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National Industrial Court

MR SULEIMAN ABDULFATAI -VS- TBEA HENGYANG NIGERIA LIMITED

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL  DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK

ON THE 16TH DAY OF SEPTEMBER, 2019

                                                                                     SUIT NO: NICN/ABJ/26/2019

BETWEEN

MR SULEIMAN ABDULFATAI                              CLAIMANT

             AND

TBEA HENGYANG NIGERIA LIMITED                DEFENDANT

REPRESENTATION

 D.S Seidu with Allen Esq. and Ibinabo Esq.  for the claimant.

Layi Ademokoya Esq.  for the defendant.

JUDGMENT

  1. INTRODUCTION

This is a claim of wrongful dismissal. The claimant filed a complaint in this Court on 8/2/2019 accompanied by statement of facts, witness statement on oath, list of witnesses, list and copies of documents.

The defendant, by a motion, filed his statement of defence on 4/4/2019. The claimant filed a reply on 9/4/2019 which was also deemed on 10/4/2019.

The defendant filed a preliminary objection on 14/3/2019 and in response, the claimant filed a counter affidavit on 21/3/2019 and the defendant filed a further and better affidavit with a reply on points of law on 26/3/2019.

The claimant prays for the following;

  1. A declaration that the dismissal of the Claimant by the Defendant without notice is wrongful.
  2. A declaration that the refusal and failure of the Defendant to issue the Claimant with letter of employment with conditions of service proper marshaled out is illegal and was done in bad faith.

iii.              The deduction of the sum of N 3,400 (Three thousand Four Hundred Naira) from the monthly salary of the Claimant by the Defendant from January 2017 to January 2018 without remitting same to the Pension Commission on behalf of the Claimant is illegal and unlawful.

  1. An Order of this Honourable Court directing the immediate refund of the sum of N78,200:00 (Seventy Eight Thousand, Two Hundred Naira) being the total amount of the illegal deduction of the sum of N3,400.00 from the salary of the Claimant, between January 2017-December 2018 a period of 23 months.
  2. An Order of this Honourable Court directing the Defendant to pay the claimant the sum of N 2,000,000:00 (Two Million Naira only) being his redundancy allowance.
  3. An Order of this Honourable court directing the Defendant to immediately pay the Claimant the sum of N1,000,000.00 as general damages for his illegal dismissal.

vii.             10% (10 percent) post Judgment interest sum of the entire judgment sum.

viii.          N300, 000.00 (Three Hundred Thousand Naira) being the cost of prosecuting this suit.

  1. FACTS OF THE CASE

The claimant was a driver attached to the Managing Director of the Defendant Company from 2016 to 2018 when his job came to an end. This is the basis of this case.

  1. CASE OF THE CLAIMANT.

Testifying in line with his pleadings, the claimant, as CW1, stated as follows;

That I was at all material times in the employment of the defendant before I was wrongfully and unlawfully dismissed by the defendant on the 23d of March 2019. That I was employed by the defendant on the 18th day of July 2015 as a driver and I was attached to the Managing Director of the Defendant Company. I was never issued any employment letter, even when I requested for the said employment letter. That it was upon my persistence and insistence on being issued a letter of employment by the defendant that made the defendant company to issue me with an Identity Card with the first name of the defendant company boldly inscribed on it. I was given a boys quarters apartment in the defendant’s office space at Block 18 B01 Estate, No. 135 Yakubu Gowon Crescent, Asokoro, Abuja. I drive the defendant’s managing director during work days, that is Mondays to Fridays and equally weekends, that is Saturdays to Sundays. My monthly salary was put at N40,000:00 (Forty Thousand Naira only).

In January 2017 I discovered the deduction of the sum of N 3,400:00 (Three thousand, Four Hundred Naira only) from my salary and upon enquiry I was informed by the Managing Director of the company in person of Mr. Liao Fei that the money is being deducted as part of my pension contribution under the contributory pension scheme and same is being remitted to the Pension Commission. This deduction continued up till December, 2018. That the defendant never gave me any pension account details or any documents relating to my pension contribution thereof.

That on the 22nd  day of January 2019, I caused my Solicitor, D.A Seidu Esq of Lawrence Erewele & Co. to write a letter of demand to the defendant. That on the 28th day of January, 2019 the defendant caused her solicitors Aliyu Saiki & Co. to write a reply to my solicitor’s letter dated the 22nd day of January, 2019.

 I had always presented myself for work at the defendant’s office. On the said date the defendant purportedly relieved me of my employment, I had presented myself for work but the defendant didn’t give me any work to do.

Testifying further in his reply, the claimant stated as follows;

That when the defendant employed me in the year 2016, the defendant gave me a staff identity card which they equally informed me will serve as my permit to drive into the premises of the Transmission Company of Nigeria, as the official driver of the Defendant, since the Defendant is a contractor to the Transmission Company of Nigeria. The Defendant gave me the said apartment as my official residence being an employee of the company.

That it was the Defendant that pays my salary by cash through any of its principal officers, including but not limited to the Managing Director of the claimant.

That the Defendant deducted the sum of N3, 400 (Three Thousand Four Hundred Naira) only from my monthly salary from the period of January, 2017 to December 2018 as my pension contribution under the contributory pension scheme. I later discovered upon a personal investigation that my Pension Fund Administrator is Premium Pension Limited and that on the 22nd day of March, 2018, the said Pension Fund Administrator sent me a letter of introduction and furnishing me with my pension account details, wherein the name of the defendant was boldly written as my employer.

That it was the Managing Director (Mr. Liao Fei) of the defendant and Mr. Liu Yuanxin that announced my employment by the defendant and that I enjoyed the compliments of being a staff of the company, like being given an official residence and a contributory pension scheme which every staff of the Defendant Company enjoyed.

The claimant tendered the following documents in evidence and they were admitted and marked as follows;

  1. Claimant’s ID card         – Exhibit SA1
  2. Letter dated 22/1/2019    -Exhibit SA2
  3. Letter dated 28/1/2018    -Exhibit SA3
  4. Letter dated 22/3/2018    – Exhibit SA4

Under cross examination, CW1 testified that I was employed on 18/7/2016 in the office with four chinese and their secretary. The four chinese and their secretary were the ones who interviewed me. I was being paid my salary by hand based on my choice. The defendant sacked me. I was sacked on 21/1/2019. I was called to the office and informed that my work has finished. It was the director who informed me that my work has finished. I did not leave the work by myself.

CW2 was one Anji Silas, Head, Collection and Processing Unit of Premium Pension Limited, who was on subpoena. The subpoena dated 11/4/2019 was admitted as exhibit AS5 while the claimant’s statement of account from his Pension Administrator, Premium Pension Limited, was admitted in evidence as exhibit AS6.

  1. CASE OF THE DEFENDANT

Testifying in line with the statement of defence, DW1, one Lilian Eleobo, Company Secretary, and Board Secretary of the Defendant Company as well as the personal secretary to the Defendant Managing Director, testified as follows;

  I have been in the employment of the Defendant since the year 2014. The Claimant was employed by the Managing Director of the Defendant in his personal capacity as a domestic staff. The Claimant was never employed by the Defendant at any point in time in the record of the Defendant.  The Claimant was never employed, and was not issued any identity card and employment letter by the Defendant.

The Claimant stays in the said apartment as a personal driver of the Managing Director of Defendant not as an employee of the Defendant. The Claimant only drives the Managing Director as a domestic staff of the Managing Director. The Managing Director of the defendant pays him the sum of N40,000.00 (Forty Thousand Naira only as monthly salary. The Managing Director of Defendant did not deduct a penny from the salary of the Claimant. The Defendant, not being an employer of the Claimant, does not have any obligation to give Claimant Pension account. The Defendant has more than one Director who sit on the board of the Company with a laid down procedure for employment in conjunction with the Human Resources Department of the Defendant Company, the Managing Director does not have sole power to employ any staff for the Company.

The Defendant upon employment as its policy issues all staff with identity card carrying the name of the employee, and signed by the representative of the Defendant with the name of Defendant written on their staff identity card.

The Claimant did not possess the staff identity card of the Defendant as he was never employed by the Defendant. That the identity card attached to the Claimant process in this Court is not our Company identity card, as it does not carry the defendant name on it, neither was it signed by Defendant representative

 That the Claimant and the Defendant does not have employer/ employee relationship as the defendant never employed the services of the claimant.

DW1 tendered 2 documents in evidence which were admitted and marked as follows;

  1. The DW1 ID card                               – Exhibit LE1
  2. Form CAC7, Particulars of Directors   -Exhibit LE2.

Testifying under cross examination, the DW1 said the defendant is a contractor with Transmission Company of Nigeria. The defendant has official vehicle. The defendant does not hire a driver to drive the official vehicle. The defendant hired the claimant in 2016 to drive the company official Vehicle. The claimant was the only one who drove the company vehicle from 2015 to January 2019 because it was an official vehicle. The claimant used to drive the defendant’s officials to the office of Transmission Company of Nigeria to carry out their official engagement. The claimant was not given an employment letter by the defendant. When the claimant was working in our company, the company gave him an apartment in the company premises. The claimant stopped working in the defendant in February 2019.The claimant was not laid off but he stopped working by himself. I did not see the claimant’s resignation letter. When the claimant was working with the defendant, he was being paid by hand, cash. The claimants salary was N40,000.00 monthly.

  1. DEFENDANT’S PRELIMINARY OBJECTION

AND CLAIMANTS COUNTER AFFIDAVIT

The defendant filed a notice of preliminary objection on 14/3/2019 challenging the Jurisdiction of the Court on the ground that there is no Privity of contract between the Claimant and the Defendant and that the Claimant does not have any Cause of action to institute this suit against the Defendant as the suit discloses no reasonable cause of action against the Defendant. The claimant filed a counter affidavit on 21/3//2019 and the defendant filed a further and better affidavit on 26/3/2019. The Court ordered that the objection shall be taken along with the claimant’s case whereupon both parties have now incorporated their arguments on the objection in their respective final written addresses. Accordingly, the objection shall be treated as the first issue in this judgment.

  1. DEFENDANT’S FINAL WRITTEN ADDRESS

In his final written address, learned defendant’s counsel incorporated his argument on the preliminary objection in respect of which he formulated and argued two issues. The first issue is “whether the Court has jurisdiction to determine this suit as presently constituted considering the parties before the Court”

 The submission of counsel is made against the background of the depositions in the affidavit in support of the objection which stated in paragraphs 7 and 10 as follows;

7.There is no Privity of Contract between the Claimant/Respondent, as the Defendant/ Applicant never at any point in time employed the Claimant/Respondent in her company.

  1. The Managing Director of the Defendant/ Applicant Company Mr Liao Fei was the one who engaged the claimant/Respondent as his personal driver in his personal and private capacity.

Learned counsel submitted that this Court lacks the competence and jurisdiction to entertain this suit because there are no proper parties before the Court since there is no Employer/Employee relationship between the claimant and the Defendant and no Privity of contract or nexus between Claimant and Defendant. That the Defendant/ applicant is not a proper and necessary party to this suit.

Submitting on the second issue, which is “whether there is a privity of contract between the claimant and the defendant”. Learned counsel argued that the doctrine of Privity of Contract in law means that only parties to a contract or transactions can benefit or be subjected to obligations under such contracts or transactions.  In the instant case the Defendant/ applicant has no legal capacity to defend this action as there is no privity of Contract between them and the Claimant as the Defendant/applicant never employed the Claimant in her company.

Submitting on the merit of the case, the learned defendant’s counsel formulated a lone issue for determination which is “whether the claimant bas established entitlement to the reliefs sought in his statement of Claim”. Learned counsel submitted that there is no employer/ employee relationship between the Claimant and the Defendant, no Privity of contract between / the claimant/Defendant, re1iefs 1 and 2 can be said to have been based on nothing placed before this Court. The Claimant has not established the contractual relationship between him and the Defendant neither has the claimant placed any terms nor conditions before the Court to draw inferences from. That assuming without conceding that the relationship of employer/employee even existed between the parties in this suit, that will be said to be a Master/Servant relationship without any statutory flavor in the absence of terms of service. It is settled law that Courts have no jurisdiction to declare termination of an employment in a master/servant relationship unlawful. That assuming without concession that the Claimant has successfully proven that his employment was wrongfully “terminated” the only damages that accrues to the Claimant in this instant suit will be half of the month salary in lieu of notice which is N20, 000.00 (twenty Thousand Naira Only) being half of his salary  as per his statement of facts. This is all he can get as damages. Section 11(1) of the Labour Act.

That a claimant who alleges wrongful termination / dismissal is duty bound to-

(a)              Prove the employment;

(b)              Place before the Court the terms of the contract of employment;

(c)               Prove in what way or manner the said terms were breached by the employer .

That the claimant has not placed any of these before the Court.

On reliefs 3 and 4, (claim for refund of pensions deduction), counsel submitted that reliefs 3 and 4 of the Claimant does not hold water and is  unknown to  Law as the Claimant did not prove or placed any documents before this Court that he was employed by the Defendant.  He who asserts must prove, however the documents placed before this Court as Exhibit SA6 could not disclose that the Defendant is in possession of the said money purported to be paid by Defendant to the Claimant. Even based on the documents before the Court, the Claimant is the only person that has access to that account. In view of the ambiguous document placed before the Court, the Defendant does not have any access or permission to claim the Claimant money.

That asking for a redundancy allowance is strange and unknown to our Laws. Section 11(9) Labour Act Laws of Federation of Nigeria and so relief 5 is  unknown to Nigerian law.

On relief 6, (claim of damages for wrongful dismissal), learned counsel submitted that the measure of damages is prima facie the amount the claimant would have earned had the employment continued according to contract.

That Relief 7 (claim for 10% post judgment interest) is unfounded in Law, speculative and should be dismissed for lacking in merit and in substance.

On Relief 8, (claim for cost of action) learned counsel submitted that parries cannot pass the burden of his professional fees on the opposing party. The relief is also not proved or substantiated to warrant the award of such cost.

  1. CLAIMANT’S FINAL WRITTEN ADDRESS

Submitting in response to the objection, learned claimant counsel set out his response in five issues which are basically a summary of his arguments. It is counsel’s submission that this Court has met all the conditions for competence enunciated in  MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341  that cloths a Court with Jurisdiction and has the powers to adjudicate over this suit as presently constituted and as such the arguments of the Applicant should be discountenanced.

On proper parties learned counsel submitted that the defendant has the legal personality to sue and be sued, having been properly registered with the Corporate Affairs Commission. The claimant is a natural person and it is the claim of the claimant that determines the proper parties before the Court.

That the Claimant has placed sufficient materials and facts before the Court to show that he had an employer/employee relationship with the defendant and he has equally invited the Court to make certain declarations as to the dispute arising from the said relationship, it is our contention that the claimant has been able to establish that the Defendant is the party that is proper to defend this suit and in essence proper parties are before the Court. That this suit is not an abuse of Court process.

Counsel further submitted that the Court has a duty not to delve into the merit of the substantive issues in an interlocutory application. What the Applicant seeks to do with the said issue No.2 is to invite the Court to make a pronouncement on the substantive issue at this inchoate and interlocutory stage which the apex Court of the land frowns at.

That this suit as presently constituted has disclosed a reasonable cause of action.

That the statement of the Applicant’s counsel against the Claimant and his counsel Paragraph 5.3 of the written address in support of the Applicant’s motion on notice  which is “the claims of the claimant is frivolous, vexatious and gold digging” violates Rule 26 of the said Rules of professional conduct, which  states that “lawyers shall treat one another with respect, fairness, between opposing clients to influence their conduct and demeanor towards one another or towards the opposing clients.”

Submitting on the merit of the case, learned claimant’s counsel formulated a lone issue thus;

Whether the Claimant has established his case against the defendant on the balance of probability to warrant the grant of all the reliefs sought by him?

Counsel submitted that it is trite law that in civil proceedings the standard of proof with which a Claimant is expected to prove his/her case is on a balance of probabilities or preponderance of evidence. Section 134 of the Evidence Act, 2011.

All the claimant needs to do is to adduce quality evidence which has probative value.

That the claimant who testified as the CW1 gave evidence as to how he was employed by the defendant and not given any letter of employment by the defendant despite his repeated demands, and in going further to prove that he was indeed employed by the defendant as a driver, he tendered Exhibits AS1, AS4 and AS6 which are documents which circumstantially showed that he was employed by the defendant, a cursory look at those exhibits will show the names of the defendant as the employer of the claimant. The fact that the Claimant did not have a letter of offer of employment to tender to prove his employment by the defendant is not fatal to his case. See the case of KADUNA TEXTILES LTD V. UMAR {1994) 1 NWLR (Pt. 319) page 143.

That the defendant’s lone witness that is the DWl who in her witness statement on oath copiously stated that the defendant never employed the claimant but that the claimant was employed by the managing director of the defendant in his personal capacity, admitted under the fire of cross-examination that the defendant employed the claimant in the year 2015 to drive the defendant’s official vehicle and that the claimant was the only one who drove the defendant’s official vehicle from the year 2015 to January 2019, because the vehicle was the defendant’s official vehicle. The said DW 1 also admitted under cross-examination that the Claimant was not given an employment letter upon his employment by the defendant.

That answers and evidence elicited from cross-examination of a defence witness can be relied upon. See ADEOSUN V. GOVERNOR EKITI STETE(2012)4 NWLR (Pt, 12911)Pg. 581 at 600, per Onnoghen JSC wherein he held as follows:

“Evidence elicited from the cross examination of a defence witness which is in line with the facts pleaded by the Claimant forms part of the evidence produced by the claimant in support of facts pleaded in the statement of claim and can be relied upon in proof of the facts in dispute between the parties.”  

That the Claimant has given evidence on how the defendant without notice of any sort wrongfully terminated his employment by orally telling him on the 21st  day of January, 2019 that his service was no longer required by the company. The CW 1, went further to re-iterate his evidence under cross-examination when he told this Court that “They sack me on January 21, 2019. I just wake up and was called into the office and they said my work is finished.

That the dismissal of the claimant by the defendant was done orally without any formal letter to back the dismissal up, the same way he was employed and there was no letter of employment that was given to him, it is now a settled principle of law that a notice of dismissal can be made orally.

That by the provisions of Section 11 (2) ( c) Labour Act cap.198 LFN 1990, the claimant is entitled to two weeks’ notice  before his dismissal since he has been in the employment of the defendant for a period of 4 years, which said notice the defendant never gave to him before his dismissal, which has made the dismissal of the claimant by the defendant wrongful and unlawful.

On relief 2, learned counsel submitted that the action of the defendant in not giving the claimant a contract of employment contravenes the Provisions Section 7(1) of the Labour Act Cap. Ll Laws of the Federation of Nigeria, 2004 which makes it mandatory for an employer to give to an employee a statement (letter of employment) which contains the terms of his service not later than three months of the employees commencement of work.

On reliefs 3 and 4, learned counsel submitted that evidence has been adduced on the part of the claimant to show the deductions made from the salary of the claimant by the defendant for the purpose of remitting same to the Pension Fund Administrator under contributory pension scheme, this evidence was not controverted by the defendant. It was in proof of the claims of the claimant that Exhibit AS 6 was tendered by the claimant. A cursory look at the said Exhibit AS 6 will show that out of the sum of N 3,400.00 (Three Thousand, Four Hundred) Naira only being deducted from the salary of the claimant as part of his contribution under the contributory pension scheme, it was only the sum of N 1,440.00 (One Thousand Four Hundred and Forty) Naira only that is being remitted on behalf of the claimant as shown under the column provided for the employee. From the foregoing the claimant has been able to prove the illegal deductions made from his salary by the defendant and which entitles him to the grant of the reliefs sought.

It is also the position of the Law that where a party claims a particular amount but was able to prove less, a Court has the power to award the lesser amount proved but not more than what the party has claimed.

On reliefs 5, counsel submitted that claimant is entitled to be paid a redundancy allowance by the defendant apart from the salary in lieu of notice. That Section 20 of the Labour Act, Cap L1, Laws of the Federation of Nigeria 2004 provides thus: “Redundancy means an involuntary and permanent loss of employment caused by an excess of man power”.  That “a redundancy occurs when the services of a worker, having been in the continuous employment of an employer, are no longer required by that employer due to no fault of the worker.” UNION OF SHIPPING, CLEARING AND FORWARDING AGENOES WORKERS OF NIGERIA V. MANAGEMENT OF TRANSALTIC NIGERIA LIMITED (1988) UNREPORTED SUIT NO. NIC/14/87.

On Relief 6, 7 and 8,(claim for general damages, post judgment interest and cost of action), counsel submitted that the said reliefs are consequential reliefs which are clearly within the exercise of the discretionary powers of the Court, all that the claimant needs to do is to show that he is entitled to the exercise of the Court’s discretion in his favour. Reliefs 6, 7 and 8 are consequential and equitable reliefs which can be granted by the Court even where it is not specifically sought or prayed for.

  1. DEFENDANTS REPLY ON POINTS OF LAW

In his reply on points of law, learned defendant’s counsel submitted that the cases cited by the claimant counsel are not applicable to this instant case as the facts are not the same. That the unreported cases cited by the Claimant are inapplicable as those decisions are not binding on this Court.

That Oral evidence cannot be used to contradict contents of documentary evidence in the instant suit the reliance of the Claimant on the oral evidence of Defendant witness does not and cannot contradict the contents of the Defendant pleadings and Witness depositions to further say that the Claimant was a total stranger to the Defendant Madu V Madu (2008) 6 NWLR (PT.1083)P. 296 The remaining parts of the reply are a reiteration and re-argument of the defendant’s final written address.

  1. ISSUES FOR DETERMINATION

The learned defendant’s counsel formulated a lone issue for determination which is “whether the claimant bas established entitlement to the reliefs sought in his statement of Claim”.

learned claimant’s counsel formulated a lone issue thus;

Whether the Claimant has established his case against the defendant on the balance of probability to warrant the grant of all the reliefs sought by him?

The question formulated by both counsel are the same, the question for determination therefore is “whether the claimant bas established entitlement to the reliefs sought.

  1.  COURT’S DECICION
  2. PRELIMINARY OBJECTION

I have carefully read the affidavits and written submissions of both learned counsels on the preliminary objection. The whole gamut of the objection can be summarized by paragraphs 7 and 10 of the objector’s affidavit which is as follows;

7.There is no Privity of Contract between the Claimant/Respondent, as the Defendant/ Applicant never at any point in time employed the Claimant/Respondent in her company.

  1. The Managing Director of the Defendant/ Applicant Company Mr Liao Fei was the one who engaged the claimant/Respondent as his personal driver in his personal and private capacity.

The entire submission of learned counsel is in support of these main depositions.

In response, claimants counsel submitted that the Claimant has placed sufficient materials and facts before the court to show that he had an employer/employee relationship with the defendant and he has equally invited the court to make certain declarations as to the dispute arising from the said relationship, it is our contention that the claimant has been able to establish that the Defendant is the party that is proper to defend this suit and in essence proper parties are before the court.

I have observed that the deposition in paragraph 10 of the affidavit in support as deposed to by one Lilian Eleobo, Company Secretary, and Board Secretary of the Defendant Company as well as the personal secretary to the Defendant Managing Director, is not said to have derived the information from the said Managing Director of the Company Mr. Liao Fei. The appointment letter issued by the said Mr Liao Fei was neither alluded to nor attached.

Now the case of the claimant is that I was employed by the defendant on the 18th day of July 2015 as a driver and I was attached to the Managing Director of the Defendant Company. I was never issued any employment letter, even when I requested for the said employment letter.

The failure to attach or talk about the claimant’s letter of appointment leaves the question of who employed the claimant as a matter for evidence in the absence of any deposition and evidence from Mr. Liao Fei that he personally employed the claimant, given the claim that the claimant was not issued any employment letter even when he requested for same.

Accordingly, I find and hold that whether or not it was the defendant that employed the claimant or Mr. Liao Fei who employed the claimant as his personal driver can only be determined after hearing evidence of both parties. The objection is accordingly dismissed.

  1. MERIT OF THE CASE

Having read the claim and evidence, the defence and evidence as well as the exhibits as summarized above, the question adopted for determination shall be approached by answering the following 5 questions in line with the arguments of both counsels as follows;

  1. Who employed the claimant

The fact that the claimant was employed is not in issue. The fact that the claimant was not issued any employment letter is not in issue. The contention is as to who employed him. The defendants neither pleaded nor produce the employment letter from Mr. Liao Fei.  In the absence of an employment letter, the question of who employed the claimant can only be determined by evidence before the court on a preponderance of evidence.

Now the case of the claimant is as follows;

  1. I was employed by the defendant on the 18th day of July 2015 as a driver and I was attached to the Managing Director of the Defendant Company. I was never issued any employment letter, even when I requested for the said employment letter.

It was the Managing Director (Mr. Liao Fei) of the defendant and Mr. Liu Yuanxin that announced my employment by the defendant.

Under cross examination, Cw1 testified that I was employed on 18/7/2016 in the office with four chinese and their secretary. The four chinese and their secretary were the ones who interviewed me.

Neither Mr. Liao Fei nor Mr. Liu Yuanxin was called as a witness to rebut this.

It is now settled law that an employment agreement can be oral and that it is a violation of labour laws for an employer to refuse to issue an employment letter to an employee.

See SHENA SECURITY COMPANY LTD V. AFROPAK NIGERIA LTD & ORS. (2008) LPELR 3052(52), where the Court held that:

“ a contract of employment means any agreement whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker, that is by the definition of the Labor Act (Cap 198) LFN 1990 which applies to workers strictly defined to the exclusion of the management staff”

 The other facts relied upon by the claimant to proof his employment by the defendant are as follows;

  1. Payment of an agreed salary.

My monthly salary was put at N40,000:00 (Forty Thousand Naira only). That it was the Defendant that pays my salary by cash through any of its principal officers, including but not limited to the Managing Director of the claimant. 

This piece of evidence was also confirmed by the defendant’s DW1 thus;

“When the claimant was working with the defendant, he was being paid by hand, cash. The claimants salary was N40,000.00 monthly”.

  1. Issuance of staff ID card.

“The defendant gave me a staff identity card which they equally informed me will serve as my permit to drive into the premises of the Transmission Company of Nigeria, as the official driver of the Defendant, since the Defendant is a contractor to the Transmission Company of Nigeria”.

I have taken a careful look at the claimant’s ID card, exhibit SA1, I find that it was issued by Transmission Company of Nigeria. It carries the name of the defendant TBEA as the claimants company, it is also in evidence that the Defendant is a contractor to the Transmission Company of Nigeria. Exhibit SA1, though issued by Transmission Company of Nigeria, but given to the claimant by the defendant, shows a connection between the claimant and the defendant, (not Mr. Liao Fei).

  1. Enjoyment of official residence.

I was given a boys quarters apartment in the defendant’s office space at Block 18 B01 Estate, No. 135 Yakubu Gowon Crescent, Asokoro, Abuja.

This piece of evidence has remained unchallenged as Mr. Liao Fei was not called to testify that he gave the said residence to the claimant as his personal driver, which is the contention of the defendant. It was rather confirmed by the DW1 under cross examination when she testified that “When the claimant was working in our company, the company gave him an apartment in the company premises”.

  1. Enjoyment of contributory pension scheme.

I also enjoyed the compliments of being a staff of the company, like being given an official residence and a contributory pension scheme which every staff of the Defendant company enjoyed.

This evidence is also supported by exhibit AS6 which shows the name of the defendant as the claimants employee and has record of contribution by both the defendant and the claimant as N1,440.00 and N1,800.00 respectively, amounting to N3,240.00 per month. Exhibit AS6 therefore shows that the defendant is the employer of the claimant and has made remission of pension contribution into claimant’s pension account.

If the managing director was the one who employed the claimant as his personal driver who only drives the Managing Director as a domestic staff of the Managing Director on which basis the claimant stayed in official quarters; and if the Managing Director of Defendant did not deduct a penny from the salary of the Claimant, such facts are within the personal knowledge of the said Director and cannot be established by the DW1. The evidence of DW1 on these facts lack probative value in the circumstance of this case.

The defendant who claimed that Mr. Liao Fei personally employed the claimant did not call the said Mr. Liao Fei as a witness, neither did it apply to join the said Mr. Liao Fei as a codefendant since it seeks to shift any possible liability to him.

This is fatal to the case of the defendant. I find that the above pieces of evidence preponderates in favour of the claimant to the effect that it was the defendant, and not Mr. Liao Fei, who employed the claimant.

Further, in favour of the claimant, is the evidence of the defendants through DW1 under cross examination which makes a U-turn from the evidence in chief and supports the case of the claimant. The said evidence of DW1 under cross examination has earlier been reproduced in full.

This contradictory evidence of the DW1 is simply defended by defence counsel thus;

 Oral evidence cannot be used to contradict contents of documentary evidence. In the instant suit, the reliance of the Claimant on the oral evidence of Defendant witness does not and cannot contradict the contents of the Defendant pleadings and Witness depositions to further say that the Claimant was a total stranger to the Defendant. Madu V Madu (2008) 6 NWLR (PT.1083)P. 296

Oral evidence includes the written depositions of witnesses as adopted during trial. The written deposition of DW1 is not a documentary evidence but oral evidence just as her testimony under cross examination. Oral evidence under cross examination can be used to contradict a witness deposition on oath as in this case. See ADEOSUN V. GOVERNOR EKITI STATE (2012)4 NWLR (Pt, 12911)Pg. 581 at 600

From the evidence of DW1 under cross examination, it is clear that the denial of the employment of the claimant by the defendant was clearly contradicted and his employment status with the defendant without an employment letter affirmed by the DW1.

On the whole, I find and hold that the defendant employed the claimant but refused to issue him a letter of appointment.

  1. Whether the claimant was dismissed.

According to the claimant, ”I had always presented myself for work at the defendant’s office. That on the said date the defendant purportedly relieved me of my employment I had presented myself for work but the defendant didn’t give me any work to do”.

”I was sacked on 21/1/2019. I was called to the office and informed that my work has finished. It was the director who informed me that my work has finished. I did not leave the work by myself”.

The defendant also confirmed through DW1  that the claimant stopped working in the defendant in February 2019.

The above evidence does not reveal or evince dismissal but termination. The law is that in a master/servant relationship, as in this case, even in the event of a wrongful termination, the employee will only be entitled to what he would have earned had the contract been terminated according to the terms of employment.

In this case, it is clear that the claimant was earning a monthly salary of N40,000.00 and he worked from 2016 or 2015 to January 2019, a period of 3 or 4 years only. He is not claiming for unpaid salaries. According to section 11(1),(2 c) (6) and (9) of the Labour Act;

  1. Termination of contracts by notice

(1)  Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

(2)  The notice to be given for the purposes of subsection (1) of this section shall be—

       (a)

       (b)

(d)               two weeks, where the contract has continued for a period of two years but less than five years;

6)  Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice.

(9)  In the calculation of a payment in lieu of notice, only that part of the wages which a worker receives in money, exclusive of overtime and other allowances, shall be taken into account.

I find therefore, as contended by the defendant counsel that the claimant was not dismissed. I find that the claimants employment was simply terminated and that the claimant, having worked for less than five years, is only entitled to two weeks salary in the sum of N20,000.00 in lieu of notice.

Prayers 1 and 2 succeed but the word dismissal is substituted with the word termination.

  1. Is there a case of redundancy in the circumstance of this case.

Apart from the claim for redundancy in relief 3, in the entire pleadings and evidence of the claimant, nothing is said about redundancy, accordingly, the defendant could not join issues on this with the claimant in its statement of defence, that head of claim is ordinarily abandoned and liable to be struck out. However, both counsel made submissions on redundancy in their final written addresses.

According to learned defendant’s counsel, asking for a redundancy allowance is strange and unknown to our Laws. I think what is strange here is counsel’s submission.

According to learned claimant’s counsel, Section 20 of the Labour Act, Cap L1, Laws of the Federation of Nigeria 2004 provides thus: “Redundancy means an involuntary and permanent loss of employment caused by an excess of man power”.  Counsel also cited the unreported case of UNION OF SHIPPING, CLEARING AND FORWARDING AGENOES WORKERS OF NIGERIA V. MANAGEMENT OF TRANSALTIC NIGERIA LIMITED (1988) UNREPORTED SUIT NO. NIC/14/87, but did not supply a copy thereof to the Court.

The facts of the termination of the claimant as earlier shown above, does not disclose that the loss of employment of the claimant was caused by an excess of man power as contemplated by the Labour Act. There is no evidence of how the amount of N2,000,000.00 was arrived at.

The claim for N2, 000,000.00 redundancy allowance is not proved and same is hereby dismissed.

  1. Has the claimant established a case of unremitted salary deduction as pension contribution?

According to the claimant;

“the Defendant deducted the sum of N3,400(Three Thousand Four Hundred Naira) only from my monthly salary from the period of January, 2017 to December 2018 as my pension contribution under the contributory pension scheme. I later discovered upon a personal investigation that my Pension Fund Administrator is Premium Pension Limited and that on the 22nd day of March, 2018, the said Pension Fund Administrator sent me a letter of introduction and furnishing me with my pension account details, wherein the name of the claimant was boldly written as my employer”.

Exhibit SA6 is the documentary evidence in support of this averment.

The defendant’s counsel submitted that he who asserts must prove, however the documents placed before this Court as Exhibit SA6 could not disclose that the Defendant is in possession of the said money purported to be paid by Defendant to the Claimant.

Exhibit SA6 for sure proves that the claimant has a contributory pension account with Premium Pension Limited in which his employer is stated to be the defendant, TBEA HENGYANG NIGERIA LIMITED. The defendant as employer contributes N1,800.00 and the claimant as employee contributes N1,440.00. Besides these facts, exhibit SA6 does not help the claimant any further.

Exhibit SA6 was tendered by CW2 who was on a subpoena duces tecum.CW2 therefore did not testify to explain the entries in exhibit SA6 and unfortunately for the claimant, exhibit SA6 is not self explanatory and has not been explained.

For a start, the claim is for the period of January 2017 to December, 2018 at the rate of N3,400.00. Mathematically, N3,400 X 24 = N81,600. But the sum of N78,200:00 is being claimed. Exhibit SA6 shows a total contribution/remission in the sum of N112,860.00 which is in excess of the amount claimed.

Exhibit SA6 has the following entries;

Retirement savings account statement for the period from 01 January 2006 to 15 May 2019.

Date of first contribution               = 12/7/2018.

Total contribution from inception   = N112,860.00

Total withdrawals from inception   = N0.00

Net contribution                            = N112,860.00

Gain/(loss)                                   =N7,399.31

Current value                              =N120,259.31

The detailed monthly entries are tabularized as follows;

Description       Date      Mandatory(N)      Voluntary(N)   Pre Act/NSITF(N)   Total(N)   Remark

 BalanceB/F                           0.00                    0.00                     0.00                        0.00

Jan 2017

Employee    12/Jul/2018        1,440.00              0.00                     0.00              1,440.00

Employer     12/Jul/2018        1,800.00              0.00                     0.00            1,800.00

Admn fees    12/Jul/2018        – 105.00              0.00                     0.00            – 105.00

This same exact entry is simply repeated for the months of February to December 2017

The next entry is for January to December 2015 and it is also a repeated one entry as follows;

Jan 2015

Employee     24/Oct/2018        1,440.00              0.00                     0.00              1,440.00

Employer      24/Oct/2018        1,800.00              0.00                     0.00            1,800.00

Admin fees    24/Oct/2018        – 105.00              0.00                     0.00            – 105.00

 The next entry is for January to December 2016 and it is also a repeated one entry as follows;

Jan 2016

Employee     24/Oct/2018        1,440.00              0.00                     0.00              1,440.00

Employer      24/Oct/2018        1,800.00              0.00                     0.00             1,800.00

Admin fees    24/Oct/2018        – 105.00              0.00                     0.00            – 105.00

From the above table of the statement of account, it is obvious that the only clear thing about the statement is that it is confusing. It purports to be entries for January to December of 2017, 2015 and 2016, yet the dates of transaction are simply 12/7/2018 and 24/10/2018, repeated to cover all the 36 months of those 3 years.

Exhibit SA6 does not establish the claim of unremitted pension fund contribution. On the contrary, the unexplained total contribution of N112,860.00 is rather in excess of N78,200.00 as claimed by the claimant. The claim for unremitted pension contribution is accordingly dismissed.

  1. Is the claimant entitled to damages, post judgment interest and cost of action.

The Court does not need to spend precious judicial time in finding that a successful party in litigation is entitled to damages, post judgment interest and cost of action. See order 47 Rule 7 of the Rules of this Court. I find and hold that the claimant case having succeeded in part, is entitled to damages, post judgment interest and cost of action in this case.

  1. COURT ORDER

For the avoidance of doubt, the case of the claimant succeeds in part and it is hereby declared and ordered as follows.

  1. A declaration that the termination of the Claimant by the Defendant without notice is wrongful.
  2. A declaration that the refusal and failure of the Defendant to issue the Claimant with letter of employment with conditions of service is illegal and was done in bad faith.

iii.              The defendant is ordered to pay to the claimant the sum of N20,000.00 as his salary in lieu of notice.

  1. The defendant is ordered to pay to the claimant the sum of N100,000.00 as cost.
  2. The judgment sum and cost are to be paid within 21 days of this judgment failure upon which the sum shall attract 10% interest per annum.

This is the judgment of the court and it is entered accordingly

………………………………..

HONORABLE JUSTICE K.D.DAMULAK

JUDGE,NICN, ABUJA

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