IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI
SEPTEMBER 26, 2018
SUIT NO: NICN/LA/479/2016
BETWEEN:
MRS.PRISCILLA UJIROGHENE KATHRYN OMENE ………………… CLAIMANT
AND
STERLING OIL EXPLORATION &
ENERGY PRODUCTION CO. LTD………………………………………………..DEFENDANT
REPRESENTARION
O. Nnamani for the Claimant
Jerry Omorigbe with Victor Imebbore for the Defendant
JUDGMENT
This suit was originally instituted by the Claimant against four (4) Defendants (STERLING OIL EXPLORATION & ENERGY PRODUCTION CO. LTD, MR DEEPAK BAROT, MOHIT BAROT AND MR JOHN ABRAHAM respectively) vide the General Form of Complaint and Statement of Claim dated and filed 20th day of July, 2016. In response to the Claimant’s Originating processes, the Defendants as they were, filed a memorandum of conditional appearance dated 18th day of August, 2016, a motion on notice dated the 15th day of September, 2016 and the 1st Defendant’s (as at that time) statement of defence dated the 15th day of September, 2016. The motion on notice was not opposed and upon granting the prayers, the names of the 2nd to the 4th Defendants were struck out and that gave rise to the claimant amending its processes to reflect the name of the sole defendant as it is currently.
The Claimant by her Amended General Form of Complaint and the accompanying originating processes filed on the 14th day of February 2017, Claimed against the Defendant for the following reliefs:
a. A DECLARATION that the Defendant unjustly breached the terms of the contract of employment between the Claimant and the Defendants.
b. A DECLARATION that the Defendant knowingly misrepresented to the Claimant that they had employment to offer when they had other plans.
c. A DECLARATION that the act of the Defendant amounts to duress and undue influence and exemplary damages must be to the Claimant to the tune of N250,000,000.00 (Two Hundred and Fifty Million Naira only).
d. General damages.
e. Special damages for lost of job.
f. Punitive damages of the sum of N500, 000,000.00 (Five Hundred Million Naira only) for the Defendant’s recklessness and deceit.
g. The cost of filling this action, the sum of N5,000,000.00 (Five Million Naira only)
The Defendant filed its amended Statement of Defence on February 12, 2018 pursuant to the order of Court made on the 8th of February 2018.
At the trial, the Claimant testified as CW while the Defendant testified through one Mr. Kolawole AGBAJE as DW, a Human Resources Officer with Delta Human Resources Nigeria Limited.
After the trial, parties filed and adopted their respective final written addresses and the case was accordingly adjourned for judgment.
THE CASE OF THE CLAIMANT
The case of the Claimant is that she was has applied for and was offered appointment by the Defendant as recruitment specialist, that the Defendant then asked her to resign from her former employment and having so resigned, the Defendant then placed her new appointment on hold. It is also the Claimant’s case that the Defendant had misrepresented to her that they had a job to offer her while had another plan.
THE CASE OF THE DEFENDANT
The Defendant’s case is that it had no employment relationship with the Claimant, that it was not privy to the Claimant’s employment contract. It is the Defendant’s case that the employment contract relied upon by the claimant was between the Claimant and Delta Human Resources Nigeria Limited which is not a party to this suit.
THE SUBMISSION OF THE DEFENDANT
In its final written address, the Defendant submitted the following issues calls for determination:
(i) Whether having regard to the pleadings and evidence before the court, there was any contract of employment between the Claimant and the Defendant upon which the Court could make the declarative orders sought.
(ii) Whether having regard to the pleading, evidence given and the entire circumstances of this case, the Claimant has proved her entitlement to any of the reliefs sought against the Defendant.
On the first issue, the learned counsel for the Defendant submitted that the relevant pleadings in the determination of this issue are paragraphs 4, 5, 6, 19, 20, 21,22, 23, 24, 25 and 27 of the Claimant’s Amended Statement of Claim, the premise upon which the Claimant in her principal relief 1 claims thus:
A DECLARATION that the Defendant unjustly breached the terms of the contract of employment between the Claimant and the Defendants.
The learned counsel submitted that Claimant in establishing the alleged breach of the contract of employment by the Defendant in this case tendered Exhibit CWD-D6; the Consultancy Engagement Contract dated 12th day of January 2016 between Delta Human Resources Nigeria Limited and the Claimant. That interestingly the said Delta Human Resources Nigeria Limited is not a party in this suit. The learned counsel also submitted that the Claimant’s witness during cross examination affirms that Exhibit CWD-D6 spelt all the terms and conditions of her engagement with Delta Human Resources Nigeria Limited. That the CW further confirms during cross examination that apart from the email correspondences between the Claimant and Defendant there was no other document evidencing any contract of employment or engagement with the Defendant on record.
Learned counsel therefore submitted that the terms of the contract of employment is the bedrock of any case where the issue of breach of contract of employment is brought to the Court for its determination. Thus, the contract of employment is the bedrock on which an aggrieved employee must found his case. Citing AMODU VS. AMODE & ANOR (1990) 3 N.S.C.C (Pt. 111) Page 226. See also AFRIBANK NIG. PLC. VS. OSISANYA (2000) 1 NWLR (Pt. 642) Page 598 at 616. UNION BANK VS. SALAUDEEN (2017) LPELR-CA/IB/88/2014, and ZIIDEECH VS. RIVERS STATE (2007) 1-2 S.C Page 1 at 14.
Learned counsel contended that in the instant case, EXHIBIT CW D-D6 presented to the Court by the Claimant in this case in proof of the alleged breaches has no bearing or relation whatsoever with the Defendant on Record. That the said EXHIBIT CW D-D6 is a Consultant Engagement Contract between one Delta Human Resources Nigeria Limited (which is not a party in this suit) and the Claimant and that the CW during cross examination told the Court that she understood clearly the contents of EXHIBIT CW D-D6.
The learned counsel therefore submitted that the principle of the privity of contract is that only parties to the agreement can sue and be sued on the contract. Citing PRINCE OYESUNLE ALABI OGUNDARE & ANOR V. SHITTU LADOKUN OGUNLOWO & ORS (1997) LPELR-SC.25/1994; (1997) 6 NWLR (Pt.509), CONFITRUST NIGERIA LIMITED v. EMMAX MOTORS LTD & ORS (2016) LPELR-CA/L/300/2010, KALU UKIWO v. JOHN ONWUDIWE & ANOR (2016) LPELR-CA/OW/136/2013,
It is contended by the learned counsel that the failure by the Claimant in this case to produce and tender any contract of employment between her and the Defendant on record is fatal to the case of the Claimant and that the statement of the Claimant (CW) during cross examination that her contract of employment with the Defendant can be presumed in the various email correspondence between the Claimant and official of the Defendant has no place under our law on two grounds:
Firstly, the said piece of evidence elicited from CW during cross examination, which was not so pleaded goes to no issue. Citing UDOFIA VS. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS (2011) LPELR-CA/C/104/2010.
Secondly, in ANIKE VS. S.P.D.C.N LTD (2012) 28 N.L.LR (Pt. 81) page 350 at 376-377, the Court of Appeal relying on its earlier decision in the case of NITEL VS. OSHODIN (1999) 8 NWLR (Pt. 616) page 528, rightly stated as follows:
‘The law is that a contract of service cannot be presumed. The existence of contract of service between one party and the other must be proved by empirical evidence.’
The learned also submitted that it is trite law that the courts can only interpret or enforce the agreement entered by the parties and is incapable of making any contract between them. Citing AUGUSTINE F.I. IBAMA V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2005) LPELR-SC.66/2000; (2005) 17 NWLR (Pt.954) page 364; (2005) 10 S.C page 62, whilst construing the sanctity of the contract of employment held thus:
It is submitted by the learned counsel that where a court of law is invited to make a declaration of a right, the party making such a claim has the onus to satisfy the court by credible evidence of his entitlement to the reliefs sought. Citing BELLO VS. EWEKA (1981) 12 N.S.C.C page 48, AG RIVERS STATE VS. A.G BAYESA STATE $ ANOR (2012) 7 S.C. (PT. II) Page 110 at 157. MR. ALBERT ILONDU VS. MRS. SOPHIA ILONDU & ANOR (2016) LPELR-CA/E/200A/2012.
The learned counsel finally contended in this regard that that from the facts and evidence herein before this Honorable Court, the Claimant in this case has failed woefully to prove by any credible evidence any contract of employment between her and the Defendant and how the contract has been breached as settle principle of law that the burden of proof in civil cases rests upon the party who substantially asserts the affirmative on the issue. This is the requirement of the provisions of section 133(2) and 135(1) of the Evidence Act. Citing CHIEF GORDON JOE YOUNG JACK & ORS VS. CHIEF R.I.T. WHYTE & ORS (2001) 3 SCNJ page 55 at 68; YUSUF VS. ADEGOKE & ANOR (2007) 4 S.C. (Pt.1) page 126 at 139.
On the second issue for determination. The learned counsel for the claimant submitted that the successful resolution of issue one in favour of the Defendant is enough to defeat the claim of the Claimant herein, but out of the abundance of caution and in the likely event that this Court is minded to consider the reliefs sought by the Claimant, the learned counsel adopted the argument canvassed on issue 1 above in the treatment of this issue 2 herein.
On reliefs a and b, learned counsel reproduced the averments in paragraphs 20, 21 and 23 of the Amended Statement of Claim where the claimant attempted to establish misrepresentation and fraud. Counsel also reproduced the Claimant’s email correspondence of 6/1/2016 (EXHIBIT CW G-G20) referred to in paragraph 23 of the amended statement of facts. Counsel also reproduced the email by Mr. Simon Elisa of Delta Human Resources Nigeria Limited in response to the Claimant’s email of 6/1/16, wrote in the email letter dated 7th January 2016 as follows:
Learned counsel averred that the Claimant upon being informed that there was no suitable or vacant position in the Defendant’s company and having been told of the working relationship between the Defendant and Delta Human Resources Nigeria Limited, the Claimant was quick to jump at the offer from the said Delta Human Resources Nigeria Limited from her averment in paragraphs 25 and 26 of the amended statement of claim.
The learned counsel contended that from the pleadings and evidence before the Court, it was never in doubt that the Defendant on record did not offer any job to the Claimant and there was no misrepresentation as to any job offer from the Defendant to the Claimant, that as at the time the Claimant received the email correspondence from Mr. Simon Elisha in response to her email of 6/1/2017, it would have been a unique opportunity for the Claimant to walk away if she was in any form of doubt as to the job offer from Delta Human Resources Nigeria Limited. That during cross examination, the Claimant answered in the affirmative that she was clarified as to the working relationship between the Defendant on record and the said Delta Human Resources Nigeria Limited before she executed the contract of employment (EXHIBIT CW D-D6).
Learned counsel submitted that there is no credible evidence placed before this Court establishing any fraud or misrepresentation on the part of the Defendant. That the Claimant’s assertion that the entity she entered contract with does not exist lacks substance in the absence of any credible evidence to establish same. That during cross examination, CW stated that she did not personally go to Festac town to enquire about the existence of Delta Human Resources Nigeria Limited, but relied on the information given by an unnamed driver who was not called to give any evidence. That CW also affirms that she did not make any enquiry at the Corporate Affairs Commission (CAC) to confirm the status of the said Delta Human Resources Nigeria Limited.
It is submitted by the learned counsel that the entire grievance of the Claimant against the Defendant is summed up in the petition of the Claimant to the Federal Ministry of Labour and Productivity in EXHIBIT CW E-E4 titled ‘Sterling Oil Exploration & Energy Production Co. Limited. (SEEPCO and or Sterling Global) Employment offer placed on hold’ and EXHIBIT D7 (the Claimant’s Solicitor letter dated 14/4/2016), the learned counsel then reproduced paragraph 38 of the Amended Statement of Claim.
Counsel averred that when asked during cross examination whether she resumed duties with the said Delta Human Resources Nigeria Limited, CW said she was told that the offer has been placed on hold till further notice. Leaned counsel went on that following the mediation by the Federal Ministry of Labour and Productivity, the Claimant affirmed during cross examination that she was later received EXHIBIT ….to resume duties with the said Delta Human Resources Nigeria Limited, which said appointment she declined to take up as the Claimant averred at paragraph 43 of her statement on oath
To the learned counsel, the pertinent question to ask is whether the Claimant has a valid cause of action in this case against the Defendant when by her pleading and evidence she could no longer go to bed with the Defendant, after having been called to resume duties? Counsel submitted that there is certainly no cause of action in this regard. Citing PETROLEUM TRANING INSTITUTE VS. MATTEW (2011) 39 W.R.N page 133, the learned counsel contended that the grievance of the Claimant that her employment was put on hold would not confer any cause of action against the Defendant in the circumstances of this case, more particularly so when the Claimant failed to present before the Court any contract of employment between the parties.
On the Claimant’s reliefs c-g for various monetary sums as exemplary damages, general damages, special damages, punitive damages and cost, learned counsel submitted that on the state of the pleadings and evidence before this Court, there are no bases whatsoever for the award of any of the items of the claims herein. That on the contrary, this suit is liable to be dismissed with substantial cost against the Claimant because there were no bases for the Claimant to have instituted this action in the first place and secondly, the Defendant on record was wrongly sued. Counsel therefore averred that it is now settled principle of law that where a Plaintiff fails to institute an action against the proper party or parties, as a result of which the party is wrongly joined, no liability can be ascribable, that consequently the party is entitled is entitled to compensation by way of cost. Citing SAVANNAH BANK OF NIGERIA LTD. VS. S.I.O CORP (2001) 1 NWLR (693) page 194; T.R.T.P. A.T VS. T.R.T.T. A.A.C.C. (2002) 38 W.R.N. page 73 and SUIT NO. NICN/LA/349/2013 MR. GABRIEL AGHUNO VS. JOHN HOLT PLC (unreported),
In conclusion, the learned counsel for the Defendant urged this Court to hold there is no cause of action disclosed against the Defendant and to dismiss the Claimant’s claim in its entirety as gold digging and lacking in merit, with cost of N300, 000.00 (Three Hundred Thousand Naira Only) awarded against the Claimant.
THE SUBMISSION OF THE CLAIMANT
In her final written address, the Claimant formulated two issues for determination as follows
a) Whether the Claimant has established a case against the defendant and have discharged the burden of proof on the preponderance of probability in proof of her case.
b) Whether the Claimant is entitled to the reliefs sought in hergeneral form of complaint and statement of claim against this defendant considering the pleadings and evidence adduced?
EGHAREVBA V OSAGIE (2009) LPELR-1044(SC) 1 17-18; CALABAR CENTRAL COOPERATIVE THRIFT & CREDIT SOCIETY LTD V EKPO (2008) LPELR-825(SC) 1 AT 29; ADEGOKE V ADIBI (1992) LPELR-95 (SC) 1 AT 19-20; NOIBI V FIKOLATI (1987) LPELR-2064(SC) 1 AT 13.
On the first issue, learned counsel for the Claimant submitted that it is trite that he who asserts must prove and that in civil cases the level of proof required is the preponderance of probability. That the Claimant’s case is that she was informed about a job vacancy at the Defendant’s office, she applied for same, after scaling through the test and interview stage she was offered the job as a recruitment specialist which she accepted and the contract of employment was signed by her and the defendant. That it is also the Claimant’s assertion that prior to signing the Exhibit CWD-CWD6 she brought it to the action of the defendants officials who sent the documents to her in Exhibit CWG5 about the mistake in the heading of Exhibit CWD-CWD6, and after some arguments and explanations were made she went ahead and signed the document. She was then billed to resume with the defendant on the1st day of February, 2016 as per Exhibit CWD-CWD6. That following this back drop, the defendant in their email of 11th day of January, 2016 sent at 2.52pm and 3.54pm directed the claimant to disengage with her then current employer, this contained in Exhibit CWG8 to CWG10 particularly CWG9. That at this point it was confirmed that the claimant was going to resume a job with the defendant having signed the contract of engagement and resigned from her place of then place of work. That this assertion was also confirmed the DW during cross-examination when he identified the people mentioned in Exhibits CWG8 to CWG10 and so the content thereof. Learned counsel therefore submitted that an offer was made by the defendant, the claimant accepted and was directed to resign her job at the time. That the said offer and acceptance were all written and duly executed between the claimant and the defendant. That there is no place in exhibit CWD-CWD6 in which it is provided that the offer can be put on hold in whatever guise and that the parties that executed the contract is the claimant and the defendant.
Learned counsel also submitted that it is trite that where a document is clear and unambiguous, parole evidence cannot be led to contradict it. Citing NEPA V ELFANDI (1985) 3 NWLR (PT.32) 884; ROYAL EXCHANGE NIG. LTD V ASWANI TEXTILE INDUSTRIES LTD (1991) 2 NWLR (PT.176) 639 AT 765.
Learned counsel finally submitted in this regard that the claimant have by her pleadings and evidence adduced, both oral and documentary which were all uncontradicted shown that the defendant offered her a job, she accepted, same was reduced into a written contract and was executed by them, she was directed by the defendant to resign from her then place of work but in a sudden unexplained twist of event which contravenes the contract signed, the defendant by exhibit CWG20 dated 29th day of January, 2016 sent the email titled “joining on hold” and informed the claimant that “her hiring is kept on hold” and same is a fundamental breach of article one of exhibit CWD-CWD6. The claimant has a cause of action against the defendant and has also discharged the burden of proof.
On the second issue for determination, learned counsel for the Claimant submitted that it is of the essence of a judgment based on trial by pleadings, that findings of fact or reliefs sought have been explicitly claimed and proved. It is even more so when special damages are claimed. The nature and particulars of such damages should be explicitly averred and at the trial such must be proved by evidence that the loss was actually sustained either as a result of the natural or probable consequence of the defendant act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. Learned counsel then reproduced the reliefs claimed by the Claimant against the Defendant.
Learned counsel pointed out that out of the seven (7) reliefs sought, reliefs I,ii and iii are declarative relief against the defendant, while reliefs iv,v,vii are for damages.
To Claimant, the argument of the Defendant in Para 4.2, and 4.4 of the Defendant’s Final Written Address is misleading and untrue as they were not the facts contained in the pleadings of the claimants, the documentary and oral evidence adduced by both witness at trial. That from the foregoing the, the pertinent question to ask is, is there a contract between the claimant and the defendant, to the learned counsel, the answer is YES because even though the consultant engagement contract (Exhibit CWD-CWD6) is printed on the letter head of Delta Human Resources, the parties that executed the contract are the claimant and the defendant, Exhibit CWD-CWD6 and Exhibit CWC which is the same as ExhibitD2 which has this defendant as the party referred to, as well as Exhibit D6. Learned counsel went on that in all these exhibits, the defendant did not mention Delta Human Resources as the company that is liable or whom the ministry should deal with directly and that the defendant accepted full responsibility at each turn. Counsel pointed out that it was the same Simon Elisha who was heavily involved with the recruitment process that also wrote and signed Exhibit D6.
Learned counsel continued that assuming but not conceding that there is privity of contract, an exception to the general rule is the assignment of contract to a third party for the Benefit of another. Counsel averred that the exception was upheld in the case of Dunlop Pneumatic Tyres co Ltd vs. Selfridge and company ltd (1915) AC 847. That a third party who has acquired some legal interest in the contract e.g. by way of assignment of any right thereunder. That where a contract purports to confer benefit on another, such a third party may enforce such a contract so long as there is no intention that such a contract will not be unenforceable by a third party. That a benefit in this case may include payment of money, transfer of property or the rendering of services and such benefit must be an express benefit and not a coincidental or consequential benefit to the beneficiary. Learned counsel contended that mere absence of any express statement in the contract of the right to enforce the contract is not a bar to the entitlement to enforce same and that on the other hand, effect will be given to an express contractual provision relieving such third party of the right to enforce such rights against the beneficiary. To the counsel, a corollary to this is the doctrine of acknowledgment or estoppel. Where a party is required under a contract to make payment to a third party and he acknowledges it to that third party, irrespective of the fact that that third party is not a party to the contract, that acknowledgment express or implied automatically creates a binding obligation on the party in favour of the third party and that the third party can be allowed in law to enforce by way of a court action the performance of such obligation, Citing KshirodebehariDatta vs. Mangobinda Panda (1933) 61 Cal 841.
It is submitted by the learned counsel that by the combined effects of exhibits, CWD-CWD6, CWC, and D2 the defendant herein has acknowledged a relationship between it and Delta Human Resources Nigeria Limited and that it is the right defendant to be sued who is also liable in this action. Learned counsel averred that the DW during cross-examination stated that the defendant and the Delta Human Resources have a dynamic by stating that the Delta Human Resources is an independent affiliate of the defendant who recruited the claimant for the job in the defendant company.
It is further submitted by the learned counsel that there are a number of exceptions to the privity of contract which include: Agency by which a contract entered into with a third party by the agent when exercising his authority is enforceable both by and against the principal. Citing UBA PLC V OGUNDOKUN [2009] 6 NWLR (PT. 1138) 450.
It is argued by the learned counsel that there is no place in the consultant engagement contract (Exhibit CWD-CWD6) where it is stated that Contract of employment can be “kept on hold for now” it is a clear breach of the contract of employment. Counsel averred that it is trite that, parties are bound by the terms of their contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. Citing among others, BPS CONSTRUCTION & ENGINEERING CO. LTD v. FCDA (2017) LPELR-42516(SC) and TEJU INVESTMENT AND PROPERTY COMPANY LIMITED VALHAJA MOJI SUBAIR (2016) LPELR-40087(CA), the learned counsel urged this Court to so hold. On reliefs VI,V,VI and VIII, the learned counsel for the Claimant based his argument on fraudulent misrepresentation made by the defendant to the claimant that she should quit her then job and resume with the defendant. To the learned counsel, for this reason, the claimant is entitled by law to be put in the same position had the misrepresentation not occurred. Citing among others, EGBASE v. ORIARGHAN (1985) NWLR (Pt. 10) 884where the apex Court held: Per NIMPAR, J.C.A. (Pp. 23-24,Paras)
The learned Counsel contended that in this instant case, the claimant and the defendant signed the contract of employment on the 12th and 14th day of January, 2016 respectively, the defendant directed the claimant to quit her then job on the 11th day of January, resume at the defendant’s company on the 2nd day of February, 2016, on the 29th day of January, 2016 the said employment was kept on hold, the claimant petitioned the federal ministry of labour and productivity on the 8th day of February, 2016, and 19th day of March, 2016 on the same job that was kept on hold was offered the claimant after her petition of the of the 8th day of February, 2016. To the learned counsel, the Defendant has fraudulently misrepresented to the claimant that it was going to honour the terms of their contract especially as it had directed the claimant to quit her then job. That it is also with an abundance of caution that the claimant did not take the job anymore as it came from a place of rancor as the defendant had to beto the federal ministry of labour and productivity for the job to come out again without knowing what terms they came out and what conditions she would work at the defendant’s company. On what is general damages, counsel cited among others, UBA PLC V. OGUNDOKUN (2009) 6 NWLR (PT. 1138) P. 450 @ 489 and IN GEGE V. NANDE (2006) 4 JMSC (PT. 14) P. 757, Tsamiya JCA.
On the factors guiding the award of general damages, counsel relied on HANSEAFIC INT. LTD V. USONG (2002) 13 NWLR (PT. 784) P. 784.”PER BDLIYA, J.C.A. (PP. 22-23, PARAS. C-F) – READ IN CONTEXT 3. DAMAGES – GENERAL DAMAGES.
The learned counsel further submitted that based on the facts/pleadings and circumstances in this case, there is sufficient evidence before this honorable court to prove misrepresentation and breach of contract on the part of the Defendant with regard to the subject matter of this suit. Citing ODEBUNMI V. ABDULLAHI (1997) 2 NWLR (PT.489) On the Claimant’s obligation to miigate damages, cousel placed reliance on TANKO V KADUNA NORTH LOCAL GOVERNMENT (2002) LPELR-12211(CA) wherein it was stated that a party who alleges a wrong has an obligation to mitigate the said wrong to the best of his ability. Counel referred this Court to exhibits CWG8, CWG9, and CWG10 especially the email sent by Simon Elisha an official of the defendant to the claimant at 2:52pm directing the claimant to quit her job and resume with the defendant on the 2nd of February, 2016. Counsel then urged this Court to hold that the claimant is entitled to damages as she was induced to quit her job on the fraudulent misrepresentation that she will be resuming at a recruitment specialist with the defendant company based on ExhibitCWD-CWD6.
On the issue of cost, the learned counsel cited, among others, HADEJIA’ARE RIVER BASIN DEVELOPMENT AUTHORITY V CHIMANDE (NIG) LTD (2016) LPELR-40202 (CA),DIVINE IDEAS LTD VS UMORU (2007) ALL FWLR (PT.380) 1468 and FORTUNE INTERNATIONAL BANK PLC VS CITY EXPRESS BANK LTD (2012) 14 NWLR (PT.1319) 86, and submitted that this is a 2016 litigation that came to be due to the fraudulent misrepresentation of a job made by the defendant to the claimant who was also directed by the defendant to quit and have by so doing rendered her jobless for two years and counting now, that there is recession in Nigeria and employments are hard to come by, coupled with the fact she lost the gratuity that was due to her from her then place of work as she had put in eleven years of service but had to leave due to the contract she had with the defendant. That the claimant had to engage legal services to prosecute her claim.
The learned counsel finally urged this Court to grant all the reliefs sought by the Claimant as, according to the counsel, the Claimant has, by the preponderance of evidence, proved that she is entitled to all the reliefs sought against the defendant.
COURT’S DECISION
I have carefully examined all the processes filed, the evidence led and the submissions of the parties. The claimant’s case is that she was informed of a Job vacancy at the Defendant company, she applied for same, interviewed and was subsequently offered employment as a recruitment specialist by the Defendant on a letter headed paper of a different company (Delta Human Resources Nigeria Limited) which contract was executed for and on behalf of the Defendant on record. The claimant before accepting the job offer, brought to the attention of the Defendant’s official who sent the documents to her vide an email that the heading of the agreement was different from the name of the Defendant with whom she had the agreement but after some explanations made to her, she went ahead and signed the document. Exhibits CWF-F6 is the employment contract between the parties according to the claimant. The Claimant also alleged that the Defendant had directed her to resign from her former employment before joining the Defendant vide an email dated January 11, 2016 and that she did resign, that having resigned from her former employment, the Defendant then told her that they were placing her new appointment on hold which to the claimant amounts to a breach of contract and for which she is seeking for 3 declaratory reliefs, special, general and punitive damages as well as the cost of this action.
The crux of the Defendant’s case is that it had no contractual relationship with the Claimant. That Exhibit CWF-F6 relied upon by the claimant is a contract between the claimant and Delta Human Resources Nigeria Limited who is not a party to this suit. To the Defendant, the claimant has failed to establish employment contract between herself and the Defendant on record. In other words, there was no privity of contract between the claimant and the Defendant in this case.
In resolving the issue in controversy between the parties to this suit, I shall adopt the two issues formulated for determination by the Defendant thus:
1.Whether having regards to the pleadings and evidence before the Court, there was any contract of employment between the claimant and Defendant upon which this Court can make the declaratory reliefs sought.
2.Whether having regards to the pleadings, evidence and the entire circumstance of this case, the claimant has proved her entitlement to any of the reliefs sought against the Defendant.
Regarding the first issue, the onus of proving the existence of employment relationship and the breach of the terms thereof squarely rests on the claimant in this suit, the law is that an employee who files an action for breach of contract of employment must found his claim on contract of service and show in what manner the wrong was done. He/she must plead and prove the contract of service which is the bedrock of his/her case see Idiboye Obu V N.N.P.C (2003) LPELR – 1226 (SC).
Exhibit CWF-CWF6 is the contract of complement tendered by the claimant. It is written on the letter headed paper of DELTA HUMAN RESOURCES NIGERIA LIMITED, it is addressed to the claimant, it is titled “CONSULTANT ENGAGEMENT CONTRACT”. It is dated January 4th, 2016, it was made between DELTA HUMAN RESOURCES NIGERIA LIMITED and the claimant in this case. It is a contract for a fixed term (effective from January 18, 2016 on a daily contract basis for 12 months renewable, subject to the agreement by both parties). From Article 2, the work location is the company’s head office. Article 4 provides, among other things, that the consultant shall work as a full-time consultant (agree to be available for consultation during work hours). Article 7 deals with compensation and it provides, among other things, that the company shall pay the consultant lump sum fee of N450,000.00 only per month (net salary). It further stated that the consultant shall be entitled to: –
1. Leave allowance for 10% of the annual gross salary on the completion of 12 calendar month at work.
2. HMO Policy
3. Pension.
It also stated that the consultant shall be given 13th month based on performance. Article 14 provides, among other things, that the consultant is entitled to 30 days off duty days at the end of every 11 months and that he can take part of the off-duty days during any time of the year but only with the approval of the immediate Supervisor or Departmental Head. That the consultant shall not engage in any other business or shall be employed by any other company. Article 15 provide that the contract of employment is subject to the laws and courts of the Federal Republic of Nigeria. At its execution clause, Exhibit CwF-F6 was signed by Delta Human Resources Nigeria Limited for and on behalf of Sterling Global Oil Resources Limited.
I took pains to highlight some of the clauses of exhibit CWF –F6 to show that even though it is titled “consultant engagement contract” which apparently makes it a contract for service over which this court lacks jurisdiction, a careful perusal of the highlighted articles would reveal that it is a contract of employment and not consultant engagement contract i.e it is a contract of service, see the case of Sheena Secturity Company Limited V. Aproak (Nigeria) Limited & ORS (2008) LPELR – 3052.
The claimant has averred in paragraph 19 of the amended statement of facts that on January 5, 2016 she got a mail titled “Employment Letter” attached and after downloading same, she saw it on a letter headed paper of the Delta Human Resources Nigeria Limited. She also averred at paragraph 20 that upon seeing that she quickly sent Exhibit CWG2 questioning the letter headed paper and other areas of interest. The claimant averred at paragraph 24 that she asked for and it was confirmed to her after her enquiry that the offer was still available. The claimant averred at paragraph 25 that she informed the Defendant’s official, Mr. Simon Elisha via email of the need to amend the resumption date to a new one from 18/1/2016 to 1/2/2016. That a new offer was made to claimant with 1-2-16 as the date of resumption and she was then asked to resign from her same place of work by the Defendant vide Exhibit CWG 9. The claimant further averred at paragraph 26 that based on the directives of the Defendant’s officials, she resigned from her former place of work on the 11-1-2016. At paragraphs 29, 30 and 31, the claimant averred that she spoke with the Mr. John Abraham (Head Recruiter) who told her that he had directed his assistance to send mail to the claimant regarding the things that she was required to bring while coming to the office and that she later received mail from one Rabi Das at 12:4pm requesting the claimant to forward her educational credentials and 7 other documents as preconditions for approving her appointment. At paragraph 35 the claimant averred that she was invited to a meeting on 26-1-2016 by Irene Oduagbala where she was informed by Mr Mohit Barot that the Defendant was laying off staff and placing recruitment on hold including the claimant offer.
I note that the above averments are in exact terms with the depositions made in the claimant’s written statement on oath.
Now Exhibit G1 is the email to which exhibit CWF-F6 was attached, it was sent to the claimant by one Irene on January 5, 2016 at 5:03pm and was copied to Simon Elisha,Exhibit CW G2 is the claimant’s email to Irene and copied to Simon Elisha in which the claimant questioned the employment offered to her, it was sent on 5-1-16, Exhibit CWG 8 is the Claimant’s email dated 11-1-16 was sent at 12-27 to Simon Elisha seeking for feedback from him and CEO of the corporation, Exhibit CWG 9 contains three mails sent on 11-1-2016; the first one was sent by Simon Elisha to the claimant informing her of the resumption date and asking her to proceed with her resignation process, the second mail was a reply to Simon Elisha from the claimant seeking for the amendment of the resumption date on the offer letter while the third mail was a confirmation from Simon Elisha to the claimant asking her to accept the offer and proceed with final disengagement with her then employer. Exhibit CWG is the claimant’s letter of resignation from her former employment; it is dated 11-1-2016 and addressed to her former employer. Exhibit CWG 17 is the email sent to the claimant from Rabi Das of Sterling Oil Exploration and Energy Production Company Limited (the Defendant on record) on 21-16-at 12-47 requesting the claimant to forward her credentials and certain documents. Exhibit CWG 20 contains two mails one of which was sent form John Abraham on 29-1-16 at 3:30pm informing the claimant that her appointment has been placed on hold. The Defendant’s contention is that there is no agreement whatsoever between herself and the claimant and that it was not privy to Exhibit CWF-F6.
I have carefully examined the contents of Exhibit CWF-F6, as I stated before now, it was an agreement entered between the claimant and DHRN LTD, but at the execution clause, it was signed for and on behalf of Sterling Global Oil Resources Limited, it has been admitted at paragraph 1 of the DW’s further deposition on oath that Delta Human Resources Nigeria Limited is affiliated to the Defendant on record.
I wish to point out that although the defendant on record is known and addressed as Sterling Oil Exploration Energy Production Company Limited, Exhibit CWF-F6 was signed for and on behalf of Sterling Global Oil Resources Limited, I take this as incorrectly naming the Defendant but not a mistake of identify. Pfizer Incorporated of Anor V Prof. Idris Mohammed (2013) 16NWLR (pt 1379). 155. Omisore V Aregbesola and Ors. (2015) 15 NWLR (pt. 1482) 205. I find support from the contents of EX CWG 17 from Rabi Das from the Defendant’s letter addressed to the Lagos State controller of the Federal Ministry of Labour and productively (who mediated between the parties to the suit) in which the Defendant informed the controller that its management had put in place all avenues to resolve the claimant’s case. More so, when the claimant petitioned the state controller over the issue, the Defendant was invited on two occasions vide exhibit D2 (two letters addressed to the defendant from the State Controller of the Federal Ministry of Labour and Productivity dated 9-2-16 and 9-3-16 respectively) which the defendant had attended and it neither denied being privy to Exhibit CWF-F6 nor has it mentioned Delta Human Resources Nigeria Limited. Exhibit D. 3 is an extract from the minutes of the tripartite meeting held between the claimant, the Defendant and the Lagos State controller of the Federal Ministry of Labour and productivity.
The only inference for me to draw from the evidence of the surrounding circumstance of this case is that Delta Human Resources Nigeria Limited has acted for and on behalf of the defendant in Exhibit CWF – F6. This I think, is one of the exceptions to the rule of privity of contract. See Thomas Chukwuma Makwe V Chief Obanua Nuwukor & Anaor. (2001) LPELR 1830 (sc). It is well settled that he who acts through another, acts for himself. This is expressed in the Latin maxim – quid facit per alium facit per se. When an agent acts on behalf of a disclosed principle, it is only the latter that is liable. See U.B.N. Ltd V. Edet (1993) 4 NWLR pt 287. P.288 and Niger Progress Limited V. North-East Line Corporation (1989) 3 NWLR pt 68. This being the case, it is my humble view, which I find and hold that having acted through Delta Human Resources Nigeria Limited, the defendant is a privy to Exhibit CWF-F6.
Turning to the second issue for determination, I shall take the reliefs being claimed by the claimant seriatim.
Reliefs (a), (b) and (c) are declaratory. It is incumbent on a party seeking for a declaratory relief to support it with credible evidence. This is because its success depends on the strength of the party’s case and not on the weakness of the defence except where the defence supports the case of the claimant see Zenith Bank Plc & Anor V. Chief Dennis Ekereumem & Anor. (2011) LPELR – 512 (CA) Bello V. Gweka (1951) SC 1 and Adeleke V Asorifa (1986) 3 NWLR (pt. 30) 575.
Relief (a) is for declaration that the Defendant unjustly breached the terms of the contract between the parties. Having found and held that there was a contract of employment between the parties to this suit vide Exhibit CWF – F6. The next question to be resolved is whether the Defendant has breached the terms thereof. The claimant was offered an employment by the Defendant, it is not in dispute that the claimant was in a gainful employment when she joined the Defendant, the claimant has also established that she was asked to resign from her former employment by the defendant. It was after her resignation that the Defendant placed her new appointment on hold due to what the defendant termed “the downtrend in the oil price”. The defendant’s argument in this regard is that after claimant’s offer was place on hold, she was asked to resume duties with Delta Human Resources but she declined as the claimant averred at paragraph 43 of the statement on oath. To the Defendant, the claimant has no valid cause of action. Placing reliance on Petroleum Training Institute V Mathew (Supra) which held that placing a contract of service on hold cannot give rise to a cause of action. With respect to the leave cause for the Defendant, I do not think this principle is applicable to the case at hand because the facts and circumstances of the two cases are not the same. It is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to facts and issues submitted for adjudication in a case. See Akeredolu v. Abraham (2018) LPELR-44067 (SC). In Matthew’s case the contract of service was not placed before the Court by the Claimants. In the instant case, the claimant was asked to reign from her employment after accepting the new Job offered her by the Defendant, the recruitment process was complete but after resigning her former employment, the Defendant placed her new offer on hold. The question to ask is who is responsible for the claimant losing her job? Who was going to pay her during the period in which her new job was placed on hold, did Exhibit CWF-F6 provide for that? I think the answer is in the negative. The argument of the Defendant in this regard is hereby discountenanced. This being the case I find that relief a grantable and I so hold.
Reliefs (b) and (c) are for declaration of misrepresentation and duress and undue influence by the Defendant. The claimant did not lead evidence to prove misrepresentation, duress or undue influence by the defendant. I find that reliefs (b) and (c) are not grantable and I so hold. see In-Time Connection Limited v Iche (2009) LPELR-8772 (CA).
Reliefs (d), (e), and (f) are for general damages, special damages for loss of Job and punitive damages in the sum of N500,000,000.00 (Five Hundred Million Naira) for the Defendants recklessness and deceit respectively. The law is that in cases of breach of contract as in instant case, an aggrieved party cannot claim general and special damages at the same time and for a Court to award the two at the same time will amount to awarding double compensation. see Alh. Abubakara Juli Gambo v. Jerry Ikechukwu (2003) LPELR-12414 (CA) Africa Industries Nig. Ltd vs Nigeria Bank of Commerce & Industry (1998) 3 SCNJ 97, Emirate Airline v Aforka & nor. (2014) LPELR-22696 (CA).
The claimant did not plead the of special damages and the Law is that special damages must be specifically pleaded and strictly proved on credible evidence. see Chevron Nigeria Ltd & Anor v Omoregha & ors (2015) LPELR- 24516 (CA). This being the case, I find that relief (e) is not grantable and i so hold.
Relief ‘f’ is for punitive damages. The conduct of the Defendant (through its agents) in this case, in my humble view, calls for the award of punitive damages in the case. I find and I so hold.
In sum, therefore, am satisfied that the claimant has proved his case in part in terms of reliefs (a) (d) (f) and (g). It is hereby declared that the Defendant had breached the terms of the employment contract with the Claimant. In consequence and for the avoidance of doubt, I make the following orders which must be complied with by the Defendant within 30 days of this judgment:
1. The Defendant shall pay to the Claimant the sum of N5,400,000.00K (Five Million, Four Hundred Thousand Naira) only which represents the Claimant’s annual gross salary as per article 7 of Exhibit CWF-F6 as general damages.
2. The Defendant shall pay to the Claimant the sum of N500,000.00K (Five Hundred Thousand Naira) only as punitive damages.
3. Cost of this suit is put at N300,000.00K (Three Hundred Thousand Naira) only.
4. Failing any of the above shall attract interest at the rate of 10% until fully paid.
Judgment is entered accordingly.
………………………………………………
Hon. Justice Mustapha Tijjani
