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National Industrial Court

Mr Suraju Rufai -vs- Bureau of Public Enterprises & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: JUNE 4, 2018

 

SUIT NO. NICN/LA/18/2013

 

BETWEEN

Mr Suraju Rufai (suing for and on behalf of

all staff of VON Automobiles Nigeria Limited)-Claimant

 

AND

  1. Bureau of Public Enterprises
  2. Barbados Ventures
  3. VON Automobiles Limited                                                  -Defendants

 

REPRESENTATION

  1. E. Okeke, with I. A. Azike, for the claimant.
  2. F. Umar, for the 1stdefendant.

Peter Alonge, for the 2nd defendant.

Adewale Lawal, with F. D. Oloruntoba, for the 3rd defendant.

 

JUDGMENT

  1. This case is a transferred case from the Federal High Court; and is a suit filed by the claimant for and on behalf of all staff of VON Automobiles Ltd. The claimant had in 2013 filed the action seeking the following reliefs:

(a)   A declaration that the claimant and all other staffs affected in this action are entitled to their gratuity and severance package as a result of the termination of their employment by privatization.

(b)  A declaration that the defendants are entitled to pay every existing staff of the claimant 200% of their total gratuity benefit and severance package.

(c)   The claimant’s salary for six months in lieu of notice.

(d)  The claimant’s salary for short payment of 40 months which represents the claimant’s salary based on the calculation of Bureau of Public Enterprises official on the 2nd June 2008.

(e)   The claimant’s salary for the overtime performed by the staff.

(f)    Payment for staff unutilized annual leave for 2006, 2007 and 2008.

(g)   The sum of N2,152,213.64 representing staff NSITF.

(h)  The sum ofN1,438,988 representing staff pension.

(i)     The sum of N1,833,251.26 representing staff Tax Payee which was deducted from staff salaries.

 

  1. The defendants entered appearance and filed their statements of defence to the claim. The 1st defendant’s statement of defence was filed in December 2014; that of the 2nd defendant was filed in February 2015; while the 3rd defendant’s defence was filed in April 2016.The claimant also filed a reply to the 3rd defendant’s statement of defence dated 8th June 2016 attaching two additional documents,Exhibits C12 and C13.

 

  1. At the trial, the claimant called two witnesses: the claimant himself, who testified as CW1; and Sunday Urieto, one of the staff represented by the claimant in the suit, who testified as CW2. The claimant’s frontloaded documents were admitted and marked as Exhibits C1 to C13. Exhibit C11 is, however, not dated, not signed and the source is unknown. The 2nd defendant’s frontloaded documents were admitted and marked as Exhibits SD1 to SD7. The 2nd defendant’s frontloaded documents were admitted and marked as Exhibits TU1 to TU10. And the 3rd defendant’s frontloaded documents were admitted and marked as Exhibits BY1 and BY2. The 3rd defendant called one witness, Biyo Idowu, who works with the 3rd defendant as HR as well as Administrative Manager to testify for the 3rd defendant; and was cross-examined by the claimant’s counsel. The 1st and 2nd defendants were not in Court to cross-examine the 3rd defendant’s witness and so were foreclosed. And because the 1st and 2nd defendants were also not in court to call their respective witnesses, written addresses were then ordered by the Court. The 1st defendant’s final written address was filed on 20th October 2017; while the 3rd defendant’s written address was filed on 31st January 2018. The 2nd defendant did not file any final written address, but it aligned itself with the written addresses of the 1st and 3rd defendants. The claimant’s final written address was filed on 10th January 2018. No reply on points of law was filed by any of the defendants.

 

THE CASE OF THE CLAIMANT

  1. The case for the claimant is that the claimant, Mr. Suraju Rufai, has the authority to represent all the staff (51 in all) of Volkswagen Nigeria both senior and junior staff of Volkswagen of Nigeria who has been listed in the documents tendered. To the claimant, Volkswagen of Nigeria employed their employees under various terms and conditions stated in the collective agreements tendered as Exhibit C7. Volkswagen of Nigeria was privatized by the 1st defendant and handed over to the 2nd defendant in April 2009. The said 2nd defendant withheld staff salaries and owed the staff as a result of which the staff were disillusioned and the staff mandated their representatives to write the letters marked Exhibits C1 to C5 and C12 and C13. That despite these letters the 2nd defendant remained adamant and neither complied nor replied to the letters. That all the letters written to Barbados were copied to BPE, the 1st defendant. That the parties eventually reached an agreement on the severance package for the staff in 2008 as per Exhibit C9 but the 2nd defendant reneged on the agreed date of payment which is June 2008 and eventually paid the staff in February 2009 as per Exhibit TU6 i.e. 8 months of default. That between June 2008 and February 2009 staff were not paid their salaries. Eventually when payment was made the defendants did not follow the agreement/computations of 2008 but short paid the staff, details of which were set out in paragraph 13 of the deposition. The situation was conveyed to the 2nd defendant during the handing over. Due to the refusal of the 2nd defendant to pay the staff gratuity benefits, they caused their lawyer to write the 1st and 2nd defendants as per Exhibit C5; and when there was no response from the defendant, the claimant filed this suit.

 

THE CASE FOR THE DEFENDANTS

  1. To the 1st defendant, pursuant to the Shares Sales Agreement the 35% shares in VON were sold to the 2nd defendant who subsequently took over the company in July 2006. The shares were sold as is and the 2nd defendant was to take over all the liabilities of these shares. The 1st defendant’s position is thus that the issue of staff employment and remuneration is the responsibility of the 2nd and 3rd defendants. The 1st defendant, however, acknowledged it witnessed the payment severance packages to staff. The 1st defendant continued that as an agency of the Federal Government saddled with responsibility of the Federal Government’s privatization drive, it only sold the Federal Government of Nigeria’s 35 per cent shares in the 3rd defendant to the 2nd defendant; it did not do more than that. Accordingly, that the claimant has no cause of action against it.

 

  1. The 2nd defendant’s position is that the claimant and staff voluntarily retired from service and that it merely bought only the 35% shares sold by the BPE but did not take over all the outstanding liabilities of the 3rd defendant. That the 3rd defendant’s liabilities are limited by the amount unpaid on those shares.That the employees resigned voluntarily by a letter dated 16th August 2007 (Exhibit TU1). The 2nd defendant went on that it never dealt with the employees, who in any case were the responsibility of the3rd defendant. That the employees were paid their entitlements and the 2nd defendant provided the funds for payment of the entitlements. The 2nd defendant admitted that some of the employees had their entitlements erroneously computed but those affected had been properly paid. That the 2nd defendant is only a shareholder of the 3rd defendant and not the successor of the 3rd defendant.

 

  1. To the 3rd defendant, each of its staff was employed under distinct and separate terms and conditions of employment. That the 3rd defendant was privatized by the 1st defendantand the Federal Government of Nigeria transferred its 35% interest in the 3rd defendant to the purchasers. That after the said sale of the shareholding interest of the Federal Government of Nigeria in the 3rd defendant, the 2nd defendant who represented the investors held a meeting with the former Management of the 3rd defendant on 5th July 2007 and informed them of the intention of the new Management of the 3rd defendant to retain all staff.However, that the claimant and other former staff of the 3rd defendant rejected the overture of the 2nd defendant and indicated their intention to disengage their services from the 3rd defendant.The3rd defendantthen denied that the employment of the claimant and other former employees of the 3rd defendant was terminated by the 3rd defendant. That upon the resolve of the claimant and other staff of the 3rd defendant to disengage from the employment of the 3rd defendant, the 2nd defendant, acting on behalf of the 3rd defendant engaged in discussion and negotiations with the representatives of the Staff towards payment of their salaries and entitlement.That the just and appropriate entitlements of the claimant and other former staff of the 3rd defendant were paid to them based on the mutual understanding between the parties. According, that the claimant and other former staff of the 3rd defendant who disengaged their services are not entitled to salaries for the months of February to April 2009 as they were paid their entitlements and salaries up to January 2009 and are not entitled to any further payment. That the claimant and other former staff of the 3rd defendant voluntarily disengaged their services and are not entitled to six months salary or any other sum at all. That the claimant and other staff of the 3rd defendant did not perform overtime and are not entitled to payment for overtime.That the claimant and other former staff of the 3rd defendant have been paid their NSITF and pension contributions and are not entitled any further payments in respect of any contributions, howsoever described.

 

THE SUBMISSIONS OF THE 1ST DEFENDANT

  1. The 1st defendant submitted one issue for determination: whether the claimant’s claims disclose reasonable cause of action such that they are entitled to claim from the 1st defendant in this suit. Referring toSPDCv. X. M. Federal Ltd[2006] All FWLR (Pt.339) 822 at 830, the 1st defendant submitted that it is a factual situation which enables the one person to obtain a remedy from another in court in respect of injury; and that reasonable cause of action is one with a chance of success for when only the allegations in the pleading are considered and it is found that the alleged cause of action is to fail, the statement of claim should be struck out. That a closer look at the gamut of the claimant’s statement of facts would reveal that the entire claim did not in any reasonable way link with the 1st defendant. In other words, the claimant has no claim against the 1st defendant. That paragraphs 6 and 8 of the statement of facts buttresses this fact; as well as paragraphs 4 and 6 of the CW1’switness statement on oath and paragraphs 3, 4, 5 and 7 of the CW2’switness statement on oath. What is more, that the 1st defendant only supervised the sale of the FGN 35% in the 3rd defendant to the 2nd defendant, referring to Exhibit SD1, the Share Sale Purchase Agreement, which CW2 signed on behalf of the 3rd defendant as Chairman, Management Committee.That the mere fact that claimants wrote letters to the 1st defendant complaining to it against the actions of the 2nd and 3rd defendants does not make the claimant have any cause of action against it.That the claimant’s witnesses admitted even under cross-examination that they were employed by the 3rd defendant and worked for the 3rd defendant. At best that the 1st defendant and by extension the 2nd defendant were mere shareholders, which should not be made to suffer unless and until the corporate veil is lifted, citingOkoli v. Morecab Finance Ltd[2007] 30 (Pt. I) NSQR 453 at 470. Again, that the mere participation of any government in a private company does not ipso facto convert such company into a public one or public enterprise for which can be privatized by the 1st defendant, citingOrji v. Zaria Industries Limited[1992] 1 NWLR (Pt. 216) 124. That the claimant cannot join the 1st defendant even if the cause of action had arisen before the sale of the FGN 35% shares in the 3rd defendant to the 2nd defendant. Worse still, that the claimant ought not to have joined the 1st defendant after the sale of the FGN 35% shares. That it has never been, at any time before sale of the 35% FGN shares of the Volkswagen Nigeria Ltd the responsibility of 1stdefendant to pay salary or allowances of any kind to the claimants. Besides, at all times, the claimants had only cried to the 1st defendant for assistance, referring to Exhibits C5 and C8 tendered and admitted by the claimant.For this reason, the 1st defendant urgedthe Court to resolve its lone issue in its favour and dismissed the claim against the 1st defendant.

 

THE SUBMISSIONS OF THE 3RD DEFENDANT

  1. The 3rd defendant submitted three issues for determination:

(1)  Whether the claimant’s case is properly constituted against the 3rd defendant in the circumstances of this case.

(2)  Whether considering the facts and circumstances of this case, the claimant has discharged the requisite burden of proof to justify their claim against the 3rd defendant.

(3)  Whether the claimant is entitled to any of the reliefs sought against the 3rd defendant.

 

  1. On issue (1), the 3rd defendantinvited the Court to examine the claimant’s reliefs, one after the other as re-produced verbatim in paragraph 1.02 (a) – (i) above. That the claims are self-defeating and inchoate by the claimant’s own showing in the circumstance of this case. That the reliefs disclose no reasonable cause of action and are not supported by any iota of evidence. That a few examples, out of very many other lapses, will demonstrate this point:

(a)   In relief (a) the claimant says ‘the termination of their employment by privatisation’. There is no evidence that the privatisation document terminated their employment. No such evidence was given in Court.

(b)  In relief (b) the claimant says ‘the existing staff of the Claimant 200%…’ Exhibit C7 which is the Staff Handbook does not support the claim in any material particulars. There is nowhere at pages 23 to 25 of Exhibit C7 that provides a gratuity of 200% to all existing staff.

(c)   In relief (c) the claimant says ‘Claimant’s salary for six month in lieu of notice’. The amount of each claimant’s salary and the condition of service which entitled each of them to salary for six months is not before the Court.

(d)  In relief (d) the claimant says ‘the Claimant’s salary for short payment of 40 months which represents the Claimant’s salary based on the calculation of Bureau of Public Enterprises (BPE) official on the 2nd June, 2008’. This is also inconceivable and incomprehensible because the terms of employment ought to be governed and proved by the contract between the employer and the individual employees. It cannot be governed by any calculation by a Third Party, the BPE, which is not even before the Court. There is evidence that the staff have agreed with the 2nd defendant and they have been paid in accordance with the agreement.

(e)   In relief (e) the claimant says ‘the Claimant’s salary for overtime performed by the staff’. Overtime is personal to each Staff. It has to be supplied by conditions of service and proved. There is no evidence of any overtime or non-payment.

(f)    In relief (f) the claimant seeks ‘Payment for unutilized annual leave for 2006, 2007 and 2008’. This has also not been shown by any evidence before the Court.

(g)   In relief (g) the claimant seeks ‘The sum of N2,152,213.64 representing staff N.S.I.T.F. (Non Trust Fund)’. The claimant failed to show how the 3rd defendant can be liable for staff NSITF (Non Trust Fund) and also show the quantum of amount due to each Staff.

(h)  In relief (h) the claimant seeks ‘the sum of N1,438.988.00 representing staff pension’. The 3rd defendant asked: from whom, who deducted the so called staff pension and how was that arrived at?

(i)     In relief (i) the claimant seeks ‘The sum of N1,833,251.26 representing staff Tax Payee which deduction were duly made from staff salaries’. The 3rd defends t asked: by which of the defendants and how was that arrived at?

 

  1. The 3rd defendant went on that beyond the merit or demerit of the claimant’s case, no one relief is specifically directed or directly proved against the 3rd defendant in the entire gamut of the claimant’s pleadings and evidence. That the pleadings are not linked to the documents tendered by the claimant. In fact, that the documents tendered were only dumped at the Court for the Court to decipher the use to make of them. That the 3rd defendant is left in a state of speculation or conjecture as to what reliefs the claimant is claiming against it particularly that it was joined belatedly to this case, referring toSkye Bank Plc v. Perone Nigeria Limited, unreported Appeal No. CA/I/124/2012 delivered by the Ibadan Division of the Court of Appeal on 26th February 2016, where (relying onOlawuvi R. Tun & anor v. Elder David Bamidele & ors [2012] NWLR (Pt. 1315) 477 at 491- 492,ANPP v. INEC [2010] 13 NWLR (Pt. 1212) 549 andACN v. Sule Lamido & ors [2012] 8 NWLR (Pt. 1303) 560 at 592) it was held that for a party to make out a case based on documents tendered, he must lead credible evidence which links the document and the specific area(s) of his claim. That the effect of failure of the claimant to specifically plead and strictly prove the allegations to justify its claim against the 3rd defendant is that this Court is left with nothing but speculation, approximation and estimation to assume the liability of the 3rd defendant. That the claimant cannot succeed based on this.

 

  1. To the 3rd defendant, the inelegant couching of the reliefs is a substantive and adjectival issue and properly raised herein to defeat the claimant’s case against the 3rd defendant, if any, citingAG,Lagos State v. AG, Federation[2003] 12 NWLR (Pt. 833) 1 at 251 andChief Uzoukwu &ors v. Igwe Ezeonu II &ors[l991] 6 NWLR (Pt. 200) 708 at 784-785. That the Court will not help a party to couch reliefs or speculate as to what the party seeks and against whom, citingArhurhu v. Delta Steel Co. Ltd[1997] 3 NWLR (Pt. 491) 82 at 93 and urging the Court to resolve issue (1) in favour of the 3rd defendant and save valuable judicial time.

 

  1. The 3rd defendant then addressed issues (2) and (3) together; and in arguing these issues adopted its submission in respect of issue (1). That the claimant’s reliefs (a) and (b) are declaratory in nature; as suchit is the claimant’s duty to lead by credible and cogent evidence and prove same to establish the claim given that the weakness of the 3rd defendant’s case, no matter how perceived, will relieve the claimant of this burden, citingDumez Nigeria Limited v. Nwakhoba[2008]18 NWLR (Pt.1119) 361.That the evidence before the Court does not justify any of the claimant’s reliefs against the 3rd defendant in the circumstances of this case. That an employee who complains that his appointment was wrongly terminated has the onus to place before the Court the terms and condition of the contract of employment and to prove the way and manner those terms were breached by the employer prove such breach, citing WAEC v. Oshionebo[2005] 12 NWLR (Pt. 994) 258. To the 3rd defendant, paragraphs 8 to 34 of the claimant’s statement of facts fix liability of the claimant’s case on the 2nd defendant; as such it is strange and incongruous that the claimant would fix liability of its claim on the 2nd defendant and then still claim against the 3rd defendant without being able to establish the linkage.

 

  1. The 3rd defendant continued that it is noteworthy that the claimant and other employees did not deny receiving their entitlements which culminated in Exhibits BY1 and BY2 respectively. That Exhibit BY1 is to the effect that the claimant and other employees of the 3rd defendant voluntarily disengaged from the services of the 3rd defendant from January 2009 and have been paid their entitlements by Exhibit BY2. That equity will not allow the claimant and other employees to arm-string the 3rd defendant at getting more through the instrumentality of the court process, citingAdeleke v. Iyanda[2001] 13 NWLR (Pt. 729) 1 at 20,Mogaji v. Odofin[1978]4 SC 65 at 67,Balogun v. Labiran[988] 3 NWLR (Pt. 80) 66 and Onvenma v. Amah (1988) 1 NWLR (Pt. 73) 772. That upon a consideration of the claimant’s pleadings and the evidence before this Court, the claimant has not made out a case against the 3rd defendant.That the evidence before the Court shows that the claimant and other employees, if indeed they had any claim against the 3rd defendant, had already been settled by the 2nd defendant in conjunction with the 1st defendant when the claimant and other employees signed off the negotiated gratuity as per Exhibit BY2. That it is, therefore, not a surprise that the claimant did not claim against the 3rd defendant categorically. That viewed also from a Legal angle, the principles of waiver apply against the claimants, referring toAriori v. Elemo[1983] 1 SCNLR 1 at 482 andGuinness (Nig) Plc v. Onegbedan[2012] 15 NWLR (Pt. 1322) 31 at 50. That it is instructive to note that by paragraphs 5 and 7 of the witness deposition of the 3rd defendant’s witness, it was deposed that the claimant and other employees of the 3rd defendant who voluntarily disengaged from services with the 3rd defendant from January 2009 were paid their just and appropriate entitlements based on the mutual understanding between the parties as per Exhibits BYI and BY2 from October 2005 to January 2009 and terminal benefits were negotiated and paid on 3rd February 2009, referring to Exhibit BY2. That theclaimant’s CW2, Mr Sunday Uriento, confirmed co-signing off the schedule for which the claimant and other staff were paid. Exhibits TU1, TU2, TU3 and TU4, TU5, TU6, TU7, TU8, TU9, TU10 as tendered by the 2nd defendant corroborate the 3rd defendant’s position being the management that interfaced with the claimant and other employees at the time. That during cross-examination, the 3rd defendant’s witness maintained that the claimant and other employees voluntarily disengaged and read out the names as contained in Exhibit BY2 and corroborated by Exhibit TUI. That the claimant and other former staff of the 3rd defendant who disengaged their services are not entitled to salaries for the months of February to April2009 or any other month for that matter having so disengaged in January 2009.

 

  1. The 3rd defendant proceeded that the claimant’s claim is in the realm of special damages which were alleged to have been sustained in the circumstances. That the items in special damages must be accurately pleaded and tabulated with arithmetical exactitude. That it is trite law that special damages must be specifically pleaded in detail and proved strictly. That the claimant only tendered the documents and left the Court simply to calculate what the amounts are in the heading as listed in the reliefs sought. That this is at variance with the principles of pleadings as to special damages. That assuming without conceding that the facts necessary for the just determination of this suit were pleaded by the claimant,then in the light of the facts and circumstances of this case the claim of the claimant is self-defeating as presently constituted and must fail. This is because the claimant did not particularize and strictly prove the allegation of special damages in accordance with the standard required by law, citingProfessor Ajibayo Akinkugbe v. Ewulum Holdings (Nigeria) Limited &anor[2002]12 NWLR(Pt. 1098) 375 at 404 and African Continental Bank Plc v. Victor Ndoma-Eba[2000] 8 NWLR (Pt. 669) 389. That it is beyond argument that the burden of proving that any particular sum is outstanding on the employment of the claimant and indeed other employees rest squarely on the claimant who made such allegation. This burden cannot, by any stretch of imagination, be transferred to the 3rd defendant or the Court. That it is not even in evidence what was deducted as staff pension which amounted to NI,438.988.00 of the claimant’s claim, citing Daniel Holdings Ltd v. UBA Plc[2005] 13 NWLR (Pt. 943) 533 at 551.

 

  1. To the 3rd defendant, the nature of proof required from the claimant in respect of the special damages claimed in this suit is a total, concrete and strict proof as opposed to an abridged proof being attempted by the claimant in this suit, citingDaniel Holdings Ltd v. UBA Plc(supra). That there is no detailed breakdown or particularization in the pleadings of the claimant as required by law. That precise particulars of the amount entitled to by each of the claimants were not shown or set out in the pleadings. They were also not proved in evidence. That no precise arithmetical calculation totaling up to what each of the claimants is entitled to individually and collectively in the pleadings. That the lack of sufficient pleadings and evidence goes to the root of the claimant’s case and will affect the weight to be placed on the documents and deprives the Court of any substance worth considering by the Court. The 3rd defendant according urged the Court to dismiss this case against the 3rd defendant and award cost against the claimant in favour of the 3rd defendant.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant on his part submitted a lone issue for determination: whether the claimant has established his entitlement to the reliefs claimed in this matter.It is the submission of the claimant that he and those he represents have established all their claims based on the evidence before this Court. That the evidence of CW1 and CW2, which are basically unrebutted, is that after the privatization of the 3rddefendant the 2nd defendant took over the 3rd defendant company. The staff of the 3rd defendant were not being paid and their fate was unknown to them. Consequently they caused their representatives to write a series of letters marked Exhibits C1 to C13 to the defendants. These letters were not responded to. Eventually the claimants and the defendants reached an agreement that payment to staff be made in June 2008 but this was not done till 4th February 2009 after 8 months, referring to Exhibit C1 which also referred to salary short payments of 40 months and other short payments outlined therein particularly in the attachments to the letter. This letter like others was directed to the 1st defendant but copied to the other defendants. That Exhibit C2 raised the issue of severance package for the staff while Exhibits C3 and C4 were on staff gratuity Benefits. Exhibit C9 is the agreement between the parties which confirm that running costs were not resolved and the 2nd and 3rd defendants had promised to address these later.Exhibits C12 and C13 are also letters from the claimants to the 1st defendant seeking the intervention of the 1st defendant so that the fate of the claimants could be determined. These letters were written before Exhibit TU1. That it is worthy to note that that none of the defendants responded to these letters. Furthermore, that as at the time Exhibits C12 and 13 were sent to the defendants the claimants were owed about 11 months’ salary arrears. On this basis, and contrary to the claim of the defendants that the claimants resigned, the claimant submitted that it was the defendants, particularly the 3rd defendant, who constructively terminated the employment of the claimants without following the provisions of the company’s collective agreement Exhibit C7 in this case.

 

  1. To the claimant, in situations such as the present case the defendants, particularly the 3rd defendant, should have declared a redundancy as provided in paragraph F 3a of the collective agreement. That a redundancy will arise where there would be loss of employment through no fault of the employees. In this case the employees would be entitled to a notice and to the benefits set out in the said paragraph. That the onus of declaring the redundancy is on the defendants not on the claimants as is being wrongly interpreted by the defendants. That the core issue for determination here is who is the terminator that should issue the mandatory notice of termination.That the exhibits referred to above show that the claimant and the employees were willing to continue to work but their fate was kept hanging after the share transfer and they were also not being paid their salaries. That this is a breach on the part of the defendants who had a duty to pay salaries and provide work, citingCollier v. Sunday Referee[1940] 2 KB 647. That it is the accepted principle that a contract of employment can be terminated by operation of law, by dismissal and by intention of the parties i.e. notices from either side. That where a redundancy is envisaged like in the present case the defendants particularly the 3rd defendant is duty bound to inform the staff affected and thereafter follow the procedure outlined in the collective agreement. That the affected staff are entitled to one month’s notice or salary in lieu thereof or six months where the affected staff are entitled to retirement. That in the present case the defendants failed to neither give any notice nor declare a redundancy irrespective of the facts that they owed the staff about 11 months of salary. That the Exhibits C1 to C13 confirm that the staff were rather kept in suspense about their fate.

 

  1. The claimant went on that Exhibit TU1, which the 3rd defendant relies on as notice of termination from the staff, on the other requested that staff who want to disengage must send in their letter of disengagement and which letters must be personally signed by them. That the evidence before the Court which the witness, Mr. Biyi Idowu, admitted under cross-examination is that no such letter was sent. Consequently Exhibit TU1 cannot constitute a notice from the staff members to the 3rd defendant. Moreover, that it has been held that a notice must be clear and unambiguous and must state the commencement of the notice. That this is in line with section 11 of the Labour Act. That inAdeyemi v.OAUTHMB[2000] 9 NWLR (Pt. 465) 585, it was reaffirmed that in order to terminate a contract of employment the notice must either specify the date or contain material details from which the date is ascertainable. That all of this is lacking in TU1; rather same was sent in a context where the 3rd defendant had failed to pay salaries for 11 months without any excuse or explanation thereby constructively determining the claimant’s contract of employment.

 

  1. The claimant continued that all of this raises the issue of whether the contracts of employment of the staff were determined in accordance with the law. That inWarri Refinery & Petro Chemical v. Onwo[1994] 4 NWLR (Pt. 559), it was held that notices and the determination of a contract of employment must be in line with the terms of contract. That in this case the defendants have a duty to declare a redundancy and thereafter follow the procedure outlined in the collective agreement. That this was not adhered to. That in Fiicharles Organs v. NLNG[2013] 5/7MJSC (Pt.I) the Supreme Court restated that an employer must observe and adhere to the conditions under which the employee is hired before such an employee is fired; citing furtherGaruba v. Kwara Investment Co. Ltd [2005] 5 NWLR (Pt. 917) and Osianya v. Afribank Nig Plc [207] 6NWLR (Pt. 1031) – wrong citation. Similarly, that in Dudusola v. Nig Gas Co. Ltd [2013] 3/4MJSC (Pt.II) it was stated that where there is failure to issue the mandatory notice the terminator must pay the salary in lieu of notice.

 

  1. The claimant proceeded that where the defendants desire to disengage the staff following a redundancy the staff must be paid the cessation benefits stated atpages 22 to25 of the Staff Handbook. These include:
  • One month’s salary in lieu of notice or six months where the staff affected are entitled to retirement.
  • The compensation benefits stated in paragraph 3ii
  • Gratuity
  • Pension benefits as applicable.

That the defendants as stated in paragraph 16 of the amended statement of facts instead came up with an individual listing of benefits which did not fully capture the claimant’s entitlements. Only the gratuity benefits were captured while the other entitlements were referred to as running costs in the agreement of 2nd June 2008. That these running costs and the other outstanding entitlements of the claimants are the subject matter of the present claims. That in Ativie v. KNL[2008] 8 MJSC (in complete citation) it was held that in a case of unlawful termination of employment the affected staff are entitled to claim for all legitimate entitlements as at the time of termination. That in this case, these include unpaid salary arrears, leave entitlements,overtime allowances and the other issues stated in the claims.

 

  1. The claimant went on that in this matter, he and those he represents, called two witnesses and tendered 13 exhibits to buttress their claim while only the 3rd defendant called a witness. That the 1st and 2nd defendants could not adopt their written statements nor the exhibits previously tendered from the bar. That in cases such as this the Court should follow the decision inAlao v. Akano[2005] All FWLR (Pt. 264) and discountenance the exhibits tendered from the bar and the written statement frontloaded by the 1st and 2nd defendants. That this is because it is not the duty of the Court to embark on discovering the said documents, citingBaitaach v. Shadafi[2012] 13 NWLR (Pt. 1317). That it is the duty of the party who has tendered the document to explain same by oral evidence, citingAction Congress of Nigeria v. Lamido[2012] 8NWLR (Pt. 1303) at 590. That based on the forgoing, the documents tendered from the bar by the 1st and 2nd defendants should be regarded as dormant exhibits. That admissibility is based on relevance but probative value is based on proof. That in the present case the documents were tendered from the bar and were not adopted by any witness. Also the written statement on oath that could have recognized the documents was also abandoned. Consequently, the documents have very little value before the Court, citingANPP v. Usman [2009]All FWLR (Pt. 463) at 1359.That this leaves us with the evidence of the 3rd defendant whose case is that the claimants resigned voluntarily from the 3rd defendant and that the claimants have been paid their entitlements.It is further the case of the claimants that the payments made by the 3rd defendant did not capture all the redundancy entitlements of the claimants as stated in the collective agreement tendered in Court. In conclusion, the claimant urged the Court to hold that the defendants did not follow due process as stated in the company’s collective agreement in determining the services of the claimants; and that the claimants were also not paid all their entitlements as stated in the collective agreement. Also, that the Court should grant all the reliefs sought by the claimants.

 

COURT’S DECISION

  1. After a careful consideration of all the processes filed and the submissions of counsel in the matter, I start off with Exhibit C11, which is, however, not dated, not signed and the source is not known. The law is that an unsigned and an undated document has no evidential value. SeeGlobal Soaps & Detergent Ind. Ltd v. NAFDAC[2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Accordingly, Exhibit C11 has no evidential value and so would be discountenanced for purposes of this judgment.

 

  1. I must state that the claimant’s case approximates to a claim for special damages. The claimant under cross-examination would state that the crux of their claim is that their employment with the 3rd defendant was terminated and their benefits were not paid. The declaratory reliefs (a) and (b) sought relate to monetary claims in terms of gratuity and severance package; and reliefs (c) to (i) represent specific monetary claims ranging from salaries and allowances (such as leave and overtime allowances), sums due and payable to NSITF, pension and tax funds. By the Supreme Court decision inGabriel Ativie v. Kabelmetal (Nig.) Ltd[2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claimant’s case would necessary be circumscribed by the reliefs. In the words of the Supreme Court:

A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same.

What this means is that the claimant’s pleadings must support the reliefs prayed for.

 

  1. I read through the claimant’s pleadings, and I cannot with any degree of confidence say that the pleadings support the reliefs claimed by the claimant. The 3rd defendant, as I have shown in paragraph 10 above of this judgment, made a graphic itemization of how the reliefs of the claimant cannot even logically be considered and granted. Aside from this graphic presentation, the matter is made worse by the fact that in making monetary claims, no specific pleadings as to the monetary sums were made by the claimant both in terms of the instrument entitling the claimant and how he came by the quantum of the sums he claims. This is aside from the very illogicality of suing in a representative capacity (for which reliefs a) and b) become understandable) and yet be making very personal claims as per reliefs (c), (d) and (e). The case ofNNPC v. Clifco Nigeria Ltd[2011] LPELR-2022(SC) enjoins thatspecial damages are never inferred,they are exceptional and so must be claimed specially and proved strictly.

 

  1. In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL ConsortiumLtd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence. The case of the claimant as indicated by his counsel in the final written address is that he and those he represents reached an agreement with the defendants that payment to staff be made in June 2008 but this was not done till 4th February 2009 after 8 months, referring to Exhibit C1 which also referred to salary short payments of 40 months and other short payments outlined therein particularly in the attachments to the letter. That this letter like others was directed to the 1st defendant but copied to the other defendants. That Exhibit C2 raised the issue of severance package for the staff while Exhibits C3 and C4 were on staff gratuity benefits. That Exhibit C9 is the agreement between the parties which confirm that running costs were not resolved and the 2nd and 3rd defendants had promised to address these later.Exhibits C12 and C13 are also letters from the claimants to the 1st defendant seeking the intervention of the 1st defendant so that the fate of the claimants could be determined. These letters were written before Exhibit TU1. That it is worthy to note that that none of the defendants responded to these letters. Furthermore, that as at the time Exhibits C12 and 13 were sent to the defendants the claimants were owed about 11 months’ salary arrears. All of this was the submission of counsel, not necessarily the claimant’s witnesses tying their case to the evidence. As the 3rd defendant argued, the claimant simply dumped documents on the Court. InMr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, this Court was quite specific that a claimant who makes no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlements they claim,merely frontloading same and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is bound to fail; and counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. The critical question, however, still remains: how did the claimant come by his entitlement; and how did he come by the quantum of the entitlement? The claimant himself acknowledged under cross-examination that he and those he represents did not receive the same salary. The claimant also testified that the overtime they did was for essential/services dealing with security and engineering department staff. So, who are those who did the overtime that he claims, and who are those who did not? In all of this, where in his pleadings are the averments as to the varying salaries and varying staff who did overtime? None!

 

  1. In the reply to the 3rd defendant’s statement of defence, the claimant hadcontended that as at 27th June 2007 when Exhibit C12 was sent to the 1st defendant, the claimant and those he represents were owed 11 months’ salary and that the defendants particularly the 2nd defendant had constructively repudiated the claimant’s and other staff members’ contract of employment before Exhibit TU1 was created. On this basis, the claimant then submitted that, contrary to the claim of the defendants that the claimants resigned, it was the defendants, particularly the 3rd defendant, who constructively terminated the employment of the claimants without following the provisions of the company’s collective agreement (Exhibit C7). A number of issues arise here. First, a claim for backlog of salaries cannot be entertained when the actual salary of the claimant(s) was not pleaded, as in the instant case. And byHonika Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA, as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period before the duty devolves on the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was.

 

  1. Secondly, the claimant alluded to constructive dismissal. The problem, however, is that the case of the claimant, at least from his pleadings, is not one of constructive dismissal as this line of argument seems to suggest.

 

  1. Thirdly, the claimant raised these issues in the reply to the statement of defence. The law is that a reply to the statement of defence is not to raise a new cause of action not set out in the writ of summons (complaint in our case) or make any allegation of fact or raise any new grounds of claim different from what is contained in the statement of claim/facts. Alternatively put, a reply to the statement of defence shall raise no new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. SeeUghutevbe v. Shonowo & anor[2004] LPELR-3317(SC); [2004] 16 NWLR (Pt. 899) 300; [2004] 18 NSCQR 741, Oscar Concord Finance and Securities Ltd v. Ogunleye[2007] LPELR-8719(CA) and Prof N. O. Adeniji v. Prof B. I. A. Fetuga[1990] 6 NWLR (Pt.150) 375.

 

  1. The claimant placed a good deal of reliance on Exhibit C7, which he referred to as a collective agreement. It is in fact, the senior staff handbook. Having to refer to Exhibit C7 as a collective agreement means that the claimant does not even know what a collective agreement is. This aside, and for whatever it is worth, the claimant talked of a collective agreement (assuming Exhibit C7 is one, although I hold it not to be) without delineating as between the junior and senior staff that he represents, who the collective agreement binds and who it does not bind. The pleadings itself show that the claimant was a management staff of the 3rd defendant, meaning that the collective agreement cannot even apply to him unless he specifically pleaded and proved by concrete documentary evidence that he was a member of the trade union that negotiated and signed the collective agreement. SeeMrs Bessie Udhedhe Ozughalu& anor v.Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018,Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016 and Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017.

 

  1. The claimant had also argued that the defendants, particularly the 3rd defendant, should have declared a redundancy against him and those he represents as provided in paragraph F 3a of the collective agreement. Once again, the claimant’s case is not one of redundancy; as such this argument is uncalled for. The further argument of the claimant that they “are entitled to one month’s notice or Salary in lieu thereof or six months where the affected staff are entitled to retirement” raises the question whether it is this Court who would, unaided by the claimant, determine who between the claimant and those he represents “are entitled to one month’s notice or Salary in lieu thereof or six months where the affected staff are entitled to retirement”. Alternatively put, is it not for the claimant to prove all of this to this Court? I think so.

 

  1. Still on this issue, the additional argument of the claimant that the defendants have a duty to declare a redundancy and thereafter follow the procedure outlined in the collective agreement, suggests a compulsion on the defendants to declare redundancy. Is there actually any duty on the defendants to declare redundancy as the claimant is making it out here? I do not think so. An employer cannot be compelled to declare redundancy. That is a business decision it must make of its own volition. In any event, there is the point that reliefs (c), (d), (e) and (f) all relate to unpaid salaries and allowances. ByOdinkenmere v. Bakolori (Nig.) Ltd[1995] 8 NWLR (Pt. 411) 52 CA, the question of payment of unpaid salaries and allowances are only relevant in cases of termination of appointment or dismissal but not in the case of redundancy. Additionally, by PAN v. Oje [1997] 11 NWLR (Pt. 530) 625 CA, redundancy benefits do not include gratuity benefits as the conditions applicable to redundancy are quite distinct from those applicable to retirement or other conventional mode of relieving an employee from active service, such as termination, resignation or dismissal. In other words, redundancy cannot be claimed simultaneously with gratuity. I do not accordingly get it when the claimant in the instant case claims for both gratuity and severance benefits on the one hand and redundancy payment on the other hand, but all at one and the same time.

 

  1. A look at the claimant’s reliefs (c), (d) and (e) i.e. the claims for six months in lieu of notice, short payment of 40 months representing the claimant’s salary based on the calculation of BPE official on 2nd June 2008 and overtime will show that they are personal to the claimant and not to all those he represents. How the claimant came by these entitlements and their quantum are not evident from the pleadings. In terms of the argument that theovertimethe claimant and those he represents did was for essential/services dealing with security and engineering department staff, the pleadings do not even show who amongst the claimant and those he represents did what.

 

  1. As it is, the state of the claimant’s pleadings are such that they do not support the claims of the claimant; and I so find and hold. It was His Lordship Tur, JCA who had a word of advice for trial Judges inChief James Onyewuke v. Modu Sule[2011] LPELR-9084(CA): that a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings. This being the case, the instant case fails and is hereby dismissed.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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