IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP:
HON. JUSTICE M. N. ESOWE
DATE: FEBRUARY 22, 2023
SUIT NO.: NICN/LA/95/2021
MISS CHRISTIANA SUNDAY CLAIMANT
1. MANAL NIGERIA LIMITED
2. MR FADI ALMATNI DEFENDANTS
3. MRS FADI ALMATNI
Joseph Opute, Esq for the Claimant
Deborah Ajayi, Esq for the 1st Defendant
Adebayo Gbenga, Esq for the 2nd and 3rd Defendants
1. The Claimant alleges that she was employed on 15.12.2014 by the 1st Defendant to work as a house help in the household of the 1st Defendant’s expatriate employees. The 1st Defendant is a company into crane hire and haulage solutions; the 2nd Defendant is a Syrian and staff of the 1st Defendant, the 3rd Defendant is the wife of the 2nd Defendant. The Defendants failed to give the Claimant written contract as required by law. While working for the 2nd and 3rdDefendant, the Claimant alleges she took ill and was not properly catered for until her fiancé and uncle came and took her for adequate treatment.
2. Whereof the Claimant as per her Amended Statement of Fact claims against the Defendants jointly and severally as follows:
a) A DECLARATION that the failure of the 1st Defendant to issue the Claimant a contract of employment within three (3) months of her employment on 15.12.2014 is illegal and unlawful.
N10,000,000.00 (TenMillion Naira only) exemplary damages against the 1stand 2ndDefendants for failing to issue the Claimant written particulars of terms of employment in accordance with the mandatory stipulation of law.
c) A DECLARATION that the failure of the 2nd and 3rdDefendants to provide the Claimant with medical care when the latter took ill in the course of employment in the 2nd and 3rd Defendants’ household amounts to unfair labour practice.
d) AN ORDER of the Honourable Court directing the 2nd and 3rdDefendants jointly and severally to forthwith pay the Claimant the sum of
N917,000.00 medical bills.
e) The sum of
N5,000,000.00 general damages jointly and severally against the 2nd and 3rd Defendants for subjecting the Claimant to working conditions which deprived her of opportunity of undertaking any form of vocational training or educational advancement between02.05.2016 to 27.07.2020.
f) Cost of this action.
4. Hearing in this suit commenced on 06.04.2022 with the Claimant testifying as CW1. Through her, a total of five documents were tendered in evidence and marked Exhibits C1 – C5. CW1 was cross-examined by Learned Counsel to the 1st Defendant during which she said she had no evidence in Court to show that she was ever paid salaries by the 1st Defendant. Exhibit C5 is a copy of document with the signature of CW1 signed in Court. CW1 stated that the signature on the ID card tendered by her was signed by her, that her salary was increased from
N20,000.00 to N30,000.00 by Mr Fadi.
5. Under cross-examination by 2nd and 3rd Defendants’ Counsel, CW1 stated that the 2nd and 3rd Defendants treated her bad because when she was ill they refused her leaving work. She said she did not go the hospital the 1st Defendant’s staff including the 2nd Defendant goes to for treatment that it was costly and she does not know the name of the hospital. CW1 said that she has used St Emmanuel Hospital, Isolo, Lagos for about five (5) years. That her uncle paid the hospital bill of over
N900,000.00 but the receipt of payment is not here in Court. CW1 stated she does not know the name of the doctor or medical person that attended to her.
6. The 2nd Defendant informed her of the conditions of employment and she did not complain of maltreatment to the Company. She does not know when the 2nd Defendant started work with the 1st Defendant. She did complain to a staff named – Victor, the manager for all Nigerian workers. That she went home between the period she left Mr Tamal and met Mr Fadi. She was given the sum of
N5,000.00 for transportation.
7. On behalf of the 1st Defendant, one Prijin Raji testified as DW1, through him two (2) documents were tendered in evidence, admitted and marked as Exhibit D1, D2(a-d) respectively. Under cross-examination by Claimant’s Counsel, he stated that he is an Indian and has worked for the 1st Defendant for about 13 years though he does not have anything in Court to support same. He has all the records of the expatriate working in the 1st Defendant and there are no records of Mr Tamir, or Ayas. In Exhibit D1, the terms and remunerations are not stated there. DW1 said he does not know the totality of the operations of the 1st Defendant, he does not know if there is any express provision for the expatriates to be provided with house helps.
8. Under cross-examination by the 2nd and 3rd Defendants’ Counsel, DW1 stated that he has a maid but the company is not responsible for her payment, it was not the company that provided though they do provide up keeping allowances, it is up to the expatriate to decide how to spend the up keep allowances.
9. The 2nd Defendant testified as DW2, he adopted his witness statement on oath as his evidence. Under cross-examination by Claimant’s Counsel, three pictures of a lady were tendered and admitted in evidence marked as Exhibits D1 – D3 respectively. DW2 stated that CW1 worked in his household for three (3) years starting in March 2017, he had meeting on the modalities of work with CW1; no colleague of his introduced CW1 to him. He did not issue CW1 a contract of employment within three (3) months of her commencing work in his household. He subscribes to the law of Nigeria but does not know what it means by expatriate quota or have any document in country in that regards,
10. DW2 stated further that he has worked for the 1st Defendant for about 10 years and does not know any Mr Ayas. CW1 did not give him names of her guarantors or relatives. CW1 did not use the same hospital facility with the family.
11. Upon the Defendants closing their case, the matter was adjourned to enable parties file and exchange their respective final written addresses.
12. LIST OF EXHIBITS
a) Exhibit C1 - CW1 staff ID card with the 1st Defendant
b) Exhibit C2 CW1’s medical report
c) Exhibit C3 CW1’s medical bill
d) Exhibit C4 CW1’s International passport
e) Exhibit C5 CW1’s signature signed in Court
f) Exhibit D1 DW2’s letter of employment dated 25.11.2013
g) Exhibit D2(a-d) samples of 1st Defendant’s staff ID cards
h) Exhibits D1-3 (tendered through DW2) pictures of a lady (allegedly CW1).
13. 1ST DEFENDANT’S FINAL WRITTEN ADDRESS
14. In its written address filed on 08.07.2022, the 1st Defendant’s Counsel raised objections to the admissibility of Exhibits C1, C2 and C3. Counsel contended that Exhibit C1 (CW1 staff ID card) is a forged document which has no root from the 1st Defendant as Exhibits D2(a-d) are samples of the 1st Defendant’s staff ID cards issued to its staff since 15 years ago which are distinct from the laminated paper tendered by CW1. The 1st Defendant was able to prove beyond reasonable doubt and the balance of probability through Exhibit C5 that the signature thereon is different from that on Exhibit C1 indicative that it was forged. Counsel urged the Court to expunge and render inadmissible Exhibit C1. Counsel referred the Court to the decisions in Nwobodo v Onoh (1984) All NLR 1 at 77, Smart v State (1974) LPELR-3076(SC), Section 137 of the Evidence Act.
15. On Exhibits C2 and C3 – CW1’s medical report and medical bill, Counsel contended that only the maker of a document can tender same and be cross-examined on same, CW1 was not the maker and she did not give evidence on whether the makers of Exhibits C2 and C3 are dead or it was difficult to bring them to Court so as to be cross-examined on the veracity of the documents – Paul v State (2019) LPELR-47386(SC), 7Up Bottling Company Plc v Emmanuel (2013) LPELR-21104(CA). Counsel urge the Court to attach no probative value to Exhibits C2 and C3 and strike same out or render them inadmissible on grounds that CW1 is not the maker of the documents and cannot be cross-examined on the authenticity and veracity of the documents.
16. Learned 1st Defendant’s Counsel then formulated two issues for determination, namely:
a) Whether the Claimant has proved her case against the 1st Defendant having regard to the facts, circumstances and peculiarities of this suit.
b) Whether the evidence of CW1 which contained material contradictions is reliable.
17. On issue one, Learned Counsel to the 1st Defendant argued that a reasonable cause of action is one with a chance of success when only the allegations in the pleadings are considered – Yusuf v Akindipe (2000) 8 NWLR (Pt. 699) 376 at 386, E-F. When the allegations are examined and it is found that the cause of action is bound to fail, then the suit ought to be struck out – Fidelity Bank v Marcity Chemical Industries Ltd &Ors (2022) LPELR-56866(SC). The 1st Defendant has no record of the Claimant as its employee and has no business with the domestic and home affairs of its staff. It is evident from the Claimant’s Statement of Facts that she does not have a reasonable cause of action against the 1st Defendant. The allegations raised by CW1 are solely against the 2nd and 3rd Defendants not the 1st Defendant.
18. The only evidence linking the Claimant to the 1st Defendant is the purported ID card which has been objected to which is different from Exhibit D2 (a-d), there is no contract of employment which should contain the terms and conditions that regulate the employment relationship, so the 1st Defendant cannot be liable for the Claimant’s claims – Longe v FBN (2010) 6 NWLR (Pt. 1189) 1, Mbosh v JAMB (2008) LPELR-4306(CA). There is no way one can possibly imagine a person’s payoff to be her current salary multiplied by the months spent in the employment as alleged by the Claimant. The 1st Defendant does not have house maid as its staff and does not pay salary to any maid. It is well settled principle, that a Court should not entertain speculations and frivolous suit – Ikenta Best (Nig) Ltd v A.G. Rivers State (2008) 6 NWLR (Pt. 1084) 624. Counsel urged the Court to hold that this suit does not have a reasonable cause of action and dismiss this suit against the 1st Defendant.
19. Learned Counsel on issue two submitted that there are material inconsistencies in the evidence of the Claimant which places serious doubt on the entire case of the Claimant. The signature on Exhibit C5 signed by the Claimant is different from the signature on Exhibit C1. That paragraphs 28 and 30 of the Claimant’s Statement of Facts stated that the date the Claimant’s fiancée took her to the hospital was 29th July, 2021 but Exhibit C2 states that CW1 was admitted on 27.07.2020 not 29.07.2020, Exhibits C2 (medical report) and C3 (medical bill) are both dated 01.10.2020. Exhibit C3 was issued upon completion of comprehensive medical treatment which should be 18.08.2020 and not 15.08.2020 if CW1 was admitted for twenty days as alleged.
20. It is trite that where there are material contradictions and inconsistencies in the evidence of a witness which casts serious doubt on the case, the case must collapse – Agbi v Ogbeh (2005) 8 NWLR (Pt. 926) 40 at 138. Counsel urged the Court not to ascribe any probative value on CW1’s evidence and dismiss the suit against the 1st Defendant.
21. 2ND AND 3RD DEFENDANTS’ FINAL WRITTEN ADDRESS
22. The 2nd and 3rd Defendants in their final written address filed on 09.08.2022 raised or formulated five (5) issues for determination, to wit:
a) Whether the allegation of fraud can be raised against the Claimant and whether the Claimant’s case can be dismissed on the said ground.
b) Whether the Court can attach relevant weight to exhibits C1, C2, C3, C4 and D1-3 tendered by the Claimant in substantiating her case and claims as the 2nd and 3rd Defendants vehemently object to same.
c) Whether in the circumstance of this case and the evidence led by the 2nd and 3rd Defendants, the 2nd and 3rd Defendants can be protected under the doctrine of estoppel where the Claimant’s employment was not terminated by the 2nd and 3rd Defendants but the Claimant on her own volition disappeared without resuming back to duty.
d) Whether the Court can attach sentiments in this case above the guiding provisions of the laws, the Evidence Act and Rules of administration of justice and whether by the Claimant’s several speculations and assumptions the Honourable Court has no other option than to dismiss this suit in its entirety.
e) Whether the Claimant has proven her claims and can also rely on her contradictory, unsubstantiated evidence and testimonies in obtaining judgment in her favour.
23. On issue one, Learned 2nd and 3rd Defendants’ Counsel submitted that fraud is a false representation by means of a statement of conduct made knowingly or recklessly in order to gain material advantage. Exhibit C1 (CW1s’s ID card) is a product of fraud, she did not adduce any evidence in rebuttal of the 1st Defendant’s testimony that it since 15 years ago issue only plastic ID cards to its employee and not laminated paper – Fyneface v Fyneface (2007) 9 NWLR (Pt. 1040) at 593. He who asserts the existence of a fact must prove it. That CW1 stated under cross-examination that it was her sister who gave her Exhibit C1. There was no corroboratory evidence or testimonies to ascertain the veracity or authenticity of Exhibits C2, C3 and C4 which were fraudulently procured. That no one should have an advantage from his wrong doing – Adetoro v UBA Plc (2008) 13 NWLR (Pt. 1137) 287.
24. Arguing issue two, Counsel stated that Exhibit C1 has no origin and bearing with the Defendants; that Exhibits C2 and C3 have no value as CW1 who is illiterate cannot be cross-examined to determine the veracity of the purported illness reported thereon. The medical bill (exhibit C3) was issued a long time after treatment on 01.10.2020. Exhibit C4 (international passport of CW1) has no relevance to this suit as CW1 did not link it to her case and it was issued a long time before CW1 was employed by the 2nd and 3rd Defendants. The Defendants having denied knowing the Tamels and Ayas the Claimant had a duty to prove she worked for them. Exhibit D1-3 (pictures of a lady purportedly CW1) has no basic foundation and no basis in this suit, the Claimant did not call the photographer as a witness nor tendered the negative of the photo, the photos were also not accompanied with a certificate of compliance as required by Section 84 of the Evidence Act.Weight can hardly be attached to a document tendered by a witness who cannot or is not in a position to answer questions on the document – Buhari v INEC (2008) LPELR-814(SC). Counsel urged the Court to discountenance the exhibits with no relevant weight and dismissed the Claimant’s suit in its entirety.
25. On issue three, Counsel contends that CW1 did not state at what point her employment was terminated. Rather, the testimonies of CW1 and DW2 confirm that CW1 left the house of the 2nd and 3rd Defendants abruptly alleging she wants to go for a purported treatment and never returned until the 2nd and 3rd Defendants were served with a demand letter from CW1’s Counsel. CW1 has not provided the Court with substantial evidence that she was maltreated, no protest letter, no prior complaint, no termination of employment but she demand claims in order to extort the Defendants. The fact that CW1 worked for the 2nd and 3rd Defendants for 50 months without protest is testament that she was treated as a family member and worked conveniently. CW1 did not adduce any evidence of maltreatment during the said 50months. A party having full knowledge of his rights and interest conferred upon him under the law but intentionally decide to give up or waive, cannot be heard to complain – Adeleke v Adesina (2010) 18 NWLR (Pt. 1225) at 456. If CW1 was maltreated and terminated her employment or protested the purported ill treatment, before now, she is now stopped from laying any claim whatsoever in this regard.
26. Canvassing arguments on issue four, Counsel submitted that Courts are Courts of facts and law, and they should not decide cases on mere conjecture or speculations. The entire testimonies of CW1 are speculative, baseless. Exhibit D1-3 (pictures of CW1) were not pleaded, the fact that CW1’s uncle paid her medical bills was not also pleaded; facts not pleaded goes to no issue. The ILO Domestic Workers Convention has not been ratified in Nigeria and Nigeria has no codified legislation that protects the rights of domestic workers in the light of Section 65 of the Labour Act. That Section 12 of the CFRN 1999 (as amended) stipulates that no convention or treaty shall have the force of law in Nigeria except it has been enacted into law by the legislature – Abacha v Fawehinmi (1996) 9 NWLR (Pt. 475) 710. Counsel stated that CW1 did not properly present her case within the confines of the laws to convince the Court in giving judgment in her favour and urged the Court to so hold.
27. On issue five, Counsel stated that the Claimant cannot rely on the weakness of the Defendants defence for the success of her case. There is no single evidence of earlier protest by CW1 of her purported maltreatment, CW1 could not substantiate where she extracted the averred terms of employment which are unrealistic and unimaginable, she also did not tender in evidence, her contract of employment. The contract of employment was required to resolve the conflict in the oral testimony of CW1 and DW1. That a party who prayed for a particular relief and led evidence pursuing that relief cannot in turn change the claims – Iyen v FRN (2010) 2 NWLR (Pt. 1177). The Court cannot go outside the pleadings of a party in deciding a case, the evidence led by the Claimant does not support his amended claims. CW1’s testimony is contradictory and inconsistent.
28. CW1 never adduce evidence on the contradictory dates on the medical report and medical bill nor did she provide any evidence to reconcile and or clarify the reason behind the issuance of the medical report and medical bill at such a long time. That where oral evidence does not bring out the facts in the statement of claims or where there is material contradictions, the Court is entitled to hold that the Claimant did not prove his case – Boniface Anyika& Co (Nig) Ltd v Uzor (2006) 15 NWLR (Pt. 1003) at 572. Counsel urged the Court to expunge the evidence of CW1 and dismiss this suit with cost in favour of the Defendants.
29. CLAIMANT’S FINAL WRITTEN ADDRESS
30. The Claimant filed her final written address on 12.09.2022 wherein she made a reply on points of law to the objections raised in the 1st Defendant’s written address. Learned Counsel to the Claimant submitted that objectionsto documents during trial is governed by admissibility – Oluyemi v Asaolu (2010) All FWLR (Pt. 522) 1682 at 1725. The three criteria which govern admissibility are: (a) is the document pleaded; (b) is it relevant to the inquiry being tried by the Court; (c) is it admissible in law. Exhibits C1, C2 and C3 are relevant to the inquiry being tried by the Court and are admissible in law being primary documents – Sections 86 and 88 of the Evidence Act. Allegations of forgery must be specifically pleaded, apart from a scant mention at paragraphs 7 and 9 of the Statement of Defence, that theID card is fake, the 1st Defendant failed to specifically plead forgery – Babatola v Adewunmi, Eya&Ors v Olupade&Anor (2011) LPELR-1184(SC).
31. The 1st Defendant cannot be allowed to use Exhibits D2(a-d) to impugn or disparage the credibility of Exhibit C1. The 1st Defendant failed to produce the particulars of forgery, there is nowhere in the records of Court where CW1 affirmed that the signatures on Exhibits C1 and C5 are different, what she stated is that she signed both documents. There is a difference between a forged signature and an irregular signature – Ibrahim &Anor v Dogara&Ors (2015) LPELR-40892(CA). The 1st Defendant failed to prove that the signatures on Exhibits C1 and C5 were signed by another person. Counsel urged the Court to dismiss ground one of the 1st Defendant’s objection in toto.
32. In relation to the objections to Exhibits C2 and C3, Counsel stated that it is not in all cases it would be required to call a medical doctor to tender a medical report – Adelaja v State (2010) LPELR-50275(CA). A medical report is not required in the face of the obvious. Exhibit D1-3 reveals the distinction between when the Claimant was ill and her normal self. The Court is entitled to consider Exhibit D1-3 in embarking on its fact finding. Counsel urged the Court to hold that Exhibits C2, C3 and D1-3 are relevant to the inquiry before the Court and possess quality probative value, dismiss the objections in its entirety.
33. Claimant’s Counsel formulated three (3) issues for determination, to wit:
a) Whether by virtue of extant law, the Claimant is entitled to written particulars of terms of employment within three (3) months of her employment with the 1st and 2nd Defendants.
b) Whether the failure of the 2nd and 3rd Defendants to provide the Claimant with medical care when the latter took ill in the course of her employment in the 2nd and 3rd Defendants’ household amounts to unfair labour practice.
c) Whether having been subjected to work conditions which truncated her vocational training aspirations and educational advancement plans, the Claimant is entitled to general damages against the 2nd and 3rd Defendants.
34. Arguing issue one, Counsel contended that the provisions of the Labour Act apply to the facts of this case. By virtue of the definitions of a “domestic servant” and “worker” in Section 91 of the Labour Act, the Claimant qualifies as domestic servant. Section 7 of the Labour Act requires all employers within three months to give the employee written particulars of the terms of employment. The use of the word “shall” in the said section makes it mandatory – Tabik Investment Ltd &Anor v Guaranty Trust Bank Plc (2011) LPELR-3131(SC). CW1 pleaded and led evidence showing that she was employed on 15.12.2014 as a house help for the 1st Defendant’s expatriate employees and she began work for the 2nd and 3rd Defendants in 2016 yet none of them issued her with a contract of employment within three months of her beginning work.
35. DW1 at paragraph 11 of his testimony had stated that when he informed his colleagues of his need for a domestic staff they recommended CW1. The failure by the 1st Defendant to produce and tender its handbook raises the presumption of withholding evidence. That contrary to the arguments by the Defence Counsel that CW1 did not protest her maltreatment, CW1 had stated under cross-examination that the officer she complained to was “Victor – manger of all Nigerian workers.” There are discrepancies on the name of the 1st Defendant on Exhibits D2 (a-d), particularly as it relates to the ID cards of Mr Adeyemi and Mr Ogbonna. The signature of CW1 on Exhibit C5 was not subjected to forensic analysis to support the arguments of the Defendants that it is not the same with that on Exhibit C1. As touching the issue of the date of arrival of CW1 at the hospital, it is obviously an inadvertence and typographic error, given that the events did not occur in 2021.
36. For discrepancies in evidence to be fatal it has to be material. Where there is a conflict between oral testimony and documentary evidence, the latter should be preferred – Chemical and Allied Products Plc v Vital Investments Ltd (2006) LPELR-5435(CA). On the issue of date on Exhibits C2 and C3 being 01.10.2020, Counsel submitted that it is common practice that medical reports are only issued on request. Assuming the Court finds that CW1 is not a staff of the 1st Defendant, it should hold the 1st Defendant vicariously liable for the failure of the 2nd Defendant to give the Claimant a written contract of employment – IfeanyiChukwu (Osondu) Company Ltd v SolehBoneh (Nig) Ltd (2000) LPELR-1432(SC). In the light of the evidence adduced by CW1 the Court should grant the Claimant’s reliefs 1 and 2. Exemplary damages is usually awarded when the Defendant’s conduct is highhanded and generally against the law – Rev Enanuga&Ors v Hon. Sampson (2012) LPELR-8487(CA). By virtue of Sections 21(1(c) and 81(1)(b) of the Labour Act, the 1st and 2nd Defendants’ action amounts to both criminal and civil wrongs.
37. On issue two, Counsel stated that unfair labour practice are practices within the workplace which do not conform to international best practices and universal labour standards –Mix & Blake v NUFBTE (2004) 1 NLLR (Pt. 2) 247. This Court is enjoined to enforce international best labour practices and standards one of which is elimination of all forms of discrimination at workplace, promoting equality of opportunity and treatment at work. Section 46 of the Labour Act frowns at and criminalizes neglect and ill treatment at workplace. The failure of the 2nd and 3rd Defendant to cater for the Claimant when she took ill, avail her the use of the same hospital that caters for the family medical needs amounts to inhuman conduct. Counsel urged the Court to invoke Sections 13, 14, 19(a) and (d) of the National Industrial Court Act, and Section 254(C)1(f) and (h) of the 1999 CFRN (as amended) and grant reliefs 3 and 4.
38. Canvassing arguments on issue three, Counsel contends that Section 13(1)(a) of the Labour Act provides that normal hours of work in any undertaking shall be fixed by mutual agreement, subsection (2) declares it as overtime when a worker works in excess to the mutually agreed time. Section 18(1) of the Labour Act states that a worker shall be entitled to holiday with full pay after 12 months of continuous service. Section 73(1) of the Labour Act abhors forced labour. At paragraphs 18 and 35 of her written deposition, CW1 stated that she worked for the 2nd and 3rd Defendants without break or leave from work. There is no evidence she was paid overtime by the 2nd and 3rd Defendants. Having subjected the Claimant to such labour, she is entitled to damages by way of loss opportunities to pursue any form of literacy and vocational training. The 2nd and 3rd Defendants must answer for their immediate, direct wrongdoing by way of general damages. That cost follows event and in the event that the Court finds that the Claimant proved her case on the preponderance of evidence, the Defendants are under legal obligation to pay cost – Divage Health and Sanitary Service Ltd &Anor v Kenuj Investment (2018) LPELR-45975, Order 55 Rules 1, 4 and 5 of the Rules of this Court. Counsel urged the Court to on the strength of the totality of evidence on record enter judgment against the Defendants as per the Claimant’s Amended Statement of Facts.
39. 1ST DEFENDANT’S REPLY ON POINTS OF LAW
40. Learned Counsel to the 1st Defendant filed a Reply on Points of Law on 23.09.2022 wherein he argued that no Court has the power to allow inadmissible evidence to be led in respect of unpleaded facts because such evidence goes to no issue – Otaru& Sons Ltd v Idris&Anor (1999) 6 NWLR (Pt. 606) 330. No matter how well worded and presented a written address is, it cannot take the place of evidence. The law is he who asserts must prove, the Claimant failed to prove by a letter of employment she was employed by the 1st Defendant. CW1’s testimony about her employment with the 1st Defendant amounts to hearsay which is inadmissible. Parties are bound by the terms of their agreement, DW1 who is a staff of the 1stDefendant stated unequivocally that the 1st Defendant does not have a handbook, the Court cannot presume the existence of one – Adeotun Oladeji Nig Ltd v N.B. Plc (2007) 5 NWLR (Pt. 1027) 415.
41. The failure of Claimant’s Counsel to utilize the opportunity to cross-examine DW1 on whatever discrepancies observed on Exhibits D2 (a-d) makes he stopped from arguing in respect of same. The concept of forgery is amphibious as it embraces both criminal and civil matters – Brilla Energy Ltd v FRN &Ors (2018) LPELR-45651(CA).Counsel urged the Court to expunge Exhibit C1 contending that it was forged and the Claimant did not prove otherwise. By Section 51 of the Evidence Act the only certificates by medical practitioners allowed to be tendered are certificates issued by government officers. Documents not tendered by its maker are documentary hearsay. Counsel to the Claimant misconstrued the concept of vicarious liability. By Section 90 of CAMA 2020, the 1st Defendant can only be liable for the conduct of the 2nd Defendant if it expressly held out the 2nd Defendant as having authority to do the acts he did or if it employed the Claimant for the 1st Defendant. The 1st Defendant pleaded that acts done by the 2nd Defendant with his house help (Claimant) is act done outside the scope of his employment. The 1st Defendant cannot be held liable for the domestic affairs of its staff.
42. A company can only be liable for an action committed by its employee if the company is capable of committing such act. An act committed by an employee while managing his private and domestic affairs cannot be said to be the act of a company or employer – Lennards Carrying Co. Ltd v Asiatic Petroleum Co. Ltd (1915) AC 713. Counsel urged the Court to dismiss the case against the 1st Defendant.
44.I have had an in-depth examination of the processes filed by the parties, their supporting documents, the testimonies of witnesses, documents tendered in buttressing their case and the written submissions of Counsel, it is in view of this that I frame the following issue for the determination of this case, viz:
45. “Whether or not the Claimant has proven her case to be so entitled.”
46. Before determining the substantive suit, it is necessary I discuss a preliminary issue.The Defendants contended that Exhibits C1, C2 and C3 – CW1’s purported Identity card, medical report and medical bill are inadmissible and urged that the Court expunge same. Counsel submitted that Exhibit C1is a product of fraud and that she did not adduce any evidence in support of Exhibit D2(a-d) in rebuttal of the 1st Defendant’s testimony that it since 15 years ago issue only plastic ID cards to its employee and not laminated paper. With respect to Exhibit C2 and C3, Counsel contended that only the maker of a document can tender same and be cross-examined on same.
47. The Claimant on the other submitted that there are discrepancies on the name of the 1st Defendant on Exhibits D2 (a-d), particularly as it relates to the ID cards of Mr Adeyemi and Mr Ogbonna. The signature of CW1 on Exhibit C5 was not subjected to forensic analysis to support the arguments of the Defendants that it is not the same with that on Exhibit C1. On Exhibits C2 and C3 Counsel posited that it is not in all cases that it will require to call a medical doctor to give evidence in a suit.
48. On Exhibit C1, it is pertinent to state that the issue of whether the Claimant’s identity card was fake or not has been put to rest by this Court via its Ruling dated 17th of January, 2022 and it is to this extent that I estopped the Defendants from raising this issue. In effect, the arguments of the Defendants in this regard are thus discountenanced. I so find and hold.
49. With respect to Exhibits C2 and C3 the medical report of the Claimant. The position of the law is settled that where a document is tendered in evidence by a person other than the maker of the document, the Court would determine what probative or evidential value to place on such document. See the cases of Lawrence v Olugbemi&Ors  LPELR 459666 CA; Emmanuel v Umana&Ors LPELR 40659 SC.A keen perusal of Exhibits C2 and C3 shows thatthe documents are indeed relevant and admissible to the determination of this suit. It is in consonance with Section 83(2) of the Evidence Act, 2011. In my view, this satisfies the requirement of the law. It will be superfluous and an unnecessary waste of time and cost to insist that the maker must also come to Court to tender Exhibits C2 and C3. To do so will entail undue delay and expenses in the proceedings for the signatories to the Document to be called to tender the documents. It is this light that I discountenance the argument of the Defendants in this respect. I so find and hold.
50. To the substance of the case, it is the Claimant contention that the failure of the 1st Defendant to issue her a contract of employment within three (3) months of her employment on 15.12.2014 is illegal and unlawful. The 1st Defendant in it defense denies engaging the Claimant in any employment but the 2nd and 3rd Defendant admitted that the Claimant was in their employment and not that of the 1st Defendant. The Claimant to prove her employment tendered Exhibit C1 which is the identity card of the 1st Defendant issued to her and which the Court on the 17th of January, 2022 in its Ruling held that that suffices to show an employment relationship between the Claimant and 1st Defendant. It is the law by virtue of Section 7 of the Labour Act that:
(i) Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying-
a. The name of the employer or group of employers, and where appropriate of the undertaking by which the worker is employed;
b. The name and address of the worker and the place and date of his engagement;
c. The nature of the employment
d. If the contract is for a fixed term, the date when the contract expires;
e. The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to Section 11 of this Act:
f. The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages;
(ii) Any terms and conditions relating to
i. hours of work or
ii. holidays and holiday pay or
iii. (iii) incapacity for work due to sickness or injury, including any provisions for sick pay and
iv. Any special conditions of the contract.
51. Having carefully examined the documents on record, there is nowhere to evince that the Claimant was issued a contract of employment by the Defendants. In effect, the failure of issuance thereof is wrongful. It is therefore in view of this that I find that the failure of the 1st Defendant to issue her a contract of employment within three (3) months of her employment is wrongful. I so find and hold.
52. The Claimant claims sum of
N10,000,000.00 (Ten Million Naira only) as exemplary damages against the 1st and 2nd Defendants for failing to issue her written particulars of terms of employment in accordance with the mandatory stipulation of law. Exemplary damages are punitive, vindictive, or aggravated damages where claimed, are usually awarded, whenever the Defendant or Defendants’ conduct, is sufficiently outrageous to merit punishment as where for instance it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law. See the case of G.F.K Investment (Nig) Ltd v NitelPlc  LPELR 1294 SC. The failure of the 1st Defendant to issue the Claimant her letter of employment within three month amounts to a disregard of the law. It is thus in my discretion that I find that the Claimant be awarded the sum of N300,000.00 as exemplary damages against the 1st Defendant. I so hold.
53. The Claimant claims that the failure of the 2nd and 3rd Defendants to provide the Claimant with medical care when the latter took ill in the course of employment in the 2nd and 3rd Defendants’ household amounts to unfair labour practice. It is the Claimant pleadings that when she became critically ill and demanded to be taken to the hospital, the 2nd and 3rd Defendants refused instead the 2nd Defendant gave her the sum of
N5,000.00 to purchase drugs on self-medication. When the Claimant requested for two months sick leave to enable her travel to her village to get medical treatment, the 2nd and 3rd Defendants refused and threatened to fire her. To the 2nd and 3rd Defendants it is their submission that the Claimant was very happy to work with them and never complained of any illness that sometimes in July she stopped coming to work without notice. That it was her fiancé and one other person who informed them that she was ill and would be needing time to treat herself in the village.
54. It is the general rule of evidence that he who asserts must as a matter of fact prove the existence of his assertion failure of which his claim is bound to fail. See Section 131 of the Evidence Act, 2011 and the cases of Akhigbe v Enabonmuna  LPELR 46466; Liafa vKyauta  LPELR 45257 CA.I have carefully examined the documents on record and I find at nowhere the Claimant adequately proved her claims cogently to entitle her it. She did not show that the 2nd and 3rd Defendants were aware of her illness and assuming they were, she failed to show proof of the sum of
N5,000 purportedly issued to her was utilized into purchasing of drugs as well. A mere assertion without more cannot be enough to grant the Claimant’s claim, she has to show evidence evincing her claims. In the absence of nothing of such adduced by the Claimant, his claim in this regards fails. I so find and hold.
55. The Claimant claims the sum of
N917,000.00 as medical bills. It is the Claimant’s contention that while in the hospital she incurred the sum of N917,000 as medical bills. It is the true and correct position of the law that monetary claims are in the realm of special damages which must be specifically pleaded and strictly proven before the Court can grant the claims. See the cases of Vital Inv Ltd v CAP Plc  4 NWLR (Pt 1820) 205; Nwangwu v FBN Plc  1 NWLR (Pt 1812) 427. In special damages the assessment is based on what is specifically itemized and proved. The law is equally settled that where a party claims special damages, the burden is on her to prove the special damages to the last kobo she claims.
56. She has to do this by leading credible evidence and give necessary particulars which show the actual loss she has suffered to adduce credible evidence in support. The Claimant must satisfy the Court as to how the sum claimed as special damages was quantified. Special damages are awarded for actual or exact loss suffered. See the cases of Union Bank v Nwankwo&Anor  LPELR 46418 SC;Onyiorah v Onyiorah&Anor  LER SC. 254/2008; Nwaubani v AG Abia State  11 NWLR (Pt. 1735) 267. Unchallenged ipse dixit evidence is not an automatic proof of special damages. See the case of Arisons Trading & Engineering Co. Ltd  LPELR 554 (SC).
57. A cursory look at the documents on record evince vide Exhibit C3 the medical bills from St Emmanuel Hospital Ltd dated 27th of July, 2020 that the Claimant incurred the sum of
N917,000.00 as medical bill. At paragraphs 28 and 30 of the Claimant’s Statement of Facts the Claimant stated that the date the Claimant’s fiancée took her to the hospital was 29th July, 2021 but Exhibit C2 states that CW1 was admitted on 27.07.2020 not 29.07.2020, Exhibits C2 (medical report) and C3 (medical bill) are both dated 01.10.2020. Exhibit C3 was issued upon completion of comprehensive medical treatment which should be 18.08.2020 and not 15.08.2020 if CW1 was admitted for twenty days as alleged.This piece of evidence is inconsistent, shaky and unreliable, it cannot not thus be relied upon. It is in this light that I find that this leg of the Claimant fails. I so hold.
58. The Claimant claims the sum of
N5,000,000.00 general damages jointly and severally against the 2nd and 3rd Defendants for subjecting the Claimant to working conditions which deprived her of opportunity of undertaking any form of vocational training or educational advancement between 02.05.2016 to 27.07.2020.It is the law and a cardinal rule of pleadings that he who asserts must prove by credible evidence the existence of such assertion see Sections 131 and132 of the Evidence Act, 2011; The Registered Trustees of the Planned Parenthood Federation of Nigeria &Anor v Dr Jimmy Shogbola  62 NLLR (Pt. 216) 1 CA; Emeje v Positive  1 NWLR (Pt. 1174)48. The Claimant to prove her case did not tender anything to support her claims. I have carefully perused the Exhibits tendered and I find nothing showing that the2nd and 3rd Defendants subjected her to working conditions which deprived her of opportunity of undertaking any form of vocational training or educational advancement between 02.05.2016 to 27.07.2020. She did not specifically prove to that to the Court and the Court cannot go on a voyage of discovery to fish for evidence in favour of a party who has not put in a succinct and credible evidence to be entitled to his claims. What this entails is that the Claimant’s claim in this respect must fail. It is in view of this that I find that the Claimant’s claims fail. I so hold.
59. Claimant claims for the cost of action, with respect to the Claimant’s claim for cost, it is the law that cost is at the discretion of Court which must be done judicially and judiciously. See the cases of Doyin Motors Ltd v SPDC (Nig) Ltd &Ors  LPELR – 44108 (CA); Julius Berger (Nig) Plc v IGP &Ors  LPELR – 46127 (CA). Equally by Order 55 Rule (1) of the National Industrial Court of Nigeria Rules, 2017 that cost is awarded at the discretion of the Court. The Claimant having not succeeded in all parts of her claims against the Defendants is not entitled to cost. I so find and hold.
60. It is obvious from all the above that Claimant’s claims succeed in part and for the avoidance of doubt, I declare and order as follows:
a) That the failure of the 1st Defendant to issue the Claimant a contract of employment within three (3) months of her employment on 15.12.2014 is wrongful.
b) The Claimant is entitled to the sum of
N300,000.00 as exemplary damages against the Defendants.
c) That Claimant claims c and d fail.
d) That the Claimant claims e and f fail.
e) All judgment sumsare to be paid within 30 days of this judgment, failing which it shall attract an annual interest of 10% of the total judgment sum.
61. Judgment is entered accordingly.
Hon. Justice M.N. ESOWE, FCIArb