MR YAKO ERASTUS & 2 Ors -VS- CHAKEL SECURITY LIMITED & Ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 21^st day of October, 2019 SUIT NO: NICN/PHC/65/2018

BETWEEN

1.MR YAKO ERASTUS

2.MR BASSEY EDET ETIM

3.MR NOEL EGUAZE————————————-CLAIMANTS

AND

CHAKEL SECURITY LIMITED
GEO-FLUIDS PLC———————————-DEFENDANTS

Representations:

T.A. Isaac with J.J. Etim for the Claimants.

E.D. Unwene for the 1^st Defendant.

Judgment

This suit was commenced by way of a general form of Complaint filed on the 6^th of June, 2018 along with an affidavit of verification, a statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

On the 13^th of March, 2019, the Claimants filed an amended statement of fact along with list of witnesses, amended witness statements on oath, list of documents and copies of the said documents.

The Claimant is by the amended statement of fact claiming jointly and severally against the Defendants the following:

A declaration that the refusal by the 1^stand 2^nd Defendants to pay the Claimants salaries since from (sic) November 2012 till date amount to dismissal or termination of contract of employment.
A declaration that the said dismissal or termination of contract of employment of the Claimants is illegal, unlawful and against the Labour Law.
An order compelling the 1^stand 2^ndDefendants to pay N20, 000.00 per month for each of the Claimants from November 2012 till the determination of this suit.
Two Million Naira in general damages for wrongful dismissal or termination of contract of employment.

In reaction to the claims, the 1^st Defendant entered appearance on the 12^th of June 2018 and filed a statement of Defence on the 25^th of July, 2018 along with list of witnesses, witness statements on oath, list of documents and copies of the listed document.

The 1^st Defendant however filed an amended copy of the said statement of defence on the 20^th of March, 2019 following the Claimants filing an amended copy of the statement of fact.

In opening their case, the Claimants called two witnesses in persons of Noel Eguaze as CW1 and BasseyEdetEtim as CW2. Both witnesses adopted their amended witness statements on oath as C1 and C2 respectively. Through CW1, 3 documents were tendered and admitted in evidence as Exhibit CW1(a) –(c) while 2 documents were tendered through CW2 and admitted in evidence as CW2(a) and (b).

Arising from the amended statement of fact and witness statements on oath, the case of the Claimants is that by an oral agreement made on or about the 25^th day of July 2012 and the 11^th day of July 2012, the 1^st Defendant agreed to employ the 1^st, 2^nd and 3^rd Claimant respectively, and they agreed to serve the 1^st Defendant as security personnel to be contracted out to clients at a salary of Two Hundred and Forty Thousand Naira (N240, 000.00) per annum for each of the Claimants, payable in monthly installments. The Claimants averred that they were posted to the 2^nd Defendant where they worked and the last time they were paid their monthly salary of N20,000.00 was in October, 2012. The Claimants averred further that sometime in 2012, the 2^nd Defendant alleged that a large quantity of “base oil” was missing from its tanks and the 2^nd Defendant got the Police involved to arrest the Claimants. They were prosecuted at the Magistrate court with the trial commencing sometime in November 2012 and ending sometime in May 2014 upon which the Claimants were discharged and acquitted. Claimants posited that since when the trial began in November 2012, the 1^st and 2^nd Defendants withheld the salaries of the Claimants. They added that the Defendants in refusing to pay their salaries since November 2012 till date had caused the Claimants loss and same amounts to injustice.

Upon cross examination of CW1, he posited that he worked with the 1^st Defendant and was employed in 2012. He stated thathe was posted to Onne and the last time he went to Geo-Fluids, Onne was in 2012 and that his only schedule of duty was to be a security guard. He stated that the 1^st Defendant did not terminate his employment but it was the 2^nd Defendant that accused him of stealing. He posited that the trial lasted between 2012 to 2014 and that he did not go back during the pendency of the matter to the 2^nd Defendant and the last time he was there was in 2015 when he wrote a letter in demand for his salary. He admitted that during his training with the Defendant he was not paid but he was paid from the moment he was posted to the 2^nd Defendant. He posited that it is not correct that he was no longer with the 2^nd Defendant when the case started in court . He also stated that he was not informed that the contract with the 2^nd Defendant had been terminated. He added that in May, 2013, he was posted to another location inOnne and given a new Uniform. He stated that he was not told that his salary is dependent on the contract the Defendant gets. He also denied that he absconded from work.

During cross examination of CW2, he posited that he was employed in 2012 and trained as a security guard. He admitted that his first posting was to Geo-Fluids, Onnewhere there was an issue. He posited that it is not correct that the base oil issue was because he didn’t take proper record. He stated that he didn’t know when the base oil got missing while positing that he was posted to the Housing Estate in 2016 but now he is at Geo-fluid. He initially denied going to the 1^st Defendant for posting to the Housing Estate before he stated that that he is currently working in the Housing Estate as a Supervisor. He posited that his salary is N20,000.00 and not N22,000.00.

Upon discharge of CW2, Claimants closed their case while the 1^st Defendant opened theirs by calling two witnesses in persons of Jegele Emmanuel as DW1 and Opu-Ogukaya Ishmael as DW2. Both witnesses adopted their witness statements on oath as D1(a) and D2 respectively. No document was tendered through the said witnesses.

Arising from the statement of defence and witness statement on oath, the case for the 1^st Defendant is that the Claimants were severally engaged by the 1^st Defendant to serve as security guards in the 2^ndDefendant’s company premises located at Onne sometime in 2012 and the agreement reached with the Claimants was in respect of the 1^st Defendant’s mode of operation wherein guards are paid based on the value of contract as between the 1^st Defendant and its respective client where they are posted to as guards. 1^st Defendant averred that that it had no agreement as to notice of termination of employment in that the Claimants and indeed all guards were informed that their respective service is dependent on being posted to a location wherein they carry out duties as guards. The 1^st Defendant added that it had contract with the 2^nd Defendant to provide security guards for three (3) locations including the Onne Base where the Claimants amongst other guards upon their engagement were posted. 1^st Defendant admitted that a case of theft of base oil occurred at the 2^nd Defendant and as a result of the said incident the 2^nd Defendant terminated the contract with the 1^st Defendant in respect of Onne Base location which meant that the Claimants no longer had location to cover and were immediately notified. 1^st Defendant posited that as a result, the Claimants were suspended and directed to return the 1^st Defendant’s property including identity card which decision was communicated to the Claimants individually both orally and in writing but they refused to collect the suspension letter. 1^st Defendant added that upon the suspension, the Claimants never returned to 1^st Defendant save the 2^nd Claimant on record who came back and was sometime in 2014 considered and his suspension lifted. Upon re-engagement, the 2^nd Claimant was issued with a new identity card and post to a location at Rumuibekwe Housing Estate where he served as a supervisor until 2017 when the client engaged him directly. 1^st Defendant added that that upon termination of its contract by the 2^nd Defendant with respect to the Onne Base location the Claimants were no longer entitled to any salary as they had no location to cover.

Upon cross examination of DW1, he admitted that he is an accountant with the 1^st Defendant and was employed in 2007 before the Claimants and was to pay Claimant’s salaries as Accountant. He posited that Claimant were verbally communicated that they were suspended. He posited that there is no document that the 2^nd Claimant was re-engaged by the 1^st Defendant in 2014 but the I.D. card will confirm it. He confirmed that payment of salary is based on posting to location. He stated that the Claimants were not retrenched but suspended.

Upon cross examination of DW2, he posited that it is the employer that employs staff and not him. He also confirmed that there is no document before the court showing that the Claimants were suspended. He also posited that there is no document showing that the Claimants were paid salaries from November till date as their job was stopped since 2012.

Upon discharge of DW2, the 1^st Defendant closed their case and matter was adjourned for adoption of final written addresses.

The 1^st Defendant filed their final address on the 29^th of July, 2019 and arising from the said final address, counsel to the 1^st Defendant, E.D. Unwene Esq. formulated a sole issue for determination to wit:

Whether the Claimants have proved their case on the preponderance of credible evidence to be entitled to the reliefs sought?

In arguing the sole issue, counsel contended that the failure of the Claimants’ failure to prove their case into four sub issues or topics to wit:

Failure to plead and establish the terms of employment
The failure to prove that the 1^stDefendant had wrongfully terminated or dismissed the Claimants their employment as alleged or at all

iii. The incredible nature of the Claimants’ claims and evidence

The countervailing nature of the Defendant’s case

With regards to failure to plead and establish the terms of employment, counsel posited that in civil cases, the rule is that a claimant must prove his case on the preponderance of credible evidence or on the balance of probabilities. He cited Sections 131-134 of the Evidence Act 2011. He added that the Claimants have failed to prove his case on preponderance of credible evidence or on the balance of probabilities.

Counsel posited further that it is also trite that in a civil case the burden of proof lies on the party who will fail if no evidence at all were given on either side. He cited the case of U.B.N. v. CHINYERE [2010] 10 NWLR (Pt. 1203) 453 @ 473 paras B—D. He added that in the instant case, the cause of action as alleged by the Claimants is found in breach of terms of employment and wrongful termination of employment and the onus is therefore on them to plead and establish the said terms and prove in what respect the Defendants have breached the terms. He cited the case of Ail v. C.B.D.A. [2015] 16 NWLR (Pt. 1486) 554 @ 569 paras C-D.

Counsel posited that the Claimants have failed to prove before the Court that aside from the terms as allegedly stated by them there are no further agreement on essential conditions such as none availability to perform assigned duty or non-availability for posting and discipline generally.

Counsel recounted the facts before the court and submitted that the Claimants having been removed from their location and the contract terminated, the Claimants were no longer entitled to salary. He added that the Claimants have failed to prove before the Court that they were available for posting and that the 1^st Defendant failed or refused to post or contract them out to its client. Counsel contended in addition that salary is not wished for but earned, therefore the Claimants not being available for posting, are not entitled to salary as claimed or at all. Counsel cited the case of F.C.D.A. v. NZELU [2014] 5 NWLR (Pt. 1401) 565 @ 586 para C.

With regards to the failure to prove that the 1^st Defendant had wrongfully terminated or dismissed the Claimants from their employment as alleged or at all, counsel posited that it is trite that the onus is on the party who claimed wrongful termination or dismissal to prove same by establishing the terms of his employment and how his employer breached the said terms. He cited the case of Ail v. C.B.D.A. (supra) @ 574 para D.

Counsel added that it is instructive to note that the Claimants’ failure to place the terms of their contract of employment is fatal to their case and that the terms of contract of employment that forms the foundation of an aggrieved employee’s claim without which his claims must collapse. He cited the case of AJI v. C.B.D.A. (supra) @ 574 para G, 575 paras A-B.

Counsel argued further that wrongful termination is when an employee’s employment is terminated contrary to the terms of employment or in a manner not contemplated by the stipulations in the conditions of service. He cited the case of U.B.A. v. CHINYERE [2010] 10 NWLR (Pt. 1203)453 @ 472 paras F-G and posited that the Claimants in their pleadings and evidence have neither proved that the 1^st Defendant had terminated their employment nor dismissed them from their employment, let alone that it was done wrongfully.

With regards to the incredible nature of the Claimants’ claims and evidence, Counsel to the Defendant posited that apart from failure of the Claimants to plead relevant facts and lead credible evidence to prove their allegations to establish the Defendant’s liability i.e. the terms of contract of employment and in what manner the terms breached by the 1^st Defendant, the Claimants’ evidence as a whole left much to be desired and the Claimants have also failed to establish the basis upon which their declaratory reliefs sought could be granted.

Counsel argued that it trite law that the plaintiff who is asking for a declaratory relief must prove same to satisfaction of the court otherwise his claim will be dismissed. He cited the case of OGBORU v. OKOWA [2016] 11 NWLR (Pt. 1522) 84 @ 123 para F.

He added that assuming without conceding that the Claimants have proved that their employment were wrongfully terminated, the remedy available to them is not arrears of salary as claimed or at all and where the termination of service is wrongful, the measure of damages the claimant would be entitled to would be salaries for the length of time during which notice of termination would have been given in accordance to the contract. He cited the case of U.B.N v. CHINYERE[2010]10 NWLR (Pt. 1203) 453@ 475 paras A-B.

He also contended that assuming without conceding that the Claimants’ claim as to notice were true, reasonable notice would be as provided for in the Labour Act by virtue of which the Claimants having worked for less than six (6) months would have been entitled to a week notice only. He cited Section 11 (1) & (2) Labour Act Cap Li LFN, Vol. 8 2004.

With regards to the countervailing nature of the Defendant’s case, counsel contended that the Claimants in this suit failed to prove their case and that the burden of proof never really shifted to the 1^st Defendant because the Claimants did not prove how they became entitled to arrears of salaries. He added that they have also failed to prove their claim of wrongful dismissal or termination of employment while the 1^st Defendant put up a defence to show further that the Claimants’ case is frivolous and baseless.

In conclusion, counsel urged the Court to enter judgment dismissing the Claimants’ claims.

In reaction to the 1^st Defendant’s final written address, the Claimants filed their final written address on the 16^th of September, 2019 and arising therefrom, Counsel to the Claimants J.J. EtimEsq formulated three issues for determination to wit:

Whether the Claimants have shown that a valid contract of employment with condition and terms of employment existed between them and the 1st Defendants in accordance with the law.
Whether the 1^stDefendant withholding the salaries of the Claimants after the Claimants were arraigned at the Magistrate Court for stealing amount to wrongful and constructive dismissal of the Claimants thereby entitling the Claimants to reliefs sought.
Whether the action of suspending the Claimants during the pendency of the Police investigation and trial was improper.

In arguing issue one, counsel posited that it is a settled principle of law that a contract of employment can be made orally and an oral contract of employment is no less compared to a written contract. He cited Section 91 of the Labour Act Cap L1 LFN 2004. Counsel added that in the instance case, the Claimants have pleaded and proved that they entered an oral agreement with the 1^st Defendant.

Counsel posited that Section 91 of the Labour Act recognizes that the existence of a contract of employment can be implied. He added that it can be implied from the intentions of the parties and as a matter of law. He cited the case of E. 0. AMODU v. DR. J. 0.AMODE & ANOR.(1990) 5 NWLR (PT.150) 356.

Counsel also contended that a compound reading of paragraph 7, 9, and 10 of the Claimants’ statement of fact will reveal that following the discussion between the Claimants and the 1^st Defendant, it was understood that the Claimants’ contract of employment could be terminated by reasonable notice of 3 months and this understanding was to be written but the 1^st Defendant reneged. Counsel submitted that it was the implied intention of the parties that notice of termination must be given to the Claimants.

He also posited that it is a term and condition that the 1^st Defendant must give the Claimants at least one week notice before terminating the contract of employment and having not done so, the 1^st Defendant is in breached of the condition of service thereby entitling the Claimants to the reliefs sought.

In arguing issue two, counsel contended that the withholding or refusal by the 1^st Defendant to pay the salaries of the Claimants created an unfavourable working condition for the Claimants and thus amount to a constructive and wrongful dismissal of the Claimants. He added that an employee can successfully make a claim for constructive dismissal when an employer commits a breach of the fundament terms and conditions of the contract of employment, or where an employer makes a unilateral change to the terms and conditions of the contract of employment without notice to the employee or the latter’s consent.

Counsel cited the case of the case of Ifeta v. SPDC (Nig) Ltd (2006) 8 NWLR (Pt 983) 585 to posit that the withholding of the Claimants salaries is a demonstration of the 1^st Defendant intention of dismissal and this was understood by the Claimants.

Counsel cited the case of Nigeria Port Authority v. Abu AiradionAjobi (2006)13 NWLR (pt. 998) to contend that the respondent was liable to dismissal only if he was convicted by the Court and in the instance case, immediately the Police began investigation and subsequent trial of the Claimants, the 1^st Defendant constructively dismissed the Claimants by withholding their salaries.

He added that on the authority of Nigeria Port Authority v. Abu AiradionAjobi (supra) the 1^st Defendant ought to have waited for the outcome of trial before taking any action against the Claimants and failure to do so makes the dismissal unlawful.

In arguing issue three, counsel repeated that the 1^st Defendant ought to have waited for the outcome of the trial before suspending the Claimants. He added that even though the 1^st Defendant frontloaded the said suspension letter, it was deliberate, in not tendering the said letter. He added that failure to tender same is an indication that the 1^st Defendant decided to withhold the suspension letters knowing that it would work against its position. Counsel urged the court to invoke section 167 (d) of the Evidence Act Cap E14. 2011 for withholding evidence.

Counsel concluded by positing that the Labour Act 2004 clearly stipulated that a contract of employment can be entered into orally and even impliedly and where it is entered orally, the Act made provision for implied terms that should govern terms and condition of employment and this include termination or bringing to an end the contract of employment.

The Defendant filed a reply on point of law on the 19^th of September, 2019 wherein counsel to the 1^st Defendant contended that the cases cited by the Claimants either do not apply in the instant case or do not support the Claimants’ case before the court. Counsel pointed out the said cases and urged the court to dismiss the claimants’ case for lacking in merit.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:

Whether or not Claimants are entitled to the reliefs sought in view of the facts and circumstances of this case and the evidence before this court.

In resolving the sole issue, I must of necessity state from the onset that I reckon that two of the reliefs sought by the Claimants are declaratory reliefs, the grant of which places the burden of proof on the Claimant. While the rest of the reliefs are for orders dependent on the success of the declaratory reliefs.

With regards to the nature of declaratory reliefs, the court in the case of FRIDAY & ORS V. THE GOVERNOR OF ONDO STATE & ANOR(2012) LPELR-7886(CA) held that:

“Black’s Law Dictionary 9th edition defines “declaratory relief” as “a unilateral request to a court to determine the legal status or ownership of a thing.” See also: Enekwe V. I.M.B. (Nig.) Ltd. (2005) 11 – 12 SC 3 @ 14 and 30. A declaratory judgment merely declares the rights of the parties. However, in seeking a declaratory relief, a claimant may go further in the same action to seek certain consequential orders, which would become enforceable upon the declaration sought being made in his favour.” Per KEKERE-EKUN, J.C.A (as she then was) (P. 40, paras. A-C)

With regard to the grant of declaratory reliefs, the court in IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE &ORS (2012) LPELR-8621(CA) held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence led. This is so even where the other partly admits the claims. See David FabunmiVsAgbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A.

It was further posited in the case of SIJUADE V. OYEWOLE(2011) LPELR-4869(CA) that:

“The law is trite that in an action that seeks declaratory relief, admission on the part of a defendant will not independently entitle the plaintiff or claimant to judgment. The plaintiff or claimant, in such circumstances, is not relieved of the burden placed on him to establish his case by positive and credible evidence. See MOTUNWASE V. SORUNGBE (1988) 5 NWLR (pt. 92) 90 at 92. A declaratory relief cannot be granted merely because of default of pleadings or on the admission of a defendant. See AYANRU v. MANDILAS LTD. (2007) ALL FWLR (Pt. 382) 1849.” Per Adumein, J.C.A. (P.32, Paras.B-E)

The question that arises from the foregoing authorities is what is the legal right that the claimant wants this court to declare as arising from the instant suit and have the Claimants proved the existence of same in view of the facts, circumstances and evidence before the court?

In answering the foregoing question, there is no gainsaying that going by the declaration sought by the Claimants, the Claimants want the court to declare that refusal of the 1^st and 2^nd Defendants to pay the Claimants’ salaries since November, 2012 till date amounts to dismissal or termination of contract of employment and that the said dismissal or termination of contract of employment is illegal, unlawful and against Labour Law. In other words, they want a declaration on the legal status of their employment.

To discharge the burden of proof, the law is also settled in terms of what the Claimant should present before the court to be entitled to such declarations when the issue is related to dismissal or termination of employment. In this regard, the court inU.T.C. NIGERIA LTD. v. PETERS(2009) LPELR-8426(CA)held that

“It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus:

(i) To place before the trial court the terms of the contract of employment;

(ii) To prove the manner in which the said terms were breached by the employer thereof.

See JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.” Per SAULAWA, J.C.A (P. 41, paras. A-D).

The question that necessarily follows is whether the Claimants have placed before this court terms of the contract of employment and whether they have shown the manner in which the terms were breached?

The answer that is obvious to all and sundry with respect to the terms and condition of the contract of employment is that the Claimants have not presented any such terms before this court. This is understandably because it is clear to both parties that the requirement to present such terms in the form of a document cannot be satisfied since no such express terms were at any time exchanged between the parties. Arising from the Exhibits tendered before this court, there is no written offer of employment and no terms contract of employment. The Claimants have averred that their employment was communicated to them orally and the Defendants have admitted same. Consequent upon the admission, there is no dispute as to the fact that the Claimants were employed by the 1^st Defendant.

What is in question is what the parties orally agreed in respect of the payment of salaries and same can only be determined by the circumstance of the case in its entirety to infer what the parties must have agreed upon.

In that regard, this court finds that the circumstance of this suit leading to the demand for the declaration is that the Claimants were employed by the 1^st Defendant to work as security guards andthey were posted to the 2^nd Defendantcompany to serve as security guards. This suggests that at all times, they remained the employees of the 1^st Defendant and not that of the 2^nd Defendant. The 2^nd Defendant is merely their work station. They were employed in July 2012 and trained before being posted to the 2^nd Defendant. The Claimants admitted that during the period of their training they were not paid salaries but until they were posted to work location. While the Claimants were at the location, i.e. 2^nd Defendant’s premises at Onne, they were accused of stealing Base Oil and were arrested and charged to court. This happened sometime in November as the Claimants tendered the CTC of the judgment delivered in the said trial as Exhibit CW1(a). Arising from the said judgment through which it was made certain that the Claimants were charged to court for conspiracy and stealing which was alleged to have taken place between 21^st – 26^th of November, 2012. The judgment wherein the Claimants were discharged and acquitted was delivered on the 20^th of June, 2014.

Upon the discharge of the Claimants, they reckoned that they have not been paid salaries for the period that they were under trial since they had been acquitted. The request for salaries was also fuelled by the knowledge that the staff of the 2^nd Defendant who stood trial with them were paid salaries. Hence, they too should be paid salaries by the 1^st Defendant. They also posited that the 1^st Defendant promised them that if their innocence is established after the trial, their salaries will be paid.The first time they formally demanded to be paid outstanding salaries was on the 11^th of October, 2016 vide Exhibit CW2(a) and then 24^th of February, 2017 vide Exhibit C1(b).

The Claimants did not at any point establish the fact that they were at work in any location, be it the 2^nd Defendant or any other location while the trial was ongoing or afterwards. They did not establish that they were working for the 1^st Defendant between November 2012 till date.

In reaction to the demand for salaries starting from when the Claimants were facing trial, 1^st Defendant posited that the Claimant had earlier been informed that payment of salaries is dependent on the value of contract between the 1^st Defendant and respective clients where they are posted as guards and that upon their prosecution, the 2^nd Defendant terminated the contract with the 1^st Defendant in respect of the Onne location which means that the Claimants at the moment had no post, did no work and therefore no salaries. The 1^st Defendant added that the Claimants were also suspended and they never returned for posting but the 2^nd Claimant returned and his suspension was lifted upon which he was later posted to Housing Estate in 2014 where he worked for the 1^st Defendant before he was engaged directly by the 1^st Defendant’s client in 2017. The 2^nd Claimant During cross examination reluctantly admitted that he is now working at the Housing Estate, a fact that he did not state in his witness statement on oath.

In view of the facts and general circumstances of this case, this court finds that the Claimants knew from the nature of their employment that salary is to be paid based on work at a location to which the 1^st Defendant posts them. It is common sense that a security company would not employ one as security guard without a location to post the person to serve as security guard. It is also without doubt that the Claimants were not present at a particular post between November, 2012 till June 2014 when their trial at the Magistrate Court came to an end while it is also not established that they worked at any post from the said 2014 till date, except for the 2^nd Claimant whom the 1^st Defendant re-assigned to Housing Estate where he now works. The 2^nd Claimant in his case, has not specifically established that from 2014 when he was re-engaged till 2017 when the Client of the 1^st Defendant (Housing Estate)engaged him, he was not paid by the 1^st Defendant.

In addition to the foregoing, the fact that the Claimants were not paid salaries by the 1^st Defendant does not amount to dismissal or termination of employment per se, since the payment of salaries is based on being posted to location, which is perhaps dependent on availability for posting. The trial of the Claimants in 2012 truncated their availability for posting by the 1^st Defendant and that cannot be said to amount to dismissal or termination of employment. Also, the fact that the 2^nd Claimant made himself available and was re-engaged and is currently engaged by a client of the 1^st Defendant lends credence to the fact that the Defendant did not terminate the employment of the Claimants.

In the light of the foregoing, this suit can only be determined by the circumstance presented before this court in view of the absence of concrete documentary evidence upon which to determine the rights and liabilities of parties before it and arising for the circumstance of this case, there is no basis upon which the court can make the declaration that the refusal of the 1^st Defendant to pay the Claimants salaries from November, 2012 till date amounts to wrongful, illegal or unlawful dismissal or termination of employment.

Consequently, the declaratory reliefs sought in reliefs 1 and 2 are accordingly refused.

With regards to relief 3 which is for an order compelling the 1^st and 2^nd Defendant to pay N20,000.00 per month for each Claimant from November, 2012 till the determination of this suit, I must foremost posit that the claim is dependent on the declaratory reliefs sought in reliefs 1 and 2 which have been refused.

In addition, I must posit that the claim for salary at N20,000.00 per month from November, 2012 till date falls within the realm of special damages which should be specifically pleaded and proved. In that regard, the court in Egom v. Eno (2008) 11 NWLR (Pt.1098) held that:

“In AlhajiOtaru& Sons Ltd. v. Idiris&Anor (1999) 6 NWLR (Pt. 606) P. 330 the Supreme Court held that special damages must be proved strictly and that a trial court cannot make its individual assessment but must act strictly on the evidence before it which it accepts as establishing the amount to be awarded. See also LCC v. Unachukwu (1978) 3 SC 199, Akintunde v. Ojeikere (1971) 1 NMLR 91, Dumez (Nig.) Ltd. v. Ogboli(1972) 1 All NLR (Pt.1) P. 41, WAEC v. Koroye (1977) 2 SC 45 and Oshinjinrin v. Elias (1970) 1 All NLR 153.”Per NGWUTA J.C.A. (P. 26-27, paras. E-A).

Before considering whether the special damages have been strictly proved, I must point out that salaries are to be paid for work done even though it is the obligation of the Employer to provide the work for an employee who is available to work.

In other words, there is no gainsaying that the consideration for work is wages (salary), and the consideration for wages (salary) is work. See Browning v. Crumlin Valley Collieries Ltd. (1964) All ER 936.

According to Black’s Law Dictionary, tenth edition, at page 1537, Salary is “an agreed compensation for services”. The said dictionary also defines accrued salary to be a “salary that has been earned but not yet paid”.

The Labour Act on its part adopts the word ‘wages’ instead of ‘salary’ and defines wages thus:

“wages” means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.

In view of the foregoing meaning of wages (salary), it is clear that same is payable by an employer for work done. In the instant case, the work is done when the employee is posted to a location to serve as security. In view of the fact that the Claimant were not at any particular location, working for the 1^st Defendant as security guards as they orally agreed at the commencement of their employment relationship, the Claimants cannot be said to have performed a work which earns or entitles them to claim of salary for the said period that they were not at a location.

Consequent upon the forgoing, and in consideration of the refusal of the declarations sought, relief 3 as claimed by the Claimant fails and same is according refused.

Relief 4 is for general damages in the sum of two million naira for wrongful dismissal or termination of contract of employment.

The determination of this relief is also dependent on the declarations sough in reliefs 1 and 2. While the said reliefs have been refused, it is axiomatic that the claim for general damages would also fail.

In the light of the foregoing, it is needless to state that the sole issue formulated for the determination of this suit is resolved against the Claimants and in favour of the Defendants.

In the final analysis, the case of the Claimants lack merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered.

Each party is to bear their respective cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE