying on Section 136 (1) of the Evidence Act 2011, “the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence…” I do not find that the Claimant was able to shift this burden; especially, having not filed any Reply to Defendant’s statement of defence.

When the Defendant stated that it was not Claimant’s employer, and mentioned Orfi Management Services, it was for the Claimant to show how Defendant, and not Orfi Management Services, was his employer. Claimant did not show if Defendant ever paid him salaries or not nor did he present any other evidence implying that the Defendant was responsible to him as an employer. During cross-examination, Claimant stated that he is a casual worker with the Defendant; yet he had tendered exhibit A, being his staff ID card with Orfi Management showing he was assigned to the Defendant by Orfi Management.

What I make of all this, is that Claimant has not established employment relationship with Defendant. I however, still proceed to consider Claimant’s reliefs, assuming I am wrong in not finding employment relationship between the parties.

Claimant’s 1^st Relief is for:

Payment of outstanding salaries from October 2014 to February 2017 amount to N 371,200.00 (Three hundred and Seventy-One Thousand Two Hundred Naira) at the rate of N 12,800.00 (Twelve Thousand Eight Hundred Naira) per month.

As already stated, there is no evidence that Defendant ever paid salaries to Claimant, by what means and how much. The Defendant, in denying being the employer of Claimant, stated that it never at any time paid Claimant monthly salary of N11, 102.50 or any sum whatsoever. The Claimant made no rebuttal of this, and led no evidence to show that Defendant ever paid him the said salary, or any salary, at all. Counsel for Claimant in his argument referred to Exhibit H (letter dated 9^th September 2015) where Defendant stated that ‘Claimant has continued to earn his salary on monthly basis even though he is not working in the factory at the moment’. I do not find that this sentence proves that it was Defendant who was paying the said salary. This is especially so, when the said letter categorically stated that, ‘Mr. Orebe is an employee of Orfi Management Services Limited seconded to Pardee Foods Nigeria Limited under an outsourcing relationship’; which fact was not rebutted by any means. Defendant had stated under cross-examination that:

It is not true that my company opened a Zenith Bank Account for Claimant and pays him through it. The way we pay is into Orfi account, who now pays Claimant.

Yet, no Zenith bank account was brought in evidence by Claimant. In the circumstance, I decline the Order sought in the 1^st Relief, as having not been proved.

Claimant’s 2^nd Relief is for:

Special damages in the sum of N 9,228,800.00 (Nine Million Two Hundred and Twenty-Eight Thousand Eight Hundred Naira) for accident

Special damage consists in all items of loss which must be specified by (the plaintiff) before they may be proved and recovery granted.” Per UWAIFO, J.S.C in Nwanji v. Coastal Serv. (Nig.) Ltd (2004) 11 NWLR (Pt.885) 552 (P.15, para.F).

Special damages are compensatory and designed to return persons to the position they were prior to the alleged injury and must be specifically proved. In Julius Berger Nigeria Plc & Anor v. Ugo (2015) LPELR-24408(CA), the Court of Appeal suggested that:

Where for example a person was injured in a Car accident, the victim could seek damages that would cover medical expenses/damage to the vehicle. Each of these would be classified as special damages. Thus, special damages are based on measurable Naira amounts of actual loss, and it is for this reason that they are expected to be specially pleaded and strictly proved.

I find no evidence on how Claimant arrived at the claimed sum. I therefore refuse the Relief for lack of proof. If I had held that the entitlement to the relief was proved, then I would have need to consider the effect of the payments made by the Nigeria Social Insurance Trust Fund under the Employee’s Compensation Act.

Claimant’s 3^rd Relief, which is for:

The sum of N 15,000,000.00 (Fifteen Million Naira) being general damages for the psychological trauma and untold humongous hardship suffered by the claimant , when the defendant willfully refused and neglected to re-engage the Claimant due to the accident and no employer was ready to engage him in his present position.

The effect of the findings on reliefs 1 and 2, is that Relief three cannot stand. In the same way, reliefs 4 and 5 for Interest on the judgment debt at the rate of 21% per annum until payment is made; and the sum of N 500,000.00 (Five Hundred Thousand Naira) being cost of Litigation and Legal Fees also fail.

The entire suit fails and is hereby dismissed. I make no order as to cost.

Judgment is entered accordingly.

…………………………………….

Hon. Justice Elizabeth A. Oji PhD