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: 30th day of October, 2023                         SUIT NO: NICN/PHC/159/2019

 

BETWEEN:

1.         PRINCEWILL IBANIGO

2.         DANIEL TOLOFARI IYALLA

3.         VIVIAN AWONGO HART

4.         EMILIA GREEN                                                                                            CLAIMANTS

5.         PATRICIA IBIM ALLISON

6.         EDNA TAMUNOALA JACKMAY

7.         AUGUSTA NNE JACKMAY

 

AND

S. J. ABED ENTERPRISES LIMITED……………..…………………………………..DEFENDANTS

 

Representations:

R. O. Ifebifor for the Claimant

Godson Owhoji for the Defendant.

 

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 23rd day of December, 2019 along with verifying affidavit, statement of claim, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial.

Arising from the statement of claim, the Claimant is claiming jointly and severally against the Defendants the following:

1.         A declaration that the claimants by virtue of the terms and conditions of service under which they were employed are entitled to work for the period of 8 hours per day at the defendant's onshore location and that any extra time worked for outside the aforementioned time is an overtime.

2.         A declaration that the failure on the part of the defendant to pay the claimants for the overtime work before the termination of the claimant's employment is a breach of the terms and conditions of their employment.

3.         An order directing the immediate payment to the claimants individually the outstanding salaries (overtime payment due) for the extra 4 hours each of the claimants worked per day from 2013 to 2019 before their various employments was terminated by the defendant.

4.         An order directing the defendant to pay the claimants the under remitted pension contribution it made in respect of each of the claimant being their employer from 2013 to 2019 when the claimants' employments were terminated.

5.         N2, 000,000.00 as general damages for the breach of the conditions for service by the defendant.

Reacting to the foregoing claims, the Defendant on the 2nd day of March, 2020 filed a memorandum of appearance along with a statement of defence accompanied by list of witnesses, witness statements on oath, list of documents and the said documents to be relied upon at trial.

The Claimants on the 21st day of December, 2021 reacted to the statement of defence by filing a reply to the Defendant’s statement of defence.

Trial commenced in this suit on the 7th day of February 2022 with the Claimants opening their case. The Claimants called in the 2nd Claimant (Daniel Tolofari Iyalla) as CW1 and he adopted his witness statement on oath which was marked as C1 (a) and (b) respectively. Through the said CW1, 4 documents were tendered and admitted in evidence as C2a – C5 without protest, while Exhibit C2a (the Letter of employment of Daniel Tolofari Iyalla), Exhibit C3a (Notice of Termination of Contract of employment of Daniel Tolofari Iyalla), Exhibit C4 (the staff Handbook/Condition of service), and Exhibit C5 (payment slip), it is expedient to note that Exhibit C5 was tendered by the Defendant through CW1 during cross examination.

Arising from the statement of fact and witness statement on oath of CW1, the case of the Claimants is that the claimants were staff of the Defendant whose office address is at No. 310 Danjuma Street Trans Amadi, Port Harcourt Rivers State. And that the Claimants were employed by the defendant at various times in the year 2013 as cleaners, waiters and waitresses. And that the employment of the claimants were governed by the staff hand book which contains the terms and condition of services contract, and that by the terms and conditions of the claimants employment the normal work hour per day is 8 hours or 40 hours per week for each worker excluding weekend for onshore location workers, while 12 hours per day for off-shore location workers. And that any work in excess of the approved time attracts extra payment for the hour worked. And that the claimants where all onshore workers which should be 8 hours’ work per day, but that the claimants were made to work for 12 hours from 2013 to 2019 without payment of the extra 4 hours work, before their various employment was terminated in 2019 and because of that the defendant also under paid the pension contribution and that several demands were made to the defendant but they failed to pay for the extra 4 hours in excess of work done.

Upon cross examination, CW1 admitted that Exhibit C2 is his letter of employment and that hours of work are clearly individual. But that he doesn’t think is correct that any job done outside 8-12 hours is recorded as overtime. And that part of his claim is that he was not paid for overtime and that overtime arises from work done outside the normal work time. He admitted he did not tender his pay slip and that the pay slip indicates how much was paid for overtime, but can’t recall how many times he was paid for overtime. He admitted that Exhibit C5 which is pay slip was calculated based on working hours. He admitted that his pension contribution is 3000 while the defendant is 4000, but don’t know how much is the total pension and how much that was not paid, and he admitted that what he was paid corresponds with the pay slip but that overtime was not paid.

On the 6th July 2022, the Claimant called the 2nd witness (Edna Tamunoala Jackmay the 6th Claimant) as CW2 and he adopted his witness statement on oath which was marked as C1 (c). Through the said CW2, 3 documents were tendered and admitted in evidence as C2 (b), C3 (b) and C5 (a) without protest, While Exhibit C2b (the Letter of employment of Edna Tamunoala Jackmay), C3a (Notice of Termination of Contract of employment of Edna Tamunoala Jackmay), and C5 (payment slip of Edna Jackmay).

Arising from the statement of fact and witness statement on oath of CW2, the witness stated that he was a staff of the Defendant, employed as an onshore worker and was also given a handbook which contains the terms and conditions of work contract and that as an onshore worker his work time is 8 hours per day, however he was made to work for 12 hours per day and that the defendant did not pay for the 4 hours extra time worked for, and also that the defendant under paid the pension contribution.

The matter was adjourned for cross examination of CW2, however CW2 failed to show up for his cross-examination and the defendant counsel applied for the foreclosure of CW2. Upon the application for foreclosure of the cross examination of CW2 made by the defendant counsel on the 15th day of November 2022, CW2 was foreclosed from being cross examined and evidence expunged.

On the 19th day of January 2023, the claimant applied to strike out the names of all other claimants in this case except the 2nd claimant and the claimants also closed their case same day.

Upon the closed of the Claimant’s case, the Defendant on the 12th day of May 2023 opened their case by calling one witness in the person of George Allison as DW1 who adopted his witness statement on oath which was marked as D1. Through the said DW1, 5 documents were tendered and admitted in evidence as D2-D6 under protest while 4 documents were withdrawn.  Exhibit D2 (Notice of Termination of Contract of employment of Daniel Tolofari Iyalla), Exhibit D3 (pay slip of Daniel Tolofari Iyalla), Exhibit D4 (Various pension contribution slip of defendant’s employees), Exhibit D5 (final contract bonus/leave/leave in lieu/Xmas bonus of the defendant’s employees), and Exhibit D6 (end of contract bonuses of Daniel Tolofari Iyalla).

Arising from the statement of defence and witness statement on oath, the case of the Defendant is that the defendant is into catering and hospitality services and had a running contract with Nigerian Liquidified Natural Gas (NLNG) Bonny Island and the said running contract lead to the employment of the claimants who worked solely at the NLNG Bonny Location. And that the claimants were employment at different time in 2013 and their employments with other staffs of the defendant were terminated sometime in February 2019, when the defendant running contract with NLNG ended. But however the said contract with NLNG was renewed but the defendant reabsorbed some staff but that the claimants were not part of the staffs reabsorbed. The defendant alleges that the Claimants letters of employment contains the terms and conditions of work contract and by their terms of contract they are to work between 8-12 hours per day with 7 days off monthly and each staff is to remain on duty until a reliever resumes to ensure that there is no breakdown in production of services as the defendant is to render 24 hours catering service. And that overtime arises when the claimants or any other staff of the defendant works beyond 12 hours per day and not 8 hours as alleged by the claimants and it occurs in rare situations and any staff that work over time are being paid during the payment of monthly salary. And that the claimants various pay slip is calculated by dividing 30 working days in the month which gives per day earning, the daily earning divided by 12 working hours which gives per hour earning and overtime is per hour earnings multiply by the number of hour put in by the staff in a day which are all paid at the end of the month in their respective bank with their pay slip showing such payment.

Upon cross examination, DW1 admitted that they have a staff handbook and conditions of service and it regulates the employment relationship between the defendant and her employees and that the defendant have 3 categories of workers which are Admin, onshore and offshore workers. And that the staff handbook contains the work time for both offshore and onshore workers and that what amounts to over time is also stated in the handbook. He admitted that the work time of the claimants were calculated to be 12 hours per day and that the work time of the claimants were 8 hours per day but they were paid for 4 hours extra time worked making it 12 hours per day, that the claimants automatically had 12 hours because they were paid for 12 hours.

Upon discharge of DW1, Defendant closed their case, both parties were directed to file their final address and adopt same in writing, the defendant filed their final address on the 11th day of July 2023, and arising from the said final address counsel to the Defendant, Godson N. Owhoji Esq. formulated two issues for determination to wit:

a.         Whether the 1st, 3rd, 4th, 5th, 6th & 7th Claimants are deemed to have abandoned their claim against the defendant having failed to call evidence in proof of their case?

b.         Whether the Claimant (DANIEL TOLOFART IYALLA) has established on a balance of probability that the defendant breached the condition of service particularly on payment of salaries (overtime worked) and remittance of pension contribution?

In arguing issue one counsel submitted that the law is trite that pleadings cannot constitute evidence and fact pleaded but not proved or supported by evidence is deemed abandoned. Counsel cited Nsionu V. Nsionu (2011) 16 WRN 111 at 122. Essien V. Effanga (2012) 40 WRN 133 at 152. Counsel stated that is on record that the 1st, 3rd, 4th, 5th, 6th & 7th Claimants filed their pleadings but failed to call evidence in proof of their claim against the defendant. Counsel contended that evidence that is not based or supported by the pleadings or pleadings not supported by evidence, would go to no issue and are deemed abandoned. Counsel submitted that the said claimants having failed to call evidence in proof of their case against the defendant, it is deemed that they have abandoned their case against the defendant.

On issue two, counsel submitted that considering the totality of the evidence of the Claimant placed before this Honourable Court that the Claimant has failed to establish the claim of unpaid salary and unremitted pension against the defendant. That Exhibit C2A (letter of Employment), C3A (Letter of Termination), C4A (Staff handbook) and C5A (The Witness pay slip for the month of March 2014) tendered by the claimant goes to prove that the Claimant worked extra hours and that even if he worked extra hours, that he was not paid for the extra hours worked in the course of his employment with the Defendant. Counsel submitted that the Claimant has failed to establish that he worked extra hours and that the defendant failed to pay his salary and remit his pension contributions within the alleged extra hours worked.

Counsel submitted that DW1 in his evidence and under cross examination testified that every extra hours worked by the Claimant was built into his salary and paid to him as overtime, and that the Claimant's pension contribution was consistently remitted. And that DW1 tendered Exhibit D3 (Claimant's pay slip between 2014 and 2019 when his employment was terminated) and D4 (United Bank of Africa tellers and UBA Pensions Custodian/pensions Alliance contribution account schedules between 2014 and 2019,  which goes to show payment for the overtime worked and a full remittance of the Claimant's pension contribution. Counsel submitted that the evidence of DW1 extracted under cross examination was neither contradicted nor controverted by the Claimant. Counsel added that the law is trite that facts not challenged nor contradicted under cross examination are deemed admitted and the court can act on such unchallenged evidence before it. Counsel cited Odulaja V. Haddad (1973) 1 SC 35.

Counsel submits further that the Claimant failed to establish that by the combined provision of the claimant's Exhibits C2A and C4, that the Claimant is entitled to work 8 hours in course of his employment with the Defendant. Counsel added that the employment of the Claimant is guided by the terms and condition of their employment as contained in the employee letter of employment and that the condition of service as provided in paragraph 6 stipulated on the letter of employment provides the hours of work to be 8 to 12 hours per day. Counsel submitted further that the Claimant failed to establish in his evidence that he worked overtime which was not paid for by the defendant. Counsel posited that Exhibit D3 clearly shows that overtime was paid to the claimant's various pay slips.

Counsel stated that that there is no evidence before this honourable court establishing any wrong doing or breach of the conditions of service that existed between the Claimant and the defendant particularly as it has to do with payment of salaries and remittance of pension contributions and hence the claimants are not entitled to any general damages, and that the claimant have failed to prove their case on the balance of probability. Counsel urged the court to dismiss the case of the claimant.

The claimants on their part filed their final written address on the 31st day of July, 2023 and arising therefrom, counsel to the claimant R. O. Ifebhor Esq. formulated three issues for determination to wit:

1.         Whether by Virtue of the provision of item 8.2 of the defendant's staff hand book/condition of service, the 2 claimant (as an on-shore staff) work time is not 8 hours per day.

2.         Whether every hour the 2nd claimant is required to work in excess of the 8 hours normal work hours per day should not be considered as overtime.

 

3.         Whether the 2nd claimant is not entitled to the claim as sought.

 

In arguing issue one, counsel stated that Exhibit C2(sic) is the defendant's staff hand book / condition of services which incorporated part of the terms and condition of Employment between the claimants and the defendant. And that by Virtue of item 8.2 of the defendant's Staff handbook/condition of service, the 2nd claimant's work time as an on shore staff is 8 hours per day or 40 hours per week and consequently any work done in excess of the 8 hours’ work time should be  considered as overtime.

In arguing issue two, Counsel submits that the evidence of the 2nd Claimant is clear that he was an employee of the defendant and that he was in the category of staff who are on shore workers whose work time per day is 8 hours by virtue of the staff handbook/condition of service, but that during the period he was under employment of the defendant he was made to work for 12 hours per day instead of the normal 8 hours. While the defendant's witness under cross examination stated that the overtime payment made by the defendant to the 2nd claimant was calculated only when work was done in excess of 12 hour which is contrary to the item 8.2 in exhibit C2(sic)(the handbook).

In arguing issue three counsel state that where a contract of employment is in writing, the parties are bound by the express terms and condition stipulated therein. Counsel cited lyase Vs University of Benin Teaching Hospital management board (2000) NWLR (PT643) 45 @ 59 and also Olaniyan & Ors Vs University of Lagos (1985) 2 NWLR (Pt 9) 599 & 699. Counsel added that the claimant having made to work in excess of 4 hours outside his normal work time is entitled to be paid for overtime and entitled to his relief.

I have also taken into account the reliefs sought vis-à-vis 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, circumstances and evidence before the court, Claimant is entitled to the relief sought.

Before resolving the said issue, it is imperative to state that during the trial of this case particularly the evidence of DW1, the Defendant counsel sought to tender 4 documents marked as D2-D6 which was admitted under protest and both counsel were directed to make their submissions in respect to the admissibility of the said document in their respective address, however, it is obvious that neither counsel address the court in regards to the admissibility of the said documents. In this regard the objection will be deemed abandoned and hence the documents are admitted in evidence as exhibits D2-D6.

I now turn to resolving the issues before the court, which is to determine whether or not the Claimants are entitled to the reliefs sought before this court. In determining the said issue, I find it apposite to state that while there are 7 claimants that initiated this action, counsel for the claimants applied on the 19th January 2023 for the names of all other claimants be struck out, hence the 1st, 3rd , 4th, 5th, and 7th Claimants where struck out. This matter was left with only the 2nd and 6th Claimants, the evidence of the 6th Claimant was expunged for failure to show up for his cross examination. Hence we are left with only the 2nd Claimant.

It is the case of the claimant that he was a staff of the Defendant and employed as waiters. And that the employment of the claimant is governed by the staff hand book which contains the terms and condition of services contract, and that by the terms and conditions of the claimant’s employment, the normal work hour per day is 8 hours or 40 hours per week for any onshore worker, while 12 hours per day for off-shore workers. That the claimant was an onshore worker but was made to work for 12 hours from 2013 to 2019 without payment of the extra 4 hours before his employment were terminated in 2019 and because of that the defendant also under paid the pension contribution.

While it is the case of the defendant that the Claimants letters of employment contains the terms and conditions of work contract and by their terms of contract they are to work between 8-12 hours per day with 7 days off monthly and each staff is to remain on duty until a reliever resumes to ensure that there is no breakdown in production of services as the defendant is to render 24 hours catering service. And that overtime arises when the claimant or any other staff of the defendant works beyond 12 hours per day and not 8 hours. And that, for every staff that worked extra time their money are calculated and all paid at the end of the month in their respective bank with their pay slip showing such payment.

From the foregoing, it is crystal clear that the contention between the parties is what time amounts to overtime as regards the time of work of the claimant, so as to determine whether the claimant is entitled to an overtime payment or not. And to consider the time of work the terms and condition of the claimant’s contract will be the court’s determining factor, as it has been settled in plethora of case and in particular In ADEDAYO SUNDAY JOSEPH & ORS v. KWARA STATE POLYTECHNIC & ANOR (2013) LPELR-21398(CA) the court held that, "The law is settled that in determining disputes arising from the determination of contract of employment, the Court must confine itself to the plain words and meaning of the terms of contract of service between the parties which provides for their right and obligations. It is the relevant conditions stated in the employee's letter of appointment and the staff Regulations and conditions of service that must be construed and nothing else.

The claimants counsel had contended that what amounts to overtime is as provided in the employee’s staff handbook while the defendant contends that what amounts to overtime is as provided in the employee’s letter of employment which contains the terms of the contract. There is a controversy as to which of the terms supersedes the other, is it the terms as stipulated on the letter of employment or the staff hand book. Per Yargata Byenchit Nimpar, JCA in MAINSTREET BANK REGISTRARS LIMITED v. MRS KEHINDE ABIMBOLA (2017) LPELR-50227(CA) stated that, "The position is that a contract of employment generally is created by the letter of employment wherein the terms and conditions of the contract are stated, see SHENA SECURITY COMPANY LTD V. AFROPAK (NIG) LTD & ORS (2008) LPELR- 3052 (SC). Therefore, the letter of employment is the foundation of the relationship and shows how parties can terminate the relationship."

Also in SOKOTO STATE GOVERNMENT & ANOR v. SAMBO YAHAYA NAWAWI (2020) LPELR-51683(CA) the court held that, "The letter of appointment of an employee is the bedrock of his contract of employment. All the terms and conditions of the contract of employment must be founded within the letter of employment and, as it often happens, any documents that it may have incorporated to be part of it."

In view of the above authority, and also in view of the fact that the said letter of employment establishes a personal relationship between the claimant and the defendant than the Staff handbook, It behooves on this court to consider the letter of employment of the claimant to determine what amounts to an overtime. This court have also observed that the said claimant’s letter of employment was neither signed nor acknowledged, however, this court cannot dispensed with the said letter as it is the bedrock or foundation of the contractual relationship between the claimant and the defendant, also the claimant having stated in paragraph 4 of his deposition that the said letter of employment is his and also confirmed during trial that it is his letter of employment with no hesitation nor contradiction of any kind from the defendant, this court will rely on the terms and conditions as stipulated on the said letter to determine the legal obligations of the parties and to determine what amounts to overtime. In LUCK GUARD LIMITED v. MR. FELIX ADARIKU & ORS (2022) LPELR-59331(CA) the court held that, "In Labour Law, it is very significant to know that the contract of employment binding the employer and the employee is normally outlined in a Letter of employment/appointment. In the case of Organ & Ors. v. Nigeria Liquefied Natural Gas Ltd., & Anor (2013) LPELR - 20942 (SC), the Supreme Court emphatically held as follows: "The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred. The Employees' Handbook issued by 1st Respondent is not a substitute for the letter of employment.

From the staff handbook an overtime was defined as “hours which a staff is required to work in excess of the normal working hours shall be consider as overtime which shall be paid for in these order, the company will call upon the staff to perform extra hours when the need arises. Payment shall be made at 100%”.

From the letter of employment the hour of work stated and I reproduce: “you are expected to work (8) hours or (12) hours per day which excludes meal break. Your specific work schedule is as determined by your camp boss/Head of Department”.

It is the case of the claimant that he is an on-shore location worker which was not controverted by the defendant, hence the hour of work as provided in the letter of employment the claimant is expected to work (8) hours or (12) hours per day which excludes meal break.

From the above provision it is crystal clear that from the said letter of employment, the work time of the claimants is (8) hours to (12) hours per day which excludes meal break. Having determined the work time of the claimant, next is to determine if indeed the claimant did work for an overtime which he was not paid for, it is the duty of the claimant to establish the hours worked as overtime which was not paid for, and such can be established by laying credible evidence to prove same. The claimant have contended that from 2013- 2019 he work for extra time of 4 hours that was not paid for and the pay slip of the claimant is annexed to Exhibit C2a (which is the letter of employment) which is same as Exhibit D3. 

It is the observation of this court that, some of the few 2014, 2015, 2016, 2017, 2018 and 2019 pay slip of the claimant tendered in evidence actual contains an overtime payment which was calculated along with other benefit of the claimant. However it is the contention of the claimant that the defendant’s calculations was wrong and from the claimant’s calculation that the claimants basic salary is N60, 185.60 and that N60,185.60 if divided by 30 days is N2006 which is per day earning of the claimant, while 2006 divided by 8 hours of work is N250.78, that if N250.78 multiplied by 4 hours of extra time work gives N1003, and N1003 multiplied by 30 days is N30,090, hence that if the monthly salary of the claimant is N60,185.60 added to N30,090 extra hours in a month should give N90,275.6. It is the contention of the claimant that his monthly salary should be N90, 275.6 and not N60, 185.60.

I must state that, the claimant’s contention causes a raise of an eyebrow, in view of the fact that the claimant who was employed since 2013 and was short paid salary since 2013 didn’t take any step to regularize such anomalies, only for him to bring an action against in 2019 after his contract of employment has ended.

That notwithstanding, It is the view of this court that the contract of employment of the claimant with the defendant has never been in dispute in this suit as all parties are in consensus ad idem to the fact that the claimant was a staff of the defendant, however, It is the duty of the claimant to prove to this court what the basic salary of the claimant is and also prove how many hours overtime he worked, how many overtime work was paid and how many was not paid.

From the pay slip which was attached to Exhibit C2a which is also Exhibit D3 the salary and benefits of the claimant was stated and also the amount of each benefit, and from the said document the hours of overtime was also stipulated. The claimant during his cross examination on the 7th day of February 2022 admitted that his payment slip indicated how many hours over time he worked, but can’t recall how many times he was paid. It is expedient that in other to prove that the overtime was not paid the account statement of the claimant for the months he worked overtime that was not paid should have be produced, however there is nothing from which this court can deduced that the overtime that was stipulated on the pay slip wasn’t paid. Probable because the claimant was laboring on the belief that the staff handbook was applicable instead of the letter of eemployment in other words that he is entitled to 8 hours work per day, which made him believe in his own calculation, that if his salary is N60, 185. 60 then from his calculation he is entitled to N30, 090 as overtime for each month, then his salary ought to be N90, 275.6 and not 60,185.60.

However it is the view of this court that the terms and conditions as stipulated in the letter of employment provides the legal rights of the parties and hence the work time of the claimant is between 8 to 12 hours, any hour above the required hour amounts to overtime and the defendant in the pay slip have shown how many hours the claimant did as overtime. I’m not oblivious of the oral testimony of the defendant’s witness during cross examination wherein he was asked the following and his response as follows:

Ques:  the claimant says his normal work time is 8 hours

Ans:    yes and he was paid 4 hours extra as overtime, and that is how it is done till now, it is automatic overtime

Ques: the salary of the claimant was calculated based on 12hours

Ans: yes it is 8 hours’ work plus 4 hours overtime

It is the view of this court that Documentary evidence is the best form of evidence because they are not only assailable but are more authentic than oral evidence, Documents when tendered and admitted in evidence are like word uttered and do speak for themselves, they are more reliable and authentic than words. In AMINU BASHIRU IBRAHIM v. BABANGIDA ALASAN YAKUNDIMA & ORS (2019) LPELR-48984(SC) Per UWANI MUSA ABBA AJI, JSC held that, "It is now firmly settled that documentary evidence is the best evidence. In fact, the document being the best proof of its contents, no oral evidence will be allowed to discredit or contradict the said contents except in cases where fraud is pleaded. See Per OGBUAGU, J.S.C., in SKYE BANK & ANOR V. AKINPELU (2010) LPELR-3073 (SC)."

It is in view of all the foregoing, I shall consider all the reliefs sought by the Claimant and for avoidance of doubt, reliefs 1 is, ”A declaration that the claimants by virtue of the terms and conditions of service under which they were employed are entitled to work for the period of 8 hours per day at the defendant's onshore location and that any extra time worked for outside the aforementioned time is an overtime”.

The law is settled that where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. In ZENITH BANK PLC v. REAL INTEGRATED AND HOSPITALITY LIMITED & ANOR (2022) LPELR-58948(CA) the court held that, "A claimant seeking for declaratory relief can only succeed on the strength of his case and not on the weakness of the defence or even the total absence of defence. This proposition of the law is trite. See Wing Commander Jibril Bala Adamu (Rtd) vs. Nigerian Airforce & Anor (2022) LPELR-56587 (SC), A.G. Rivers State vs. A.G. Federation & Anor (2022) LPELR-57708 (SC), Kwajaffa & Ors vs. Bank of the North Ltd (2004) LPELR-1727 (SC)."

From the evidence tendered before this court particularly the letter of employment which is Exhibit C2a, it has already been decided by this court that the said document established the contractual relationship between the claimant and the defendant and that the said document having stipulated the terms and condition of service of the claimant, the hour of work is as provided by the said document which is 8 – 12 hours per day and any hour above the said time amounts to an overtime.

From the foregoing, it is the view of this court that relief 1 fails as the claimant has failed to show that, from the terms and condition as stipulated in the letter of his engagement with the defendant he is entitled to work for a period of 8 hours only per day, hence relief 1 is accordingly refused.

Relief 2 is, “A declaration that the failure on the part of the defendant to pay the claimants for the overtime work before the termination of the claimant's employment is a breach of the terms and conditions of their employment”.

It is trite that in an action arising out of a breach of contract, the claimant must plead in his statement of claim the terms of the contract and how the breach occurred. The existence of the contract perse is not the cause of action, it is the breach of the term of the contract that constitutes the cause of action

In FIRST CITY MONUMENT BANK PLC v. UWA ETIM ESSIEN (2022) LPELR-58699(CA) the court held that, "Liability for breach of contract can only arise where it is established by credible evidence the existence of a contract, its terms and conditions agreed upon by the parties. It then becomes the bounden duty of the plaintiff who is complaining of breach of such terms and conditions to show the Court how the defendant failed to perform his part of the agreement and the resultant damages he suffered as plaintiff."

From the evidence before this court, it has been established by this court that the document that established the contractual relationship between the claimant and the defendant is Exhibit C2a (letter of employment) and not Exhibit C4 (the staff handbook) and that the said Exhibit C2(a) having stipulated the terms and condition of service of the claimant and the hour of work to be 8 – 12 hours per day, any hour above the said time amounts to an overtime.  And the Claimant has a duty to give credible evidence to show that he worked overtime which was not paid for and to prove that evidence of Bank statement is needed. The claimant having not established that he worked exceeding the said hour without pay will not be entitled to this relief, Consequently, relief 2 fails and is hereby refused I so hold.

 Relief 3 and 4 will be considered together,

Relief 3          An order directing the immediate payment to the claimants individually the outstanding salaries (overtime payment due) for the extra 4 hours each of the claimants worked per day from 2013 to 2019 before their various employments was terminated by the defendant.

Relief 4          An order directing the defendant to pay the claimants the under remitted pension contribution it made in respect of each of the claimant being their employer from 2013 to 2019 when the claimants' employments were terminated.

Reliefs 3 and 4 are dependent on the grant of reliefs 1 & 2, this is because if the claimant had succeeded in relief 1 and 2 it automatically  means that the claimant’s pension contribution was also under remitted to the pension facilitators, but Reliefs 1 and 2 having failed, consequently Relief 3 and 4 fails automatically. From the foregoing, it is the view of this court that the claimant is not entitled to Relief 3 and 4 having failed to prove same.

Relief 5 is, “N2, 000,000.00 as general damages for the breach of the conditions for service by the defendant”.

General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages. See UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC).

The claimant is claiming general damages for the breach of the conditions for service by the defendant, and the court in KLM ROYAL DUTCH AIRLINES v. ANTHONY IDEHEN (2017) LPELR-43575(CA) held that, "The claimant in a claim for damages for breach of contract has a fundamental duty to establish certain things. Since a breach is an allegation that the other party has acted contrary to the terms of a contract, the claimant must plead and establish by evidence, the existence and subsistence of a valid contract as well as its terms and particularly, the term that has been breached and in what manner it was breached. See BIKAY ENGINEERING LTD v. GOVERNOR ONDO STATE & ORS (2013) LPELR-20890 (CA); HAIDO v. USMAN (2003) LPELR-5249(CA) and BEST (NIGERIA) LTD v. BLACKWOOD HODGE (NIGERIA) LTD (2011) LPELR-776(SC)."

Based on the foregoing, it is beyond conjecture that the Claimant has failed to prove that he was wronged by the defendant and having failed to establish that he was entitled to extra 4 hours pay, consequently this relief is bound to fail as well and is hereby refused.

Consequent upon the foregoing, the sole issue formulated for resolution of the head claims is resolved against the Claimants and in favour of the Defendant.

In the final analysis, the case of the Claimants lacks merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.