Mr. Patrick Nedde Umoh -VS- Lela Agro Industries Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. E. ISELE.

DATE: 17^th September, 2019

SUIT NO: NICN/KN/24/2015

BETWEEN

Mr. Patrick Nedde Umoh Claimant

And

Lela Agro Industries Limited Defendant

PRESENTATION:

Claimant: Absent

Defendant represented by Alhaji Yakubu Adamu (Manager)

Appearance

Abdurrazaq A. Ahmed, Esq. with B.I. Nelson, Esd. for the Claimant

Isaac N. Ambule for the Defendant

JUDGMENT

The Claimant commenced this action by a complaint against the Defendant dated 5^th October, 2015 and filed on the 22^nd October, 2015. Claiming the following reliefs:

1) A Declaration that the claimant is still in the employment of the defendant, his appointment not having been terminated by the defendant.

2) An Order directing the defendant to pay to the Claimant the arrears of his salaries from May 2013 to date.

3) A Declaration that the refusal of the defendant to allow the Claimant participate in any Statutory Pension Scheme and the non-remittance of Pension funds for the Claimant by the defendant is wrongful and illegal.

4) An Order directing the defendant to allow the Claimant take part in a pension scheme with a pension fund administrator, and to remit all contributions due to the claimant to date to the pension fund administrator, or alternatively to pay over to the defendant for the Claimant, all the remittances that ought to be have been made by the defendant for the claimant to a pensions fund administrator from 26^th January, 2013 to date.

5) The Sum of 60,000,000 (Sixty million naira) being damages for malicious prosecution and for injury done to his reputation as well as pain suffered in body and mind.

6) Cost of this action.

Accompanying the complaint is the Claimant’s statement of facts (made up of 38 paragraphs), witness statement on Oath, list of documents to be relied upon, list of witnesses as well as copies of documents to relied upon at trial. The defendant entered appearance on the 30^th October, 2015 and filed its statement of defence on 18^th February, 2016 together with witness’s statement on Oaths, list of documents and list of witnesses.

The hearing of this case commenced on 25^th of April, 2018 when the matter commenced denovo after the transfer and subsequent death of the late Mani J. who started the matter up to the state of hearing. CW1 adopted his written statement on Oath as his evidence in chief and tendered documents as exhibits. The witness urged the court to grant all his reliefs.

The case of the Claimant as revealed from the pleadings filed is that he was employed by the defendant as a driver on 26^th January, 2013. And that the schedule of his duty in the defendant organization is to drive out Mr. Sharafdeen who is the head of the expertrates in the defendant’s company.

The claimant avers that on the 29^th May, 2013 a public holiday, he reported for work as expected and he was only driver who was at Sharada Phase III factory of the defendant as the other divers did not come to work on public Holidays. And that day Mr. Sharafdeen called upon the Claimant and gave him the keys to a mini truck (Canter) which was usually driven by other drivers and requested him to go in the company of one Mr. James, a supervisor in the factory, to dispose off some factory wastes using the mini truck (Canter). And that the claimant, following the instructions of Mr. Sharafadeen drove the mini truck in the company of Mr. James went to dispose of the factory waste.

The Claimant avers further that after disposing off the waste alongside Mr. James Otu he returned the Mini truck to the factory and handed the keys to Mr. Sharafadeen who thanked them thereafter.

And that, the following day the Claimant was called on phone by one Mr. Yakubu one of the defendant’s manager asking him to report to his office with immediate effect. The said Mr. Yakubu alleged that the claimant and Mr. James Otu conspired and stole items which were hidden in the waste which they had gone to dispose the previous day and he instructed the policemen to arrest both the claimant and James Otu. The policeman according to the claimant and upon the instructions of Mr. Yakubu then arrested and took both the claimant and Mr. James Otu to Sharada Police Station where they were both detained inside the Police Cell.

And that after releasing the complainant on bail, the officers of the Nigeria Police force made him to be reporting to Sharada Police Station by 8:00am every day and remain there till 6:00pm before he would be release to go and which he did for two weeks.

The counsel further avers that during the two weeks which the claimant reported to the police station, the officers of the defendant, led by Mr. Yakubu kept putting pressure on the policemen at the Sharada police station to ensure that the case was taken to court and the claimant arraigned in court, and to this effect, Mr. Yakubu gave the sum of N50, 000.00 to the policemen of the Sharada police station.

And the police therefore, arraigned the Claimant before Chief Magistrate Court No. 14 Panshekara on 11^th June 2013 as the second accused person for the offence of theft, and assisting concealment of stolen property and negligence on duty. The Claimant averred further that the Magistrate on the 2^nd March, 2015 discharged and acquitted the claimant.

The Claimant also averred that immediately he was granted bail at the Police Station, he proceeded to the defendant company to continue with his work, but he was turned away at the gate by the security man of the defendant who informed him that the management of the defendant had told him not to allow the claimant into the promises of the defendant until his case was determined by the court. The claimant argued that the defendant never at any time terminated the appointment of the claimant nor dismissed him from its employment. And that after the discharge and acquittal of the claimant he again approached the defendant to continue his work and to collect the arrears of his salaries but the defendant through one of its staff Mr. Garba informed the claimant that he could not report for work, nor would he be paid his arrears of salaries.

The claimant finally averred that the defendant did not allow him or other staff to take part in any pension scheme and neither does the defendant remit contributions due to him or other staff to any pension fund administrator. The defendant opened its case on 24^th October, 2018 when it called its witnesses and adopted their written statement on Oath as their evidence in chief and tendered documents as exhibits. The documents were admitted and marked as exhibits DD, DD1 and DD2 respectively. Witnesses then prayed the court to dismiss the claims of the claimant.

The case of the defendant as deducible from its statement of defence is that the defendant did not employ the claimant but Mr. Sharafadeen employed the claimant who was responsible for the payment of the claimant’s salaries on monthly basis.

And that the defendant only employed Mr. Sharafadden and entitlement of Mr. Sharafadeen including an official vehicle with a driver, the terms of Mr. Sharafadeen employment is such he is expected to hire a driver and the salary of his driver is built into Mr. Sharafadeen salaries and paid to sharafadeen as his monthly salaries. That the defendant did not directly or indirectly employ the claimant.

The defendant averred further that Mr. Sharafadeen did not call upon the claimant and handed over the keys to a mini truck (canter) diven by truck drivers to the claimant while in company or presence of one Mr. James, a cleaner in the factory to dispose off any or some factory wastes in the said mini truck. And that before any employee of the defendant have access to the keys of the defendant’s vehicle consent and approval of the management of the defendant are always sought. And in the instant case the claimant did not seek the consent and approval of the management or office of the accountant of the defendant before he went and took the key of the said mini truck (canter) and drove it out of the defendant’s premises at a time such instructions was not given by Mr. Sharafadeen to the Claimant. The claimant therefore in connivance with James Otu stole and did away with the defendant’s finished goods worth N100, 000 in the name of the waste products. The defendant averred further that on 29^th May, 2013 and was at his house throughout the day in question. That it was the claimant who came to the factory on the said date because he was in agreement with Mr. James Otu and one other to do away with the defendant’s finished goods worth N100,000. The following day being 30^th May, 2013 work resumed and it was discovered by the management of the defendant that manufactured goods valued N100000was stolen from the defendant’s company.

Following the discovery, the management of the defendant instructed one of its managers to carry out thorough investigation, and in compliance, invited one of the security officers of the defendant’s company who informed Alhaji Yakubu, a Manager of the defendant that it was the claimant he found in the truck trying to drive it out the with what they claimed to be waste product of the defendant. On conclusion of the investigation of theft, it was discovered by the management that three persons were involved in the theft of the said goods and they were promptly referred to the police for investigation and prosecution. The Police after investigation decided to prosecute the three suspected accused persons 1^st being James Otu who since escaped to an unknown place till now, the second suspect who is the claimant and the third accused person who is now a convict. The first accused ran away on bail, the 3^rd accused admitted to the crime and was there and then convicted. The defendant finally urged this court to dismiss the claims of the claimant on ground that it is unmeritorious, unwarranted gold digging with substantial cost.

At close of trial, learned counsel on either side were directed by the court to file their final written addresses in accordance with the rules of court. The final address of the defendant was filed on 3^rd May, 2019. In it the learned counsel raised two issues for this court to determine as follows:

1) Whether or not the claimant has established and or proved his claim to justify the granting of reliefs number 1, 2, 3, and 4 having regards to the circumstances of his claim.

2) Whether or not this honorable court has the jurisdiction and/or vires to consider and determine relief no. 5 having regards to the manner and way the reliefs is constituted.

Arguing the first issue the learned counsel to the defendant submitted that the claimant has woefully failed to establish his claim to justify the granting of reliefs 1, 2, 3 and 4 contained in the statement of claim, having regard to the circumstances of his claims before this court.

Firstly, according to the counsel the burden to prove that the claimant was employed by the defendant in this suit lies heavily on the claimant. This is so because the claimant was alleged in paragraph 1 of the statement of claim and paragraph 1 of the statement on Oath that he was an employee of the defendant. This was denied by the defendant in their statement of defence. The burden therefore according to the counsel lies on the claimant to show to the court that he was employed by the defendant. Referring to sections 132, 133 and 137 (1) of the Evidence Act, 2011 and the case of DAGACI OF DERE V. DAGACI OF EBWA (2006) ALL FWLR (Pt. 306) 786 at 798 where it was held thus:

“The burden of proof is on the party who alleges the affirmative. The burden of proof is on the party who will fail if no evidence is led in the case. And in most cases, he is the plaintiff. In the instance case, the burden rested on the appellants to prove their main claim on the respondents to prove their counter claim”

The learned counsel cited the cases of OYEBODE V. GABRIEL (2013) ALL FWLR (PT 669) 1043 at 1051, holden 14 and GARBA V. YAKASSAI (2006) ALL FWLR (PT. 317) 492 at 493 holden 2 particularly page 498, paragraph B–C.

And that the claimant under cross examination said he was a driver and was asked to drive all Indians on the employment of the defendant while in paragraph 5 of his statement on Oath stated that he is the driver of Mr. Sharafadeen and was directly answerable to him. According the counsel this is direct contradiction of his evidence under cross examination that he is a driver to all Indians in the defendant’s employment.

The counsel continued by stating that courts have been enjoined not to place any reliance on any evidence that is and materially irreconcilably contradictory. Citing the cases of WACHUKWU V. OWUNWANNE (2011) ALL FWLR (PT 589) 1044 at 1050 Holden 11 and VTU YORUME V. STATE (2011) ALL FWLR (PT. 560) 1265 at 1267 Holden 1.

Continuing, the counsel stated that there is no single document that emanated from the defendant showing that the defendant indeed employed the claimant and not Sharafadeen as alleged. The counsel further submitted that since the defendant has clearly denied that the claimant was not in its employment but in the employment of Mr. Sharafadeen, the claimant has a duty to show and tender a letter of employment from the defendant. The mere allegation that he was not given one cannot stand. Referring the case of IGBINOVIA V. UBTH (2011) ALL FWLR (PT. 50) 1745 C.A where it was held thus:

“Where a party claims for a declaration that the termination of his employment is a nullity, he must plead and prove the following as material facts:

i)He is an employee of the defendant.
ii)How he was appointed and what are terms and conditions of his employment.

iii) Who can appoint him and who can remove him.

iv)What are the circumstances in which his appointment can be determined.”

Citing also the cases of B.A MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 6506 and IGBINOVIA V. U.B.T.H (Supra).

According to counsel, from the above cited authorities it is clear and mandatory for the claimant to present a letter of his employment. And that if the claimant was not employed by the defendant then he cannot make a claim against the defendant as itemized in his reliefs number 1, 2, 3 and 4 because he is not employee of the defendant in the first place. The counsel then urged the court to hold that the claimant has never been employed by the defendant and has failed to establish same. The counsel then submitted that the claimant has woefully failed to prove his claims before this court and therefore urged this court to resolve this issue in favour of the defendant.

On the second issue, which is whether or not this court has jurisdiction and or vires to consider and determine relief 5 having regards to the manner and way the relief is constituted. The learned counsel submitted that this court has no jurisdiction and/or vires to consider and determine relief no. 5 having regard to the manner and way the relief is constituted. The law that gives jurisdictions to the court is section 254 (1) of the 1999 constitution as amended. And that nowhere throughout the provisions of the above section which empowers this court to take control, hear and determine reliefs relating to claim within the realm of tort action. And that relief no. 5 contained in the claimant’s claim is a tortious claim in nature, that this court has no jurisdiction to look into this leg of claim. Counsel cited the decision of this court in an unreported case of MR. JEZREEL ELO MAYOR V. ECO EXIM ALLIED LIMITED & MR. AJAY JAIN Suit No. NICN/LA/651/2013 delivered on September 28, 2010. According to the counsel this court lacks the Jurisdiction in respect of tortuous act that arose in the course the termination of employment. The counsel at this point raised a poser that, can the defendant be said to be responsible for the arraignment of the claimant before a magistrate court for prosecution and subsequent discharge and acquittal to warrant the defendant being sued for malicious prosecutions as in the present case? The counsel then answered this poser in the negative and stated that the defendant in this case cannot be liable for malicious prosecution, relying on the provisions of sections 214 (b) of the 1999 constitutions as amended the section reads:

“The members of the Nigeria Police shall have such powers and duties as may be conferred upon them by law”

The counsel further referred this court to section 23 police Act on powers of police to prosecute. And that all the defendant did is lodging a complaint to police about the theft of the finished goods which it reasonably suspected to have been carried out by the claimant, James Otu and one other.

The counsel further stated that for claimant to succeed on its claim of malicious prosecution against the defendant, he must prove the following:

That the defendant put machinery of prosecution in motion.
That the result of the criminal action is in favour of the accused.

iii. That the defendant has no reasonable cause to prosecute the accused, and

That the prosecution is as a result of malice.

Citing the case of Ojo V. Lasisi (2003) FWLR (Pt. 156) 886 at 888 holden 2.

According to the counsel, from the statement on Oath of the Claimant there is nothing on the face of it show that it was the defendant that has set his prosecution in motion neither was there any existence of malice between the claimant and the defendant or its agents even before the incidence that led to the defendant reporting the matters to the police. The counsel therefore submitted that there was a reasonable suspicion that the claimant with Mr. James Otu connived and stole the company’s product and that the claimant has woefully failed to prove all conditions for the grant of damages for malicious prosecution. In conclusion, the counsel urged that the court to dismiss the claimant’s claims against the defendant.

The final written address of the claimant was dated 30^th May, 2019 in which the learned counsel set down two issues for determination as:

1) Whether the claimant is an employee of the defendant.

2) Whether this court has jurisdiction to grant relief 5 of the claim.

On the first issue, the claimant’s counsel stated that the defendant merely asserted without proof that it only employed Mr. Sharafadeen and that the entitlement of Mr. Sharafadeen including an official vehicle with a driver and also the terms of Mr. Sharafadeen employment is such that he is expected to hire a driver and salary of his driver is built into Mr. Sharafadeen Salaries. And that the defendant did not employ the claimant. The counsel to the claimant submitted that there was no evidence before this court to prove the above as the defendant has not led any citing the case of SMITH ENG. (CO.) LTD V. NAKSH (NIG) LTD (2017) ALL FWLR (PT. 914) 1150 at P. 1164 Para G. Where it was held thus:

“He who asserts must prove”

Also the case of TANKO V. MAI – WAKA (2010) 1 NWLR (Pt. 1176) 468 at 488 para B where the court held that:

“Pleadings not supported by evidence are deemed abandoned.”

The counsel further refer this court to the cases of ODUWOLE V. WEST (2010) 10 NWLR (PT. 1203) 598 AT 621 PARA A – C and MOBIL PRODUCING (NIG) LTD V. UMENWERE (2002) 9 NWCR (PT. 773) 543 and ESEIGBE V. AGHOLOR (1993) 9 NWLR (PT. 316) 128 hence according to the counsel the assertion that the claimant is not an employee of the defendant holds no water.

Arguing further, the counsel stated that in proving that the claimant is an employee of the defendant, exhibit CWC which is before the court is a respondent letter dated 10^th July, 2015 titled RE:PATRICK N. UMOH when the counsel to the defendant clearly stated that the claimant was employed as casual worker and was responsible and attached to the defendant’s expatiate worker as driver, from this according to the counsel the defendant acknowledge the claimant not only as an employee of the defendant but also stated his schedule of duty. Equally in the criminal trial of the claimant the chief security officer of the defendant Shu’aibu Isyaku testified to the fact that the claimant is one of the drivers of the defendant. The counsel then urged the court to hold that the claimant is an employee of the defendant.

On the second issue, that is whether this court have jurisdiction to grant relief No. 5 of the claimant.

The counsel answered this question in the affirmative and submitted that the court has the jurisdiction to the determine complaint regarding a matter which arose from the claimant’s work place and is incidental to or connected with his service in the employ of the defendant.

The counsel submitted further that for the claimant to have judgment in his favour against the defendant for malicious prosecution, the following ingredients needed to be proved:

That it was the defendant that set the law in motion leading to the charge.
That he was discharged of the allegation.
That the prosecution was without reasonable and probable cause.
That prosecution was as a result of malice referring to the case of PETER EBENINGHE V. LINUS ACHI (2011) 2 NWLR (PT. 1230) 65 @ 82.

That in proving the first ingredient, the defendant reported the claimant to the police for theft, that the act of the defendant in lodging the complaint and testifying before the magistrate court to press for sentence and conviction of the claimant are sufficient to constitute setting the law in motion, citing the case of PETER EBENIGHE V. LINUS ACHI (Supra) P. 83 – 85.

On the second ingredient, the claimant has been discharged of the allegation by the magistrate court.

On the third ingredient, that the Judgment of the magistrate court demonstrated that the persecution of the accused is without reasonable and probable cause, Where his worship held:

“- – I am of the firm view that the offence of theft and assisting in concealment of stolen property and negligent conduct has not being established against the 2^nd accused person.”

On malice, the counsel submitted that flagrant disobedience to apply internal dispute resolutions mechanism by the defendant against the claimant before reporting the claimant as a thief to police show how malicious the defendant was in its alleged complaint to the police.

Furthermore, the counsel added that a similar case ensued in the case of Nigerian Bottling Company limited and Mr. Suleiman Toyin Adio suit No. NICN/KD/03/2015 where Mani J. of the blessed memory held that claimant’s claim for malicious prosecution, breach of fundamental rights caused injuries to his reputations.

In conclusion, the claimant urged this court to uphold its claim against the defendant and grant the reliefs sought.

I have carefully considered all the processes filed, the evidence led, the written submissions of the learned counsel the authorities cited both statutory and judicial and evaluated all the exhibits tendered in this case. I also watched the demeanor of the witnesses at trial and having done all this, I set down two issues for that just determination of this case thus:

1) Whether there is an employer – employee relation between the claimant and the defendant.

2) Whether this court has the Jurisdictions to grant damages for malicious prosecution arising in a work place.

On the first issue, the determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract, that is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, described the relationship.

From the facts the claimant was employed by the defendant on the 26^th January, 2013 to drive one Mr. Sharafaddeen one of the expatriate staff of the defendant this was denied by the defendant stating that the defendant did not in any way employ the claimant rather it was Mr. Sharafaddeen that employed him. But the defendant failed to call Mr. Sharafaddeen to testify on this fact. And the defendant confirmed in exhibit CWC that the claimant was employed by the defendant as a casual staff. And during trial of the claimant at magistrate court Panshekara the Chief security officer of the defendant testified to the fact that the claimant was a driver in the defendant’s company. Also the name of the claimant is among the names of the drivers stated for leave grant for the year 2013. From this I am convinced and agree with the claimant’s counsel that the claimant was in the employment of the defendant from 26^th January, 2013 to 29^th May, 2013 when the incidence leading to this action arose.

On the second issue, that is whether this court has the Jurisdiction to grant damages for malicious prosecution arising in a work place.

Section 254 (c) of the 1999 constitution as amended by the third alteration Act provided the matters upon which this court can determine, section 254 (c) (1) provided as follows:

“Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from work place, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith”

In my opinion this court has a jurisdiction to grant damages for malicious prosecutions arising from work place because they are matters that arose from work place as contemplated by the above provision. For the claimant to succeed in an action for malicious prosecution, he must prove that:

a)The defendant put the machinery of prosecution in motion
b)The result of the criminal action is in favour of the accused.
c)The defendant has no reasonable cause to prosecute the accused; and
d)The prosecution is as a result of malice.

See the case of OJO V. LASISI (2002) WELR (P. 13 PARAS E – G) PER MIKA’ILU JCA.

The claimant must prove the entire ingredients concurrently in order to establish a case of malicious prosecution and failure to prove any of the above ingredients; his claim will fail and be dismissed.

On the first ingredient, the defendant reported the claimant to the police as that a thief, the act of the defendant lodging complaint and testifying before the magistrate court amounted to setting the machinery of prosecution in motion.

On the second ingredient, the claimant as an accused in a magistrate court was discharged and acquitted; the second ingredient was equally satisfied.

On the third ingredient of malicious prosecution, I find that any failure of the defendant to investigate the allegation of theft before the matter was reported to the policy can be excused. The fact is that the Defendant could only report the apparent theft in it’s premises to enable the police do it’s Job. I hold that to find otherwise in this case as with many others would make it virtually impossible to make reports to the police for fear of being sued in a claim in damages for malicious prosecution. I cannot therefore on a balance of probabilities or preponderance of evidence hold that the prosecution was without reasonable cause. Even from the records the other accused was shown to have been at large in exhibit CWD. In the circumstance, having found the Defendant had some reasonable cause to report to the police. I hold that it cannot be sustained by the Claimant that the Defendant acted out of malice. The Claimant for damages for malicious prosecution fails.

Now, the Claimant argued that he is still in the employment of the defendant, and that his salary was stopped since when the incidence leading to a trial in a magistrate court and this action occurred, and it was held by this court in the case of Jude V. Nigeria bottling Company Plc (2016) 67 NLLR (pt. 241) PP. 615 – 616 per Anuwe J. that where there is no official communication between an employer and an employee terminating the employment of the latter, the subsequent stoppage of his salary is a clear message that the services of the employee is no longer required.

In all, and for the avoidance of doubt, the claimant’s claim only partially succeeds in the following terms:

Relief 1 the claim for declaration that the claimant is still in the employment of the Defendant, fails and is accordingly dismissed.
On relief 2 for an order directing the defendant to pay to the claimant the arrears of his salaries from May, 2013 to date, this relief equally fails because he cannot be paid for work not done.
On relief 3, it is hereby declared that refusal of the defendant to allow the claimant participate in a statutory pension scheme is wrongful and illegal.
On relief 4, it is hereby ordered that the defendant to remit all contribution due to the claimant from January, 2013 – May, 2013 when the claimant was in employment of the defendant to the Claimant as his Pension Contributions.

This is the Judgment of Court.

There are no awards as to costs, parties to bear their own cost.

Judgment is entered accordingly.

…………………………………………………..

HON. JUSTICE E. D. E ISELE

(PRESIDING JUDGE)