IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 23rd day of January, 2023 SUIT NO: NICN/PH/134/2018
BETWEEN
1. MR. ABDULAHI IBRAHIM
2. MR. AYEBAIDUATE OMUBO
3. MR. INNOCENT TOMMY
4. MR. FRIDAY BARIKPE---------------------------- CLAIMANTS
AND
PRESAL (NIGERIA) LIMITED ---------------------------DEFENDANT
Representations:
I. Orlu-Akwu for the Claimant.
S. Karagbara for the Defendant.
Judgment.
This suit was commenced by way of a General Form of Complaint filed on the 28th day of November 2018 along with statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.
Arising from the Complaint and Statement of fact, the Claimants’ claims against the Defendant are:
1. A declaration of this Court that the employment given to the Claimants by the defendant at various times from 15th day of February 1985 is valid and subsisting.
2. A declaration of this Court that the termination of the employment of the claimants by the defendant without complying to paragraph 3.3 of the Reviewed Conditions of Service of the defendant is harsh, wrongful, illegal, unacceptable, null, void and of no effect whatsoever.
3. A declaration of this Court that the defendant’s refusal to pay the claimants’ outstanding salaries, allowances and other benefits from December 2015 to September 2016; refusal to pay claimants’ gratuity payment of 50% of their terminal monthly salary for each completed year of service from the date of their employment in the company in accordance with paragraph 10 of the Reviewed Conditions of Service and withdrawal of the claimants’ money in the name of contributory pension scheme without remitting same is also harsh, wrongful, illegal, unacceptable and breach of the claimants’ rights to their salaries, allowances and other benefits.
4. A declaration of this Court that the defendant style of paying the claimants’ outstanding salaries, allowances and other benefits in piecemeal and waiting until the year 2016 after much pressure to pay the claimants’ outstanding salaries, allowances and other benefits for September 2015 and waiting until the year 2018; after another much pressure to pay the claimants’ outstanding salaries, allowances and other benefits for October and November 2015 is equally harsh, wrongful, illegal, unacceptable and amount to exposing the claimants to untold hardship.
5. An order of this Court directing the defendant to recall the claimants back to work and pay the claimants all the entitlements from 1st day of October 2016 until date.
6. An order of injunction restraining the defendant from terminating the employment of the claimants with the defendant or denying the claimants their entitlement from the defendant as employee of the defendant unless the defendant complies with provision of the Reviewed Conditions of Service.
7. The sum of N4,002,459.25 (Four Million, Two Thousand, Four Hundred and Fifty-Nine Naira, Twenty-Five Kobo) only being and representing claimants’ outstanding salaries, allowances and other benefits from December 2015 to September 2016; contributory pension money from August 2013 to September 2016 and claimants’ gratuity payment from their date of employment to September 2016 as follows:
i. 1st claimant is N1,023,412.50 (One Million, Twenty-Three Thousand, Four Hundred and Twelve Naira, Fifty Kobo).
ii. 2nd claimant is N1,341,202.24 (One Million, Three and Forty-One Thousand, Two Hundred and Two Naira, Twenty-Four Kobo).
iii. 3rd claimant is N944,905.00 (Nine Hundred and Forty-Four Thousand, Nine Hundred and Five Naira)
iv. 4th claimant is N692,939.51 (Nine Hundred and Ninety-Two Thousand, Nine Hundred and Thirty-Nine Naira, Fifty-One Kobo).
8. The sum of N4,000,000.00 (Four Million Naira) only being and representing damages for the untold hardship and suffering caused the claimants by the non-payment of the claimants’ outstanding salaries, allowances and other benefits and non-recovery of the claimants’ contributory pension scheme.
9. The sum of N1,000,000.00 (One Million Naira) only being and representing cost of litigation.
10. Monthly interest of 10% on the judgment sum until the judgment sum is liquidated.
Reacting to the foregoing claims, the Defendant on the 14th of March, 2019 filed a statement of defence along with list of witnesses and witness statement on oath, list of document and copies of the said documents.
Trial commenced on the 4th of March, 2021 when the Claimants in opening their case called three witnesses in persons of Abdullahi Ibrahim as CW1, Ayebaiduate Omubo as CW2 and Mr. Innocent Tommy as CW3. The three witnesses accordingly adopted their respective witness statements on oath marked as C1(a), C1(b) and C1(c). Through the three witnesses, 24 documents were tendered and admitted in evidence save for Exhibits C9 to C11 and C13 which were admitted under protest.
Arising from the statement of facts, the case of the Claimants is that they were employed by the defendant at different times and have worked and served the defendant for several of years and though they were not issued with engagement letters when employed, the Defendant handed them a Reviewed Condition of Service but then withdrew same after the first Claimant had made a copy. Claimants added that the Defendant deducts monies from their salary but it was only until June 2012 that the Defendant introduced the contributory scheme and by August 2015, the Defendant stopped paying the Claimants their salaries while by February 2016, the Defendant asked the Claimants to go home and remain on standby but promised to pay the Claimants 50% of their salaries failed to pay and when their solicitors wrote to the Defendants, they told the Claimants to resume work by September, 2016. The Claimants averred further that some days after resumption, the Claimants were issued with disengagement letters which was without compliance with the Reviewed Condition of service. They added that after the disengagement, they also discovered that the Defendant did not remit the deducted pension contributions from August 2013 to September, 2016. They concluded that after several meetings upon the intervention of the Rivers State Comptroller of Federal Ministry of Labour and Employment, the Defendant showed no willingness to pay their outstanding salaries, pension and allowances.
Upon cross examination, CW1 posited that he does not have a letter of employment and that his salary started from N1,000 to N30,000 and added that he can only speak for himself as he doesn’t know if everyone was laid off. CW1 also admitted that the letter on increase in salary was withdrawn although he made a copy of same. CW1 also stated that he does not have a condition of service.
Upon cross examination of CW2, he stated that he was employed and issued ID card while stating that the reviewed conditions were not deposited at the Federal Ministry of Labour within 7 days. He maintained that his salary is already in the payslip before the court along with the computation of benefit for 14years. He also stated that he was not employed with 1st Claimant on the same day while also positing that the Defendant withdrew the current condition of service with 50% and brought the one with 20% which was declined.
Upon cross examination of CW3, he stated that all that was given to him was an ID card while admitting that redundancy in the Defendant affected several other employees apart from the 4 claimants. He stated that the N4 million claimed is for all four Claimant’s disengagement but there is no valuation report. CW3 admitted that the condition of service tendered was not withdrawn and that the Defendant did not write to them to validate the condition of service.
Upon the discharge of CW3, Claimants closed their case while the Defendant opened theirs by calling two witnesses in persons of Nene Jackson Abiikor as DW1 and Onyemachi Obeneme as DW2. Both witnesses accordingly adopted their witness statements on oath marked respectively as D (1)(a) and D(1) (b). Through DW2, 4 documents were tendered by the Defendant and admitted in evidence as Exhibit D2 to D5.
Arising from the statement of defence, the case for the Defendant is that while the 1st Claimant was employed on 15/2/1985 the Defendant withdrew the Reviewed Conditions of service because they were proposed by the management subject to approval by the Board of Directors and it was not approved rather it was rejected and refused by the workers. The Defendant averred further that in June 2012 to February 2016 they effected PENCOM contributions on behalf of the Claimants and they have been paying till it became difficult due to bad economic decisions and as a commitment, the Defendant though asked the workers to stay at home, they were paid 50% and a separate payment when called to work. They averred further that when it was difficult to keep up, the Board of Directors decided that the company should shut down adding that they are determined to liquidate the Claimant’s entitlements which is jointly in the sum of N3,612,525.77 but no other claim.
Upon cross examination of DW1, he posited that the Claimants are not employees of the Defendant and that the ID cards were issued to the Claimants for security purposes while admitting that Exhibit C2, 19 and C23 were also issued by the Defendant. He admitted that the Claimants are owed outstanding salaries but stated the Claimants were not issued conditions of service while insisting that it is not the Defendant’s direct responsibility to get Claimants to assess their pension as they can only come for letter to be taken to pencom.
Upon cross examination, DW2 posited that all Claimants were workers of the Defendant but that Defendant had no jobs After August 2015 and that was why they stopped paying salaries and not that they did not want to pay and that the salaries for September, October and November 2015 was paid sometime in 2018 when money was available. He also admitted that in February 2016 the Claimants were asked to go home whilst they received 50% salary but it is not correct that they were asked to resume to be disengaged while stating that the Claimants were paid their 50% salaries as it was imputed into their entitlements. DW1 also admitted that Pension scheme was introduced and they paid unless there was no salary. DW1 also admitted writing Exhibit C23 as a requirement of Pencom and admitted that the salaries from December, 2015 to September 2016 is outstanding.
Upon the discharge of DW2, the matter was adjourned for adoption of final written address and arising from the Address of the Defendant which was filed on the 28th day of November, 2022, counsel to the Defendant A.B. Abiikor Esq, formulated 8 issues for the determination of this suit to wit:
(a) Whether the Claimants employment having been mutually terminated on the 28/9/2018, the Claimants, employment with the Defendant is still valid and subsisting.
(b) Whether this Honourable Court can compel the Defendant to employ the Claimants who were terminated two (2) years before the commencement of this matter.
(c) Whether this Honourable court can restrain the Defendant from terminating the Claimants who were terminating the Claimants who were terminated (2) two years before the commencement of this action?
(d) Whether the Claimants are entitled to the sums of N4,002,459.99 (Four Million, Two thousand, four hundred and fifty-nine naira, ninety-nine kobo) being their outstanding salaries and allowances from December, 2015 to September 2016?
(e) Whether the Claimants are entitled to the sum of N4,000,000.00 (Four Million Naira) being and representing damages?
(f) Whether the Claimants are entitled to the sum of N1,000,000 being cost of litigation?
(g) Whether the Claimants are entitled to post-judgment, monthly?
(h) What should this Honourable Court do in the circumstances?
In arguing issue one, counsel submitted that the Defendant who was experiencing severe economic circumstances not contemplated by the Parties can discharge the casual employment between her and the Claimants and the rights and obligations which had existed under it becomes extinguished. Counsel cited the case of Movohumfola V. Kwara State College of Technology (1990) 4NWLR.
On issue two, counsel contended that the Claimants having been terminated two (2) years before the commencement of the instant case and the Claimant paid salaries in lieu of termination which was accepted by them, the rights and obligation under the employment is deemed to have extinguished. Counsel also cited in this regard the case of Morohumfola v. Kwara State College of Technology (Supra) and referred to Exhibits D2 – D5.
In arguing issue three, counsel submitted that injunction cannot be ordered to restrain an already completed act and cited the case of C.B.N. v. Industrial Bank Ltd. (Merchant Bankers) (1997) 9 NWLR (pt. 552) 712.
In arguing issue four, Counsel submitted that the Claimants having been paid part of their outstanding salaries during the pendency of the instant case, the Defendant outstanding indebtedness to the Claimants is merely N3,612,525.77 (Three Million, Six hundred and twelve thousand, five hundred and twenty-five naira, seventy-seven kobo). Counsel referred to Exhibits D2 – D5
In arguing issue five, counsel posited that the Claimants having failed to establish the injury occasioned by the Defendant to them by way of credible evidence, they cannot succeed in their Claim for damages because no injury have been caused to them by the acts of the Defendant. Counsel cited the case of Eduogbonya V. Dumez (Nig) Limited 3 NWLR (pt. 31) 753, ratios 2 & 8.
In arguing issue six, counsel submitted that the Claimants are not entitled to the sum of N1,000,000.00 (One Million Naira) been cost of litigation since the Defendant did not agree or instruct them to proceed to Court and there is no document beyond a valuer or loss Adjusters showing the cost of the present litigation by the Claimants.
In arguing issue seven, counsel submitted that interest having not been agreed by the Parties, the Claimants are not entitled to post-judgment, monthly interest and the evidence of the Claimants witnesses under cross-examination supported the fact that the parties did not agree that interest shall be paid on their outstanding entitlements.
In arguing issue eight, counsel posited that what the court should do is to dismiss all the reliefs of the Claimants filed before this Honourable Court except the admitted outstanding entitlements of the Claimants to the tune of N3,612,525.77 (Three Million, Six hundred and twelve thousand, five hundred and twenty-five naira, seventy-seven kobo).
Reacting to the address of the Defendant, Claimant on the 22nd day of December, 2022 filed his final written address and arising therefrom counsel to the Claimant, Simple Dioha Esq. formulated a lone issue for determination to wit:
Whether from the facts and evidence led, the claimants are entitled to the grant of their reliefs sought?
In arguing the lone issue, counsel recounted the evidence of both parties before the court and posited that the defendant never contradicted the evidence of claimants’ witnesses and that it is trite law that facts not contradicted by act of cross examination are deemed admitted. Counsel cited the cases of N.B.A v. Monyai (2013) 18 NWLR (Pt. 1386) 454 at 458; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR (Pt. 1182) 618 at 663 and Nwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499 at 504.
Counsel argued further that it is trite law that where issues are not joined, there will be nothing for the Court to determine rather than to admit such evidence or exhibits as true. Counsel cited section 122(3) of the Evidence Act, 2011 and the cases of Bunge v. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599-600; Aromolaran v. Oladele (1990) 7 NWLR (Pt. 162) 262 at 368 and Biezan Exclusive Guest House Ltd. v. Union Homes Savings & Loans Ltd. (2011) 7 NWLR (Pt. 1246) 246 at 285.
Counsel posited that the only issue contested by the defendant which need to be addressed is how much the defendant is owing the claimants. Counsel posited that unlike the claimants, apart from listing the amount the defendant agreed owing each of the claimants as seen in paragraph 9 of defendant’s statement of defence, the defendant was unable to show proof to the Court how the defendant came about the amount admitted and the amount denied. He added that Order 32 Rule 3 of the Rules provides that in an action for debt or liquidated demand in money, a mere denial of the debt shall not be sufficient defence and cited the case of Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 337.
Counsel contended that the defendant has no right to terminate the employment of the claimants except it is in accordance with the law. In the case of BABATUNDE AJAYI V. TEXACO NIGERIA LIMITED & ORS (1987) All N.L.R 471.
Counsel added that in the instant case, the term of the contract stipulated that the contract may be terminated by either party giving one month’s notice in writing or paying one month’s salary in lieu of notice. He referred to paragraph 3.3 of exhibit C4 which is the defendant’s Reviewed Conditions of Service dated June 30, 2008.
Counsel posited that by Section 254C (1) (f) and (h) of the 1999 Constitution as amended, the Court can now move away from the harsh and rigid Common Law posture of allowing an employer to terminate its employee for bad or no reason at all.
Counsel with regards to claim for damages, post judgment interest and cost of suit posited that the seemingly unjustified holding on to payment of the claimants’ outstanding salaries, allowances and other benefits and non-recovery of the claimants’ contributory pension scheme constituted financial hardship, inclusive of returns from expected profitable ventures the sums would have been accruing to the claimants if they were paid at appropriate time when their employment was purported to have been terminated, thus claimants are entitled to award of damages. Counsel cited the case of Shukka v. Abubakar (2012) 4 NWLR (Pt. 1291) 497 and N.A.C.B Ltd v. Achagwa (2010) 11 NWLR (Pt. 1205) 339.
Counsel concluded by urging the Court to hold that the claimants have proved their case to entitle them to the reliefs sought and accordingly grant all the reliefs.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for the determination of this suit is to wit:
Whether or not in view of the facts and evidence before this court, the Claimant is entitled to the reliefs sought.
Before resolving the lone issue, I must quickly address the status of Exhibits C9,C10,C11 and C13 which were admitted under protest. The said exhibits were tendered through CW1 and objected to by Counsel to the Defendant on the ground that the said documents are public documents and that CW1 is not the maker. Counsel to the Claimant reacted by contending that the first test of admissibility is relevance and the court should least concern itself with how the document was obtained.
Bearing the contention in mind, I have taken a look at the said documents and find that Exhibit C9 – C11 are copies of letters written by the Federal Ministry of Labour and Employment to the Chairman Board of Directors of the Defendant with the respective dates of 15th June, 2017, 27th September, 2017 and 5th February, 2018 while Exhibit C13 is also copy of a letter written in response by the Defendant to the Zonal Director of the Federal Ministry of Labour and Employment dated 9th April 2018.
In view of the foregoing, the Federal Ministry of Labour and Employment is indeed a Public institution and copies of letters written by such entity would qualify as public document under section 102 of the Evidence Act and by virtue of section 104, it is a certified true copy of such document that is tenable. This is unlike Exhibit C13 which emanated from the Defendant which is not public entity.
Notwithstanding the general nature of the said documents, I have taken a look at the pleadings relating to the said documents as the Claimant narrated the intervention of the Federal Ministry of Labour and Employment in the issue of their outstanding salaries as canvassed in paragraph 14 of the statement of facts. Bearing the facts in mind, it is hard to deny the supposition that the documents in question are indeed relevant and it will be in the interest of justice to admit them as they have been pleaded and are relevant.
Consequently, this court invokes the provision of section 12(2)(b) of the National Industrial Court Act 2006 which permits this court to depart from the Rule of Evidence in the interest of justice. Accordingly, exhibits C9-C11 and C13 are hereby admitted in evidence.
I now turn to the sole issue for determination which is simply to ascertain whether or not based on the facts and evidence before this court, the Claimants are entitled to their claims.
In determining the sole issue, I find it apposite to highlight that the facts before this court centers around the fact that the Claimants have alleged that the Defendant terminated their employment without complying with the conditions of service which was introduced but withdrawn and that there was undue delay in the payment of their salaries while some remain unpaid after several effort to get it paid and that the Defendant also failed to remit their pension contribution.
The Claimants are accordingly seeking for the payment of their outstanding entitlements in the sum of N4,002,459.25 along with general damages, cost of litigation, an order of reinstatement and payment of entitlements from September 2016 to date.
The Defendant on their part posited that truly the Claimants are owed salaries and they are making effort to have the salaries paid while the failure to pay was due to economic hardship which has led to the closure of the Defendant’s company and the attendant disengagement of the Claimants. The Defendants admitted to owing the outstanding sum of N3,612,525.77. but denies all other reliefs sought.
In view of the foregoing, I must state that the Claimants having sought for four declaratory reliefs are charged with the burden of proving that they are entitled to the said reliefs because declaratory reliefs are not granted as a matter of course. The court in this regard held in the case of MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929(SC) that:
"I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373"PER FABIYI, J.S.C
In similar terms, the court in P.D.P v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 546 - 547 Paras. D - A (CA) held that:
"In civil cases, before a court can grant a declaratory relief sought by a plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim. The plaintiff has the bounding duty to satisfy the court by evidence, and not through admission in the pleading of the defendant, that he is entitled to the declaration sought. The court has a discretion to grant a declaration or refuse same. The outcome will depend on how cogent and strong the claimants case is. In other words, courts do not make a declaration of right on admissions. See Bello v. Eweka (1981) SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 87; Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506; Igbinovia v. U.B.T.H. (2000) 8 NWLR (Pt. 667) 53; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Kupoluyi v. Phillips (2001) 13 NWLR (Pt. 731) 736." Per. Adekeye JCA.
Bearing the foregoing in mind, I shall consider each of the reliefs in order to determine which is grantable based on facts and evidence before this court.
Relief one is for “A declaration of this Court that the employment given to the Claimants by the defendant at various times from 15th day of February 1985 is valid and subsisting”
The pivotal aspect of the relief is that Claimants consider themselves to still be in the employment of the Defendant although it is befuddling that the Claimant themselves averred that they were disengaged sometime in September 2016. While it is against the tenets of the Labour Act that the Claimants were not issued letters of employment as posited by the CW1 and CW2 that they were merely issued ID card, it is instructive to note that there are other documents including Exhibit C2 (Letter of redeployment of 1st Claimant) which allude to the fact that the Claimants were employees of the Defendant. That notwithstanding, the Claimants themselves tendered Exhibit C6, C18 and C22 all of which were disengagement letters dated 28th September 2018 wherein the Defendant stated to the effect that due to economic situation, the company decided to temporarily wound up activities and accordingly, the Claimants are disengaged from service commencing from the date on the letter. For avoidance of doubt, Exhibit C22 as one of the said letters reads in full thus:
"Dear Mr. TOMMY, Innocent
DISENGAGEMENT
Due to the prevailing economic situation in the country and the dwindling business climate, we regret to inform you that the company (Presal Nigeria Limited) have decided to temporarily wind up the activities of the company with effect from 1s October, 2016.
Consequently, we are constrained to inform you of the Board decision to disengage you from the services of the company commencing from the above stated date.
It is worthy of note that as a result of the complete downturn of the Company's activities, the board decided to close down from the end of February and placed you on standby for seven months. During this period, 50% of your salary was paid to you monthly in good faith even when you were at home on standby.
The Board is however not unaware of the hardship that may arise as a result of the non-payment of the backlog of your salary as management has directed the Accounts department to work out the backlog of salaries/entitlements due to you which we hope will be paid as soon as practicable.
You are hereby required to submit all company's property in your possession including your identity cards to the company.
We thank you for your understanding in this regard.
Yours faithfully,
For: PRESAL NIG. LTD.
C.U. OKWUTE
(Chairman/Managing Director)”.
Arising from the first and second paragraph, it is befuddling the basis upon which the Claimants seeks for this court to declare that they are still valid and subsisting employees of the Defendant.
Perhaps it must be said that in employment that are not of statutory flavor, i.e. master-servant employment or employment under common law or that which is strictly based on contract of employment, the court cannot foist a willing employee on an unwilling employer and where there is breach of the contract of employment, the only remedy for such employee is damages in the anticipated quantum. For avoidance of doubt, the court in the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:
“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585." Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F)
In the light of the foregoing authority, it is clear that assuming the disengagement of the Claimants were even wrongful, they can only claim damages as they cannot be reinstated.
Consequent upon the foregoing facts, evidence and position of the law, the declaration sought in relief one lacks merit and same is accordingly refused.
Relief two is for “A declaration of this Court that the termination of the employment of the claimants by the defendant without complying to paragraph 3.3 of the Reviewed Conditions of Service of the defendant is harsh, wrongful, illegal, unacceptable, null, void and of no effect whatsoever”
Without much ado, I reckon that it is plausible for an employee to contend that the termination of his employment was not in accordance with the terms of his employment. The peculiarity of the instant case is however that the Claimants themselves averred that the Reviewed Condition of Service which he is alleging not to have been complied with was withdrawn by the Defendant immediately after it was issued. This was the position of the Claimant both through paragraph 5 of the statement of fact and during cross examination, the CW1 whose name appear on the Exhibit C4 (the condition of service) posited that he does not have a condition of service. It is considering this incongruities that this court is circumspect in placing reliance on the said Exhibit C4 for the purpose of considering the declaration sought in relief two.
That notwithstanding, I reckon that the relief referred to paragraph 3.3 of the condition of service as the basis upon which the Claimants seeks for the court to declare the termination of their employment as harsh, wrongful, illegal, unacceptable, null, void and of no effect whatsoever.
While the said paragraph 3.3 is with regards to termination of employment and the requirement of one month notice or payment of salary in lieu of notice, I must state that in the face of the feeble status of the Condition of service, the Labour Act itself stipulated that notice must be given for termination of employment or salary in lieu be paid and by section 11, the length of notice is one month, where the contract of employment had continued for five years or more. In the instant case, all the Claimants have been in the employment of the Defendant for more than 5 years, hence they are entitled to either one month notice or one month salary in lieu of notice.
I reckon that counsel to the Defendant mentioned in his address that the Claimants were paid salary in lieu of notice, no such fact was pleaded in the statement of defence and no allusion to payment of salary in lieu was made in the letter of disengagement either. Address of counsel cannot take the place of pleadings and evidence.
I have however noted earlier that failure to comply with a contract of employment will only amount to wrongful termination in this case where there is no contract of employment per se, and where the status of the conditions of service is feeble, the extent to which relief two can be granted is to the effect that the Claimant were not accorded notice nor paid salary in lieu of notice.
Accordingly, relief two is granted to the effect that this Court makes a Declaration that the termination of the Claimants’ employment without notice nor payment of salary in lieu of notice in accordance with the Labour Act is Wrongful and Unlawful.
Reliefs three and four can be considered in one breath. They are for:
“A declaration of this Court that the defendant’s refusal to pay the claimants’ outstanding salaries, allowances and other benefits from December 2015 to September 2016; refusal to pay claimants’ gratuity payment of 50% of their terminal monthly salary for each completed year of service from the date of their employment in the company in accordance with paragraph 10 of the Reviewed Conditions of Service and withdrawal of the claimants’ money in the name of contributory pension scheme without remitting same is also harsh, wrongful, illegal, unacceptable and breach of the claimants’ rights to their salaries, allowances and other benefits”.
“A declaration of this Court that the defendant style of paying the claimants’ outstanding salaries, allowances and other benefits in piecemeal and waiting until the year 2016 after much pressure to pay the claimants’ outstanding salaries, allowances and other benefits for September 2015 and waiting until the year 2018; after another much pressure to pay the claimants’ outstanding salaries, allowances and other benefits for October and November 2015 is equally harsh, wrongful, illegal, unacceptable and amount to exposing the claimants to untold hardship”.
With regards to the said reliefs, I must state that the Claimants pleaded and particularized the sum owed as salaries upon the Defendant ceasing to pay salaries from August 2015 before belatedly paying for three months sometime in 2018. The Defendants have no defence to the said assertion even though the Claimants on their part have not placed their statement of account and pension account to establish in full proof that their salaries were not paid nor pension remitted on time. Other exhibits including Exhibits C9 - C11 and C13 which are efforts made to get paid lend credence to the fact that the Claimants were being owed their salaries and benefits and are yet to be paid till date while the admission of the Defendant makes it even more irresistible to grant the declaration sought in the said reliefs 3 and 4 and they are accordingly granted as prayed.
I also consider it apposite to determine reliefs 5 and 6 in one breath and the said reliefs read thus:
“An order of this Court directing the defendant to recall the claimants back to work and pay the claimants all the entitlements from 1st day of October 2016 until date”.
“An order of injunction restraining the defendant from terminating the employment of the claimants with the defendant or denying the claimants their entitlement from the defendant as employee of the defendant unless the defendant complies with provision of the Reviewed Conditions of Service”.
With regards to both reliefs, I had in the course of addressing relief one posited to the effect that it is irrefutable that the Claimants’ employment have been terminated by the Defendant in the light of Exhibit C6, C18 and C22 and that the position of the law is that in employment of this nature which is not one with statutory flavor, an employee can only claim damages but not reinstatement. Also, from the date of disengagement, the Claimants ceases to earn salaries.
Streaming from the foregoing, if the Claimants cannot be reinstated, there is no basis upon which the injunctive relief sought can be granted because as it is rightly posited by counsel to the Defendant, a restraining injunction cannot be granted for a completed act while the injunctive relief will also not lie if the Claimants are not reinstated.
Consequent upon the foregoing, the said reliefs 5 and 6 lacks merit and they are accordingly refused.
Relief seven is for “the sum of N4,002,459.25 (Four Million, Two Thousand, Four Hundred and Fifty-Nine Naira, Twenty-Five Kobo) only being and representing claimants’ outstanding salaries, allowances and other benefits from December 2015 to September 2016; contributory pension money from August 2013 to September 2016 and claimants’ gratuity payment from their date of employment to September 2016 as follows:
i. 1st claimant is owed N1,023,412.50 (One Million, Twenty-Three Thousand, Four Hundred and Twelve Naira, Fifty Kobo).
ii. 2nd claimant is owed N1,341,202.24 (One Million, Three and Forty-One Thousand, Two Hundred and Two Naira, Twenty-Four Kobo).
iii. 3rd claimant is owed N944,905.00 (Nine Hundred and Forty-Four Thousand, Nine Hundred and Five Naira)
iv. 4th claimant is owed N692,939.51 (Nine Hundred and Ninety-Two Thousand, Nine Hundred and Thirty-Nine Naira, Fifty-One Kobo).
In attempt to establish their claim, I reckon that Claimants placed reliance on the Conditions of service tendered as Exhibit C4 and their payslips admitted as Exhibit C12, C16, C20, C24 and C25 for 1st to 3rd Claimant but none for the 4th Claimant. The Defendant did not specifically contradict the particulars pleaded by the Claimants but merely admitted owing the 4 Defendants salaries, gratuity and pension contribution and also alleged that the salary for September 2015 to November 2015 had been paid while Exhibits D3 – D5 were tendered in proof.
I have taken a look at the said Exhibit D3 – D5 to find that D3 are copies of 3 cheques dated 26th March, 2018 and 4 cheques dated 26th August, 2018 issued to all the Claimants in varying sums and in relation to their salaries as stated in the payslip admitted as Exhibit D5.
Notwithstanding the foregoing, I reckon that the Claimants have captured the payments of three months (September to November, 2015) in the computation made in paragraph 19 of the statement of fact and having verified the computation made by the Claimants and I find that they come to a total of N4,002,459.25 as claimed.
I must at this juncture state that I am not oblivious of the cross examination of counsel to the Defendant put across to the Claimants with respect to how they came about the computation of the total sum claimed. Apart from the fact that total sum claimed is not a far cry from the sum admitted by the Defendant, it must be stated that the computation of one’s entitlement does not require the services of a valuer or accounting expert as it is based on simple arithmetic as particularized in the statement of fact. If the Defendant had a specific challenge to any of the sums which made up the total, it is incumbent on the Defendant to bring that to bare. Moreso, the Defendant did not particularize how they arrived at each sums stated in the paragraph 9 of their statement of defence.
Consequently, based on the foregoing and the admission of the Defendant to the fact that the Claimants are owed Salaries and other entitlements, I have no hesitation in the grant of relief 7 and same is accordingly granted as prayed.
Relief eight is for “the sum of N4,000,000.00 (Four Million Naira) only being and representing damages for the untold hardship and suffering caused the claimants by the non-payment of the claimants’ outstanding salaries, allowances and other benefits and non-recovery of the claimants’ contributory pension scheme”.
The foregoing claim being for general damages, it is instructive to state that general damages are not specific and they need not be particularized in any way. It is usually sufficient where a party has had his legal right violated. The court in the case of SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS. (2008) LPELR-8462(CA) held with regards to general damages that:
"General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant's act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Ndinwa vs. Igbinedion (2001) 5 NWLR (Pt. 705) 140 at 150; Osuji vs. Isiocha (1989) 3 NWLR (pt.111) 633; Odulaja vs. Haddad (1973) 11 SC 357; Omonuwa vs. Wahabi (1976) 4 SC 37; Lar vs. Stirbug Astaldi Ltd. (1977) 11 - 12 SC and ACME
Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288." Per OMOKRI, J.C.A. (P.28, Paras.E-A).
It must be stressed that the International Labour Organization, Protection of Wages Convention, (No.95) 1949 which by Article 12 stipulates to the effect that:
“1.Wages shall be paid regularly. Except where other appropriate arrangements exists which ensure the payment of wages at regular intervals, the intervals for the payment of wages shall be prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
2. Upon the termination of a contract of employment, a final settlement of all wages due shall be effected in accordance with national laws or regulations, collective agreement or arbitration award or, in the absence of any applicable law, regulation, agreement or award, within a reasonable period of time having regard to the terms of the contract”.
The foregoing Convention having been ratified and in force in Nigeria serves as the bedrock upon which the Labour Act also regulates the timeous payment of wages to employees and the failure of the Defendant to pay to the Claimants their remuneration when due has no other connotation than to be regarded as an unfair labour practice and breach of the international convention which runs contrary to international best practice.
Bearing the foregoing in mind, the evidence before this court is more than sufficient to establish the fact that the Claimants have been put through a lot to earn the fruit of their labour. This is particularly judging by the fact that the salaries of the Claimants in question have been due for over 6 years now while their pension contributions were also not remitted when due hence they had nothing to fall back on when they were disengaged. I reckon that from the letters of disengagement, the narrative of the Defendant is that the economic situation were unfavourable and they exhibited good faith by paying 50% salary at a time, however, that should not have affected the salaries of the employees which ought to have been paid as they became due and also their pension contribution. Exhibit C9 – C11 and C13 shows how the Claimants were put through additional difficulty in running to the Ministry of Labour and Employment to intervene in having their salaries paid, yet the said salaries remain unpaid till date and the Defendants seem not to care especially for the 1st Claimant who labored with the Defendant for over 31 years from 1985 till 2016. This is to say the least an unfair labour practice which begs for reparation.
Bearing the foregoing in mind and in addition to the fact that the Claimants were not paid salary in lieu of notice at the time of their disengagement stretches the boundaries to circumstances where the provision of section 19 (d) of the National Industrial Court Act 2006 can be invoked to order payment of damages. The said section provides that:
The Court may in all other cases and where necessary make any appropriate order, including-
an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.
Consequent upon the foregoing provision, this court is convinced beyond conjecture that the Claimants are entitled to general damages for the protracted and unfair delay in the payment of their outstanding salaries. Accordingly, relief eight is granted to the effect that this court makes “an order directing the Defendant to pay to each Claimant the sum of N1,000,000.00 as general damages for the untold hardship and suffering caused the claimants by the non-payment of the claimants’ outstanding salaries, allowances and other benefits and non-recovery of the claimants’ contributory pension scheme”
Relief nine is for “the sum of N1,000,000.00 (One Million Naira) only being and representing cost of litigation”. In this regard, there is no gainsaying that cost is awarded at the discretion of the court. The court in the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) held that:
"The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 Obayagbona v. Obazee 1972 5 SC p.247" Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).
Bering the foregoing in mind, it is of no moment that the Defendant was not responsible for engaging the lawyers representing the Claimants as it is without doubt that it was the failure of the Defendant to pay the Claimants their entitlements that led the Claimants to approach the court through a lawyer and being the successful party going by the award of reliefs three, four, seven and eight it is enough reason to act judicially and judiciously in awarding cost in favour of the Claimants.
Consequently, relief nine is granted to the extent that this court makes an order directing the Defendant to pay to the Claimant the sum of N500,000.00 as cost of action.
Relief ten is for post judgment interest as it reads ”Monthly interest of 10% on the judgment sum until the judgment sum is liquidated”. In this regard, Order 47 Rule 7 of the rules of this court empowers the court to stipulate the period within which a judgment sum be paid and the attendant post judgment interest that may accrue for failure to pay at the minimum of 10% percent per annum.
Having ordered and directed the Defendant to effect payment of certain sums totaling N8,202,459.25 to the Claimants herein, and considering the fact that the entitlements of the Claimants have been long overdue, I have no hesitation in granting relief ten to the effect that this court makes an Order directing the Defendant to make the payment of the judgment sum (N8,202,459.25) awarded herein within 30 days after the delivery of this judgment, failure upon which the said total sum shall attract interest at the rate of 10% per annum.
Upon a consideration of the foregoing, it is clear to all and sundry that the sole issue formulated for the determination of this suit is partly resolved in favour of the Claimant to the effect that upon a consideration of the facts and evidence before this court, the Claimants are entitled to some of the relief sought.
In the final analysis, having addressed all the reliefs sought, it is resolved that the Claims of the Claimants is partly meritorious in the extent to which reliefs 3,4,7,8,9 and 10 have been granted. The rest of the reliefs sought lack merit and they are accordingly dismissed.
Judgment is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.