IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS
BEFORE HIS LORDSHIP HON. JUSTICE K.I. AMADI
DATED SEPTEMBER 20, 2019 SUIT NO.: NICN/JOS/31/2017
BETWEEN:
NANSOH G. LAR —– CLAIMANT
AND
ZUMA STEEL WEST AFRICA LIMITED —– DEFENDANT
REPRESENTATION
A.A. Adewole with N.O. Adewale and Eric .E. Duniya for the Claimant
Okechukwu Ajunwa with Kenneth Ayang for the Defendant
JUDGMENT
INTRODUCTION
The Claimant commenced this suit by a general form of complaint dated 5th December 2017 and filed 6th of December, 2017. The Claimant claimed against the defendant the following reliefs:
- A Declaration that the contract of employment between the claimant and the defendant still subsist.
- An Order directing the defendant to pay to the claimant the total sum of N181,731.55k only being balance of arrears of half salary owed him by the defendant for nine months from the months of July 2006 to March 2007.
- An Order directing the defendant to pay the claimant the total sum of N5,209.640.49k only being arrears of full salary owed him by the defendant for 10 years 9 months i.e 129 months from April 2007 to date.
- An Order directing the defendant to pay to the claimant the sum of N300,000.00 only being money paid to the defendant by the claimant in year 2006 as rent for the staff quarters occupied by the claimant.
- General damages in sum of N5,000,000.00 (Five Million Naira) only.
- Interest on the judgment sum at the rate of 10% from the date of judgment until final liquidation.
- An Order setting aside the defendant’s internal memo dated 26th January, 2017 and the Notice to Quit dated 3rd August, 2017 and served on the claimant, the same having been issued in breach of the claimant’s contract of employment.
- An Order restraining the defendant from ejecting the claimant from the defendant’s quarters at Zuma Steel Housing Estate, Rayfield, Jos, Plateau state until all his remunerations have been fully paid to him.
- The sum of N600,000.00 (Six Hundred Thousand naira) only being cost of this action.
The defendant filed a Memorandum of Appearance dated and filed 22nd January 2018, the Defendant filed Statement of Defence and an Amended statement of Defence dated and filed 23rd July 2018. The Claimant filed a Reply to defendant’s Statement of Defence dated 22nd March 2018 and filed 23rd March 2018.
By an order of this Honourable court and agreement of both counsels, all claims with similar facts and reliefs were consolidated with the understanding that decision of court in respect of one case shall apply to other consolidated cases. The consolidated cases are the following: NICN/JOS/27/2017, NICN/JOS/28/2017, NICN/JOS/29/2017, NICN/JOS/30/2017, NICN/JOS/31/2017, NICN/JOS/32/2017, NICN/JOS/33/2017, NICN/JOS/34/2017, NICN/JOS/35/2017, NICN/JOS/37/2017, NICN/JOS/38/2017.
BRIEF FACTS OF THE CASE
The defendant company was the former Jos Steel Rolling Plant formerly owned by the Federal Government of Nigeria while the claimants were its former employees. Upon privatization it was acquired by the current defendant who subsequently retained the claimants in its employment by issuing fresh letters of employment to them individually. The claimants claimed that it is part of their condition of employment as stated in their respective letters of employment that, the Claimants were entitled to housing allowance of 60% of their basic salaries. But that in the event that they were residing in the Defendant’s staff quarters, they were not entitled to receive said housing allowance. The defendant contended that the provision was not applicable to the claimants as who were former employees of the Jos Steel Rolling Plant aforesaid. The Claimants are residing in staff quarters, and as such they were not paid housing allowance, however each of them paid one year rent in 2006 before they were told that the rent will further be collected from their respective salaries.
By a memo of 7th March, 2007 the defendant sent the Claimants on extended leave without pay. The main point of divergence between the parties is that while the Defendant asserts that the Claimants agreed to a compromise to proceed on leave without pay, the Claimants maintain that there was no such compromise, but a directive to that effect. Then by another Memo dated 26th January 2017 the Defendant directed the Claimants, to commence payment of rent on the premises that they occupy or deliver possession thereof. The defendant thereafter caused quit notices to be issued to the claimants, hence these suits.
TRIAL
Hearing commenced on 29th November 2017, to establish its consolidated claims, the Claimant called one witness Nansoh G. Lar, the claimant in NICN/JOS/31/2017 who testified as CW1 for himself and on behalf of the other Claimants except NICN/JOS/36/2017, NICN/JOS/39/2017 and NICN/JOS/40/2017 as the sole witness. He adopted his witness statements on oath dated 31/12/2017 and 28/3/2018 tendered. The following documents were tendered and admitted as follows:
- The two witnesses’ statement on oath were admitted as Exhibit CW 31 E1 and CW 31 E2.
- Letter of offer of appointment of claimant admitted as Exhibit CA/31/A.
- Internal Memo of 7th March, 2007 admitted as Exhibit CA/31/B
- Internal Memo of 26th January, 2017 admitted as Exhibit CA/31/C.
- Notice to Quit admitted as Exhibit CA/31/D
- CTC of Punch Newspaper Publication admitted as Exhibit CA/31/E
- Original Punch Newspaper Publication admitted as Exhibit CA/31/F
The above documents were tendered in similar order in other sister consolidated cases.
He was subsequently cross examined by the defendants’ counsel and was discharged from the witness box on the same 29th November, 2018 after which the claimant closed his case. Similarly, on 29th November 2017 one Gyip Pam was called as a Subpoenaed witness to produce certain documents.
The Defendant opened its case on 30th November, 2018 and called a sole witness; Oche Oko Landop who testified by adopting his written statement on oath, with respect to all the consolidated cases and same were admitted in evidence as DW27E – DW40E. He was cross examined. The Defendant closed its case on the same 30th November, 2018. Thereafter the respective parties filed their final written addresses.
ADDRESS OF DEFENDANT
In his final written address, the learned counsel to the defendant first of all, raised objection to the admissibility of two documents. The first is against the Statement of Accounts admitted as Ex. DA/27/C – DA/40. Counsel argued that the documents were produced before this Honourable court via a Subpoena Duces Tecum through one Gyip Pam who was neither sworn nor cross-examined. That the said statements of Accounts were tendered and admitted in evidence as Ex. DA/27/C – DA/40/C through an unsworn witness who could not be cross examined. Counsel submitted that by virtue of Section 218 and 219 of the Evidence Act, 2011, a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness. Therefore, Section 218 and 219 of the Evidence Act, 2011 merely authorizes a subpoena duces tecum to be issued to a person to deliver to the court a document. That the person could do so personally or through another person he considers suitable for the assignment and once such a document is delivered or caused to be delivered to court, his obligation is discharged and he cannot be sworn or cross-examined. Counsel referred to the case of Famakinwa v. Unibadan (1992) 7 NWLR (Pt. 255) Pg. 608 @ 613 R. 8.
That in this instant case, Gyip Pam who was in court for the production of the Statements of Account by virtue of subpoena duces tecum does not necessarily become a witness. This explains why he was unsworn and was not cross-examined. Consequently, immediately the Statements of Accounts were produced or brought before the court, Gyip Pam’s obligation is discharged. It then remains for the claimant at whose instance the subpoena was issued to discharge the burden of having those documents admitted in evidence by tendering it through a proper witness. Counsel referred to the authority of Arebi v. Gbabijo (2010) ALL FWLR (Pt. 527) Pg. 710 CA and submitted that all the Statements of Accounts tendered and admitted through Gyip Pam are inadmissible in law and same should be expunged from the record.
The second objection relates to the Punch Newspaper tendered and admitted in evidence in proof of the inability of defendant to commence production. While the defendant was of the view that its inability to commence operation was due to lack of Energy(electric power), the claimants were of the opinion that the defendant had actually commenced operation but halted production because of a legal tussle between the Managing Director of the Defendant and the Co-owners over the control of the company. (See para. 9 of the additional witness statements on oath of Mr. Nansoh G. Lar in Suit No. NICN/JOS/31/2017). In proof of the claimants’ assertion, the Punch Newspaper Publication was tendered by the claimant and admitted as Ex. CA/27/E – CA/40/E.
Objecting to the admissibility of the said Exhibits. CA/27/E – CA/40/E the defendant submitted that newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication. That the statements contained in them are reports of statements made in them by person who is not the maker. The statement reported are therefore, in law, deemed to be hearsay by virtue of Section 37 of the Evidence Act, 2011 and therefore inadmissible as the truth of the statements made therein. Counsel referred to the case of Lawrence v. Olugbemi & Ors (2018) LPELR – 45966 (CA).
That it does not matter that the newspaper publication was certified in accordance with the dictates of the law of the apex court in the case of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) Pg. 534. Certification is only one of the many conditions for the admissibility of a document, it cannot render the content of the admitted document true especially where the facts contained therein has been rendered inadmissible as hearsay by virtue of section 37 of the Evidence Act. Counsel urged the Honourable Court to expunge the said Exhibit. CA/27/E – CA/40/E as inadmissible hearsay documentary evidence.
On the substantive suit the learned Counsel raised a sole issue for determination for the Honourable Court to wit:
“Whether the claimants have proved their case on the balance of probability to entitle them to the judgment of this Honourable court against the defendant.”
Counsel submitted that the lone issue submitted for determination will be treated under the following sub-headings to wit:
- Whether the claimants are entitled to the declaration sought as per prayer A on the complaint.
- Whether having regards to the facts and evidence presented before the court, there is sufficient evidence in support of the reliefs claimed by the claimants as per reliefs’ B and C on the complaint.
- Whether the claimants have made out a proper case to warrant the setting aside of the Internal Memo dated 26th January, 2017 and Notice to Quit dated 3rd August, 2017, and if not, whether it would be proper to restrain the defendant from ejecting the claimants from the defendant’s property for failure to pay rents.
In arguing issue one whether the Claimants are entitled to the declaratory relief sought as per relief “A” on the Complaint.
Counsel submitted that the law is trite that a party seeking for declaratory relief before a court must establish his alleged entitlement to the satisfaction of the court.That Declaratory relief is a discretionary remedy and must be refused where the claimant fails to lead credible and convincing evidence before the court by placing sufficient materials to justify entitlement to the relief. Counsel referred to the case of Anyaoku v. Adi (1986) 3 NWLR (Pt. 31) 731. That the success of the claimant’s case is not dependent on the weakness of the defendant’s case. That the duty squarely rests on the claimant. Counsel referred to the case of See Gundiri v. Nyako (2014) 2 NWLR (pt. 1391) pg. 211 R. 17.
Continuing counsel argued that considering the above well settled position of law within the specifics of this instant case, the claimant in paragraph 16 of the adopted witness statement on oath of Mr. Nansoh G. Lar (NICN/JOS/31/2017 admitted as Exhibit CW 31 E1) testified as follows:
“In the said internal memo, the defendant also reiterated that I am still its staff. At the 8th paragraph of the memo, the defendant’s Managing Director stated that:
Affected staffs are to please note that since no disengagement letter has been given to them, they are still members of our staff. Therefore, they are to provide us with their contact address and phone no. while on leave. This is to enable us recall them as soon as the modernization process is over”
In arguing issue two whether having regards to the facts and evidence presented before the court, there is sufficient evidence in support of the reliefs claimed by the claimants as per reliefs’ B and C on the complaint.
Counsel reproduced the prayers and/or reliefs claimed in paragraphs b, c and d as contained on the claimant’s complaint and submitted that it is not in dispute that the claimant is claiming specific damages under different subheads against the defendant.
That the law is trite that a party claiming special damages must plead same with particulars and must strictly prove it. That Special damages are never inferred from the nature of the act complained of. That they do not follow in the ordinary course as in the case with general damages. That they are exceptional and so must be claimed specially and strictly proved. That in UTB (Nig) Ltd v. Ajagbule (2006) 2 NWLR (Pt. 965) Pg. 447 at 492 – 493, Abba – Aji J.C.A held thus:
“It is settled principle of law that special damages must not only be pleaded with sufficient particulars but it must be strictly proved with credible evidence if the damages claimed are special in nature, credible evidence will have to be called in order that the amount pleaded may be proved. Without such proof no special damages can be granted. See RCC (NIG) V. EDOMWONYI (supra); OSIJI v. OSHICHA (supra). The type of proof required is one that would readily lead itself to qualification or assessment.”
Furthermore, counsel argued that, in view of the settled position of the law on special damages, it follows therefore that for the claimants to be entitled to the various sums claimed, they must not plead the particulars of their claims only but also prove same by leading credible evidence in support of same. Counsel submitted that the claimants were unable to provide material facts to buttress the assertions made in their pleadings. There were no Statements of Accounts or any other instrument put in evidence to prove how much was paid to the claimant by the defendant between July 2006 and March 2007. In a simple word, there is no evidence to support the claim of the claimants.
Counsel submitted further that, they are not unmindful of the fact that Statement of Accounts were produced before this court via subpoena duces tecum, by Gyip Pam who was neither sworn nor cross-examined. However the said Statements of Account were tendered and admitted as Exhibit DA/27/C – DA/40/C. That the competence of Gyip Pam to tender the document and the propriety or otherwise of admitting in evidence of the said documents has been addressed at the preliminary issues.
Counsel submitted that, the purport of the claimant’s application for subpoena duces tecum is for Gyip Pam to come to court to “produce” documents listed in the application. That counsel has a right to choose what witnesses to call and in what order to call them. Counsel referred to the case of M. Alao v. Bello Akanbi (1989) 3 NWLR (Pt. 108) 118, 153. Counsel submitted that having caused the documents to be produced via subpoena duces tecum, same cannot be tendered and admitted as exhibit.
Counsel submitted that, the Statements of Accounts “Exhibit DA/27/C to DA/40/C” were properly produced before this Honourable court through Gyip Pam. However, not being called as a witness, he was neither sworn nor cross-examined. It is therefore submitted that he lacks the requisite competence to tender them in evidence. It is submitted further that this Honourable court was wrong to allow the claimant’s counsel to tender the documents through Gyip Pam without making him a witness. This procedure violates the rules of fair hearing. The defendant ought to be given opportunity to cross examine him on the documents.
Counsel submitted that their position is fortified by the unassailable reasoning of the court in the case of Arebi v. Gbaji (2010) ALL FWLR (Pt. 527) Pg. 710 CA where Per Mshelia at page 735 – 736, para C-B reiterated that:
“…Thus a person summoned to produce a document does not become a witness by the mere fact that he produces and cannot be cross-examined until he is called as a witness. It then remains for that party at whose instance the subpoena was issued to have it admitted in evidence, by tendering it through a person who has the capacity to do so. In other words the person subpoenaed to court to produce document merely places the document before the court where they could be identified and made use of by witnesses…
The letter or Exhibit “M” was properly produced before the court through the maker, Mrs. W. A. Awoyinfa who was referred to as Dw3. She was unsworn and was not cross-examined. The tribunal was however, wrong to allow the 1st Respondents counsel to tender the document through Dw3 without making her as witness. Other parties ought to be given opportunity to cross-examine her on the document. This procedure violates the rules of fair hearing…”
That Exhibits DA/27/C to DA/40/C were improperly admitted as exhibits. That this Honourable court is under duty not to act upon them but rather discountenance them, and it is immaterial that its admission in evidence was by default or consent of the party complaining in failing to raise the necessary objection at the appropriate time. Counsel relied on the decision of the Supreme Court in the case of I.B.W.A Ltd v. Imano (Nig) Ltd 5 NSCQR Pg. 792 – 793 where Per Iguh J.S.C opined that it is the duty of the court to exclude inadmissible evidence which was erroneously received in evidence during the trial.
Counsel submitted that when a party like the claimant in the instant case decide to rely on a document to prove his case, there must be a link between the documents and the specific areas of his case. On no account must counsel dump documents on the court. No court worth its salt will spend precious judicial time linking documents to specific areas of a party’s case, relying on the case of Ucha v. Elechi (2012) ALL FWLR (Pt. 625) 237 at 259. Counsel submitted that based on the foregoing, the Honourable Court is urged to discountenance Exhibits. DA/27/C to DA/40/C as mere worthless pieces of papers.
Continuing counsel argued further that assuming out of abundanti cutalae that in the very unlikely event that the Court held that Exhibits DA/27/C to DA/40/C were properly tendered and admitted in evidence, counsel vehemently submitted that the said exhibits are bereft of any probative value. That the admission of an exhibit does not mean that the trial court must attach any weight to it willy-nilly. In other words admissibility is one thing, while the probative value that may be attached thereon is another, counsel relied on Dalek (Nig) Ltd v. Ompadek (2007) 7 NWLR (Pt. 1033) 402.
That in paragraphs 8 and 9 of the Statement of Facts accompanying the complaint and the adopted witness statement on oath of Mr. Nansoh G. Lar (NICN/JOS/31/2017) respectively, the claimant averred and testified as follows:
“Furthermore, the claimant averse that the defendant owes him the sum of N181,731.55K and N5,209,640.49K being the balance of arrears of half salary for 9 months from July 2006 to March 2007 and the arrears of complete salary for 10 years 9 months (129 months) from April, 2007 to date respectively.”
Reacting to the claimant’s averment, the defendant pleaded in paragraph 9 of the Statement of Defence and led in evidence through Mr. Oche Oko Landop (DW1E) who in his paragraph 9 of the adopted witness statement on oath testified that:
“That the defendant did not owe the claimant the sum of N181,731.55K and N5,209,604.49K or any amount at all being the alleged arrears of half salary for 9 months from July 2006 to March 2007, and the alleged arrears of salary for 10 years 9 months. The claimant is hereby put to the strictest proof thereof.”
Counsel submitted that in the face of the two irreconcilable oral evidence of parties, that the only evidence that could clear the air on this issue is the statement of account which is a documentary evidence. That the evidential burden makes it imperative for the claimant who had asserted the payments of half salary for 9 months as opposed to payment of full salary alleged by the defendant to show by credible evidence that those facts upon which they relied in support of their case thus exist.
That in this instant case, it is not the case of the claimants that they were not paid at all for a period of 9 months from July 2006 to March 2007. Rather, they were not paid their full salary. That it is then incumbent on them to show by credible evidence how much they received for the months under consideration and how much is outstanding.
That a critical perusal of the statement of account admitted will show the following information conclusively;
- There are no entries for the months of July 2006 – February 2007. These months are inclusive in the 9 months which are clearly part of the months the Claimant claimed the Defendant failed to pay complete salary.
This absence creates a gaping hole in the evidence of the Claimant.
- From the entirety of the statement of account, there is nowhere at any point it is shown that the Claimant was credited with the sum of N7, 254.5k by the Defendant being half salary as computed by the Claimant in paras 10 of Exhibit. CW1E.
Counsel submitted that the months in question were conspicuously missing in Exihibit DA/27/C to DA/40/C. and no explanation was offered by the claimant as to what happened to the missing months. That the documents which were tendered to establish the true state of facts for the months in question have succeeded in leaving this Honourable court in a mere speculative guess work without any explanation. It therefore goes to show that the pleadings that the claimant was paid half salary for 9 months were not supported by any piece of evidence. It thus goes to no issue.
Counsel submitted finally that, though the documents were admitted in evidence, when put through the crucible evaluation and ascription of probative value, they were found to be worthless documents. Counsel urged the court to so find and hold.
In respect of the claim for arrears of full salaries, counsel submitted that like the relief sought in paragraph b, the claimant has further claimed another specific damage in relief “C” in the form of full salary for 10 years 9 months. Thus, the sum of N5, 209, 640.49K has been specifically claimed against the defendant. That what the law expects from the claimant is to call credible and cogent evidence in proof of their entitlement to the alleged arrears of full salary owed them by the defendant for 10 years 9 months i.e 129 months. Anything short of this would not suffice.
Counsel submitted that, in an attempt to establish their entitlement to this head claim, the claimant has not only sought but pleaded in paragraphs 11, 12 and 13 of the Statement of Material Facts that:
(i) The defendant is indebted to the claimant to the sum of N5,209,640.49k being balance of arrears of complete salary for 10 years 9 months from April 2007 to date and that such refusal constitute an unfair labour practice.
That in refuting the above averment, it was glaringly clear from paragraphs 6 (a-n) of the defendant’s Amended Statement of Defence that the defendant is neither owing nor indebted to the claimants to the tune of any sums at all. As a matter of fact, the inability of the claimants to receive salary under the months in question was borne out of a written compromise reached between the claimants and the defendant; which is to the effect that “following the electricity problem bedeviling the defendant with a resultant effect of lack of production, all staff shall embark on leave without pay.”
That very instructive to note is that the compromise in Exhibit CA/31/B was not only pasted on the board but also made available to all the staffs of the defendant including the claimant for them to read & understand and if accepted by them to append their signature against their respective names on the attached list.
That the Acceptance of the proposals in Exhibit CA/31/B birthed Exhibit DB-DB 13 which is the attached list to the memo and on which all the defendant’s staffs including the claimant’s signed across their respective names in acceptance of the proposal.
Counsel submitted that, the authenticity of Exhibit DB-DB 13 is inviolate and could not attract any aspersions. That by the quality of evidence led at the trial by both parties. For the avoidance of doubt, that on the 29th day of November 2018 under cross-examination between Claimant’s Witness (CW) and the Defence Counsel (DC) the following evidence were extracted:.
DC: As a result of Exhibit CA/31/B you proceeded on leave without pay.
CW: Yes
DC: Look at this register, did you sign at No. 110
CW: Yes
In similar vein, that Oche Oko Landop who testified on behalf of the defendant remained resolute in his evidence in chief when he testified at paragraph 6 (e to h) of his adopted statement on oath when he testified that:
- …The management of the defendants reached a compromise with the members of staff of the defendant including the claimant to proceed on leave with effect from 09.03.2007 except those informed to the contrary.
- That the defendant proposed to the knowledge and understanding of the claimant that all affected staff including the claimant are to be paid their March, 2007 salary while the remaining period for which the affected staff shall remain on leave SHALL BE WITHOUT PAY.
- That in order to mutually agree on the compromise for leave without pay all the members of staffs of the defendant including the claimant are to confirm that they have read, understood and accepted the content of the memo through which the proposal was conveyed by signing against their respective names in the attached list to the memo.
- That the claimant read, understood and accepted the proposal by signing against his name on the attached list on the 12.03.2007.
In further proof of the defendant’s case, DW1E testified as follows:
I confirm that Exihibit DB – DB13 is the attached list on the memo referred in paragraph 6 of my statement on oath. I confirm the following signature to be signed by the claimants on the respective dates as follows:
| S/N | Name | Signature date | |
| 1 | Signor Ben | CW 27 | 9.03.07 |
| 2 | Daniel I. Nwoji | CW 28 | 9.03.07 |
| 3 | Amazia Jitaye | CW 29 | 9.03.07 |
| 4 | Augustine Uwaeme | CW 30 | 9.03.07 |
| 5 | Nansoh G. Lar | CW 31 | 12.03.07 |
| 6. | Ponga Dangfa | CW 32 | 09.03.07 |
| 7. | Augustine Emebo | CW 33 | 09.03.07 |
| 8. | Godwin H. Toma | CW 34 | 09.03.07 |
| 9. | Victor Ewache | CW 35 | 08.03.07 |
| 10. | Joseph O. Adetoye | CW 36 | 08.03.07 |
| 11. | Abu Ewache | CW 37 | 09.03.07 |
| 12. | Rahila W. Paul | CW 38 | 08.03.07 |
| 13. | Samuel S. Nanbut | CW 39 | 09.03.07 |
| 14. | Musa N. Ibrahim | CW 40 | 09.03.07 |
That when the DW1E was subjected to cross-examination by the claimant’s counsel, his testimony stood unshaken when the learned counsel asked questions as follows:
CC: I put it to you that no meeting was held.
DW1: I don’t know but there was a list attached to the memo and a compromise was reached by people appending their signature in acceptance of the memo.
CC: Where is the original memo to which Ex. DB – DB13 is attached?
DW1: It is not available to me
CC: I put it to you that there was no memo attached to Ex. DB – DB13
DW1: Ex. Ex. CA/31/B relates to Ex. DB – DB13.
CC: I put it to you that Ex. CA/31/B was pasted on the Notice board to come and view.
DW1: Yes, it was equally circulated to inform the people.
CC: I put it to you that Ex. DB – DB13 was equally deposited at the administrative office for all the staffs to go and sign?
DW1: Answer is yes, to sign as having understood and accepted the memo
Counsel submitted that from the foregoing, it is crystal clear that the compromise for “leave without pay” is not a unilateral action of the defendant but a consensus agreement between the defendant and the claimant. Parties were adidem on the terms and conditions of Exhibit CA/31/B. That it is an agreement freely entered into by the parties to it and throughout the evidence led by parties, there is no evidence of compulsion, intimidation, fraud, misrepresentation, oppression, torture, threat of violence and/or coercion.
That where parties voluntarily entered into an agreement they cannot act outside the terms and conditions contained in the contract and neither parties to the contract would be aided either in law or equity to resile from the term which is emboldened in the written document. Rather, the court is enjoined in construing the relationship between parties to a contract, to confine itself to the plain words and meaning derived from the contract. Counsel referred to the case of CBN v. Archibong (2001) 10 NWLR (Pt. 721) 492.
Counsel urged the Honourable Court to hold the claimants bound by Exhibit CA/31/B having regards to the surrounding circumstances of this case especially oral and documentary evidence adduced before this court in order to effectuate the intention of the parties.
Counsel submitted further, that the claims of the claimants regarding the purported outstanding salary have become statute barred. That between 2007 when Ex. CA/31/B was made available to the claimants and 2017 when this action was instituted; a period of about 10 years has lapsed. That the issue of salary is a simple contract entered into between the employer and employee. That the claimants have within 6 years to initiate this action with a view to setting aside Exhibit CA/31/B by a court of competent jurisdiction or to avoid their obligations represented through Exhibit DB – DB13 by virtue of section 18 of the Limitation Law of 1988 applicable to Plateau State.
That this position is in line with the settled position of law that where an action over a simple contract is brought after six years of the accrual of cause of action, such action shall become barred by operation of law and can no longer be maintained in the courts. Counsel referred to the case of Ojemeni v. Sterling Bank Plc (2014) LPELR – 24442 (CA),
Counsel urged this Honourable court to dismiss this head claim for been barred by operation of law.
In arguing issue three, that is; whether the claimants have made out a proper case to warrant the setting aside of the internal memo dated 26th January, 2017 and notice to quit dated 3rd August, 2017; and if no; whether it would be just and proper to restrain the defendant from ejecting the claimants from the defendant’s quarters.
Counsel argued reliefs d, g and h as per the claimants’ claims under different sub-issue as follows:
ON THE PAYMENT OF N300, 000.00
Counsel submitted that by Exhibit CA/31/A, the claimants are entitled to 60% of their basic salary only if they are not residing in any of the company’s estates. Equally by Exhibit DA/31/A (the Acceptance Form) the 60% housing allowance is not applicable to staff of former Jos Steel Rolling Company to which the claimants belong. That this explains the payment of rent on the property at the initial stage of the occupation. It therefore goes to show that the claimants have manifestly failed to prove their entitlement to a refund of the rent paid on the property.
That by paragraph 24 of the adopted Witness Statement on Oath of Mr. Nansoh G. Lar in NICN/JOS/31/2017 CW1 testified that “In January 2017, the defendant issued another internal memo wherein it purported to increase the “Rent” on the staff housing that I occupy in the quarters.”
Counsel submitted that, by the above piece of evidence, it is apparently clear that the claimant was aware at all material time that they are in occupation of the defendant’s quarters subject to payment of rent.
That under cross-examination, the CW1 testified as follows: when the learned defence counsel queried that:
DC: When the defendant bought over Jos Steel Rolling Mill, before you could move in or continue in occupation of the quarters, you were meant to pay rent.
CW1: We were there already in the quarters but we started paying rent. All of us paid rent for one year but stopped the payment on the ground that it will be deducted from our salary.
Counsel submitted that from the above excerpt, it is clear that the occupation of the defendant’s quarters is subject to payment of rent and the claimants cannot be heard to be crying foul simply because the defendant had shown generosity in allowing the claimant’s continuous occupation of the quarters despite their defiance.
Counsel submitted that, it is so curious that the claimants’ feigned ignorance or lack of knowledge that they were not supposed to pay rent by virtue of the terms and conditions of Exhibit CA/31/C. That by the testimony of CW1 on Oath under cross examination he testified that:
“I am an Ordinary Diploma Mechanical Engineer. All of us (that is all Claimants’) went to secondary school.”
That the natural implication of the above evidence is to the effect that none of the claimants is below school leaving certificate level. That they are all educated and can read and write. None of the claimants is an illiterate.
Counsel submitted that the claimants being men of full age and understanding who can read and write intended the legal consequences of Exhibit DA/27/A when they signed the Acceptance Form and it does not matter if they do not take trouble to read it before signing it. That they cannot be heard to say that they are unaware of the fact that they were not supposed to pay rent. Counsel referred to the case of Jeje v. Enterprise Bank Ltd & Ors (2015) LPELR – 24829 (CA). That this assertion is absolute false on oath just to avoid their obligation. Counsel therefore submits that the claimant’s claim to a refund of the rent is non-justiciable and become barred by effluxion of time and operation of law.
ON ORDER TO SET ASIDE NOTICE TO QUIT AND TO RESTRAIN DEFENDANT FROM EJECTING THE CLAIMANTS
Counsel submitted that where an agent or servant is allowed to occupy premises belonging to his principal for the more convenient performance of his duties, whether on payment of rent through deductions in salary or otherwise, he acquired no estate therein and thus cannot sue his employer in trespass and by natural extension prevent his landlord from taking possession of his property. Counsel referred to the case of F.C.D.A v Nwana (1998) 4 NWLR (pt. 544) Pg. 73.
That in the case of Nwana v. FCDA & Ors (2004) LPELR – 2102 (SC) the Supreme Court in considering the nature of interest acquired by a servant who occupies premises of his master by virtue of his employment, opined as follows:
“It is settled law that where an agent or servant is allowed to occupy premises belonging to his principal for the more convenient performance of his duties, he acquires no estate therein: see Woodfall’s Law of Landlord and Tenant pages 294 -295. He is merely a licensee and he has no right to continue to remain in the premises on the cessation of his employment. Consequently, he cannot maintain an action in trespass against his employer in the event of his eviction.”
Per Edozie, JSC (p. 18 paras D-F)
That in this case the prerogative of the defendant to allow continued occupation of the quarter or to evict the claimant is not subject to debate. This is because the claimants are mere licensees with no legal basis for any claim in the property. That the claimants only occupy the premises for their master who is regarded in law as being in possession.That it then follows reasonably that an injunction cannot be granted against the defendant from ejecting the claimants notwithstanding the fact that the claimants are still in occupation of the defendant’s premises. At best, the injunction would be made pending the determination of the claimants’ employment which may in any event be terminated the same day the judgment of the court is handed down.
Counsel submitted that an order seeking to set aside the defendant’s Internal Memo dated 26th January, 2017 and the Notice to quit dated 3rd August, 2017 cannot be granted. If the claimants are in law regarded as mere licensees, it then follows that they come into occupation by mere permission without creation of landlord and tenant relationship. That the claimants have not shown that they have interest in the premises whether legal or equitable. Counsel urged this court to dismiss the claimants’ case into for want of evidence.
CLAIM FOR GENERAL DAMAGES OF N5, 000,000.00
Counsel submitted that the claim for general damages is an ancillary claim and since the Claimants failed to prove their claims as contained in the reliefs sought from this court. Particularly in reliefs A, B, C, D, G, H, of the complaint before this court, they are not entitled to any award of damages. That it is trite that the Claimant would not be entitled to award of damages where he failed to establish the liability of the Defendant. Counsel referred to the case of Tsokwa Oil Marketing Co. v Bon Ltd (2002) 11 NWLR (PT. 777) @ 20. Counsel urged the court to dismiss this suit.
ADDRESS OF THE CLAIMANTS
In his own final written address the learned Counsel to the Claimants raised eight (8) issues for determination for this Honourable Court to wit: –
- Whether the Amended Statements of Defence filed on behalf of the Defendant on 23rd July, 2018 is incompetent, thereby rendering the Claimants’ actions undefended.
- Whether the contract of employment between the Claimants and the Defendant subsists, with the consequential duty on the Defendant to provide work for the Claimants.
- Whether the Defendant’s unilateral act of sending the Claimants on perpetual leave without pay under the guise of modernisation of the Mill, and “standing the Claimants off” is unlawful under the Labour Act of Nigeria.
- Whether the Claimants arez entitled to their claim for the balance of arrears of salary owed them by the Defendant for the months of July, 2006 to March, 2007.
- Whether the Claimants are entitled to arrears of salary for the period from April, 2007 till date.
- Whether, having to the Claimants’ terms of employment as contained in their letters of appointment, they are entitled to the accommodation they occupy in the Defendant’s staff quarters without the stipulation to pay rent as demanded for in Exhibit CA/31/B (and the others like it).
- Whether the Notice to Quit Issued to the Claimants while their employment subsists on the ground of non-payment of rent is unlawful, having regard to their terms of employment.
- Whether, having regard to the totality of the evidence and the circumstances of this case, the Claimants are entitled to general damages in terms of their claims before the Honourable Court.
In arguing issue one, that is; whether the Amended Statements of Defence filed on behalf of the Defendant on 23rd July, 2018 is incompetent, thereby rendering the Claimants’ actions undefended. Counsel submitted unequivocally that, Issue 1 submitted for determination herein ought to be answered in the affirmative and resolved in favour of the Claimants by this Honourable Court. That is, that the Amended Statements of Defence filed on behalf of the Defendant on 23rd July, 2018 is incompetent. Counsel urged the Honourable Court to resolve this Issue in the affirmative on the basis of two (2) grounds, which are set out below:
(i) The identity of the Counsel who prepared and filed the Memorandum of Appearance on 22nd January, 2018 on behalf of the Defendant is unknown; hence, same is incompetent, and this Honourable Court cannot act upon, or make use of it; and
(ii) The identity of the Counsel who prepared and filed the Statements of Defence on the 27th February, 2018, on behalf of the Defendant is unknown; hence, same was incompetent ab initio, and could not have been validly amended.
Counsel adumbrated succinctly and separately on the two grounds stated above, to demonstrate how and why this Honourable Court cannot, in the determination of the Claimants’ claims herein, make use of, and rely on the Amended Statement of Defence of the Defendant filed on 23rd July, 2018, the same being incompetent.
GROUND I
The Identity of the Purported Signatory to the Memorandum of Appearance is Unknown
Counsel submitted that, the Amended Statement of Defence of the Defendant filed on 23rd July, 2018 is incompetent on the ground that the identity of the Counsel who prepared and filed the Memorandum of Appearance on the 22nd January, 2018 on behalf of the Defendant is unknown or uncertain, is hinged on the fact that, from the face of the memorandum of appearance prepared and filed on behalf of the Defendant on 22nd January, 2018, the names of seven (7) lawyers appeared under the signature column or space. That, there is no indication by way of ticking or other marking against the name of any of the 7 lawyers listed under the signature, as to indicate and identify who amongst them signed the said Memorandum of Appearance. That this is fatal and fundamental to the case of the Defendant, as a valid memorandum of appearance on behalf of the Defendant is the foundation and the basis upon which any Counsel can make appearance or representation on behalf of the Defendant in this suit. It is also the basis upon which any Counsel, or Okechukwu Ajunwa, Esq., can file a Statement of Defence or any process at all in this suit, on behalf of the Defendant. Significantly, this fundamental error spanned through all the consolidated Suits brought by the Claimants. Counsel urged the Honourable Court, pursuant to Section 122 (2) (m) of the Evidence Act, 2011 to take judicial notice of the Memorandum of Appearance filed on behalf of the Defendant on 22nd January, 2018.
Counsel submitted that for the avoidance of unnecessary argument, judicial pronouncements of the appellate courts have underscored the importance of ticking or identifying who amongst a group of lawyers listed on a court process or document in fact signed the same. The failure to either tick or otherwise mark the name of the legal practitioner who in fact signed a court process is neither treated nor regarded as technical issue, but rather it is fundamental to the validity of the said court process. In other words, it is not an irregularity that may be waived.
Counsel referred to the decision of the Supreme Court in GTB v. Innoson (2017) 16 N.W.L.R. (Pt. 1591) 181 at 196 – 197, paras., H – D; where the Court held thus:
“It is trite law that it is the seal or signature, of the author on a document that authenticates the document. A legal document or processes of court must be settled or signed by either the legal practitioner of the choice of the litigant or the litigant himself. The disputed processes are purportedly settled or signed by a legal practitioner, whose identity is unknown. Where ex facie a court process is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent… A court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this court in SLB Consortium Ltd. v NNPC (supra) and many others on court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name.
“The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out…”
That having set out the established facts and the law on the point, it is crystal clear that an incompetent process cannot be used by the Court for any purpose whatsoever, same being worthless. The only option open to the Court is to strike out the said process. Counsel referred to the decision in Mobil Oil (Nig.) Plc v. Yusuf (2012) 9 N.W.L.R. (Pt. 1304) 47 at 57, paras., C – H.
Continuing counsel submitted that, the law is settled that, no court has the jurisdiction to entertain or make use of a defective or an incompetent process, because, an incompetent process is life less and legally non-existent; and same cannot confer jurisdiction on the court as same should be struck out. Counsel referred to the decision of the Supreme Court in Ohakim v. Agbaso (2010) 19 N.W.L.R. (Pt. 1226) 172 at 266, para., C, and Maitumbi v. Baraya (2017) 2 N.W.L.R. (Pt. 1550) 347 at 390. Counsel urged the Honourable Court to strike out the memorandum of appearance filed on behalf of the Defendant, the same being incompetent.
Counsel submitted further, that the importance of ticking or otherwise marking the name of the legal practitioner who signed a court process is not lost on Okechukwu Ajunwa, Esq. This is because Counsel purported to sign the Final Written Addresses in the consolidated Suits by ticking his name from amongst the list of legal practitioners contained therein. That this was done in fulfillment of the interpretation given to the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act in GTB v Innoson (supra).
Thus, the said Memorandum of Appearance being incompetent, lifeless and non-existent, same has robbed Okechukwu Ajunwa, Esq., the legal capacity to file any process in this suit on behalf of the Defendant herein. That there being no valid Memorandum of Appearance filed for the Defendant herein, both the Statements of Defence, Amended Statements of Defence and the Final Written Address filed on behalf of the Defendant herein are also invalid and the same are incompetent before this Court.
GROUND II
The identity of the Counsel who prepared and filed the Statement of Defence on the 27th February, 2018, on behalf of the Defendant is unknown; hence, same was incompetent ab initio, and could not have been validly amended. Counsel urged this Honourable Court to hold that, the Statement of Defence filed on 27th February, 2018, on behalf of the Defendant in this suit were incurably defective, lifeless, dead on arrival and incompetent. This is so because, the identity of the Counsel who prepared and filed the said Statements of Defence on 27th February, 2018, on behalf of the Defendant is unknown. Consequently, the same was incompetent ab initio, and could not have been validly amended.
Counsel submitted that there is no tick or other mark against any of the names to indicate or identify the lawyer who signed the said Statements of Defence. That ,this is fatal and fundamental to the case of the Defendant, as a valid and competent Statement of Defence on behalf of the Defendant is the foundation and the basis upon which any amendment thereto could be made in the consolidated Suits. Significantly, this fundamental error spans through all the Statements of Defence in the consolidated Suits. In essence, an Amended Statement of Defence is based and dependent on a competent and valid Statement of Defence in the first place. However, in the instant case, the original Statements of Defence are incompetent ab initio, same having been signed by an unknown or unidentified person/author.
Counsel submitted that the importance of ticking or otherwise identifying who amongst the list of lawyers signed a document or process is not treated or regarded as technical issue, but fundamental. This submission is strengthened by the decision of the Supreme Court in GTB v. Innoson (supra) 196 – 197, paras H – D.
Counsel submitted that flowing from the above decision, the only option open to the court is to strike out the said process. That the law is also settled that, no court has the jurisdiction to entertain or make use of a defective or an incompetent process, because, an incompetent process is life less and legally non-existent; and same cannot confer jurisdiction on the court to make use of same, ant it should be struck out. Counsel referred to the decisions in Ohakim v. Agbaso (supra) and Maitumbi v. Baraya (supra).
Continuing counsel argued that the original Statements of Defence filed on 27th February, 2018, on behalf of the Defendant, being defective and incompetent, the extant Amended Statements of Defence filed on 23rd July, 2018 are also tainted with the same incompetence. Counsel referred to the decision in Mobil Oil (Nig.) Plc v. Yusuf (supra) 57, paras., C – H, where the original notice of appeal was signed “for and on behalf” of Paul Usoro, SAN. This notice was subsequently amended to be signed by Paul Usoro, SAN in person.
That the Court of Appeal suo motu raised the issue whether the amended notice of appeal was competent, and directed parties to address it on the point. In his address to the court, Owonikoko, SAN for the respondent had submitted that by virtue of the amendment, the defect in the notice of appeal had been cured. The Court of Appeal disagreed with this stating that:
“…I am unable to pitch my tent with both the appellant and respondent counsel on the issue that an incompetent process can be amended and used in court. Where a process is declared or held to be incompetent, it is worthless and cannot be used in the court for any purpose whatsoever. The only option open to the court is to strike same out… To amend an incompetent process tantamount to trying to bring the matter within the jurisdiction of the court by force. By foisting an amendment of an incompetent process on the court, a party cannot confer jurisdiction on the court… The proper order to make in the circumstance is to strike out the matter and not to amend it…”
This decision was further reinforced by the Supreme Court in Min. W. & T. Adamawa State v. Yakubu (2013) N.W.L.R. (Pt. 1351) 481 at 496, paras. C – E, where the Court held thus:
“… I would have ended this judgment here but for the submission of the respondent counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The questions that easily come to mind are that, can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by the amendment? The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confront a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case is fundamentally defective and incompetent. It is inchoate, legally non-existent and therefore not be cured by way of an amendment…”
Counsel submitted that, the key phrase in the decision of the Supreme Court that is fundamental to the instant case is ‘originating process or processes.’ The point here is that a defect in either an originating process or other process cannot be cured by an amendment. What the Defendant ought to have done in the circumstances is to have withdrawn the original Statements of Defence filed in the consolidated Suits, and sought leave to file competent Statements of Defence.
Counsel submits that in the light of the foregoing, a the original Statements of Defence filed on 27th February, 2018, being incompetent ab initio, cannot, by any stretch of imagination be amended, because there never was a competent Statement of Defence filed in this suit to warrant any amendment thereto.
Consequently, the only option open to the Court is to strike out the said Amended Statements of Defence filed on 23rd July, 2018 for being incompetent, the same having been amended from incompetent Statements of Defence or having emanated from incompetent Statements of Defence. In the absence of competent Statements or Amended Statements of Defence as in this case, there is no defence against the claims of the Claimants in this suit.
In arguing issues two and three whether the contract of employment between the Claimants and the Defendant subsists, with the consequential duty on the Defendant to provide work for the Claimants and Whether the Defendant’s unilateral act of sending the Claimants on perpetual leave without pay under the guise of modernisation of the Mill, and “standing the Claimants off” is unlawful under the Labour Act of Nigeria.
Counsel urged the Honourable Court to hold that the contract of employment between the Claimants and the Defendant still subsists, with the consequential duty of the Defendant to provide work for the Claimants. Also, the Claimants’ contention under these issues is that the Defendant’s act of sending them on perpetual leave was unilateral, and that there is no legal basis for ‘standing off’ an employee (as the Defendant claimed it did to the Claimants). That the legal means of severing the employer-employee relationship where there is no work for the former to engage the latter is by either terminating the employee’s contract of employment or declaring redundancy under Section 20 of the Labour Act, as the case maybe.
That in proving their claims of being in lawful and subsisting employment of the Defendant, the law requires the Claimants to prove or establish same by tendering their letters of appointment/employment and plead their terms of employment. To this end, the Claimants tendered their respective Letters of Appointment/Employment containing their terms of employment before this Honourable Court on 31st October, 2018, which letters were admitted in evidence and marked Exhibits CA/27/A; CA/28/A; CA/29/A; CA/30/A; CA/31/A; CA/32/A; CA/33/A; CA/34/A; CA/35/A; CA/36/A; CA/37/A; CA/38/A; CA/39/A and CA/40/A respectively. Counsel referred to the decision in Mobil vs. Asuah (2005) 2 Nigerian Labour Law Report (Part 4) 37 at 83, paras., C – D.
That the Claimants duly accepted the terms and conditions stated in their respective letters of employment i.e. Exhibits DA/27/A; DA/28/A; DA/29/A; DA/30/A; DA/31/A; DA/32/A; DA/33/A; DA/34/A; DA/35/A; DA/36/A; DA/37/A; DA/38/A; DA/39/A and DA/40/A respectively; wherein after, their employment was confirmed. Sequel to their confirmation, the Claimants had since then, been active staff and workers of the Defendant, till sometime in March, 2007, when the Defendant vide Exhibits CA/27/B; CA/28/B; CA/29/B; CA/30/B; CA/31/B;CA/32/B; CA/33/B; CA/34/B; CA/35/B; CA/36/B; CA/37/B; CA/38/B; CA/39/B and CA/40/B issued an Internal Memo directing the Claimants to proceed on leave to enable it carry out a turn-around maintenance and modernisation of the Mill. In fact, in the said Memo, the Defendant clearly stated that, it will, from time to time engage the Claimants during the period of the maintenance, and further stated that, the Claimants have not been disengaged from their employment, having not been issued any at letters to that effect.
Counsel submitted that having regard to the contents of Exhibits CA/27/B; CA/28/B; CA/29/B; CA/30/B; CA/31/B; CA/32/B; CA/33/B; CA/34/B; CA/35/B; CA/36/B; CA/37/B; CA/38/B; CA/39/B and CA/40/B, it is not left to doubt, and would be safe to say that, the employment contract entered into by the Claimants and the Defendant vide their Letters of Employment, i.e., Exhibits CA/27/A; CA/28/A; CA/29/A; CA/30/A; CA/31/A; CA/32/A; CA/33/A; CA/34/A; CA/35/A; CA/36/A; CA/37/A; CA/38/A; CA/39/A and CA/40/A respectively, has never been terminated, and same still subsists.
That these documents, particularly paragraph 8 therein, corroborate and support the Claimants’ submission that their contracts of employment with the Defendant still subsist because the same has not been duly determined or terminated. The said paragraph 8 provided thus:
“All affected staff are to please note that since no disengagement letter has been given to them they are still members of our staff. Therefore, they are to provide us their contact address and phone no while on leave. This is to enable us recall them as soon as the modernization process is over.”
Continuing counsel submitted that the law places a burden or duty on the Defendant to provide work for the Claimants during the pendency of their contract of employment. This rule in employment contracts is age-old and well established under the common law. That this common law principle has been codified in the provisions of Section 17 of the Labour Act, Cap. L.1, LFN, 2004 which provides that, every employer shall provide work suitable for the worker on daily basis except on public holidays or rest days, except the worker has broken his own part of the contract.
Now returning to the Defendant’s case, counsel submitted that the Defendant’s case is that it is not liable to pay the Claimant’s any salaries because the Claimants willfully entered into a compromise in which they were to proceed on indefinite leave without pay. That the defence is purportedly hinged on the contents of Exhibits CA/31/B (and the others like it) and DB – DB 13, which is a document titled ‘COMPREHENSIVE STAFF LIST AS AT 5TH MARCH, 2007.’ That this defence is not supported by the evidence on the record.
First of all, Exhibit CA/31/B is a Unilateral Internal Memo originating from the Defendant directing “all affected staff” to proceed on vacation to enable the Defendant effect turn-around maintenance on its Mill. The implication of this is that there are some staff who were not affected by the directives contained in this Memo. Then, the Defendant wants this Honourable Court to believe that the signatures of the employees appended to Exhibit DB – DB13 constitutes the Claimants’ acquiescence to the Defendant’s unilateral decision to send the Claimants on leave without pay.
That, this is improbable because Exhibit DB – DB13 is documentary evidence, which speaks for itself and this Honourable Court must take it for what it is, that is to say that it is a comprehensive list of the Defendant’s staff as at 5th March, 2007. Consequently, oral evidence is inadmissible to vary or contradict documentary evidence. Counsel referred to F.B.N. Plc. v M.O. Nwadialu & Sons Ltd. (2016) 18 N.W.L.R. (Pt. 1543) 1 at 48 – 49, paras. G – F; Olagbenro v Olayiwola (2014) 17 N.W.L.R. (Pt. 1436) 313 at 373, paras. D – G;.
That for the Defendant’s defence to be probable and therefore worthy of meritorious consideration, the list of staff containing the signatures acquiescing to the contents of Exhibit CA/31/B ought to only be in respect of ‘the affected staff’ who were to proceed on leave without pay. But that is not the case with Exhibit DB – DB13, which contains the names and signatures of all the staff who were in the employment of the Defendant as at 5th March, 2007. Counsel submitted that Exhibit DB – DB13 was not made for purposes of getting the Claimant’s to agree to the Defendant’s unilateral decision to ‘stand-off’ the Claimants; and urged the Honourable Court to so find and hold.
Secondly, that the Claimants led evidence on oath in paragraphs 21 and 22 of the Claimants’ additional witness statements on oath that:
- It is equally incorrect to say that there was a compromise reached between the Management of the Defendant and me, for me to proceed on leave without pay. No document was brought for me to sign accepting to proceed on leave without pay.
- A comprehensive list of staff of Defendant as at 5th March 2007 had been prepared and brought to us at our duty posts to sign, which I did. No one informed me that this was a document that signified my acceptance of leave without pay.
That it is pertinent to note that this piece of evidence was neither challenged nor controverted under cross examination by the Defendant. This is contrasted with the Claimants who pointedly asked questions of DW 1 under cross examination on the circumstances under which Exhibit DB – DB13 was made. From the answers provided by DW 1, it is evident that Exhibit DB – DB13 was not made for purposes of the Claimants signifying their acceptance of being ‘stood off.’
Thirdly, Exhibit DB – DB13 read along with Exhibit CA/31/C shows that the Defendant’s assertions that Exhibit DB – DB13 contained the Claimants’ signatures accepting the contents of Exhibit CA/31/B is incorrect. This is because Exhibit CA/31/C contains two (2) tables. Table 1 is a list of the Defendant’s staff that are active and residing in its staff quarters. Table 2, on the other hand, is a list of the Defendant’s staff that are inactive or ‘stood off.’ However, that number 1 on the list of active staff is one Charles Enyiazu. Looking at Exhibit DB – DB13, the same Charles Enyiazu is number 10 under the Administration Department.
That, the question now is: if Exhibit DB – DB13 constituted the document whereby the ‘affected staff’ referred to in Exhibit CA/31/B acquiesced to leave without pay, why is it that there are staff who were not affected by Exhibit CA/31/B whose names are on Exhibit DB – DB13, and indeed signed the same? The answer to this, is that the Defendant’s pleadings and oral evidence on this point are merely an afterthought.
That, the implication of this is that the Defendant’s defence is rendered most improbable. The most reasonable finding that this Honourable Court may make in view of the evidence is that Exhibits CA/31/B and DB – DB13 were made separately, and the Defendant seeks to use the latter for a purpose other than what it really is i.e. simply a comprehensive list of the Defendant’s staff as at 5th March, 2007.
Counsel urged the court to resolve Issues 2 and 3 in favour of the Claimants and hold that what the Defendant claims it did to the Claimants i.e. that they were ‘stood off’ is alien to Nigerian labour laws, and that the Claimants remain in the employment of the Defendant, and that in the absence of either terminating their employments or declaring redundancy, the Defendant had a duty to provide work for the Claimants to do, and that their right to earn remuneration from the Defendant is indefeasible.
In arguing issue four Whether the Claimants are entitled to their claim for the balance of arrears of salary owed them by the Defendant for the months of July, 2006 to March, 2007 Counsel submitted that the Claimants are entitled to their claim for the balance of arrears of salary owed them by the Defendant for the months of July, 2006 to March, 2007. That on the respective pleadings of the parties, the burden of proving that the Claimants were paid full salaries for the months of July, 2006 to March, 2007 rests on the Defendants.
Referring to the relevant pleadings, the Claimants pleaded that:
“Before the commencement of the leave, the Defendant had paid the Claimant half salary for the months of from July 2006 to March 2007, which is a period of 9 months.”
In response thereto, the Defendant asserted that:
“The Defendant specifically denied paragraph 5, 7 and 8 of the Statement of facts accompanying complaint and in response states that the Defendant did not and has never paid the Claimant half salary for the months from July 2006 to March 2007, or at any other period at all as the Defendant is/was at all material time paying the Claimant his complete salary in accordance with the Claimant’s letter of offer of Appointment.” Counsel referred to paragraph 7 of the Defendant’s Amended Statement of Defence.
Counsel submitted that from the respective pleadings of the parties, the burden of proving that the said salaries were paid in full rests on the Defendant. This is because the Defendant pleaded the positive of the assertion (the Claimants were paid their July 2006 – March 2007 salaries in full), while the Claimants pleaded the negative of the assertion (we were not paid our July 2006 – March 2007 salaries in full).
That the law is now well settled that it is the party who pleads the positive i.e. affirmative of an assertion who bears the burden of proving the fact. Counsel referred to Bello v Gov., Gombe State (2016) 8 N.W.L.R. (Pt. 1514) 219 at 278 para. G where the Court of Appeal, per Hussaini, J.C.A. stated that “It is equally the law that the burden rests on the party who substantially asserts the affirmative of the issue.”
In addition to this, there is evidence on the record showing that while payment of salaries by the Defendant is effected through the banks, including Diamond Bank and Fidelity Bank, DW 1 could not say whether the payment vouchers through which the Claimants were paid their July 2006 – March 2007 salaries are still available with the Defendant. Counsel submitted, that DW 1 was not a competent witness to testify on matters of the Accounts Department of the Defendant. In other words, any oral evidence given by DW 1 to the effect that the Claimants were paid their full salaries for July 2006 – March 2007 is hearsay evidence, and ought to be discountenanced by this Honourable Court.
Counsel urged the Honourable Court to discountenance DW 1’s evidence on matters of the payment of salaries to the Claimants, the same being hearsay evidence. This is because by his testimony, he is the Head of Line Maintenance. Meanwhile, there are officers in the Accounts Department who had the requisite knowledge and information to testify regarding the matters of whether the Claimants had been paid their July 2006 – March 2007 salaries in full or not.
Continuing further, counsel submitted that, the Claimants gave evidence in this regard and tendered certified copies of their bank statements of accounts showing that the Defendant paid them half salaries in respect of the months in issue, particularly for March, 2007. The said documents were admitted in evidence and marked DA/27/C&D; DA/28/C&D; DA/29/C&D; DA/30/C&D; DA/33/C&D; DA/34/C&D; DA/35/C&D; DA/37/C&D; and DA/38/C&D respectively.
In conclusion counsel urged the Honourable Court to resolve Issue 4 in favour of the Claimants that, indeed, the Claimants are entitled to their claim for the balance of arrears of salary owed them by the Defendant for the months of July, 2006 to March, 2007, having fully worked for the Defendant within that period but was only paid half salaries.
In arguing issue five, that is whether the Claimants are entitled to arrears of salary for the period from April, 2007 till date Counsel urged the Court to hold that the Claimants are entitled to arrears of salary for the period from April, 2007 till date. That in proof of this, the Claimants gave evidence in this regard and tendered documents showing that, their contract of employment with the Defendant subsists, but the Defendant had not been paying their salaries since from April, 2007, i.e., after the Memo compelling them to go on leave pending the turn-around maintenance of the Mill till date.
Counsel submitted that the law is also clear as crystal to the effect that, where the employment contract between an employer and employee subsists, or has not been duly and lawfully determined, as in the instant case, the employee is entitled to all his salaries, including arrears.
Counsel urged the Honourable Court to hold that, having not terminated the contract between it and the Claimant, nor declared redundancy, the Claimants are all entitled to the payment of their full salary by the Defendant as scheduled in their respective Letters of Appointments from April, 2007 till date, the said contract of employment still subsisting.
In arguing issue six, that is; whether having to the Claimants’ terms of employment as contained in their letters of appointment, they are entitled to the accommodation they occupy in the Defendant’s staff quarters without the stipulation to pay rent as demanded for in Exhibit CA/31/B.
Counsel submitted that the Claimants herein, are entitled to the occupation of the Defendant’s staff quarters situate at Rayfield, Jos without any stipulation to pay rent. This submission is predicated on Exhibit CA 31A (and the other letters of employment tendered by the other claimants in the consolidated Suits, but using Exhibit CA 31A as a reference point), which provide for the conditions of the Claimants’ contracts of employment, under paragraph 1.2 of the conditions of employment in Exhibit CA 31A, that all employees of the Defendant are entitled to 60% of their basic salary as housing allowance except for employees resident in the Defendant’s staff quarters.
Counsel argued that from the foregoing, it is without contention that employees of the defendant have the option of either living outside the defendant’s quarters which entitles them to housing allowance or live in the defendant’s staff quarters without any payment of housing allowance by the defendant as contained in the condition of employment. That it is trite that in every contract, the court must give effect to the terms of contract entered between parties. Counsel referred to the case of See Lewis v. UBA Plc. (2016) 6 N.W.L.R. (Pt.1508) 329 at 345, paras. A – E.
That the Claimants herein opted to live in the Defendant’s staff quarters and by so doing, forfeited their right to housing allowances from the Defendant as per the conditions of employment in Exhibit CA 31A.That under cross examination, CW1 testified that by the terms of employment, he, as well as the other claimants herein, were not to pay rent to the defendant for occupation of the defendant’s quarters as same was to be deducted from his salary. That CW 1 further stated that when the defendant bought over Jos Steel Rolling Mill from the Federal Government of Nigeria, him and the other Claimants were made to pay rent for that year (i.e. 2006) but the defendant stopped the payment of rent on the ground that same would be deducted from their salaries.
Counsel submitted that the Claimants are entitled to the accommodation they occupy in the defendant’s staff quarters without any obligation on them to any rent to the Defendant. This is more so that the Claimants are still in the employment of the Defendant, this fact having been admitted by the Defendant. Ordinarily, the Claimants would have been entitled to be paid 60% of their basic salary as housing allowance but for the fact they opted to live in the Defendant’s staff quarters.
Consequently, in view of the provisions of Exhibit CA 31A, which clearly states the conditions of employment, the purported letter issued by the defendant i.e. Exhibit CA/31/C (and the others of its kind, but using CA/31/C as a reference point) requesting the claimants to pay rent while their employment with the defendant still subsists is unlawful and of no consequence. Having regard to the foregoing, therefore, the Honourable court is urged to resolve this Issue in the affirmative and grant relief (g) sought for in the Complaint.
In arguing issue seven whether the Notice to Quit Issued to the Claimants while their employment subsists on the ground of non-payment of rent is unlawful, having regard to their terms of employment.
Counsel submitted under this issue, that there are two classes of tenants i.e. (1) contractual tenant, and (2) statutory tenant. A contractual tenant is described as a person who enters upon premises by reason of a contract with the landlord and such a tenant holds an estate which is subject to the terms and conditions of the grant. Counsel referred to the case of AP v. Owodunmi (1991) 8 N.W.L.R. (Pt. 210) at 391.
On the other hand, a statutory tenant is an occupier whose contractual tenancy has expired but holds over, continues in possession by virtue of special statutory provisions and holds the land of another contrary to the will of that other person who strongly desires him out. Counsel referred to the case of Oduye v. Nigeria Airways Ltd. (1987) 2 N.W.L.R. (Pt. 55) at 126. In other words, a statutory tenant has no estate or property in the premises whatsoever but only a right to possession of the premises concerned.
Counsel submitted that, from the evidence on the record, it goes without saying that the Claimants herein came into possession of their accommodation by reason of their employment with the Defendant. In other words, the Claimants are not tenants but are occupants of the Defendant’s premises by reason of their employment with the Defendant, thereby making them service occupants and not tenants at will as contended by the Defendant. It is also in evidence that they are contracted to forfeit housing allowance in consideration for residing in the staff quarters. The Claimants’ employment, which forms the basis of their occupation of the staff quarters, has not been terminated.
That, the existing state of affairs regarding the Claimants’ service occupation of the Defendant’s staff quarters means that their occupation of the said premises is guided by the terms of their employment. This is more so that there is no independent guidelines that were issued by the Defendant in relation to the Claimants’ occupation of the premises. That being a service occupation, the same may cease upon determination of the Claimant’s employment, or by mutual understanding whereby the Claimants vacates the premises occupied, and the Defendant starts paying them housing allowance.
Continuing counsel submitted that it is in evidence that the Defendant issued a notice to quit to the Claimants. That the Claimants were to:
“TAKE NOTICE that the management of Zuma Steel is giving you three months notice to quit and deliver possession or start paying your rent of One Hundred Thousand Naira (N100, 000.00) as a regular tenant.”
Counsel submitted that this case raises up a case of unfair labour practice by the Defendant. This is because even though the Defendant has the legal duty and responsibility to pay the Claimants their salaries, it has been in default of this payment for many years. In the midst of the penury that the Claimants have been subjected to, the Defendant is unilaterally revising the terms of their employment by demanding for rent from the same staff it has refused or neglected to pay.
Counsel called upon this Honourable Court to protect the Claimants from the tyranny of a stronger contracting party by simply enforcing the law as it is. That is to say that the Defendant cannot unilaterally revise or alter the terms of the Claimants’ employment. To do otherwise would mean that the court would allow the Defendant to benefit from its own wrong doing. This is abhorrent in the eyes of the law. Counsel referred to the case of African Petroleum Ltd. v. Owodunni (supra) where the Supreme Court stated that “The law will not allow a person to reap any benefit from his own wrongful act. To allow such is manifestly unjust and will portray the law as an instrument of injustice.”
On the whole, Counsel urged the Honourable Court to resolve this issue in the affirmative and grant relief numbers (d) and (g) sought for, in the Complaint.
In arguing issue eight whether, having regard to the totality of the evidence and the circumstances of this case, the Claimants are entitled to general damages in terms of their claims before the Honourable Court. Counsel submitted that the answer to this issue is in the affirmative. That it is trite law that were there is a wrong there is a remedy. That this is aptly enunciated in the Latin maxim ubi jus ubi remedium. That the law is also settled that were there is an injury to which money can ameliorate, then the award of general damages would be in order. That the guiding principles for the award of general damages were explicitly stated in the case of Cameroon Airlines v. Otutuizu (2011) 4 N.W.L.R. (Pt.1238) 512 at 541 paras. D – E. where the Supreme Court held thus:
Where a breach of contract is established, damages follow. General damages are losses which flow naturally from the adversary and it is generally presumed by law as it needs not to be pleaded or proved.
The apex court went further to state that:
Damages are awarded to restore the plaintiff as far as money can to the position he would have been if there had been no breach, that is, to compensate the plaintiff for the loss.
That in the instant case my Lord, the Claimants herein have clearly shown that:
(1) They were employed by the Defendant herein and that their employment with the respondent subsists. Indeed, this fact is admitted by the Defendant;
(2) That they came into possession of the accommodation they occupy by virtue of their employment with the Defendant;
(3) That they forfeited their entitlement to housing allowance amounting to sixty percent (60%) of their basic salary from the Defendant by reason of occupying the Defendant’s staff quarters.
(4) That they were wrongfully made to pay various sums of money in 2006 by the Defendant as rent when they were already forfeiting housing allowance;
(5) That they had suffered the indignity of being paid half salaries for the between July 2006 and March 2007, and
(6) That the Defendant has threatened to evict the Claimants from their service occupation except they start paying rent, whereas it has willfully neglected or refused to pay them their salaries along with other entitlements from April 2007 till date.
That from the foregoing, it is crystal clear that not only is there a legal injury done to the Claimants but a continuing injury by reason of the willful refusal or neglect of the Defendant to pay the Claimants their salaries including, arrears of salaries even though they are still in the Defendant’s employment. This refusal to pay Claimants their salaries respectively have occasioned great hardship on the claimants as they have no means of providing for themselves and their dependants. The very act of the Defendant in refusing/neglecting to pay the Claimants their salaries as stipulated in the condition of employment, but demanding rent from them amounts to unfair labour practices.
In view of the above facts and circumstances of this case, counsel submitted that the Claimants herein are entitled to the award of general damage. On the whole, counsel urged the Honourable Court to resolve this Issue in affirmative and grant relief number (h) sought for in the Complaint.
DEFENDANT’S REPLY ON POINTS OF LAW
In response to the arguments of the Claimants as contained in their final written address, that the memorandum of appearance and statement of defence of the defendants initially filed in this Honourable court are incompetent, the reasons being that the identity of the counsel who prepared and filed the said processes are unknown because among the list of counsel on the face of the processes none was ticked to indicate same. Consequently, that the amended statement of defence and the final written address of the defendant are incompetent. In response counsel submitted that firstly for the defendant that this court as every other court of competent jurisdiction is more concerned with and inclined to doing justice as per substance of a case and not on technicalities. Counsel referred to the case of Obasi v Mikson Establishment Industries Ltd (2016) LPELR – 40704 (SC) where the court held thus:
“The days of technicality in the application of law and rules are spent. Technical justice has been replaced by substantial justice in our courts”.
Counsel argued that the Memorandum of appearance and the Statement of defence are not incompetent as contemplated by the Claimants, because in the said GTB v. Innoson (supra) relied upon by the Claimants it is clearly spelt out in the last sentence of the dictum of the court even quoted by the Claimant, how signature on a process by a legal practitioner should be done in other that the process might escape being incompetent.
The case of GTB v. Innoson (supra) relied on the case of SLB Consortuim Ltd v. NNPC.
That in the later case the court clearly, stated also how a legal practitioner must sign legal processes as follows:
- First the signature of counsel which may be any contraption
- Secondly, the name of the Counsel clearly written
- Thirdly, who counsel represents:
- Fourthly, name and addresses of legal firm.
That a clear perusal of the processes in issue in this suit will reveal that the defendant counsel clearly complied with the above format and in addition affixed the stamp and seal of Okechukwu Ajunwa on the processes.
Counsel submitted that it has been held in clear support of the attitude of courts to do substantial justice that where a process bears the name of more than one legal practitioner listed on the face of it, and the stamp and seal of one of the listed lawyers is affixed on the process, it will amount to technical injustice to hold that the process contravenes the law. In Ronke v. FRN LPELR – 43584 (CA) the Court held thus:
“It is trite that technicalities cannot stand in the face of substantial justice. It is common practice that a legal process can contain the names of two or more legal practitioners. The Requirement and purpose of Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 is that the legal practitioner who signed the legal process must affix his stamp and seal. The rationale behind this requirement in my view, is to checkmate quacks in the legal profession and ensure that legal processes filed by genuine legal practitioners who are registered members of the Nigerian Bar Association and truly qualified to practice law. See TARZOOR V. IOPAER (2016) LPELR – 25975 (SC) pg. 17- 18 and TODAYS CAR LIMITED V. LASACO ASSURANCE PLC (2016) LPELR – 41260 (CA) pg. 6-8. In the instant case, where the process bears the name of three legal practitioners and the seal and stamp affixed is that of one of the legal practitioners listed on the face of the process, it will amount to technical injustice to hold that the Respondent’s Brief contravenes Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007. See Dankwambo v Abubakar (2015) LPELR -25716 (SC) pg. 23…”.
Counsel submitted that a calm and collected reading of the case of GTB v Innosn (supra) relied upon by the Claimants, will reveal that it is not stated anywhere whether a seal and stamp of the Counsel to the respondent was affixed to the process in that suit which would have settled the issue of the identity, and the respondent’s counsel also admitted in that case that he did not sign the documents personal. Consequently, the above case cannot be held as an authority on all fours with this instant case and therefore, does not apply in this suit.
Counsel submitted finally that even in instances where no memorandum of appearance was filed by a defendant, his mere appearance or that of his counsel to defend the suit has been held by the courts in a long line of cases to be sufficient appearance for the defendant. Counsel referred to the case of Nwobodo v M. O. Nyiam & Associates (2014) LPELR – 22668 (CA). Counsel urged the Court to hold that the memorandum of appearance and the statements of defence of the defendants in the consolidated suits is valid and competent and to discountenance the arguments of the claimants.
Secondly, the Claimants argued in their final address that by virtue of Section 17 of the Labour Act Cap L1, LFN, 2004, that the defendant is under obligation to provide suitable work on daily basis excluding holidays or rest days to the Claimants except where the employee breaks his own part of the contract. Again that in cases of owing to circumstances emergencies beyond the defendant’s control, the defendant could only extend the period of no work for only one week. In response counsel submitted that in construing the provisions of the law, cherry-picking is not allowed. The provision of the statute must be `read as a whole. The Claimants have failed to state the true position of the law knowing fully well it will not be in their favour. That Section 17 of the Labour Act, begins with a proviso or an exception which reads thus:
17 (1) “Except where a collective agreement provides otherwise, every employer shall, unless the worker has broken his contract, provide work suitable to the worker’s capacity…”
That the law provided for a situation where both the employer and the employee could by a collected agreement waive the provisions of Section 17 on the provision of work and this is the same effect which Exhibits CA/31/B and DB – DB13 which operated as compromise between the Claimant and the defendant. Counsel further argued in reply that claimants are caught up by the doctrine of waiver of rights. It therefore does not lie in the mouth of the claimants to say that they did not enter into a compromise to proceed on leave without pay having had knowledge of the effect of waiving their right to salary by virtue of Exhibit CA/31/B and having taken a positive step to give effect to the said waiving by appending their signatures on Exhibit. DB – DB13 in acceptance of same
Thirdly, it is the argument of the Claimants that documents speak for themselves. Consequently, that Exhibit. DB – DB13 is only but a list of all staffs as at 5th March, 2007 and not a document showing staffs who acquiesced to compromise in Exhibit CA/31/B. And therefore the evidence and pleadings of the defendant was an afterthought. That the Claimant relied on several cases prominent among which was FBN Plc. v M.O. Nwadialu & Sons Ltd (2016) 18 NWLR (Pt. 1543) 1 at 48 – 49, paras. G – F. In response counsel submitted that the defendant concedes the point that documents speak for themselves. Further that the court has inherent unfettered powers to take judicial notice of documents in its records.
Consequently, and on the strength of the above cases counsel urged the Honourable Court to take judicial notice of the contents of Exhibit DB – DB13 which speaks for itself and that none of the staffs including the Claimants whose names appear in the said Exhibit, signed against their names prior to the issuance of the Exhibit CA/31/B. But all signed on or after the date of Exhibit CA/31/B after all had read, understood and accepted the contents of the Exhibit in question. Counsel urged the court to dismiss this case.
COURT’S DECISION.
I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that the sole issue raised by the learned counsel for the defendant that is; “whether the claimants have proved their case on the balance of probability to entitle them to the judgment of this Honourable court against the defendant.” summarized the issues in controversy between the parties. I hereby adopt it as mine; consequently, I shall treat the claims of the claimant seriatim.
But before then I shall first of all deal with the preliminary objections of the parties. It is very important to state here that this court; the National Industrial Court of Nigeria is a specialized court created for speedy determination of employment and industrial related matters. The spirit and letters of the establishment of this court are that it should be guided by substantial justice and not technical justice as evidenced by the provisions of sections 12,13,14 and 15 of the National Industrial Court Act 2006.
The learned counsel for the defendant raised two objections; first on the admissibility of the Punch Newspaper publication (Exhibit CA/27/E – Ex. CA/40/E) on the ground that newspaper publications are not generally admissible as evidence of facts contained in them. That the statements contained in them are reports of statements made in them by a person who is not the maker. The statement reported are therefore, in law, deemed to be hearsay by virtue of section 37 of the Evidence Act, 2011 and therefore inadmissible as the truth of the statements made therein. I find that the objection herein is basically on the weight to be attached to that document and not whether it met the requirement for admission of any document in evidence as an exhibit. I therefore hold that it was properly admitted.
The second objection is that that Exhibits DA/27/C – DA/40/C were produced before this Honourable court via a Subpoena Duces Tecum through one Gyip Pam who was not sworn nor cross-examined. The said statements of Accounts were through him tendered and admitted in evidence as Ex. DA/27/C – DA/40/C.I have looked at the said documents closely and noticed that they are certified true by the bank, it is trite that the tendering and admissibility of certified public documents are relaxed in that they can be tendered through the bar. Consequently, I hold that the documents were properly admitted.
The next objection is by the learned counsel for the claimants relying on the case of GTB v. Innoson (2017) 16 N.W.L.R. (Pt. 1591) 181 at 196 – 197, submitted that there being no valid Memoranda of Appearance filed for the Defendant herein, both the Statements of Defence, Amended Statements of Defence and the Final Written Address filed on behalf of the Defendant herein are invalid and the same are incompetent before this Court because the names of about 7(seven) lawyers were printed after the signature on the Memorandum of Appearance and accompanying statement of defence without a tick or mark to indicate or show who actually signed the processes in question. Counsel submitted that this Honorable Court is robbed of the requisite jurisdiction to make use of the said processes filed in the consolidated Suits for being incompetent; having been filed by a counsel whose appearance is incompetent. I agree with the submission of the learned counsel for the defendant that this case is distinguishable from the case of the case of GTB v. Innoson (supra) in that there is no evidence that there was any stamp and seal of counsel affixed in that case. In view of the fact there is the stamp and seal of Okechukwu Ajunwa on the processes and his name was first printed below the signature before any other name on the authority of Ronke v. FRN (supra) it will amount to technical injustice to hold that the Respondent’s Brief contravenes Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007. The application to strike out those processes for being incompetent is hereby over ruled.
I shall now deal with the claims in this suit. Claim one is for a declaration that the contract of employment between the claimants and the defendant still subsist. The claimants submitted that the internal memo of March 7, 2007, (Exhibits CA/27/B; CA/28/B; CA/29/B; CA/30/B; CA/31/B;CA/32/B; CA/33/B; CA/34/B; CA/35/B; CA/36/B; CA/37/B; CA/38/B; CA/39/B and CA/40/B) directing the Claimants to proceed on leave to enable it carry out a turn-around maintenance and modernisation of the Mill, clearly stated that; it will, from time to time engage the Claimants during the period of the maintenance, and further stated that, the Claimants have not been disengaged from their employment, having not been issued any letters to that effect. The learned counsel for the defendant in his final written address based on the said exhibits also ‘conceded’ that to the claimants.
However, that is at variance with the pleadings of the defendant and it is very clear that address of counsel can never take the place of pleading see Ishola v Ajibola (1998) 1 NWLR (Pt.532)74; Chukwujekwu v Olalere (1992)2 NWLR(Pt.221) 86.
For the sake of clarity, the content of the said Internal memo of 7th March 2007 is hereunder reproduced:
INTERNAL MEMO
To: members of staff
From: M.D/CEO
CC: G. M.
Date: 7th March 2007
Subject: TRUNAROUND MAINTENANCE /MODERNISATION OF THE FACTORY
The above subject matter refers.
You must have been informed that the expatriate staff are proceeding on vacation with effect from 9th march 2007. During the period of their vacation management has decided to embark on turn-around maintenance and modernization of the mill. This is to enable us have a hitch free operation when production eventually starts.
Accordingly, management has approved the following:
Except those informed to the contrary, all staff members are to proceed on leave with effect from Monday 9th March 2007.
All affected staff are to be paid their March 2007 salary, thereafter, the remaining period for which they (the affected staff) shall remain on leave to allow for the completion of the maintenance and modernization process SHALL BE WITHOUT PAY. However, we will from to time to time engage some staff when the need arises. Such staff will be paid in line with the existing salary scale.
It is imperative to inform you that with the existing structures and facilities, we cannot commence production now.
However, we are happy that the Makere transmission station has been included in this year’s budget and effort is being made to commence work on the plant. Completion of which will go a long way to ameliorate our electricity problem.
All affected staff are to please note that since no disengagement letter has been given to them they are still members of our staff. Therefore, they are to provide us with their contact address and phone no while on leave. This is to enable us recall them as soon as the modernization process is over.
Kindly confirm that you have read, understood and accepted the content of this memo by signing against your name on the attached list.
Thanks for your understanding and co-operation.
Regards.
Dr. InnocentEzuma
MD/CEO
From that said memo the following facts emerged:
- The expatriate staff will proceed on vacation on 9/3/2007.
- All staff members are to proceed on leave without pay
3 That the defendant could not commence production with the existing structures on ground.
- The claimants as members of staff are to leave their contact address and phone numbers to be recalled as soon as the mordernisation is complete.
During trial both parties agreed that the defendant has not commenced production uptil now. While the defendant contended that the defendant could not commence production as a result of energy crisis and the failure of the Federal to fulfil its bargain of providing direct electricity supply line to the defendant.
The claimants on the other hand argued that it was as a result of a dispute between the Management of the defendant before privatisation and the new owners that hindered commencement of production. They tendered the said Punch Newspaper publication to that effect (Certified True Copy of Punch Newspaper Publication Exhibit CA/31/E and Original Punch Newspaper Publication admitted as Exhibit CA/31/F). I therefore make a finding of fact that the aim of maintenance and mordernisation of the company was the reason behind the aforesaid internal memo during which period the employees were to be on leave without pay, unfortunately it was not completed till date.
There is equally evidence that, the defendant did not recall the claimants and also did not reach them again until sometime in January 2017 (about 10years after the first memo) when it issued a directive demanding for payment of rent from the claimants and asking for any of them demanding for rent waiver to so state giving reasons for the waiver. Thereafter the claimants were issued with a three months’ notice to quit dated the 3rd day of August 2017 or in the alternative to start the payment of rent as ‘regular’ tenants (Notice to Quit admitted as Exhibit CA/31/D). It is very important to note that in the said notice to quit the defendant was described as the “Landlord” of the claimants and not their employer. The claimants were equally asked to pay rent as “regular” tenants. The implication of that is that the employment relationship between the parties has been terminated by conduct of the defendant albeit wrongfully on the ground that no notice of termination was issued to the claimants thereof. In Opuo v NNPC & Anor (2002) FWLR [Pt. 84] 11, the Court held that termination can be express or inferred from the conduct of the employer; the choice is that of the employer. In view of the foregoing the declaration sought here is refused.
Claim 2, is asking for payment to the claimants the balance of arrears of half salary owed them by the defendant for nine months from the months of July 2006 to March 2007. There was a dispute between the parties as to who has the onus of proof here. The law is trite that he who alleges must prove. Since the claimants alleged payment of half salaries for 9(nine) months the onus is on them to first of all plead and prove what their current salary per month for each person is, the amount paid to each of them that constitutes half salary for each month and the balance to be paid to make the payment full. Unless and until that is done there will be no shift on the defendants to prove payment of full salaries for the period under contention. Unfortunately, there is no evidence that showed payment of half salary to any of them for the months in issue. Even the bank statement of accounts which ought to show the months of payment of full salary together with that of payment of half salary did not reflect anything of that. Consequently, I hold that the claimants failed to prove being owed 9months of half salaries from the months of July 2006 to March 2007. This claim therefore is equally refused.
Claim 3, is for an Order directing the defendant to pay the claimants the various sums being arrears of full salary owed them by the defendant for 10 years 9 months i.e 129 months from April 2007 to date. The defendant’s contention is that it was an agreement or compromise between the parties. The claimants are contending that it was not a compromise but directive. A look at the memo will show that the issue of leave without pay was clearly written on it not only that there is evidence that the defendant has not commenced production. Both parties relied on the provision of the Labour Act to the effect that the employer has a duty to provide work for the employee. However, the CW1 testified that he is an Ordinary Diploma holder engineer, while the DW1 gave evidence that he is a line Maintenance Manager, they are therefore clearly excluded from the definition of a worker by section 91 of the Labour Act. The said provisions of section 17 of the Labour Act heavily relied upon by both parties are therefore not applicable to the claimants as they were not employed in the category of workers covered by the Labour Act which are limited to workers engaged in manual and clerical work, see the case of Evans Brothers (Nig) Publishing Ltd v Falaiye (2003) 13 NWLR (Pt.838) 564.
I have held that the employment relationship between the parties has been terminated by conduct of the defendant albeit wrongfully on the ground that no notice of termination was issued to the claimants thereof.
In cases, where the Labour Act is inapplicable and the contract of service is silent on the requisite notice of termination as in this case, the law is settled that a reasonable notice will be implied, see the cases of Maiduguru Flour Mills Ltd v Abba, (1996) 9 NWLR (Pt. 473) 506 @ 511, and Alraine (Nig) Ltd. v M. A. Eshiet (1977)1 S.C. failing which the termination will be wrongful and the defendant liable to pay damages for wrongful termination of employment which considering the circumstances of this case w I assess as 3 years gross salary to each of the claimants. The claim for salary for 129 months is therefore refused.
Claim 4, is for an Order directing the defendant to pay to the claimants in the sum of money paid to the defendant by the claimants in year 2006 as rent for the staff quarters occupied by the claimants. The basis for the claim of this relief according to the claimants is that they were not aware that they were entitled to occupy the said quarters free of rent even at that the defendant reserves the right to collect money from the occupier for maintaining of the premises. In any case, the claimants failed to prove that the defendant was not entitled to collect rent from them in respect of the quarters which it acquired then. Consequently, this claim is refused.
Claim 5, is for general damages, having granted damages for wrongful termination of their employment this claim is hereby refused.
Claims 6,7 and 8 are to be taken together. Since the claimants are still in occupation of the staff quarters the prayer for post judgment interest is refused. However, since I have found and held the employment of the claimants have been terminated the defendant’s internal memo dated 26th January, 2017 and the Notice to Quit dated 3rd August, 2017 and served on the claimants will not be set aside. The defendant will also not be restrained from ejecting the claimants from the defendant’s quarters at Zuma Steel Housing Estate, Rayfield, Jos, Plateau state.
However, this is a Court of law and equity. See section 13 of the National Industrial Court Act 2006.
Section 14 of the National Industrial Court Act 2006 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.
Also, section 19(d) of the National Industrial Court Act 2006 provides that the Court may in all cases and where necessary make any appropriate order, including- an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.
Therefore, the claimants shall remain in possession of the said quarters until the defendant pays each of them 3 years’ salary as set out hereunder following which the recipient shall vacate the premises on or before the expiration of 90 days thereafter or pay rent as a regular tenant to the defendant. The amount to be paid to each claimant in the consolidated suit is as follows:
- NICN/JOS/27/2017 MR. SIGNOR BEN ₦14, 390. 34 x 36 = ₦518, 048. 64k
- NICN/JOS/28/2017 MR. DANIEL .I. NWOJI ₦42, 217. 43 x 36 = ₦1, 519, 827 .48k
- NICN/JOS/29/2017 MR. AMAZIAH O. JITAYE ₦36, 754. 45 x 36 = ₦1, 323, 160 .02k
- NICN/JOS/30/2017 MR. AUGUSTINE UWAEME ₦38, 400. 12 x 36 = ₦1, 382, 404 .32k
- NICN/JOS/31/2017 MR. NANSOH G. LAR ₦40, 384 .81 x 36 = ₦1, 453, 853 .16k
- NICN/JOS/32/2017 MR. PONGA MWANKO DANFA ₦47, 080. 59 x 36 = ₦1, 694, 901 .24k
- NICN/JOS/33/2017 MR. AUGUSTINE NWORUKA EMEBO ₦37, 103 .82 x 36 = ₦1, 335, 737 .52k
- NICN/JOS/34/2017 MR. GODWIN HARUNA TOMA ₦28, 142 .32 x 36 = ₦1, 013, 123 .52k
- NICN/JOS/35/2017 MR. VICTOR A. EWACHE ₦14, 390. 24 x 36 = ₦518, 048. 64k
10.NICN/JOS/37/2017 MR. ABU EWACHE ₦10, 526. 59 x 36 = ₦378, 964. 44K
11.NICN/JOS/38/2017 MRS. RAHILA W. PAUL ₦14,055. 93 x 36 = ₦506, 013. 48k
The defendant shall also pay N50,000 to each claimant as cost of this action.
Judgment is entered accordingly.
……………………………………………
Hon. Justice K. I. Amadi, Ph.D.
(Judge)
