IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO
DATED: 9TH MAY, 2019
SUIT NO: NICN/BEN/10/2016
BETWEEN
ISHAQ JIMOH IMOUDU ……………… CLAIMANT
AND
MR. DAYO OLANIYAN
(Managing Director, Fort Knox Guards)
………………. DEFENDANTS
MR. ISIAKA BAMIDELE
(Operational Manager, Fort Knox Guards)
3. FORT KNOX GUARDS
REPRESENTATION:-
DR. V. E. MAMMUD APPEARS FOR THE CLAIMANT.
TOSIN FALEYE APPEARS FOR THE DEFENDANTS.
JUDGMENT
The Claimant instituted this action by a complaint on the 16th of May, 2016 and claims against the defendants as follows:
A DECLARATION that Claimant’s employment with the defendants was not properly terminated and as such claimant is still in the employment of the defendants.
AN ORDER compelling the defendants to issue a Letter of Appointment to the claimant with effect from 12th February, 2015 when claimant was first engaged, and if for any reason claimant’s services are no longer required, the defendants to properly determine claimant’s employment since a willing horse cannot be forced on an unwilling rider, vice versa.
AN ORDER compelling the defendants to credit the Pencon Account of Claimant with the Employer’s contribution and employee’s deduction from the time of his engagement to date.
AN ORDER compelling the defendants to perfect claimant and members of his family’s enrolment in the National Health Insurance Scheme (NHIS) to enable them benefit from the scheme, or in the alternative, determine what accrues to the claimant monetarily under the NHIS Scheme from the date of appointment till the date of the proper determination of his employment.
AN ORDER compelling the defendants to pay the claimant all the salaries, entitlements, and allowances from 1st October, 2015 when claimant’s salary was stopped to date, and thereafter, after judgment.
AN ORDER OF PERPETUAL INJUNCTION restraining the defendant either by themselves, their servants, agents, workmen and/or privies howsoever called from retrieving the vehicle which the defendants assigned to claimant on a ‘Vehicle Ownership and Repayment Plan’ basis.
N10,000,000.00 (Ten Million Naira) only being Aggravated and Compensatory damages for the embarrassment, troubles, inconveniences, psychological trauma and harassment that the actions of the defendants caused to claimant.
The claimant filed along with the complaint, the Statement of Facts, witness statement on oath, list of witness and documents and same were amended by the order of this court of 31st May, 2017. The Defendants on their own part filed a memorandum of appearance, joint statement of Defence, deposition on oath and other accompanying processes. The Defendant amended their processes after obtaining the leave of court on the 10th April, 2018 and also counter-claimed for the official vehicle in the custody of the Claimant.
The claimant’s case is that he was employed by Fort Knox Guards i.e. the 3rd Defendant, sometimes in 2015, but the 3rd Defendant refused to issue a letter of appointment to him. He averred that he was designated as State Manager, Edo, and accepted with the understanding that his appointment letter will be given to him in due course.
The Claimant averred further that the defendants assigned a vehicle to him for his official duties and he was asked to enter into a Vehicle Ownership and Repayment Plan Agreement, by which payment for the car is to be deducted from his salary on a monthly basis over a period of sixty (60) months. The claimant stated that the 3rd defendant also promised to enrol him in the NHIS and Pension Scheme, and this it failed to do, even though he was given the forms for the two schemes to fill online. The claimant also alleged in his pleadings that although the Defendants were deducting a percentage of his salary for the pension contributions monthly, same was not remitted to his pension manager.
The Claimant averred that the Defendant not only deprived him of his letter of appointment, but for no just cause stopped his salary since October 2015. The claimant stated that upon enquiry as to why his salary was stopped, he was told that his appointment has been terminated and he was asked to return his official vehicle with immediate effect.
Wherefore the Claimant is claiming the reliefs above stated.
The defendants filed their Joint statement of defence which was amended on 12th April, 2018 wherein the defendants denied paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 of the statement of Facts.
The defendants averred that the 3rd defendant is a security company mainly engaged in providing security for communication masts throughout the country. The defendants stated that the claimant was employed as an ad hoc staff of the 3rd Defendant and thus was not on full employment with them. The defendants also contended that the identity card issued to the claimant was to enable him gain access to the various sites of the 3rd defendant. The defendants denied having an operational office in Edo State and stated that the money that was paid into the claimant’s bank account was for services rendered by him, and that, at no time did the 2nd defendant or any officer of the company ever promised to issue the claimant with an appointment letter or any other benefits.
The defendants denied deducting any money from the claimant’s monthly salary and averred that the claimant was found to be inefficient and lacked commitment to service delivery, a situation which caused an incurable loss to the 3rd defendant, as a result of which he was issued series of warnings, and was eventually orally dismissed.
The defendants counter-claimed for the official vehicle assigned to the claimant since he is no longer in their service, and stated that he is left with either of two options i.e. the option of returning the car to the company or to pay the outstanding balance.
Finally, the defendants prayed the court to dismiss the claimant’s case as it is frivolous and lacking in merit, while praying the court to grant their counterclaim.
Trial commenced in this suit on the 29th October, 2018 with the claimant testifying for himself as CW1, he adopted his witness statement on oath, and further witness statement on oath. He also tendered several documents which were admitted by the court and marked as Exhibits J1-J9 (i-xv), he was later cross examined, and thereafter closed his case.
On the 29th of November, 2018, the defence opened their case by calling their witness, one Anthony George as DW1, he adopted his witness Statement on oath and tendered several documents which were admitted and marked Exhibits K1 – K5, the witness was cross examined, and the defence subsequently closed their case. The case was adjourned for the adoption of final written addresses, and parties adopted their addresses on 31st January, 2019, thereafter the case was adjourned for judgment.
Chika Temidayo of counsel for the defence adopted the defendants’ final written address dated 20th December, 2018 and filed 21st of December, 2018 at the hearing, wherein they formulated two issues for determination to wit:
Whether or not the claimant has proven his case before the court to entitle him to the relief sought in his claim?
Whether or not the defendants/counter claimants are entitled to the
reliefs sought in their counter–claim?
On issue one, counsel submitted that it is trite that the letter of employment must be resorted to in considering the rights and obligation of the parties. Where the claimant fails to plead and prove the fact of his employment in a contract of service, he will not be entitled to the declaration that his appointment subsists. He cited the cases of MOROHUNFOLA VS KWARA STATE COLLEGE OF TECHNOLOGY(1990) 4 NWLR Part 145 page 506 and EFURIBE VS UGBAM & ORS (2010) LPELR 4079 (CA). FIICHARLES ORGAN & ORS VS NIGERIA LIQUIFIED NATURAL GAS LTD & ANOR (2013) LPELR-20942 (SC). The defence counsel submitted that the claimant was employed as an adhoc staff and not a permanent staff of the 3rd Defendant, and in the absence of a letter of employment, no other employment can be inferred. He urged the court to so hold.
On the claim by the Claimant that he submitted his NHIS forms online, Counsel argued that the claimant neither pleaded the e-mail addresses used for the mailing and receiving of these documents, and that since it is the position of the law that he who alleges must prove, it was incumbent upon him to place all the necessary materials before the court. The Defendants’ counsel submitted further that it is also not sufficient for an applicant to rely on mere averments in pleadings as such averments must be substantially proved by exhibiting the relevant materials for the averment to be credible, he cited the case of LIVESTOCK FEEDS PLC V. FUNTUS (2005) FWLR PT. 286 PG. 770 -771 PARA H – C, and stated that the Claimant having failed to prove that the forms were submitted online , the claim is bound to fail. He urged the court to so hold.
Learned Counsel to the Defendants denied the allegation of any contributory pension deductions from the claimant’s salary and submitted that the claimant never placed anything before the court in proof of his salary and the deductions allegedly made by the defendant, he pointed out that the position of the law is that a court is not expected to go on voyage of speculation, citing COKER V. ADETAYO (1992) 6 NWLR PT. 249 PG. 612 @ 615 R. 5.EKPELO V. WANDGHO (2005) ALL FWLR 5 PT. 245 PG. 1191 R. 6.
In respect of the claimant’s Bank Account statements i.e. Exhibit J9(i-xv), counsel submitted that this exhibit was only dumped before the court and same was not helpful at all to the Claimant’s case. He cited BIEZAN EXCLUSIVE GUEST HOUSE LTD & ORS V. UNION HOMES SAVINGS & LOANS LTD (2010) LPELR – 3876 (CA) and Section 51 of the Evidence Act 2011; and several other cases and surmised that it is the duty of the claimant to strictly proof the correctness, accuracy and reliability of an alleged debt against the defendants pursuant to the strict provisions of Section 51 of the Evidence Act..
On the assertion by the claimant that the 3rd defendants have refused to pay his salary even though he is still in its employment, Counsel submitted that the Claimant admitted under cross examination that his salary was stopped since October 2015, while he claimed to have been working with the defendant even after the stoppage, the claimant however did not call any witness to corrobate this assertion. He refered the Court to Section 169 (d) of the Evidence Act and submitted that the failure of the Claimant to call witnesses to corrobate this fact is detrimental to his case.
Counsel submitted that the claimant is not a witness of truth, and his evidence should be disregarded. He cited AGAKA V. AYILARA (2012) ALL FWLR pt. 608 pg. 937 @ 906 R.0 Para A – B, and posited that since the employment of the claimant was oral, the termination of his employment orally was proper, he reiterated that this piece of evidence was never controverted by the claimant in his pleadings and is therefore deemed admitted.
Learned defence counsel submitted that in proof of the 3rd Defendant’s counter-claim, he tendered Exhibit K1, Exhibit K2, Exhibit K3 & Exhibit K4. He posited that Exhibit K2 contains the policy of the 3rd Defendant on the car ownership/Repayment plan, and it is contained therein that where the assignee, within the repayment period, is relieved of his position by the management the only options available to him is to either make a bulk payment of any outstanding balance on the vehicle and take ownership of the vehicle or forfeit both the vehicle and all previously made payments. This fact according to counsel was brought to the attention of the claimant before he appended his signature on Exhibit K3 (also Exhibit J7), counsel therefore stated that since the claimant failed to abide with the terms above, the 3rd Defendant is entitled to the reliefs in the counter-claim.
In conclusion, defence counsel urged the court to grant the reliefs sought by the counter- claimant in the interest of justice and dismiss the case of the claimant.
V. E. Memmud of counsel for the claimant thereafter adopted his final written address filed on the 12th February, 2019 wherein four issues were formulated for determination to wit:
(1) Whether there was implied contract of employment between Claimant and Defendants as a result of their conduct?
(2) Whether Claimant’s employment was determined by the Defendants pursuant to the extant laws guiding employer-employees relationship?
(3) Whether Claimant is entitled to reliefs sought against the Defendants?
(4) Whether the Defendants can be said to have proved their Counter-claim against the Claimant?
Learned Counsel to the claimant submitted that a contract of employment does not have to be in any special form unless there is no consideration. A contract of employment may be wholly or partially in writing or completely oral as it is in the instant case. He cited PAN AFRICAN BANK V. JAMES EDE (1998) 7 NWLR PT 558 @442, and stated that the conduct of the parties in the instant case implies that there was an employer-employee relationship in that the 3rd Defendant paid the claimant’s monthly salary from February – September 2015, he posited that “Oral Contract is binding on parties.” citing Lord Denning in the case of PETT V. GREGHOUND RACING ASSOCIATION (1968) 2 All ER 545@ 549, and also OILFIELD SUPPLY CENTRE LTD V. JOHNSON (1987) 2 NSCC 725. It is the argument of the Claimant that since he has rendered services with effect from February 2015, and consideration was furnished in the form of salaries and other ancillary emoluments to Claimant, the Defendants are estopped from denying that there was no contract of employment between them, in that, a contract of employment can be oral or inferred. He stated that notwithstanding that a contract is oral, it is binding and enforceable. He cited TRADE BANK PLC V. DELE MORENIKEJI (NIG) LTD (2005) 6 NWLR (PT.921) @ 1309; JAMES V. MID MOTORS (1978) 11-12 SC @ 62.
On issue two, which is whether claimant’s employment was properly determined by the defendants, counsel submitted that it is uncontroverted that the Claimant was employed by the Defendants for more than six months with effect from 12th February, 2015 until his salary was stopped. He cited SECTION 91 OF THE LABOUR ACT CAP 198 LAWS OF THE FEDERATION 1990 on the definition of a “worker” and submitted that SECTION 9(7) OF THE ACT, narrated the circumstances under which a contract can be terminated. He posited that SECTION 11 (2) OF THE Labour Act, provides for the period of notice as assessed by the length of employment to terminate the appointment of a worker, it was his argument that the claimant is entitled to one week written notice before the contract between parties can be determined by either party, citing SECTION 11 (3) OF THE ACT which provides that any notice to terminate an employment for a period of one week or more shall be in writing.
Learned counsel submitted that from the record, no reason was adduced by the Defendants for the dismissal of the Claimant’s employment, hence he argued that his employment with Defendants is still subsisting and he is entitled to his salary from October, 2015 till date.
V. E. Mammud of counsel submitted further that although it is trite that a willing employee cannot be forced on an employer, vice versa, the employer owes it a duty to properly disengage an employee before stopping his salary or wages, and that since the defendants did not lead evidence of any such disengagement, he urged the court to discountenance the submissions of the Defendants that the Claimant was dismissed, he cited the cases of ODIASE V. AUCHI POLYTECHNIC (SUPRA); AFRIBANK (NIG) PLC V. NWANZE (SUPRA) and the Supreme Court’s decision in the case of OSAKWE V. NIGERIA PAPER MILL LTD(SUPRA), and urged the court to hold same in favour of the claimant.
On the claim for the official vehicle of the claimant, counsel cited Exhibit J9 (i-xv) which is the statement of account of the claimant, and submitted that the defendants paid Claimant’s salary for February 2015 to September 2015 and that a sum of N9, 250.00 was being deducted from source from Claimant’s monthly salary as repayment for the official vehicle pursuant to the Vehicle Ownership and Repayment Plan Agreement (Exhibit J7). Learned counsel urged the court to hold that the Defendants are owing him his monthly salary from the date of the stoppage of his salary till date and that the monthly deductions from his salary for that period is enough to have paid the balance for the vehicle.
He went further to submit on the issue of the claimant’s enrollment with NHIS and Pencon that the forms for the scheme were sent to the Claimant and forwarded back online, noting that this was the same mode adopted for the Vehicle Ownership/Repayment Plan Agreement executed between the parties. The learned counsel went further to submit that the Claimant testified that he was informed that, himself, his spouse and child will be enrolled for the NHIS, and in furtherance of this, he duly filled the NHIS forms (Exhibit J6) and forwarded it to the Defendants likewise the Pencon forms i.e Exhibit J7. He therefore surmised that the Defendants are liable to credit his Pencon Account with the deductions calculated at the minimum provision of the Pension Act, which is ten per cent by the employer; and eight per cent by the employee which amounts to N5,838.63 and N4,670.90 respectively, and a total of N10,509.53 per month multiplied by 47 months (i.e. February, 2015 to date) making a grand total of N493,947.91 which the defendants failed to remit in line with the extant laws. Claimant’s counsel urged the court to hold that facts admitted in pleadings or evidence need no further proof, and noted that DW1 under cross examination stated as follows;
That he was not party or privy to the employment/contractual agreement between the Defendants and the claimant
That there was nothing in Exhibit J1 that discloses the fact that the claimant was employed as an ad-hoc or contract staff
That he was not aware that the defendants were paying the claimant’s salary through Zenith Bank
That the claimant was never issued with any written query or reprimand before the stoppage of his salary and his employment was terminated,
Learned counsel therefore submitted that these set of facts buttresses the claim and the evidence on record that the Claimant was indeed employed as a permanent staff and not on contract or as an ad-hoc staff as contended by the defendants. Finally, Counsel urged the court to resolve all the issues raised in favour of claimant by granting all the reliefs sought, and dismissing the counter-claim of the defendants as same is lacking in merit and substance.
The defendants filed a Reply on Point of Law on the 21st February, 2019 which was adopted at the hearing. They advanced the position of the law that submission of counsel cannot take the place of facts and evidence of the parties. Learned counsel to the defendants cited TOCHUKWU V. FRN (2005) FWLR pt. 278 pg. 1048 @ 1056 R.3; OKON V. UBI (2006)FWLR pt.328 pg. 717 @ 723 R. 8 and posited that where there are gaps in the case put forward by a party, it is not within the province of a court to fill in the gaps. He reiterated that issues are joined in the pleadings not in the evidence.
Learned counsel submitted that the Labour Act does not in any way apply to the relationship between the claimant and defendants, citing Section 91 of the Labour Act, and that“worker” referred to in the Act is for manual labour or clerical worker, and that since the claimant here is not a manual labourer or a clerical worker, but rather, an adhoc staff engaged to man the base stations, as part of the site inspection team of the 3rd Defendant, the provisions cited by the claimant’s counsel under the Labour Act is not applicable to him.
On the contention that the claimant still works for the defendants anytime he is called upon, defence counsel submitted that if indeed the claimant is still in the employment of the defendants how come he goes to work at anytime he chooses, and argued that the claimant is not a witness of truth, and this is also a pointer to the fact that the claimant is inefficient and not entitled to his claim for salary.
Learned counsel argued that the figures or facts quoted as regards the remission of pension contributions of the claimant were never pleaded and these facts are therefore speculative.
On whether a formal demand was made for the claimant to return his official vehicle, defence counsel pointed out that the claimant admitted in his pleadings that the Regional Manager of the 3rd Defendant told him to return the vehicle assigned to him, and it was based on this demand that the claimant went ahead to prepare an affidavit which was tendered and marked as Exhibit J3 in this case. He submitted that this fact was not controverted and as such is sufficient proof in support of the Defendants’ case. On Exhibit K2 which was attached to Exhibit K3/J7, the claimant’s counsel had contended that it was unsigned and so should be discountenanced, defence counsel submitted that since Exhibit J7/K3 was signed, Exhibit K2 attached to K3/J7 is a signed document and should be read together as both documents cannot be read in isolation.
Premised upon the above, counsel urged the court to discountenance the submissions of claimant’s counsel, dismiss the case while granting the counter-claim of the defendants.
I have duly considered all the processes filed by the parties to this case, and listened to all the witnesses called. I have also studied the Exhibits tendered and read the submissions of counsel, and have concluded that the following issues will best determine this case:
Whether or not the claimant in this case was in a contract of employment with the Defendants.
Whether or not the claimant is entitled to the reliefs sought.
Whether or not the Defendants are entitled to their counter claim.
On the 1st issue, the claimant in this case testified to the effect that he applied for employment with the 3rd Defendant, a private security company and was employed and designated as state director, Edo in February 2015. He was also issued with an identity card to this effect, this was tendered by him and marked Exhibit J1 at the trial. The claimant testified further that the Defendants refused/neglected to issue him with a letter of appointment, but was paying his salary from that date, he made several requests for the letter of appointment to no avail, and was told by the Regional manager of the 3rd Defendant to stop requesting for it under threat of sanction, later in October 2015 he discovered that the Defendants have inexplicably stopped his salary, upon enquiry, he was told that his employment has been terminated, and this was without any notice or letter to that effect, the Defendants on their own part testified through DW1 that the claimant was not a permanent staff but an ad hoc staff of the 3rd Defendant. The defence witness (DW1) also stated that the claimant was employed orally and had his employment terminated orally. According to the Defendants, they are not under any obligation to issue any notice to the claimant in view of the nature of his employment, DW1 also testified that the identity card given to the claimant was to allow him access to all the communication installations for which the 3rd Defendant was in charge of the security and surveillance, they added that the claimant’s employment was terminated because of inefficiency. In resolving this issue, it is pertinent to examine the statutory and case law authorities on the meaning of the word “worker” and contract of employment- Section 91(1) of the Labour Act defines “worker” as follows-
“Worker means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, or whether it is a contract of service or a contract personally to execute personally any work or labour, but does not include-
any person employed otherwise than for the purposes of the employer’s business; or
persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or
members of the employer’s family;
representatives, agents, and commercial travelers in so far as their work is carried out outside the permanent workplace of the employer’s establishment; or
any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired, or adopted for sale in his own home or on other premises not under the control or management of the person who gave out the article or the material; or
any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply;…”
In SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD &ORS [2008] 34 NSCQR PART111 287 Mohammed JSC defines a contract of employment as follows:
“A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff. A worker is defined by the Labour Act as any person who has entered into or works under a contract with an employer whether or written and whether it is a contract of service or a contract personally to execute any work or labour (section 91 of the said Act). This contract is commonly referred to as “Contract of Service.” But where the contract allows the contractor to work for people other than the employer, on the other hand, these are persons referred to as independent contractors or self -employed.”
The following indices may also be used to determine the relationship between the parties in this suit, they are well laid down in SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD &ORS supra, and are as follows:
If payments are made by way of wages or salaries
Where the employer supplies the tools and other capital equipment
Where an employer does not delegate its duties.
Where the hours of work are fixed.
The work may be in an office accommodation provided by the employer while it is not fatal to the existence of a contract of employment if the work is carried out outside the employer’s premises.
Applying the above indices to this case, and as stated in the relevant statutes and case laws, I have reached the following conclusion:
The claimant was being paid salaries commencing from February, 2015. See Exhibit J9.
The 3rd Defendant supplied the claimant with the tools needed for the job i.e. an official car and official identity card (Exhibit J1)
It is on record that by the nature of work of the 3rd Defendant i.e. security and surveillance, the work is not to be carried out in the premises of the 3rd Defendant, hence fixed hours and office accommodation cannot be used in the instant case.
There is therefore enough evidence to reach the conclusion that an oral contract of employment existed between the parties in this suit, this is so notwithstanding the non-issuance of a letter of employment to him which was in contravention of the provisions of Section 7(1) of the Labour Act, which provides that not later than three months after a worker is employed, he must be given written particulars and conditions of the contract of employment.
In addition to the existence of an oral contract between the parties in this case, there is nothing in evidence to support the assertion that the claimant was employed as an ad-hoc staff of the 3rd Defendant whose service can be dispensed with at any time, and in the absence of any documentary evidence, the court was left to deduce the intention of the parties through the facts and evidence adduced at trial. The evidence adduced before this court as examined above leads to the inexorable conclusion that the claimant was employed as State Manager of the 3rd Defendant in Edo state. Also, the contention of the Defendants that the claimant’s employment was terminated due to inefficiency is unproven, as they have not placed any evidence of any query or disciplinary proceedings against him before this court.
Premised on the above, I find that the claimant has led uncontroverted evidence that there was an oral contract of employment agreed upon and in existence between the claimant and the 3rd Defendant, by which he was employed as State Manager, Edo which commenced in February, 2015. I so hold.
On whether the claimant is entitled to the reliefs sought, I have merged the 1st, 2nd and 5th reliefs together; i.e.
A DECLARATION that Claimant’s employment with the defendants was not properly terminated and as such claimant is still in the employment of the defendants.
AN ORDER compelling the defendants to issue a Letter of Appointment to the claimant with effect from 12th February, 2015 when claimant was first engaged, and if for any reason claimant’s services are no longer required, the defendants to properly determine claimant’s employment since a willing horse cannot be forced on an unwilling rider, vice versa.
AN ORDER compelling the defendants to pay the claimant all the salaries, entitlements, and allowances from 1st October, 2015 when claimant’s salary was stopped to date, and thereafter, after judgment.
The 1st relief herein is seeking an order that the clamant is in the employment of the 3rd Defendant and in other words a reinstatement, it is trite that there are three types of employment relationship:
Statutory employment that is guided by statute
Purely Master/Servant employment
Where a servant holds office at the pleasure of the employer;
See BERNARD OJEIFO LONGE V. 1ST BANK OF NIG PLC [2010] 6 (NWLR PT1189)1 SC
A reinstatement is peculiar only to statutory employment i.e.an employment guided by statute. The parties in the instance case falls within the category of Master/ Servant relationship, which means the 3rd Defendant can choose to dispense with the services of the claimant at any time with or without any reason, but after the requisite notice or payment in lieu as agreed by the parties. In view of the reasoning above, the relief of reinstatement is not available to the claimant in this case, as the court will not impose an employee on an unwilling employer. I find therefore that the claim for the issuance of a letter of appointment with effect from 12th February, 2015 and payment of salary from October, 2015 till date therefore fails. I so hold.
Flowing from the above, the evidence adduced reveals that the 3rd Defendant failed to issue a notice to terminate the employment of the claimant in tandem with the provisions of Section 11(1) of the Labour Act and plethora of authorities on the issue. It is in line with these authorities, that I find that the requisite notice/payment in lieu of notice to the claimant was required to effectively determine the employment relationship between the parties in this case. As this was not complied with, the stoppage of the claimant’s salary in October 2015 was wrongful. In the light of the above, what then will be the remedy available to the claimant?. It is pertinent to note that the fact that there is no written contract of employment between the parties to serve as a guide on how the employment relationship should be terminated will not in any way vitiate this relief, as the principles of common law will come in to play. The common law principle on this states that, what is required of the employee is to give reasonable notice to the claimant, and what is reasonable was defined by the court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIG) LTD& ORS supra; DANIELS V SHELL B.P V.DEVELOPMEN CO LTD 1962 ALL NLR 19, and is based on the following considerations; (a) the nature of the contract; and (b) the status of the employee in the establishment. In ONALAJA V. AFRICA PETROLEUM LTD 1991 7 NWLR PT 206 691@ 698 where Obaseki JSC stated as follows-
“I think the most important thing to emphasize in this judgment is that in cases of wrongful dismissal, the amount of damages recoverable by a plaintiff must be geared to the period of notice to be given by the employer as stipulated in the contract of employment. If no period is prescribed, then the common law rule will apply, that a reasonable period would be given by the employer, usually one month or three months depending on the category of staff being dismissed”
In resolving this issue, I have considered that the claimant in this case was designated as a State Manager and was on a monthly salary, I have also taken into account the fact that he only worked with the 3rd Defendant for six (6)month before his employment was terminated. I have therefore decided that a month salary in lieu of notice is reasonable in the circumstances of this case. The last paid salary of the claimant as disclosed in Exhibit J9 is N47,950.00K paid on the 23rd of September, 2015. The claimant led evidence that a sum of N9, 250.00K was being deducted per month for the car repayment plan he had with the Defendant, The one(1) month in lieu of notice to be paid by the Defendants is inclusive of the deduction on the car repayment plan i.e.
N47,950.00K + N9, 250.00K = N57, 200.00K
The claimant is therefore entitled to the sum of N57, 200.00K as One month salary in lieu of notice, I so hold.
I will at this stage not go into the issue of the official car vis-à-vis the car repayment plan, as the issue is subject matter of the counter-claim, and will be treated thereunder.
The claimant in his reliefs 3 and 4 seeks an order compelling the Defendants to pay the contributory pension of the claimant to his retirement account with his pension Manager and to perfect his and members of his family’s enrollment with NHIS or in the alternative payment of the accruals under the scheme to him, the claimant tendered Exhibits J6, J7 and J8 in proof of these reliefs, the exhibits tendered are enrollment forms for NHIS(Exhibit J6) and the claimants Retirement savings Account Statement with Trust Fund(Exhibit J8) The oral evidence led on these documents is insufficient and did not proffer any nexus with the Defendants in this case, particularly in the face of the denial of the existence of the documents by the Defendants. More so, there is nothing on the face of these documents that connects the Defendants. It is a trite principle of law that he who asserts must prove see Sec 131, Evidence Act, there is no credible documentary/oral before me in proof that the 3rd Defendant was deducting the said amount from the salary of the claimant towards his retirement and no breakdown of the salary of the claimant i.e. pay slip, to find in favour of the claimant on this, as this relief is in the realm of special damages that must be specifically proved. Consequently the reliefs fails as unproven. I so hold.
On the claim for damages, it is the position of the law that damages are not normally granted in employment cases as the quantum of damages available to an employee is the sum accruable to him at the time of termination of his appointment, see ONALAJA V. AFRICA PETROLEUM LTD supra. I have earlier granted the claimant one month salary in lieu of notice, he cannot claim double compensation, as general damages are not awarded as a matter of sentiments. It is based on the above premise that the claim for general damages hereby fails. I so hold.
On the claim for perpetual injunction restraining the defendants from recovering the official vehicle assigned to the claimant, I find that this issue is better treated in the counter claim, as parties have joined issues on this.
COUNTER CLAIM
The 3rd Defendant/Counterclaimant claims against the Claimant by its Amended counter claim amended by the order of this court of 10th April, 2018 are as follows:
An order of this Honourable court stating that the plaintiff (Mr. Jimoh Ishaq Imodu) to return the Green Volkswagen Golf Saloon car, with registration number AGL 969 DH, Engine No.WVWZZZIHZTWO69240 and Chasis No.WVWZZZIHZTWO69240, back to the company in the state it was upon his dismissal or alternatively pay the sum of N471,750.00K (Four hundred and seventy-one thousand seven hundred and fifty naira) only being the balance of the payment for the car.
An ORDER of this Honourable court awarding the sum of Ten Million Naira as damages in favour of the counter claimant.
In proof of the above claim, DW1 adopted his further witness statement on Oath and tendered several exhibits, the counter claim is mainly based on the recovery of the official vehicle assigned to the claimant in the discharge of his duty while in the employment of the 3rd Defendant/counterclaimant. DW1 tendered Exhibits K1, K2, K3 and K4, which are the vehicle particulars, Vehicle transfer of ownership policy, Vehicle ownership repayment plan, and counterclaimant’s letter to the police for the retrieval of the said vehicle. The Claimant contended in his defence to the counter-claim that since there was no valid termination of his employment, this court should hold that he has fully paid for the vehicle in question, as his employment was still running, he further argued on the admissibility of Exhibit K2, and submitted that Exhibit K2 was not given to him when he signed Exhibit J7/K3, and since the said Exhibit is unsigned, it is inadmissible and therefore should be discountenanced. The counter-claimant in response however argued that Exhibit K2 is part and parcel of Exhibit K3 and same was attached to Exhibit J7/K3 and given to the claimant before he signed, it was further argued that both documents cannot be read in isolation. A perusal of Exhibits K2 and K3 clearly shows that the documents are interrelated, as reference was made to Exhibit K2 in Exhibit K3 as stated in Exhibit K3 follows:
“………………………………………………………………………….
By agreeing to the terms and conditions of this plan, as stated in the policy, you are henceforth personal responsible for the repair, maintenance and fuelling of your assigned vehicle for the repayment period……”
The claimant having signed Exhibit K3 cannot feign ignorance of the said policy. I therefore find based on the above reasoning that Exhibits K2 and K3 are one and the same document and therefore admissible in law, the argument of the claimant’s counsel on Exhibit K2 is therefore discountenanced. I so hold.
In determining the counterclaim, I have read the arguments of both parties, contract of employment and personal loans are two separate contracts, and is not reliant on each other, termination of employment, hardship or frustration is not enough to release an employer/employee of his obligation to fulfil the terms of his obligations under a contract separately entered into, see LEWIS V. U.B.A PLC 2016 6NWLR PT 1508, 329 @346-347. I find therefore that Exhibit K3 on its own created an obligation which the claimant ought to fulfil before enjoying the benefit stated therein, and the claimant is not released from the obligation to pay back the balance due on the Green Volkswagen Golf Saloon car vehicle registration number AGL 969 DH, I have examined the position of the law on this issue. The contract of employment and personal loans granted by way of a vehicle ownership/repayment plan for his official use created a distinct contractual obligation. It is clear that this court had earlier held that the claimant is entitled to his one (1) month salary in lieu of notice in the main Judgment on the wrongful termination of his employment. However on the Vehicle ownership/Repayment plan the claimant still retains an obligation and is left with two options, that is; (i) to release the vehicle to the 3rd Defendant or (ii) pay the remaining balance outstanding on the said vehicle.
It is uncontroverted that the total value of the of the vehicle (subject matter of the counter claim) is N555,000.00k of which the claimant by the Defendants own admission had paid N83,250.00k, leaving a balance of N471,750.00k unpaid, see Exhibit K3. Consequently, I find that the Defendant/Counter-claimant is entitled to the sum of N471,750.00K balance outstanding on Green Volkswagen Golf Saloon car with registration number AGL 969 DH to be paid by the claimant within thirty (30) days, failure upon which he is to return the said vehicle to the Defendant/counter-claimant forthwith. I so hold.
On the N10m damages claimed by the counter-claimant, I find that this claim is unproven, it therefore fails. I so hold.
In the final resolution of this case I hereby find and order as follows;
The claimant’s employment though wrongfully terminated by the Defendants no longer subsists
The claim to be issued letter of employment effective from 12th February and salary from 1st October, 2015 fails
The claim for General Damages fails.
The Defendant is ordered to pay to the claimant the sum of N57,200.00K as one(1)month salary in lieu of notice.
All monetary sum awarded in this judgment are to be paid within 30 days failure upon which it will attract 25% interest per annum.
A cost of N200,000.00K is hereby awarded against the Defendants to be paid to the claimant.
COUNTER CLAIM
The claimant is hereby ordered to pay the sum of N471,750.00K (Four Hundred and Seventy One Thousand, Seven Hundred and Fifty Naira) balance outstanding on Green Volkswagen Golf Saloon car vehicle registration number AGL 969 DH to the 3rd Defendant/Counterclaimant within thirty (30) days failure upon which the vehicle shall be returned to the 3rd Defendant.
The counterclaim for General Damages fails.
Judgment is accordingly entered
Hon. Justice A. A. Adewemimo
Judge
