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National Industrial Court

Mr. Oyinbo Robinson Bamidele & 9 ORS -VS- Ikeja Electricity

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 10thJuly 2019                            SUIT NO. NICN/LA/179/2016

 

BETWEEN

 

  1. MR. OYINBO ROBINSON BAMIDELE
  2. ORIOKE GBENGA
  3. DADA JULIUS
  4. DAVID USMAN
  5. ANOSIKE JONATHAN N.                          …     CLAIMANTS
  6. AJALA JIMOH
  7. NZEKWE PETER
  8. PETER OLEH
  9. ASUQUO EDET U.

10.OLADELE TITILOYE

 

AND

 

1.Ikeja Electricity Distribution Company Plc

2.Bureau of Public Enterprises                                …     DEFENDANTS

3.Nigerian Electricity Liability Management

   Limited/Gte

       

REPRESENTATION:

 

Mohammed Adamu Esq. with ShamsideenOlaleye Esq. for the Claimants

Audu Augustine Esq with Helen Uba [Mrs.], John Paul Okolie Esq.and Safiu Akinwunmi Esq. for the 1st Defendant.

Oyedeji Ayodele Esq. for the 3rd Defendant

No legal representation for the 2nd Defendant

JUDGMENT

 

  1. This action was commenced on 14th March 2016. The originating processes were served on the 1st, 2nd and 3rd Defendants on 26thApril 2016 and 29th April 2016 respectively. The 1st Defendant entered appearance and filed its defence processes on 25th May 2016, the Claimants filed a reply to the statement of defence on 23rd June 2016. On 7th February 2018, the Claimants were granted leave to amend theiroriginating processes. By their amended statement of facts dated 9th April 2018, the Claimants claimed against the Defendants as follows:

  1. A declaration that the termination of appointments of the Claimantsby the 1st and 3rd Defendants without compliance with relevant agreement as contained in the resolution dated the 13th day of January 2014 in Abuja is wrongful, illegal and gross violation of the terms and conditions of the Claimants employment, which constitute an unfair labour practice.

  1. A declaration that the said action of the Defendants had caused the Claimants serious untold mental, physical, psychological and social inconveniences, hardship and embarrassment.

  1. A declaration that the deliberate omission by the 2nd Defendant in failing to comply with resolution reached by parties leading to this Suit dated the 13th day of January 2014 in Abuja led to wrongful calculation of the Claimants’ emoluments.

  1. A declaration by the HonourableCourt that the Claimants have worked for the purpose of severance pay including pension.

  1. A declaration that the Claimants are entitled to the full salary as first Defendant staff as stated in their letters of regularization of appointment issued to them in 2013 and pursuant to the corporate headquarters of PHCN Plc memorandum with ref: CHQ Circular no: ED/FA/C4/154/2011.

  1. A declaration that the purported severance benefit paid to the Claimants on the 15th day of December 2015 by the 3rd Defendant does not reflect the actual and correct amount of severance benefit that is to be paid to the Claimants.

  1. A declaration that the purported severance benefit paid to the Claimants on the 15th day of December 2015 was wrongly calculated by the 3rd Defendant using the severance formula for non-regularised staff vide a Memo with Ref: 22/03/GM[A&S]/18.07/2868/2013.

  1. An order of Court that the Claimants are entitled to and should be paid their full severance benefit as Power Holding Company of Nigeria Plc/first Defendant staff as stated in their letters of regularization of appointment issued to them in 2013 and pursuant to the corporate headquarters of PHCN Plc memorandum with ref: CHQ Circular no: ED/FA/C4/158/2011 by the 1st and 3rd Defendants.

  1. An order of Courtcompelling the 1st and 3rd Defendants to pay the Claimants their appropriate arrears of salaries from 2012 when their employments status were [sic] changed and regularized to 2014 when their employments were terminated as such is to the knowledge of the Defendants.

  1. An order of Court that both the 1st and 3rd Defendants pay arrears of salaries from 24th February 2012 to 25th February 2014 in the sum of N32, 475 [thirty two thousand, four hundred and seventy five naira] only per month times 24 months, a sum total of N779, 400 [seven hundred and seventy nine thousand, four hundred naira] only to each Claimant.

  1. An order of Court compelling the 1st and 3rd Defendants to implement the monetization of the emoluments for the Claimants as approved by Power Holding Company of Nigeria Plc before it was privatized.

  1. An order of Court directing the Defendants to pay Claimants monies attached to severance of their appointment in accordance with resolution dated the 13th day of January 2014 in Abuja, their bulk rent, leave allowance and other unpaid entitlements in accordance to the policy of proper disengagement, severance and or termination.

  1. General damages for breach of employment contract by all the Defendants jointly and severally.

  1. Cost of this litigation is put at N5,000,000.00

  1. 21% interest on judgment sum commencing from the date of judgment till final liquidation.

  1. Or alternatively, an order of Court that the Claimants are still in employment of the 1st and 3rd Defendants until the determination of this Suit and or when the termination of their appointments is properly determined by the Honourable Court and proper payment made upon the disengagement.

  1. And for such or further orders as the Honourable Court may deem fit to make in the circumstance.

  1. By leave of Court granted on 4th April 2019, the 3rd Defendantregularised its defenceprocesses filed on 18th February 2019. The Claimants filed a reply to the 3rdDefendant’s statement of defence on 1stMarch 2019. Trial commenced on 15thJanuary 2019 and was concluded on 4th April 2019. The 1st Claimant testified for himself and on behalf of the other Claimants.He adopted his statement on oath dated 10th April 2018 as his evidence in the suit and tendered 19 exhibits. Exhibit 1 is PHCN Conditions of service, exhibit 2 is NEPA Headquarters Circular no. 024/99 dated 19th November 1999 changing the designation of the Claimants to ‘Corporate Guards’, exhibit 3 is a bundle of documents captioned ‘Regularization of appointment’ of the Claimants, exhibit 4 is copies of acceptance of regularization of their appointments by 1st to 6th Claimants, exhibit 5 is copies of termination of appointment of 1st, 2nd, 3rd, 5th to 10th Claimants, exhibit 6 is copy of letter from the Office of the Senate President to all regularized corporate guards, exhibit 7 is copies of Claimants’petition to Public Complaints Commission and the Commission’s letter to the 1st Defendant, exhibit 8 is copy of resolutions reached at the conciliatory meeting held on 13th January 2014, exhibit 9 is copies of newspapers publications on the Claimants’ protests, exhibit 10 is copy of 1st Defendant’s letter to the 2nd Defendant dated 19/6/2013 requesting for approval for biometric capturing of corporate guards, exhibit 11 is copies of 1st Defendant’s reminders to the 2nd Defendant dated 27/9/2013 and 20/11/2013 on request for approval for biometric capturing of corporate guards, exhibit 12 is 1st Defendant’s internal memo on ex-gratia payment to exiting corporate guards dated 28/11/2013; exhibit 13 is copy of Federal Ministry of Power letter dated 6/6/2013 to PHCN on payment of 2013 bulk rent and leave allowance to staff before disengagement, exhibit 14 is copies of bank statements of 1st to 3rd and 6th to 10th Claimants; exhibit 15 iscopies of letters by Claimants’Solicitors to the 1st and 2nd Defendants, exhibit 16 is copy of 1st Claimant’s ID card and attached documents; exhibit 17 is copies of ID cards of 3rd, 4th, 5th, 6th and 10th Claimants and attached documents; exhibit 18 is copy of PHCN circular dated 22/6/2010 on implementation of monetization of emoluments for corporate guards and exhibit 19 is copy of PHCN memo dated 12/11/2010 on implementation of increment in allowances to corporate guards.He was thereafter cross-examined. The 1st Defendant’s witness, Mr. OsatoOgbeide testified on behalf of the 1st Defendant. He adopted his statement on oath dated 25th May 2016 and tendered 6 exhibits. Exhibit D1 is copy of certificate of incorporation of 1st Defendant, exhibit D2 is electricity distribution licence granted to 1st Defendant, exhibit D3 is copy of offer of six-month contract employment to one Adeshina; exhibit D4 is copy of offer of employment to Oni, exhibit D5 is schedule of engaged staff of 1st Defendant and exhibit D6 is unsigned agreement between 1st Defendant and 3rd Defendant. He was cross-examined. The 2ndDefendant was not represented in spite of service of hearing notices and did not file any defence processes. The 3rd Defendant’s witness, Mr. Binnie Chigbue, adopted his statement on oath dated 18th February 2019 as his evidence in chief and was cross-examined. Exhibit D6A, the pre-completion liabilities transfer agreement between 1st Defendant and 3rd Defendant, was tendered through this witness by the 1st Defendant.Thereafter, the case was adjourned for adoption of final written addresses. On 6th May 2019, Mr. Odoemelam holding brief for Mr. Oyedeji Ayodele Esq. adopted the 3rd Defendant’s final written address filed on 3rd May 2019. Learned Counsel for the 1st Defendant, Mr. Audu, adopted the 1st Defendant’s final written address dated 30th April 2019 and argued that if the Court holds that the Claimants are employees of the 1st Defendant, in view of exhibit D6A, the 1st Defendant is exempted from any liability arising from the privatization. Learned Counsel for the Claimant, Mr. Olaleye, also adopted the Claimants’ final written addresses dated 3rd May 2019and urged the Court to discountenance the arguments by the 1st and 3rd Defendants and grant the claims of the Claimants.

COURT’S DECISION

 

  1. The Claimants were members of the Nigerian Legion recruited by Power Holding Company of Nigeria Plc as corporate guards on contract basis.Between March and May 2013, theiremployment was regularized and they became permanent staff of Power Holding Company of Nigeria Plc on pensionable status with effect from 24th February 2012, exhibit 3.The letters of regularization of appointment required each of the Claimants to signify acceptance of the offer in writing within a specified time and made their employment subject to Power Holding Company of Nigeria Plc conditions of service, March 2010 edition. The letters of acceptance, exhibit 4, were addressed to Power Holding Company of Nigeria Plc. By letters dated 25th February 2014, exhibit 5, the Claimants’ employment was terminated with effect from 1st March 2014.The Claimants’case is that they wereemployees of the 1st and 3rd Defendants carrying out their official assignments at various business units as assigned and maintained by the 1st Defendant after it acquired Power Holding Company of Nigeria Plcfollowing its privatization by the 2nd Defendant; and they were owed two years’ salary arrears before termination of their appointments and that all their entitlements were not paid before the 2nd Defendant fully privatized Power Holding Company of NigeriaPlc whereupon the 1st and 2nd Defendants took over the assets and liabilities of Power Holding Company of NigeriaPlc. The Claimants also averred that prior to termination of their appointments, they agitated for payment of their outstanding salaries and benefits, following which a resolution was signed on 17th January 2014, exhibit 8, and the 1st and 2nd Defendants acted in breach of this resolution by terminating their appointments without payment of their entitlements. They further averred that the 2nd Defendant’ was negligent in failing to act on 1st Defendant’s letters on biometric capturing of the Claimantswhich would have been used in calculating their actual severance benefits. They contend that the 1st and 3rd Defendants calculated their severance benefits using non-regularised corporate guards’ severance benefit scheme. The 1st Defendant denied that the Claimants were its staff and in response averred that it was incorporated on 8th November 2005 and commenced operation on 1st November 2013 following the grant of electricity distribution licence by Nigeria Electricity Regulatory Commission. It averred that by the terms of the Pre-Completion Liabilities Agreement, exhibits D6 and D6A,all its pre-existing liabilities including the already settled entitlements of the Claimants prior to 1st November 2013 were transferred to the 3rd Defendant. On its part the 3rd Defendant made a general denial of the averments in the amended statement of facts and added that the grant or denial of the Claimants’ claims is within the discretion of the Court.

  1. The 3rdDefendant submitted two issues for determination to wit:

  1. Whether from thee [sic] totality of the facts and evidence available before the Honourable Court, it can be said that the Claimants where [sic] employees of the 3rd Defendant to be able to succeed in their reliefs sought in this suit against the 3rd Defendant?

  1. Whether from the totality of the facts and documentary evidence before this Honourable Court the Claimants have been able to establish their claim against the 3rd Defendant to enable them to the reliefs sought against the 3rd Defendant?

4.1    Canvassing issue one, learned Counsel for the 3rd Defendant argued that it is important to ascertain whether an employee is a staff of another because it determines the employment rights accruable from one to the other and relied on Ogiamien v. Gulf Managing Services Nig. Ltd. [2016] 66 N.L.L.R [pt.235] 217.  Referring to Okoebor v. Police Council [1998] 9 NWLR [pt.566] 534 hesubmitted that in a case of wrongful termination of employment, the Claimants must plead and prove:

  1. that he is an employee of the Defendant;
  2. how he was appointed and the terms and conditions of his appointment;
  3. who can appoint and remove him;
  4. the circumstances under which the Plaintiff’s appointment can be terminated; and
  5. that his appointment can only be terminated by a person or authority other than the Defendant.

He contended that there is nothing before the Court to show that the Claimants were employees of the 3rd Defendant and in the absence of proof of employment relationship their claims against the 3rd Defendant must fail.

4.2    On issue two, learned Counsel explained that there is no evidence before the Court that the 3rd Defendant was privy to the resolution reached on 13th January 2014, exhibit 8; and submitted that the onus of proof is on the party alleging the existence of an agreement. He relied onConoin Plc v. Solomon [2017] 3 NWLR [pt.1551] 50 at 59and section 131[1] of the Evidence Act 2011. Learned Counsel contended that, assuming the Claimants’ allegation of wrongful calculation of their severance benefits is correct, they did not furnish the Court with the right calculation; and in any event, the Claimants did not notify the 3rd Defendant of the wrong calculation but collected the severance benefits paid by the 3rd Defendant and turned around to complain which,he argued, is an afterthought. He submitted that in the absence of any documentary evidence, the Claimants suit is an invitation to the Court to build something on nothing. He therefore urged the Court to discountenance the claims.

  1. The 1st Defendant formulated three issues for determination, viz:

  1. Whether from the totality of evidence before the Court, the Claimants were employees of the 1st Defendant to be entitled to the reliefs sought for in their amended complaint against the 1st Defendant?

  1. Whether from the facts and evidence before the Court, the Claimants has [sic] established their claims as endorsed on the complaint before the Court and therefore entitled to the reliefs sought against the 1st Defendant in this suit?

  1. Whether the 1st Defendant is responsible for the Claimants’ claims as endorsed on their amended Complaint considering exhibit D6, the Pre-completion Liabilities Agreement between the 1st Defendant and the 3rd Defendant?

5.1    On issue one, it was submitted that the Claimants are not employees of the 1st Defendant; and in determining the rights and obligations in a contract of employment the Court will look at the terms and conditions of service, which is the bedrock on which an aggrieved employee must found his case. The cases of Afribank [Nig.] Plc v. Osisanya [2000] 1 NWLR [pt.642] 592 and Daodu v. UBA Plc [2004] 9 NWLR [pt.878] 276 were cited in support. It was also submitted that only a party to a contract can enforce it; accordingly exhibit 1 cannot be relied on to determine the obligations of the 1st Defendant to its staff. Learned Counsel referred to exhibits 3 and 17 and submitted that the irresistible conclusion to be drawn from these exhibits is that the Claimants are not staff of the 1st Defendant. On the signing of the letters of termination by the 1st Defendant, learned Counsel submitted that where the Federal Government relinquished its equity in an agency, the ‘privatised company’ cannot be compelled to absorb the staff of the agency in its employment as that would amount to forcing a willing employee on an unwilling employer. It was further submitted that an employee cannot derive security of service from a body other than the one employing him and referred to Olatunbosin v. NISER Council [1988] NSCC [vol.19] 1025.

5.2    On issue two, it was submitted that the Claimants have not established their case to be entitled to the reliefs sought against the 1st Defendant. He explained that a cursory look at the reliefs shows that they are incidental to the termination of the Claimants’ employment. Adverting to reliefs[i] and [iii], he explained that it is about the failure of the Defendant to comply with exhibit 8, and submitted that a contract affects only the parties to it and the 1st Defendant is not a party to the resolution and cannot be accused of its breach. AlfotrinLtd v. A G Fed &Anor [1996] LPELR-414 [SC] was cited in support. He submitted that the responsibility of paying severance benefits in line with any resolution cannot be that of the 1st Defendant as the Claimants were never its employees. It was also argued that an employee who accepted payment after his employment was terminated cannot subsequently complain that his employment was not properly determined and referred toIkeagwu v. Nigeria Army [2006] 11 NWLR [pt.991] 382.He contended that the Claimants’ employment was terminated on 1st March 2014 andthey received their severance benefits on 15th December 2015 without objections; and cannot complain in 2016 as both the law and equity do not aid the indolent. He explained that while relief [iv]shows that the Claimants are entitled to severance pay and pension; reliefs[vi] and [vii]claims that the severance benefit paid by the 3rd Defendant does not reflect what the Claimants ought to be paid; and queried why the 1st Defendant should be responsible for paying benefits which the 3rd Defendant had paid. He urged the Court to hold that the 1st Defendant was never responsible for the Claimants’ claims in the first place.He submitted that the Claimants failed to prove reliefs[xiii], [xiv], [xv] and [xvi] and that he who alleges must prove. On cost of litigation and interest, he contended that these claims have not been proved and no reference was made to the interest rate to be paid and on what amount; and that the Claimants do not know how much they are owed in the first place. All these, according to learned Counsel, are speculations and speculations have no place in law and referred toTanko v.Nongha[2005] LPELR-11405[CA]. He urged the Court to resolve issue II in favour of the 1st Defendant.

5.3        Arguing issue three, learned Counsel submittedthat assuming without conceding that the Claimants have proved their claims, the 1st Defendant is exempted from any pre-completion liabilities of the defunct PHCN as in the instant case in view of exhibit D6, the Pre-Completion Liabilities Agreement between the 1st Defendant and the 3rd Defendant. It was also submitted that where the intentions of the parties are clearly stated in an agreement, the Court cannot go outside the document in search of other documents or facts not forming part of the intentions of the parties and referred to Awieh&Ors. v. Owofio [2012] LPELR-9472[CA].

  1. The Claimants filed two final written addresses in response to the 1st and 3rd Defendants final written addresses. In their response to the 3rd Defendant’s final written address, the Claimants raised four issues for determination namely:

  1. Whether or not in the circumstance of this case the Claimants have shown any relationship with the 3rd Defendant and are entitle[sic] to the reliefs sought?

  1. Whether or not, by the totality of the 3rd Defendant’sdefence and evidence led by the 3rd Defendant, the 3rd Defendant is not liable in any way to Claimants?

  1. Whether before the purported termination of the Claimants employments by the first Defendant it can be said that the Defendants complied with the terms as stated in the Claimants’ termination letters, contract of employment and or the parties agreed terms before carrying out the purported termination?

  1. Whether the Claimants have proved their case on the preponderance of evidence in line with labour law jurisprudence and are entitled to the reliefs prayed for?

6.1    Arguing issue one, learned Counsel for the Claimants explained that the Claimants’claims arehinged on unfair labour practice, wrongful termination of appointment, breach of terms of employment by the 1st and 3rd Defendants, wrongful calculation of the Claimants’ benefits and gratuity by the 1st Defendant due to the failure of the 2nd and 3rd Defendants to comply with resolution agreed upon by Defendants and the Claimants’ representatives. Learned Counsel highlighted some of the exhibits tendered including exhibit 17 and contended that there being no challenge to these documents, they are deemed admitted by the adverse party. It was also argued that the failure of the 3rd Defendant to cross-examine the Claimants implies acceptance of the truth of thefactsin respect of which the evidence was given. Consequently,he urged the Court to accept and act on the evidence of the witness and referred toIwunze v. FRN [2013]1 NWLR [pt.1334] 119 and Bick &Stone [Nigeria] Limited v. African Continental Bank Limited [1992] 3NWLR [pt.229] 260.It was contended that the 3rd Defendant is product of privatization of Power Holding Company of Nigeria, formerly known as National Electric Power Authority and now Ikeja Electricity Distribution Company; and the Claimants have shown the necessary nexus with the 1st and 3rd Defendants and referred to exhibit 17.It was further argued that the 1st and 3rd Defendants are aware of the Electric Power Sector Reform Act, 2005and, being designated successor companies to the defunct Power Holding Company of Nigeria, cannot deny the Claimants their full severance benefits as employees by virtue of section 21 which provides inter alia:

[1]    Every person employed by the initial holding company immediately before the date specified in the relevant transfer order pursuant to which he is transferred shall be transferred to the service of a designated successor company, on terms not less favourable than those enjoyed by him immediately prior to the transfer.

[2]    The service rendered by an employee transferred pursuant to a transfer order shall be the service with the designated successor company for the purpose of determining employment related entitlements as specified by relevant laws of employment in Nigeria.

[3]    Until such time as condition of service are drawn up by the designated successor company –

[a]    the terms and conditions of service applicable to employees of the initial holding company shall continue to apply to every person transferred to the designated successor company as if every such person were still in the service of the initial holding company;

 

He submitted that where a statute prescribes a step to be followed failure to adhere to that step renders any action taken void and he urgedthe Court to hold that the action of the 1st and 3rd Defendants in terminating the appointment of the Claimants is void ab initio and referred to Amaechi v. INEC [2008] 1 MJSC.

6.2    On issue two, learned Counsel contended that the 3rd Defendant’s statement of defence andits witness’ statement of oath are one and the same; and there being no evidence in proof of the statement of defence, it is useless and has no probative value and referred to Idris v. ANPP [2008] 8NWLR [pt.927] 407. It was also argued that the 3rd Defendant’switness’statement on oath is hearsay evidence being a statement made to a witness by a person who is not himself called as a witness. Maigoro v. Bashir [2000] FWLR [pt.19] 553 was cited in support. He explained that under cross-examination the 3rd Defendant’s witness stated that it is not the 3rd Defendant’s responsibility to determine the Claimants’ actual severance benefit but that of the 2nd Defendant; and contended that by virtue of section 19 of the Labour Act  and the cases ofOyetayo v. Zenith Bank Plc [2012] 29 NLLR 370 at 420 and Onumalobi v. NNPC and Warri Refining Petrochemical Company [2004] 1 NLLR [pt.2] 304, the Claimants are staff of the 1st and 3rd Defendants and therefore entitled to the reliefs sought in this suit.He relied on the decisions in Oyetayo v. Zenith Bank Plc [supra] andOnumalobi v. NNPC and Warri Refining Petrochemical Company [supra]to the effect that the character of an employment relationship may be altered as between the parties by the interposition of third parties which gives rise toa triangular employment relationship.Consequently, where an employee is under the control of a subsidiary company of his employer and his appointment is terminated by the subsidiary acting upon written instruction of the parent company, the letter of termination by the subsidiary company precipitates the cause of action against both companies.

6.3    In arguing the third [fourth] issue it was submitted that from the arguments canvassed, exhibits and facts the Claimants have proved their case on the preponderance of evidence to be entitled to judgment. He explained that the 3rd Defendant did not front load any document but the 1st Defendant tendered exhibit D6A through the 3rd Defendant’switness which wasmade during the pendency of this action.He submitted that it will be erroneous to give any probative value to the document tendered through 3rd Defendant’s witness by the 1st Defendant being a document prepared in anticipation of litigation and therefore inadmissible.He cited section 83[3] of the Evidence Act, 2011 and National Maritime Authority v. Marine Management Associates [2010] 4NWLR [pt.1185] 613 at 621in support. He contended that there are material contradictions from the document tendered by the 1st Defendant through its witness, exhibit D6, and the document it tendered through the 3rd Defendant’s witness and urged the Court to treat the document with suspicion and disbelief and to resolve the contradiction in favour of the Claimants and relied onPanache CommunicationsLtd. v. Aikhomu[1994] 2 NWLR [pt.327] 420 at 428.It was also submitted that 1st Defendant is by law referred to as designated successor company,the initial holding company being Power Holding Company of Nigeria.He therefore urged the Courtto look at the totality of the evidence before it, particularly exhibits 3,5, 10, 11(i)(ii), 12 and 14 and grant the Claimants’ prayers in its entirety.

6.4    In the final written address in response to the 1st Defendant’s final written address, the Claimants also raised four issues for determination, to wit:

  1. Whether in the circumstance of this case the Claimants have shown any employment relationship with the 1st and 3rd Defendants and are entitle [sic] to the reliefs sought?

  1. Whether or not, the preparation of Exhibits 3, 5, 11 and 12 by the 1st Defendant through one of its senior officers does not, by conduct, amount to confirmation of the Claimants as its employees?

  1. Whether before the purported termination of the Claimants’ employments by the first Defendant it can be said that the Defendants complied with the terms as stated in the Claimants termination letters, contract of employment and or the parties agreed terms before carrying out the purported termination?

  1. Whether the Claimants have proved their case on the preponderance of evidence in line with labour law jurisprudence and are entitled to the reliefs prayed for?

6.5    Canvassing issue one, he argued that the Claimants have shown vide exhibits 1-19 that they worked for the Defendants and are entitled to the reliefs sought.He referred toexhibits 3 and 5, signed by one A.A.Abikoyeas Managing Director/C.E.O. of the 1st Defendant, regularizing and terminating the employment of the Claimants and submitted that these documents were unchallenged and are deemed admitted by the adverse party and referred to Inegbedion v. Solo-Ojemen[2013] 53 [pt.2] NSCPR 59 at 86-87; and urged the Court to discountenance the 1st Defendant’s argument that it did not employ the Claimants. It was also argued that the Claimants have shown the necessary nexus with the 1st and 3rd Defendants in this suit andurged the Court to hold that the Claimants have always been in the employment of the 1st and 3rd Defendant. It was contended that the 1st and 3rd Defendants are products of the privatization of Power Holding Company of Nigeria formerly known as National Electric Power Authority and now Ikeja Electricity Distribution Company and referred to Section 21 of the Electric Power Sector Reform Act, 2005.

6.6    Arguing issue two, it was contended that the names of Power Holding Company of Nigeria and the 1st Defendant are clearly written on exhibit 3 and signed by the Managing Director/CEO of the 1st Defendant; and exhibit 5, the letter of termination of the Claimants’ appointment was equally issued by the 1st Defendant and signed by A.A. Abikoye. Learned Counsel also referred to exhibits 10 and 12,the request for approval for biometric capturing of corporate guards and recommendation for ex-gratia payment to exiting corporate guards,which emanated from the 1st Defendant.He submitted that by virtue of exhibit 12 the 1stDefendant did not only collate the data of the Claimants but also made recommendation for ex-gratia payment to exiting corporate guards and by its conductthe 1st Defendant has taken responsibility of all liabilities of the defunct Power Holding Company of Nigeria.He posited that documents are not tendered for the fun of it, butare tendered with some end in view either to advance and further strengthen the case of the party tendering it or to weaken and destroy the case of his adversary, and referred to Ogundele v. Agiri[2009] 12 MJCS [pt.1] 159.Adverting to section 19 [sic] of the Labour Act and the cases ofOyetayo v. Zenith Bank Plc [2012] 29 NLLR 370 at 420 and Onumalobi v. NNPC and Warri Refining Petrochemical Company [2004] 1 NLLR [pt.2] 304,he argued that the Claimants are staff of the 1st and 3rd Defendants and therefore entitled to the reliefs sought in this suit.

6.7    Issues three and four were argued together. He submitted that in terminating the Claimants’ employment, the 1st and 3rd Defendants did not comply with the terms of the Claimants’ employment and referred to exhibits 1, 3, 5 and 8. He contended that payment of one month’s salary in lieu of notice was a condition precedent to lawful termination of the Claimants’ employment and relied on section 11[7] of the Labour Act and Chukwumah v. S.P.D.C.N Ltd [1993] 4 NWLR [pt.289] 512.He submitted that the failure of the 1st Defendant topay the agreed one month’s salary in lieu of notice renders the termination of the Claimants’ employment a breach of contract and urged the Court to so hold.He argued that by regularizing the Claimants’ employment, the 1st and 3rd Defendants were merely complying with section 21 of the Electric Power Sector Reform Act, 2005. He explained that the Claimants have shown that they are owed salaries for two years from 2012 to 2014 prior to termination of their employment and the Defendants have not disproved this claim. He therefore urged the Court to find in favour of the Claimants and relied on Osu v. Peugeot Automobile [Nig.]Ltd [2006] 5 NNLR [pt. 11] 174. He contended that exhibit 1 was incorporated into the Claimants’ employment through exhibit 3 and by failing to comply with clauses 4.1.8, 5.1.2, 13.2.6 and 13.2.26 of exhibit 1 the 1st Defendant did not follow due process in terminating the Claimants’ appointments. He therefore urged the Court to resolve issue three in favour of the Claimants.

6.8    Learned Counsel submitted that the 1st Defendant’s evidence that it commenced operation on 1st November 2013 is contradicted by exhibits 10 and 11, requests for approval for biometric capturing of corporate guards, written on 19th June 2013 and 27th September 2013 respectively, exhibit D3which was signed on 21st October 2013 and exhibit D5 which purports to be 1st Defendant’s staff as at 1st November 2013. He explained that DW1 admitted that the Claimants were employees of Power Holding Company of Nigeria Plc but denied that they were staff of the 1st Defendant and argued that by section 21[1] of the Electric Power Sector Reform Act, 2005, the 1st Defendant is the designated successor company. He submitted that exhibit D2 is a photocopy of a public document and must be certified to be admissible and urged the Court to expunge it from the records having not been certified. It was submitted that the 1st Defendant pleaded termination letter dated 27th February 2014 but failed to produce it and call a material witness; which evidence, if produced, would be unfavourable to it and referred to section 167[d] of the Evidence Act. He referred to exhibit D6 and submitted that an unsigned and undated document is worthless and should be expunged from the records. The cases of Ogbahon v. Reg. Trustee C. C. G. G. [2002] NWLR [pt.749] 675 and ChukwukaOgudu v. State [2011] 48 NSCQLR 377 at 409were cited in support.It was also submitted that the document was made in anticipation of litigation and should be rejected pursuant to section 83[3] of the Evidence Act, 2011 and referred to National Maritime Authority v. Marine Management Associates [2010] 4 NWLR [pt.1185] 613 at 621. He argued that the authorities cited by learned Counsel for the 1st Defendant in the final written address are inapplicable to this case as the facts are different and the Claimants are backed by section 21 of the Electric Power Sector Reform Act, 2005. Finally, he submitted that the conduct of the 2nd Defendant amounts to admission of the claim and urged the Court to so hold.

  1. Having reviewed the processes including the final written addresses of the parties, the fundamental issue that calls for determination in this case, in my considered opinion, is whether from the totality of the evidence before this Court the Claimantsareentitled to judgment? The other issues raised by the parties in their written addresses can be subsumed into this main issue. The Claimants’ case is based on an alleged employment relationship between them and the 1st and 3rd Defendants. In paragraph 1 of the amended statement of facts they averred thus:

“That the entire Claimants were all employees of the First Defendant and third Defendant carrying out their official assignments at various Business Units as assigned and maintained by the First Defendant after it acquired Power Holden [sic] Company of Nigeria Plc after it was privatized by the 2nd Defendant.”

The 1st Defendant in paragraph 1 of its statement of defence denied that the Claimants were its employees. The 3rd Defendant did not specifically deny paragraph 1 of the amended statement of facts.However, whether the Claimants were employees of the 1st and 3rd Defendants is a question of fact which must be proved by evidence. See Bernard E. Ngun v. Mobil Producing Nigeria Unlimited [2013] LPELR-20197[CA] 35.

7.1    The law is fairly settled that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.See sections 131[1] and 133[1] of the Evidence Act 2011 and the cases of Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [2018] 7 SC [pt.111] 164 at 212 and Chemiron International Limited v. StabiliniVisinoni Limited [2018] 17 NWLR [pt. 1647] 62 at 78-79. Thus, the onus is on the Claimants to establish through their pleading and evidence that there exists an employment relationship with the 1st and 3rd Defendants. In doing this, they must plead facts from which the Court can infer an employment relationship and clearly set out the conditions of service, which is the bedrock upon which an aggrieved employee must found his case. The conditions of service fix the rights and obligations of the parties and the aggrieved employee succeeds or fails upon the terms contained therein. See Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, A. V. Omenka v. Morison Industries Plc [2000] 13 NWLR [pt.683] 147 at 154and Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1. In addition,the Claimants mustprove in what manner the terms have been breached by the 1st and 3rd Defendants. See Francis AdesegunKatto v. Central Bank of Nigeria [1999] 6 NWLR [pt.607] 390 at 405 and Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [2001] 6 NWLR [pt.710] 660 at 673. Where the Claimants successfully prove these a prima facie case is made out and the burden shifts to the 1st and 3rd Defendants to adduce counter evidence to sustain their defence. Where the Claimants fail to make out a prima facie case there will be nothing for the 1st and 3rd Defendants to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. O. S. Iserhienrhien [supra] at page 674 and Engr. George T. A. Nduul v. Barr. Benjamin Wayo& 2Ors. [supra].

7.2    Generally, a contract of service does not follow any specific pattern. It can be oral, written, partly oral and partly written. It may also be inferred from the conduct of the parties. See Nigerian Employment and Labour Relations Law and Practice by ChiomaKanuAgomopages 70-71 and Shena Security Company Ltd. v. Afropak [Nigeria] Ltd. &Ors. [2008] LPELR-3052[SC] at pages 13-14. In the latter case, the Supreme Court gave guidelines which will assist the Court to determine whether a relationship is an employment relationship. The factors are:

  1. Payment of salaries is indicative that the contract is one of service.

  1. Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment.

  1. In a contract of employment, it is inconsistent for an employee to delegate his duties under the contract.

  1. Where the hours of work are not fixed it is not a contract of employment.

  1. It is not fatal to the existence of a contract of employment that the work is not carried out on the employer’s premises.

  1. Where an office accommodation and a secretary are provided by the employer, it is a contract of employment.

These factors are only guidelines and not exhaustive. There may be other factors which the Court may consider to arrive at a right conclusion and this includes the course of dealing between the parties.

7.3    There is now what is known in labour law as co-employer; which basically means that a party could be held to be an employee of two companies and the employment rights and obligations become enforceable against either or both companies. In Donatus I. Onumalobi v. Nigerian National Petroleum Corporation & Anor. [2004] 1 NLLR [pt.2] 304 at 323-324, the Court of Appeal found that the termination of the Appellant’s employment by the 2nd Respondent, a subsidiary of the 1st Respondent, was proper. Relying on Union Beverages Ltd. v. Pepsicola International Ltd. [1994] 2 SCNJ 157 at 180-181, the Court held:

“If the companies are to all intents and purposes one, their corporate veil could be pierced and each could be liable for the action of the other. If everyone company can be said to be the agent or employee, or tool or simulacrum of another, the two companies would be treated as one.”

This decision was followed by this Court in OyewumiOyetayo v. Zenith Bank Plc [2012] 29 NLLR [pt.84] 370 at 420, where B. B. Kanyip, P.J., held:

“Our labour laws, during the pendency of an employment relationship, however, admit that the character of that relationship may be altered as between the parties with or without the interposition of third parties. It is in this sense that the triangular employment relationship evolved. … In fact, in appropriate cases, the courts have upheld the fact of co-employer status between two employers in relation to an employee.”

It should be noted that in all cases, the factors to be relied on as constituting employment relationship must be cognizable from the statement of facts.

  1. Applying these principles to this case, one would ask what are the facts pleaded by the Claimants from which this Court can infer employment relationship between the Claimants and the 1st and 3rd Defendants? I have set out earlier in this judgment paragraph 1 of the amended statement of facts which is reproduced in paragraph 4 of the 1st Claimant’s statement on oath.The Claimantsalso pleaded and tendered so many documents including letters of regularization of their employment, conditions of service of Power Holding Company of Nigeria Plc, request for biometric capturing of corporate guardsand termination letters; paragraphs 1, 10, 11, 12, 13, 14, 15, 16, 17, 18, 35, 36, 37 and 38 of the amended statement of facts and exhibits 1, 3, 5, 10, 11 and 12. Exhibit 1 is the conditions of service of Power Holding Company of Nigeria Plc and exhibits 3 and 5 are letters of regularization and termination of the Claimants’ employment respectively. Exhibits 10 and 11 are requests for approval for biometric capturing of corporate guards, while exhibit 12 is recommendation for ex-gratia payment to exiting corporate guards. A cursory look at exhibit 1 makes it applicable to staff of Power Holding Company of Nigeria Plc and not to the 1stand 3rd Defendant. However, the letters of regularization of Claimants’ appointments bear Power Holding Company of Nigeria Plc and Ikeja Electricity Distribution Company and paragraph 4 thereof makes the Claimants’ employment subject to exhibit 1. Although paragraph two of exhibit 3 makes the Claimants permanent and pensionable staff of Power Holding Company of Nigeria, the exhibit was signed by Mr. A. A. Abikoye for Managing Director/CEO of the 1st Defendant. It is the law that a person’s signature on a document authenticates it and shows that the person holds himself out as bound and responsible for the contents of the document.See Abraham N. Osadare&Ors. v. Liquidator, Nigeria Paper Mills Ltd. & Anor. [2011] LPELR-9269[CA] 37-38.

8.1    There is evidence that the Claimants continued to work in their various Business Units after regularization of their appointments until their employment was terminated on 25th February 2014 effective 1st March 2014. See paragraphs4 and 5 of the 1st Claimant’s statement on oath and exhibit 5. Although the Claimants averred that they were owed salaries for 2 years, the undisputed evidence before me is that they were working in their designated Business Units which were under the control of the 1st Defendant. The Claimants contended that the 1st and 3rd Defendants are products of the privatization of Power Holding Company of Nigeria and designated successor companies to the defunct Power Holding Company of Nigeria by virtue of section 21 of the Electric Power Sector Reform Act, 2005.For this reason, they weretheir employees and entitled to payment of severance benefits.The 1st Defendant denied that the Claimants were its employees at any material time and argued that it was incorporated on 8th November 2005 but commenced operation on 1st November 2013 when it was granted a distribution licence. See paragraphs 1 and 5 of statement of defence and paragraphs 4 to 10, 14 to 17 of the 1st Defendant’s witness’statement on oath. The 1st Defendant’s witness’ evidencein paragraphs 5 and 8 of her deposition that the 1st Defendant commenced operation on 1st November 2013when it was granted distribution licenceis contradicted by exhibits 3, 10,11 and D3 which are letters signed by the 1st Defendant before 1st November 2013.Also, paragraph 3 of exhibit D2 provides that the “licence shall come into force on the 1st day of October 2013”.The 3rd Defendant denied the Claimants averments generally and put the Claimants to the strictest proof thereof.

8.2    It seems to me that the Claimants’ case is built around section 21 of the Electric Power Sector Reform Act, 2005 and which, for clarity, is reproduced inter alia:

“[1]   Every person employed by the initial holding company immediately before the date specified in the relevant transfer order pursuant to which he is transferred shall be transferred to the service of a designated successor company, on terms not less favourable than those enjoyed by him immediately prior to the transfer.

[2]    The service rendered by an employee transferred pursuant to a transfer order shall be the service with the designated successor company for the purpose of determining employment related entitlements as specified by relevant laws of employment in Nigeria.

[3]    Until such time as condition of service are drawn up by the designated successor company –

[a]    the terms and conditions of service applicable to employees of the initial holding company shall continue to apply to every person transferred to the designated successor company as if every such person were still in the service of the initial holding company;”

8.3    As can be seen above, section 21 of the Electric Sector Reform Act, 2005 envisages a transfer of employees to the designated successor company. Subsection 1 provides inter alia:

“Every person employed by the initial holding company immediately before the date specified in the relevant transfer order pursuant to which he is transferred shall be transferred to the service of a designated successor company….”

This, in my respect view, means that there must be a specific act of transfer of the employees of the initial holding company to the designated successor company for them to become employees of the successor company. Employees of the initial holding company do not automatically become employees of the successor company by reason of the transfer of the business of the initial holding company to the successor company. This is consistent with the general rule that no one can impose a willing employee on an unwilling employer. See Mr. SuleObaje v. Nigeria Airspace Management Agency [2013] LPELR-19958[CA] 26. The operative phrase is “Every person employed by the initial holding company immediately before the date specified in the relevant transfer order pursuant to which he is transferred” [underlining mine].It is a settled rule of interpretation of statutes that where the words of a statute are clearly expressed the Court should give the words their literal meaning. See Cotecna International Limited v. Churchgate Nigeria Limited & Anor. [2010] LPELR-897[SC] 24, where Galadima, J.S.C., held:

“The fundamental rule of interpretation of a statute is that every statute is to be expounded to its manifest and expressed intention. Where the words of a statute are clearly expressed the court is duty bound to give the words their literal meaning.”

There is no evidence of a transfer order before me and there is nothing before me to show that the Claimants’ employment was transferred to the 1st and 3rd Defendants.This becomes necessary because where a statute provides for the doing of a thing, that thing must be done in accordance with the law. See Bala A. Bako v. Independent National Electoral Commission &Ors. [2013] LPELR-20727[CA] 62. Accordingly, I hold that section 21 of the Electric Sector Reform Act does not avail the Claimants.

8.4    However, this is not the end of the matter. The Claimants argued in paragraph 6.14 of their final written address in response to the 1st Defendant’s final written address, that by virtue of exhibits 3, 5, 11 and 12, they became employees of the 1st Defendant by conduct and relied on section 19[sic] of the Labour Act and the cases ofOyetayo v. Zenith Bank Plc [2012] 29 NLLR 370 at 420 and Onumalobi v. NNPC and Warri Refining Petrochemical Company [2004] 1 NLLR [pt.2] 304. A similar argument was advanced in paragraph 7 of their final written address in response to the 3rd Defendant’s final written address. As stated above, exhibit 3 made the Claimants permanent and pensionable staff of Power Holding Company of Nigeria, but bears the name of Power Holding Company of Nigeria and the 1st Defendant and was signed by Mr. A. A. Abikoye for the Managing Director/Chief Executive Officer ofthe 1st Defendant. Exhibit 5, the letters of termination of Claimants’ employment, waswritten by the 1st Defendant and signed by Mr. A. A. Abikoye for the Managing Director/Chief Executive ofthe 1st Defendant. Paragraph 1of exhibit 5 reads:

“Management regrets to inform you that your services are no longer required.”

Paragraph 4 states:

“In appreciation of your loyalty and worthy service to the Company, the General Manager [Admin & Services] has been advised by a copy of this letter to pay you one [1] month’s salary in lieu of notice.”

These paragraphs convey an existing relationship between the Claimants and the 1st Defendant. Exhibit 11 consists of two letters from the 1st Defendant to the 2nd Defendant dated 27th September 2013 and 20th November 2013 signed by the 1st Defendant’s principal officers and captioned “Re:Request for approval for biometric capturing of corporate guards”. Exhibit 12 is a letter from Mr. A. A. Abikoye, GM [Admin & Services] to the Managing Director/Chief Executive Officer of the 1st Defendantdated 28th November 2013recommending payment of ex-gratia to exiting corporate guards. These documents were not challenged by the 1st Defendant and they invariably show that a relationship existed between the Claimants and the 1st Defendant. It is trite that a contract of employment can be in any form and may be inferred from the conduct or contract of the parties. See Bernard E. Ngun v. Mobil Producing Nigeria Unlimited & Anor. [2008] LPELR-8440[CA] 67. I accept thesedocuments as proof of existence of employment relationship between the Claimants and the 1st Defendant. See Ozo Dr. AnezeChinwuba&Ors. v. Chief Benjamin ChinwezeMorah [2016] LPELR-41048[CA] 9.The 1st Defendant by its conduct in jointly authoring exhibit 3 with Power Holding Company of Nigeria Plc, allowing the Claimants to work in their respective Business Units up till the end of February 2014; seeking approval for their biometric capturing and terminating their employment has adopted the Claimants as its employees. Conversely, the 1st Defendant can be regarded as a co-employer of the Claimantswith Power Holding Company of Nigeria Plc. The 1st Defendant comes within the definition of employer in section 91[1] of the Labour Act, which provides thus:

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

In the circumstance, this action resulting from termination of the Claimants’ employment by the 1st Defendant is well grounded. This issobecause termination of the relationship between an employer and an employee is only possible by parties to the contract. See Bernard E. Ngun v. Mobil Producing Nigeria Unlimited & Anor. [supra] 36. The 1st Defendant could not have terminated the employment of the Claimants if there was no privity of contract between it and the Claimants. This cannot be said of the 3rd Defendant. There is no nexus between the Claimants and the 3rd Defendant. Accordingly, I find and hold that the Claimants were employees of the 1st Defendant and not the 3rd Defendant.

8.5    This leads me to the 1st Defendant’s issue three which is,whether the 1st Defendant is responsible for the Claimants’ claims as endorsed on their amended complaint considering exhibit D6, the Pre-completion Liabilities Agreement between the 1st Defendant and the 3rd Defendant? Arguing this issue, learned Counsel for the 1st Defendant submitted that assuming without conceding that the Claimants have proved their claims, the 1st Defendant is exempted from any pre-completion liabilities of the defunct Power Holding Company of Nigeria Plc in view of exhibit D6. The Claimants impugned exhibits D6 and D6Ain paragraphs 8.12, 8.13, 9.06 to 10.01 and 8.06 of their final written addresses. The Claimants contended that exhibit D6 having not been signed is worthless and should be expunged from the records. It was further submitted that exhibit D6 and its signed version exhibit D6A was prepared in anticipation of litigation and offends section 83[3] of the Evidence Act 2011 and therefore inadmissible and, having been wrongly admitted, should be expunged. There is no doubt that exhibit D6, as tendered by the 1st Defendant, is unsigned and the law is settled that an unsigned document commands no value in legal proceedings and is unhelpful as evidence of its contents. See AbrahamN. Osadare&Ors. v. Liquidator, Nigeria Paper Mills Ltd. & Anor. [supra] at page 33. However, exhibit D6A is signed and the copy of exhibit D6 attached to the 1st Defendant’s statement of defence is equally signed.So, whether the signed copy of exhibit D6 was tendered through the 1st or 3rd Defendants’ witness does not affect its probative value. As a general rule, a document made by a person interested when proceedings are pending or anticipated is inadmissible. See Mrs. Bamiso Mayowa Bukola v. Mrs. V. A. Oshundahunsi&Ors. [2012] LPELR-8546[CA] 61 and Section 83[3] of the Evidence Act, 2011. Subsection3 provides:

“[3]   Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

A‘person interested’ is not confined to the matter of the document, but includes any person whatsoever provided he is interested. There must be a real likelihood of bias before a person making a statement can be said to be a person interested. See Lateef Adegbite & Anor. v. Aminu Amosu [2013] LPELR-21472[CA] at pages 37-38. The provision excludes documents made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. Thus, where the interest of the maker of the document is purely official, this provision will not apply and the document is admissible. See Mrs. Bamiso Mayowa Bukola v. Mrs. V. A. Oshundahunsi&Ors. [supra] 61-62. Can it be said that exhibit D6A was made in anticipation of this litigation? I do not think so. Although exhibit D6A is undated, ‘2013’ is written on the top of the first and second pages. This action was commenced in 2016. The scope of exhibit D6A extends beyond the claims before this Court.By paragraph ‘A’ of the recital, the 3rd Defendant was established to manage the stranded assets and liabilities in the Nigeria electricity supply industry following the restructuring of the sector, the unbundling of PHCN and privatization of the PHCN successor companies. The 3rd Defendant is an agency of the Federal Government and has no interest in the outcome of this case. This fact is manifest in paragraph 20 of the 3rd Defendant’s statement of defence. I accordingly hold that exhibit D6A does not offend the provision of section 83[3] of the Evidence Act, 2011 and therefore admissible.

8.6    This leads me to the next question, to wit: does exhibit D6A exempt the 1st Defendant from liability as in the instant case? The 1st Defendant contended that it did. The Claimants did not rejoin on this issue but argued that exhibit D6A is inadmissible evidence and should be expunged. Paragraph E of the recital reads thus:

“The parties have agreed to procure the consent of the Obligees to the transfer herein contemplated.”

        ‘Obligee’ is defined in clause 1.1 page 4 as the person to whom a pre-completion liability is owed and payable. This definition in my view includes the Claimants in the instant suit. Clause 2.2 provides:

“Both Parties shall use their best endeavours to obtain the consent of the respective Obligees to the transfer contemplated in this Agreement and to as far as reasonably practicable, enter into a new agreement with each of the Obligees [each a “New Agreement”] with the effect that:

[i]     The Transferor is fully released and discharged from further obligations to the relevant Obligee with respect to any pre-Completion Liability and the Obligee’s rights against Transferor thereto are cancelled; and

[ii]    the Transferee and the relevant Obligee each undertakes liabilities and obligations towards the other and acquire rights against each other identical in their terms to each corresponding Pre-Completion Liability [and, for the avoidance of doubt, as if the Transferee were the Transferor].”

Pre-Completion Liabilities is defined in clause 1.1 as ‘all of the liabilities of the Transferor arising prior to the Completion Date including Pre-Completion Employment Liabilities’. Pre-Completion Employment Liabilities means “all payment liabilities owed by the Transferor to its employees prior to the Completion Date’. By the clear provisions of exhibit D6A the transfer of the 1st Defendant’s pre-completion employment liabilities to the 3rd Defendant does not automatically bind the employee, in exhibit D6A referred to as ‘Obligee’.The consent of the employeeis required and it is his consent that activates the 3rd Defendant’s liability under exhibit D6A. See paragraph E of the recital and clause 2.2 page 6 of exhibit D6A. It is a settled rule of interpretation of documents that where the intention of parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties. See Teju Investment and Property Company Limited v. Alhaja Moji Subair [2016] LPELR-40087[CA] 20-21. There is no evidence that the Claimants’ consent was sought and obtained by the 1st Respondent in connection with the transfer of its pre-completion employment liabilities to the 3rd Defendant.  Accordingly, I hold that in the absence of the Claimants’ consent to the transfer of the 1st Defendant’s pre-completion employment liabilities to the 3rd Defendant, the 1st Defendant remains liable.

8.7    The 1st Defendant also argued in paragraph 4.04 of its final written address that an employee who has accepted salary or payment after his employment has been brought to an end cannot complain that his contract of employment was not properly determined. The case of Ikeagwu v. Nigeria Army [supra] was cited in support. The Claimants’ response in paragraph 9.04 of their final written address is that where an employer terminates an employee’s appointment, he must do so in ‘tandem with the contract of service.’ They also argued that exhibit 5 provided for payment of one month’s salary in lieu of notice which was not made and relied on Chukwumah v. S.P.D.C.N. Ltd. [1993] 4 NWLR [pt.289] 512. In my respectful view, the instant case is not on all fours with Ikeagwu v. Nigeria Army. The Claimants’ case is that in terminating their appointments the 1st and 3rd Defendants did not comply with exhibit 8 and that the severance benefits credited to their accounts do not represent their ‘true severance benefits’. Their letter of objection to the amount credited to their accounts, exhibit 15, was written shortly after receipt of the payment. In the circumstance, I hold that payment of the Claimants’ severance benefits in the circumstances of this case is not a bar to a suit challenging the 1st Defendant’s action.Also, exhibit D2 is a copy of an agreement executed between the 1st Defendant and Nigerian Electricity Regulatory Commission and, in my respectful view, does not qualify as a public document which must be certified to be admissible.See Chief A. C. Nwabude& Anor. v. Augustine Ugodu&Ors. [2011] LPELR-9173[CA] 49. On whether the failure of the 1st Defendant to produce the letter of termination dated 27th February 2014 referred to in paragraph 5 of its list of documents should be interpreted against it pursuant to section 167[d] of the Evidence Act 2011, I am of the view, and I so hold, that the document if tendered would not have been materially different from exhibit 5 which is dated 25th February 2014.Learned Counsel’s submission is, with due respect, untenable.

  1. I will now proceed to consider the reliefs sought by the Claimants. The first relief is for a declaration that the termination of appointments of the Claimants by the 1st and 3rd Defendants without compliance with relevant agreement as contained in the resolution dated the 13th day of January 2014 in Abuja is wrongful, illegal and gross violation of the terms and conditions of the Claimants employment, which constitute an unfair labour practice.A declaratory relief is never granted where the Claimant fails to establish his entitlement by evidence. See BukarModuAji v. Chad Basin Development Authority & Anor. [2016] 7 ACELR 1 at 15. What is the evidence in support of this claim? This is set out in paragraphs 20, 21, 22, 27, 28, 29, 30, 31 and 32 of the amended statement of facts. These factsare reproduced in paragraphs 23, 24, 25, 30, 31, 32, 33 and 34 of the 1st Claimant’s statement on oath. In addition, the Claimants tendered exhibits 5 and 8. Exhibit 5 is the letters of termination of the Claimants’ appointments while exhibit 8 is a resolution dated 13th January 2014. The Claimants’ grouse is expressed in paragraphs 33 and 34 of theirwitness’ deposition thus:

“33.  That I know as a fact that the first and 2nd Defendant [sic] deliberately omitted, refused, neglected, and failed to respect the resolution document signed by both first and second Defendants on the 13th day of January, 2014 with the Minister of Labour and Productivity.

“34.  That I know as fact that my rights and other Claimants in this Suit pursuant to paragraph 31 above have been contravened as my appointment and other Claimants appointment in this Suit were not only terminated but, our entitlements were not paid from 2014 when my appointment and that of other Claimants in this Suit were being terminated by the first Defendant.”

Evidently, the basis of this claim is exhibit 8, which is a resolution reached at a conciliatory meeting between representatives of the National Union of Electricity Employees, Senior Staff Association of Electricity and Allied Companies, 2nd Defendant, the Federal Ministry of Power and the Ministry of Labour and Productivity. Let me quickly observe that the 1st and 3rd Defendants are not parties to this resolution. As rightly argued by the 1st and 3rd Defendants, a contract binds only the parties thereto and cannot be enforced by or against a person who is not privy to it. See Intercontinental Bank Plc v. Hilman& Bros Water Engineering Services Nigeria Limited [2013] LPELR-20670[CA] 24-25.Also, exhibit 8 appears to be a collective agreement, and as such it is an extra-legal document devoid of sanctions unless incorporated into the contract of employment. See Texaco Nigeria Plc v. Alfred G. Adegbile Kehinde [2000] LPELR-10000[CA] 31 and Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares [2012] LPELR-8018[CA] 15. In the latter case, Okoro, J.C.A. [as he then was] had this to say:

“Generally, the document which regulates the relationship between an employer and employee is the service agreement or the contract of service and not a collective agreement…. A collective agreement, standing alone is not binding on an individual employee and the employer unless such a collective agreement is incorporated into the contract of service or adopted as part of the contract or condition of service.”

There is no evidence that exhibit 8 was incorporated into the Claimants’ contract of employment. Exhibit 3, the letter of regularization of the Claimants’ employment incorporated only exhibit 1, the Power Holding Company of Nigeria Plc conditions of service.There is, therefore, no privity of contract between the 1st and 3rd Defendants and the Claimants on exhibit 8. It is settled law that where there is a document or series of documents incorporating the terms and conditions of an employment, the Court cannot look outside those terms in deciding the rights and obligations of the parties thereto. See Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25.What constitutes unfair labour practice is a question of factwhich must be proved by evidence. Nowhere in the Claimants’ witness’ deposition is there any evidenceof unfair labour practice. In addition, the Claimants did not set out the terms of their contract of service which the 1st and 3rd Defendants allegedly breached. In the circumstance, I hold that this claim has not been proved and it is hereby dismissed.

9.1    Relief two seeks a declaration that the action of the Defendants had caused the Claimants serious untold mental, physical, psychological and social inconveniences, hardship and embarrassment.There is no scintilla of evidence in proof of this claim. However, if this relief is derived from relief one above, it is bound to fail. Having found that there is no privity of contract between the Claimants and the 1st and 3rd Defendants on exhibit 8, I hold that the 1st and 3rd Defendants have not done anything to cause the Claimants serious untold mental, physical, psychological and social inconveniences, hardship and embarrassment.This relief fails and it is dismissed.

9.2    Relief three is for a declaration that the deliberate omission by the 2nd Defendant in failing to comply with resolution reached by parties leading to this Suit dated the 13th day of January 2014 in Abuja led to wrongful calculation of the Claimants’ emoluments. This claim is without foundation. Exhibit 8 did not provide a template for computation of the Claimants’ emoluments and the Claimants have not shown how the failure to comply with it resulted in wrongful computation of their emoluments. This notwithstanding, exhibit 8 is in the nature of collective agreement which has not been incorporated into the Claimants’ conditions of service and therefore unenforceable. See Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares [supra]. This claim fails and it is consequently dismissed.

9.3    Relief four seeks a declaration by the Honourable Court that the Claimants have worked for the purpose of severance pay including pension. I held earlier in this judgment that the Claimants were employees of the 1st Defendant. Exhibit 3 made them permanent and pensionable staff of Power Holding Company of Nigeria and made their new salary payable from 24th February 2012. Paragraph 3 of exhibit 3 provides:

“However, you should note that the period of your Contract Appointment will count fully towards the computation of your retirement benefits, while payment of salaries based on this regularization shall commence from 24th February, 2012.”

        This fact was highlighted in paragraph 21 of the 1st Claimant’s statement on oath and acknowledged in paragraph 15 of the 1st Defendant’s witness’ statement on oath. The 1st Defendant added in paragraph 16 of its witness deposition that the Claimants’ retirement benefits were computed and handed over to the 3rd Defendant for payment. The Claimants confirmed receipt of ‘payment of part of their severance benefits’in paragraphs 46, 48, 51, 57 to 66 of the 1st Claimant’s deposition. However, the issue here is not whether they have been paid their severance benefits, but whether the Claimants have worked for the purpose of severance pay including pension. It is my view that whether the Claimants have worked for the purpose of severance pay and pension is dependent on the contract of the parties. It is settled law that the conditions of service fix the rights and obligations of the parties and anaggrieved employee succeeds or fails upon the terms contained therein. See A. V. Omenka v. Morison Industries Plc [supra].Also, the right to terminal benefits is a function of agreement by the parties. Where there is no agreement, terminal benefit is not payable. See Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] 12 NWLR [pt.995] 518 at 542. Clause 4.1.8 of exhibit 1 provides that termination of appointment means loss of employment without loss of earned benefits. By exhibit 3, the period of the Claimants’ contract appointment is to be considered in computing their retirement benefits. It should be noted that the Claimants were not employed at the same time.Consequently, their years of service vary.From exhibit 10, while the 1st Claimant was employed on 30th August 2000, the 3rd, 5th and 10th Claimants were employed in 2002, the 7th Claimant in 2005, the 4th in 2006; the 2nd and 6th in 2008 and the 8th and 9th in 2010 and 2011 respectively.However, the Claimants’ conditions of service were not set out in their pleading or statement on oath. There is no evidence on the rules for entitlement to severance benefits and pension. The Claimants merely dumped exhibit 1 on the Court and no attempt was made to link the exhibit to their case. I cannot speculate on this. It is incumbent on the Claimants to demonstrate the import of documents tendered in evidence. This cannot be done in the final written address of their Counsel after close of evidence. See Hon. Ralph Okeke &Ors. v. Chief [Mrs.] Edith Mike Ejezte&Ors. [2010] LPELR-4263[CA] 87. This notwithstanding, I have looked at exhibit 1. Chapter 13 deals with ‘retirement and pension’. Clause 13.2.7 provides for conditions under which pensions and gratuities are payable. Clause 13.2.7.1 provides:

“On retirement or withdrawal from the Company’s service after serving for ten [10] or five [5] years respectively or more. Pension earned will however not be due for payment until the employee attains the age of forty-five [45] years. Withdrawal in this context includes resignation of appointment or any other voluntary action other than as a result of disciplinary action culminating in dismissal.”

The Claimants did not retire or withdraw their service within the meaning of clause 13.2.7.1. Also, there is no template for calculation of severance benefits in exhibit 1. To be entitled to pension under exhibit 1, the Claimants must have served between five and ten years. Some of the Claimants were employed between 2010 and 2011. In the absence of evidence this Court cannot make the declaration sought. The Claimants must prove existence of the facts giving them right to this claim before the Court can pronounce it to be true. See Mrs. Susan OlapejuSinmisola Olly v. Hon. Olukolu Ganiyu Tunji & 2 Ors. [2012] LPELR-7911 [CA] 41, I. P. D. Abaye v. Ikem Uche Ofili& Anor. [1986] LPELR-21[SC] at page 81 and BukarModuAji v. Chad Basin Development Authority & Anor. [2016] 7 ACELR 1 at 15. Pension is contributory but there is no evidence of deduction of pensions from the Claimants’ salaries. Nevertheless, clause 4.1.8 of exhibit 1 provides that termination of appointment does not mean loss of earned benefits and paragraph 3 of exhibit 3 stipulates that the Claimants’ period of contract appointment will be reckoned in computing their retirement benefits.Although the Claimants’ disengagement was not voluntary, they are entitled to earned benefits in accordance with exhibits 1 and 3. These provisions, in my view, create a right which enures in favour of the Claimants. Once a legal right is established, there must be a remedy.See Madam AdunolaAdejumo& 2Ors. v. Mr. OludayoOlawaiye [2014] LPELR-22997[SC] 28.Accordingly, I hold that while the Claimants are entitled to severance benefits, there is no evidence of pension entitlement. The claim for pension fails and it is dismissed.

9.4    Relief five is for a declaration that the Claimants are entitled to the full salary as first Defendant staff as stated in their letters of regularization of appointment issued to them in 2013 and pursuant to the corporate headquarters of PHCN Plc memorandum with ref: CHQ Circular no: ED/FA/C4/154/2011.The claim is wide and lacking in specifics.It is trite that where a party’s claim is wide and unmanageable the Court will refuse to grant it. See Charles Eigbe v. Ajoke Elizabeth Eigbe [2012] LPELR-19690[CA] at page 14.This claim fails and it is dismissed.

9.5    Relief six is for a declaration that the purported severance benefit paid to the Claimants on the 15th day of December 2015 by the 3rd Defendant does not reflect the actual and correct amount of severance benefit that is to be paid to the Claimants. The Claimants consistently maintained that the severance benefits paid to them was not for regularized corporate guards. Facts in proof of this claim are in paragraphs 45, 46, 47, 48, 49, 51 and 52 of the 1st Claimant’s statement on oath and exhibits 1, 3 and 15. The 1st and 3rd Defendants did not dispute this piece of evidence. I agree with learned Counsel for the 3rd Defendant that the Claimants did not set out what their severance benefits should be or the formula for computation of the severance benefits. However, in paragraph 49 of their witness’ deposition, they averred that their exit dates were incorrectly stated as 2013. I have looked at exhibit 12 and observe that their exit date was put at 2013, while exhibit 5 was made to take effect on 1st March 2014. Where there is a wrong there must be a remedy.See Madam AdunolaAdejumo& 2Ors. v. Mr. OludayoOlawaiye [supra] and Michael Ogbolosingha& Anor. v. Bayelsa State Independent Electoral Commission &Ors. [2015] LPELR-24353[SC] 43. If the calculation of the Claimants severance benefits was made using a wrong exit date, in my respectful view, the computation cannot be correct and I so hold. This relief,therefore, succeeds and it is granted.

9.6    Relief seven is for a declaration that the purported severance benefit paid to the Claimants on the 15th day of December 2015 was wrongly calculated by the 3rd Defendant using the severance formula for non-regularised staff vide a Memo with Ref: 22/03/GM[A&S]/18.07/2868/2013. This relief is similar to relief six above. First, it must be noted that the 3rd Defendant did not calculate the Claimants severance benefit. Exhibit 12 was prepared by the 1st Defendant. I have carefully reviewed exhibit 12 and note that while exhibit 3 placed the 1st Claimant as Staff III [security] on salary code JS3/2, in exhibit 12, he was described as corporate guard II and his annual salary N282,417 instead of N389, 700. Also, while the 2nd Claimant’s annual salary in exhibit 3 is N413, 964 his annual terminal emolument was stated as N282,417 to mention but a few. Flowing from my finding in relief six above, I hold that the Claimants’ severance benefit was wrongly calculated. This relief succeeds and it is granted.

9.7    Relief eight seeks an order of Court that the Claimants are entitled to and should be paid their full severance benefit as Power Holding Company of Nigeria Plc/first Defendant staff as stated in their letters of regularization of appointment issued to them in 2013 and pursuant to the corporate headquarters of PHCN Plc memorandum with ref: CHQ Circular no: ED/FA/C4/158/2011 by the 1st and 3rd Defendants. First there is no document before me captioned “corporate headquarters of PHCN Plc memorandum with ref: CHQ Circular no: ED/FA/C4/158/2011” in the 19 exhibits tendered by the Claimants. I have held earlier that the Claimants are employees of the 1st Defendant and as a result they are entitled to their full severance benefit in accordance with exhibit 3 and not pursuant to PHCN Plc memorandum with ref: CHQ Circular no: ED/FA/C4/158/2011. Since this document is not before the Court, this claim has not been substantiated. It fails and it is hereby dismissed.

9.8    Reliefs nine and ten are similar and seek an order of Court compelling the 1st and 3rd Defendants to pay the Claimants their appropriate arrears of salaries from 2012 when their employments status were [sic] changed and regularized to 2014 when their employments were terminated as such is to the knowledge of the Defendants; and an order that both the 1st and 3rd Defendants pay arrears of salaries from 24th February 2012 to 25th February 2014 in the sum of N32, 475 [thirty two thousand, four hundred and seventy five naira] only per month times 24 months, a sum total of N779, 400 [seven hundred and seventy nine thousand, four hundred naira] only to each Claimant. Evidence in support of these claimsare contained in paragraphs 22, 23, 71, 72 and 73 of the 1st Claimant’s deposition and exhibit 3. This evidence has not been challenged in any way. However, I have found earlier in this judgment that there is no employment relationship between the Claimants and the 3rd Defendant. Consequently, the Claimants do not have any claims against the 3rd Defendant. In addition, exhibit 3 did not place the Claimants on a uniform salary. While the salary of the 1st, 3rd, 5th, 6th, 9th and 10th Claimants wasN389,700, that of the 2nd, 4th and 8th Claimants wasN413, 964 and the 7th Claimant N330, 984.I am, therefore, not satisfied that each of the Claimants is entitled to the sum of N779, 400. Since it is trite law that where there is a wrong there must be a remedy, I make an order directing the 1st Defendant to compute and pay to the Claimants their arrears of salary in accordance with exhibit 3 from 24th February 2012 till the effective date of termination of their appointments. See Dr. Umoh Ekpo Sam & Anor. v. Nze Patrick Kalu [2011] LPELR-4092[CA] 8.

9.9    Relief eleven is for an order of Court compelling the 1st and 3rd Defendants to implement the monetization of the emoluments for the Claimants as approved by Power Holding Company of Nigeria Plc before it was privatized.Although reference was made to this head of claim in paragraph 63 of the 1st Claimant’s deposition, there is no supporting documentary evidence in proof of this claim. The memoranda dated 25th June 2010 and 5th October 2010 were not tendered in evidence. It is settled law that oral evidence becomes more credible when it is supported with documentary evidence. See Mrs. Lois ChituruUkeje& Anor. Mrs. Gladys Ada Ukeje [2014] LPELR-22724[SC] 25-26. It must be noted, however, that the memoranda relied on to ground this claim were made in 2010 before regularization of the Claimants’ employment. This policy of monetization was not incorporated into the Claimants’ conditions of service. Exhibit 1 did not make provision for monetization. It is elementary lawthat where there is a document or series of documents incorporating the terms and conditions of an employment, the Court cannot look outside those terms in deciding the rights and obligations of the parties thereto.See Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [supra]. This relief fails and it is dismissed.

9.10  Relief twelve seeks an order of Court directing the Defendants to pay Claimants monies attached to severance of their appointment in accordance with resolution dated the 13th day of January 2014 in Abuja, their bulk rent, leave allowance and other unpaid entitlements in accordance to the policy of proper disengagement, severance and or termination.Earlier in this judgment I held that the resolution dated 13th January 2014, exhibit 8, is a gentleman’s agreement and having not been incorporated into the Claimants’ conditions of service is not binding on the 1st Defendant. There is no evidence in proof of this relief, it fails and is hereby dismissed.

9.11  Relief thirteen is for general damages for breach of employment contract by all the Defendants jointly and severally. There is no pleading or evidence in support of the claim for breach of the Claimants’ contract of employment. The Claimants’ case is that the Defendants wrongly computed their severance benefits. An error in computation of severance benefit cannot, in my considered opinion, amount to breach of contract and I so hold. Learned Counsel’s argument in paragraph 7.13 of the Claimants’ final written address in response to the 1st Defendant’s final written address on non-payment of one month’s salary in lieu of notice is without foundationand consequently discountenanced. SeeNew Nigerian Bank Plc v. Solomon Owie [2010] LPELR-4591[CA] at pages 19-20. Even though exhibit 3 provides for one month’s notice of termination, or one month’s salary in lieu of notice, there is no pleading or evidence on this issue. At any rate, there is no employment relationship between the Claimants and the 2nd and 3rd Defendants. They cannot, therefore, be liable for breach of contract. This claim fails and it is dismissed.

9.12  Reliefs fourteen and fifteen are for cost of litigation which is put at N5, 000,000.00 and 21% interest on judgment sum commencing from the date of judgment till final liquidation.Cost follows events. A successful party is entitled to his cost.See MoshoodAdelakun v. NurudeenOruku [2006] LPELR-7681[CA] 28. Order 55 rule 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 provides:

“In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been unnecessarily put in the proceedings.”

Taking into consideration the conduct of the 1st Defendant, exhibits 3,5 and 15 and the processes filed by the Claimants cost of N100, 000 [one hundred thousand naira] is awarded in favour of the Claimants against the 1stDefendant. See Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] 34-35.On interest, this Court is empowered to award interest on judgment sum up to a maximum of 10%. See Order 47 rule 7 of National Industrial Court [Civil Procedure] Rules, 2017.

9.13  On the alternative claims, I hold thatsince the Claimants have succeeded in some of their principal claims, it is no longer necessary to consider the alternative claims. SeeElephant Investment Limited v. Mr. Adeniran OlapojoyeFijabi [2015] LPELR-24732[CA] 77.

9.14  Before I conclude, I would like to make a comment on the submission of learned Counsel for the Claimants in paragraph 7.04 of the final written address in response to the 3rd Defendant’s written address, to the effect that the 3rd Defendant’s witness’ statement on oath is hearsay evidence. The law is trite that evidence acquired by a witness in the course of his employment is not only relevant but admissible and will not be discountenanced or rejected as hearsay. An employee of the 3rd Defendant conversant with the facts like the legal officer, as in the instant case, can give evidence in this matter notwithstanding that he was employed in April 2012, some years after the Claimants had been employed. See Kate Enterprises Limited v. Daewoo Nigeria Limited [1985] 7 SC 1 at 14-15, Alhaji Aminu Ishola v. SocieteGenerale Bank [Nig.] Limited [1997] LPELR-1547[SC] 25 and Standard Trust Bank Ltd. v. Interdrill Nigeria Ltd. & Anor. [2006] LPELR-9848[CA] 27. Learned Counsel’s submission is misconceived and hereby discountenanced.

9.15  On the whole, this suit succeeds in part. For the avoidance of doubt, judgment is entered in favour of the Claimants against the 1st Defendant as follows:

  1. Reliefs 1, 2, 3, 5, 8, 11, 12 and 13 fail and are hereby dismissed.

  1. Reliefs 4, 6, 7, 9, 10, 14 and 15 are granted in part.

  1. It is hereby declared that the Claimants have worked and are entitled to payment of their severance benefits. The claim for pension is refused.

  1. It is hereby declared that the severance benefit paid to the Claimants on 15th December 2015 does not reflect the correct amount of severance benefit payable to the Claimants. A consequential order is hereby made directing the 1st Defendant to recompute the Claimants’ severance benefits in line with exhibit 3, their letters of regularization of appointment and pay the difference after deducting the amount already paid to the Claimants within thirty [30] days from today.

  1. The 1st Defendant is hereby ordered to compute and pay to the Claimants their arrears of salary in accordance with exhibit 3 from 24th February 2012 till the effective date of termination of their appointments within thirty [30] days from today.

  1. Cost of N100, 000 [one hundred thousand naira] is awarded in favour of the Claimants against the 1st Defendant.

  1. This judgment shall be implemented within 30 [thirty] days from today, failing which the monetary awards shall attract interest at the rate of 10% per annum from 10thAugust 2019 until it is fully liquidated.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

10/7/19

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