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, Ph.D

 

 

Dated: 21st January, 2026?   ???                  SUIT NO: NICN/PHC/104/2021

 

 

BETWEEN:

 

1. CLEMENT WERELOOBARI MONEY

2. OTI SUNDAY INYEAKA

3. BISHOP BABOO

4. BOM FELIX DUMLEBABARI

5. FRIDAY NWIKAGBARA

6. ROLAND AKANINYENE

7. MENENWAA PROMISE

8. LOVEDAY ISIOTO

9. JONAH JONAH

10. KINANEE LEBARI SMITH

11. BARIVULE CONFIDENCE YORKA

12. SAMUEL BASSEY

13. PRINCEWILL DICKSON?????

14. BESTMAN DEEKIA

15. KINAWA WISDOM

16. NELSON OPUENE JAJA

17. GBARAKA CHRISTIAN NIABARI

18. MICHAEL ANIEDI

19. LAWRENCE MATHIAS

20. SAMUEL E. ENO

21. DANIEL AKPOBARI

22. BARIASERE PRECIOUS BEENU

23. PRINCE KEMBE BURABARI

24. NATHANIEL ISIOTO

25. ASUKWO UBONG MICHAEL

26. NUBASS NAAKU

27. UBONG COXON

28. SADAM MBIA

29. LUKE GODKNOWS SAMPLE

30. DANIEL IGAH

31. PAUL JOHNSON

32. TOM UBONG FRIDAY

33. ANTHONY CULUMBIA

34. SUNJU JACOB SUNDAY

35. DARIUS ATASI IKUP

36. GABRIEL OKON?????

37. OKON TOM

38. CLEMENT MICHAEL EFFIONG

39. FRIDAY NWINYOODEE

40. NDUBUEZE NWANYANWU

41. GREEN INIOBONG

42. IMI IME OTUKUDO

43. EDIDIONG SAMBO

44. UFOT TOM

45. EDET TOM

46. EMMANUEL OKOKON AKPAN

47. GEORGE AKAMAKA

48. TOMBARI GBI-U-------------------------------------CLAIMANTS

 

AND

 

EASTERN ENAMELWARE FACTORY LIMITED -----------------DEFENDANT

 

Representations:

B.N. Enyi for the Claimants

G.S.C Elendu for the Defendant.

 

Judgement

This suit was commenced by way of a General Form of Complaint filed on the 26th of August, 2021, along with a verifying affidavit, statement of facts, list of witnesses, witness statements on oath, list of documents, and copies of the listed documents to be relied upon at trial.

Arising from the Complaint and the Statement of Facts, the Claimants’ claims against the Defendant are as follows:

 

a.    A DECLARATION that the termination of the employments of the Claimants by the Defendant in August 2018 was irregular, unjust, and unlawful.

b.    A DECLARATION that the non-confirmation of the Claimants by the Defendant after the six-month probation period and further years of service to the Defendant was unjust and unlawful.

c.    AN ORDER quashing the termination of the Claimants’ employment by the Defendant in August 2018.

d.    AN ORDER directing the Defendant to reinstate the Claimants and confirm them, having served the six-month probation period and further years with the Defendant meritoriously.

e.    AN ORDER directing the Defendant to pay the Claimants the cumulative arrears of salaries, allowances, entitlements, and/or remunerations due to them on the assumption that they were duly confirmed by the Defendant in line with the Defendant’s Conditions of Service and Collective Agreement, amounting to the sum of N835,096,065.00 (Eight Hundred and Thirty-Five Million, Ninety-Six Thousand, Sixty-Five Naira).

f.    AN ORDER directing the Defendant to pay the Claimants the sum of N100,000,000.00 (One Hundred Million Naira) as exemplary damages.

 

In response to the Statement of Facts, the Defendant, on the 30th of September, 2021, filed a Statement of Defence and Counter-Claim, accompanied by a witness statement on oath, list of documents, and copies of the listed documents. A preliminary objection was also raised through the said Statement of Defence and Counter-Claim.

 

Upon being served, the Claimants filed a Reply to the Statement of Defence on the 9th of December, 2021. The Defendant thereafter filed a Reply to the Claimants’ Defence to the Counter-Claim on the 27th of January, 2022.

 

Trial commenced on the 14th of November, 2022, with the Claimants opening their case. Three witnesses were eventually presented: Asukwo Ubong Michael (CW1), Gbaraka Christian Niabari (CW2), and Nelson Jaja (CW3). The witnesses adopted their respective witness statements on oath, which were marked as C1(a), C1(b), and C1(c).

 

Through CW1, nine (9) documents were tendered and admitted in evidence as Exhibits C2 – C10, though Exhibits C2 and C3 were admitted under protest. Through CW2, three sets of documents were tendered and admitted as Exhibits C11(a-e), C12(a-c), and C13(a-e).

 

Arising from the Statement of Facts and witness statements on oath, the case of the Claimants is that they were employed by the Defendant at various times between 2001 and 2012 as casual workers. They contended that under the Defendant’s Conditions of Service and Collective Agreement, an employee is to be placed on probation for at least six (6) months but not later than twelve (12) months, after which the appointment would be confirmed if satisfactory, failing which the employment would be terminated.

 

The Claimants averred that despite remaining in the Defendant’s employment for periods ranging between six and seventeen years, they were never confirmed but were instead repeatedly given assurances that confirmation would follow. They further stated that in July 2018, they reported for duty but were denied access into the Defendant’s premises, effectively terminating their employment. They added that multiple petitions were written — including to the Rivers State House of Assembly, but these yielded no positive result.

 

The Claimants also computed the various entitlements they claimed they would have earned on the assumption that they were confirmed not later than twelve (12) months after employment, in line with the Conditions of Service and Collective Agreement of Eastern Enamelware Factory Limited.

 

During cross-examination, CW1 stated that although he is a Claimant in this suit, he never claimed to have received a letter of appointment. He confirmed that all Claimants were seeking the same reliefs and acknowledged that the entitlement to six-month probation arises from the Defendant’s Collective Agreement and Conditions of Service. He admitted that none of the Claimants was issued a letter of appointment, confirmation, or promotion.

 

He further stated that the House of Assembly did not issue a report and advised them instead to approach the court. He admitted that the claims before this court were premised on the assumption that they had been confirmed, and acknowledged signing a temporary employment form which indicated daily pay and excluded gratuity, redundancy, or severance, though he asserted that this form expired after twelve months under the Defendant’s Conditions of Service.

 

CW2 also admitted that the hospital cards relied upon were not employment letters. He confirmed receipt of query letters and acknowledged filling a form upon engagement but stated that the form did not contain any Conditions of Service. He further maintained that the House of Assembly did not accord them fair hearing.

 

CW3 testified that he joined the Defendant as an O-Level holder without prior skill and was directed to apply as a temporary staff. He admitted that the suit was based on anticipated entitlements on the assumption of confirmation. He also acknowledged completing a form at the time of engagement but denied knowledge of any Conditions of Service being contained therein.

 

Upon conclusion of the Claimants’ case, the Defendant opened its defence, leading two witnesses: Maureen Danagogo (DW1) and Comrade Eyeudie Unwauma (DW2). Both witnesses adopted their witness statements on oath marked as D1(a) and D1(b) for DW1 and D1(c) and D1(d) for DW2.

 

Through DW1, forty-three (43) documents were tendered and admitted as Exhibits D2 – D44, except D13 and D14, which were admitted under protest.

 

Arising from the Statement of Defence and Counter-Claim and the witness statements on oath, the case of the Defendant is that the Claimants were temporary/adhoc workers who were not issued letters of appointment, but were instead given temporary employment forms, upon which their conditions of service were printed on the reverse side.

 

The Defendant stated that, due to the nature of its business as a manufacturer of enamelware, there were always persons available and willing to perform menial tasks such as loading and off-loading products from trucks, security duties, machine assistance, kitchen support, and maintenance work. The Defendant’s designated officer would engage some of such persons, who would then complete the temporary employment form. Some workers, out of pity or humanitarian considerations, might have their engagement renewed periodically, but the Claimants never passed through any formal recruitment exercise, were never placed on probation, and never enjoyed the benefits applicable under the Defendant’s Conditions of Service or Collective Agreement. Rather, their terms of engagement were governed strictly by the conditions stated on their temporary employment forms.

 

The Defendant further stated that it never, at any time, made repeated promises to the Claimants that their appointments would be confirmed. It added that in 2017, the company suffered a serious market downturn, triggered particularly by security challenges in the Northern part of Nigeria, which constituted its primary market base. This led to severe economic hardship and eventually necessitated the shutdown of the Defendant’s factory on 13th August 2018, as it became impracticable to sustain salary payments without production activities.

 

Upon the Claimants petitioning the Rivers State House of Assembly, the Defendant honoured the invitation, participated in the investigation, and a report was issued which the Claimants, however, failed to place before this court.

 

The Defendant’s position is that the Claimants’ case is founded purely on assumption, which has no place in law, and that the Claimants are not entitled to any of the reliefs sought.

During cross-examination, DW1 stated that “temporary” means a worker who is not a permanent staff member, and conceded that it was partially correct that some of the Claimants had worked for up to seventeen (17) years. DW1 confirmed knowledge of one Samuel Bassey, who sustained an industrial accident while performing machine operation duties, and stated that letters of appointment were not issued to such workers because they were still under supervision. He added that casual staff were paid every two weeks and that some workers could complete their assigned tasks as early as 11:00 a.m. or 12:00 noon.

 

DW2 testified that he served as Union Chairman and Secretary, and that he signed Exhibit D18 at the time it was reviewed. He stated that, in his capacity as Chairman, he wrote to management on welfare matters affecting staff. He further confirmed that the Claimants filled temporary employment forms which contained their applicable conditions of service.

 

Upon the discharge of DW2, the matter was adjourned for adoption of final written addresses. The Defendant filed its final written address on the 14th of May, 2025, and arising therefrom, learned counsel to the Defendant, G. S. C. Elendu, Esq., formulated five issues for determination as follows:

1.     Whether this suit as presently constituted is properly before this honourable court as to confer jurisdiction on the court to hear and determine same"

2.    Whether the Claimants in this suit who were mere temporary/ad hoc/labour workers (i.e. helpers) can maintain this action against the defendant in this suit, haven not placed any sufficient facts before this court to warrant the grant of their reliefs?

3.    Whether the issuance of identity/access cards, issuance or queries and the use of company medical facilities by workers as was done to the Claimants by the defendant company amounts to a contract of employment?

4.    Whether this court, or any other court is a court of assumption?

5.    And whether the failure of the Claimant to file a defence to the defendant's counter claim does not ipso facto mean admittance, hence this court ought to enter judgment for the defendant?"

In arguing issue one, counsel contended that since the claimants never pleaded, nor tendered their letters of appointment which ordinarily should contain their terms of employment and conditions of service, this court lacks the requisite jurisdiction to hear and determine this suit as presently constituted. Counsel cited the cases of IBAMA V. SPDC (NIG.) LTD. (2005) 17 N.W.L.R 378 – 379; AMODU V. AMODE (1990) 5 N.W.L.R (PE. 150) 356 at 370; ASCA BITUMEN CO. LTD V. ISAH (2016) LPELR-40778(CA); BRUCE VS. ODHAM PRESS LTD. (1936) 1 All E.R. 287 at page 294 and SHELL B.P. PETROLEUM DEVELOPMENT CO. OFNIGERIA LTD. &5 ORS. VS. M.S. ONASANYA (1976) 1 All NLR (Pt.1) 425 at 429 and CHARLES OKWUDILI UMERA V. NIGERIAN RAILWAY CORPORA TION (2022) 10 NVWLR (Pt. 1838) 349.

 

Counsel posited that issue of jurisdiction can be raised at any time and that from the totality of the evidence of the parties in this suit, the claimants have not ignited the jurisdiction of this honourable court as to confer jurisdiction on the court to hear and determine their suit by their blatant failure to plead and tender their appointment letters, terms of their appointments and conditions of their service as required by law. Counsel cited the cases of MR. POPOOLA ELABANJO V. CHIEF (MRS.) GANIAT DAWODU (2006) 15 NWLR (Pt. 1001) 76.

 

In arguing issue two, counsel referred to the meaning of temporary/ad hoc staff as defined in the Oxford Advance Learners Dictionary and added that no matter the length of time the Claimants have stayed with the defendant company, their status cannot metamorphose to permanent staff unless the defendant decides to recruit them formally, pass them through the crucibles of the process of recruiting her permanent staff, pass them through their probation period and later confirm their appointments as permanent staff and now issue them their condition of service.

Counsel added that the terms and condition issued to the Claimants have no probation period hence the court should resolve the issue in favour of the Defendant. 

 

In arguing issue three, counsel submitted that the issuance of identity/access cards to workers, issuance of queries to workers and the use of Company medical facilities or even canteen by anybody whatsoever is not tantamount to a contract of employment. Counsel cited the case of JOHN OFORISHE V. NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (Pt. 1602) 35 and added that what this court is interested to see on the statement of facts of the claimants is their letters of appointment, their terms of employment and conditions of service that were breached by the defendant and not that the claimants were issued identity/access cards, attended the defendant's clinic and were issued queries by the defendant company.

 

In arguing issue four, counsel contended that the claims of the claimants are based onASSUMPTIONS, to the effect that from paragraph 17 of their statement of facts, they started to assume the salaries they would have earned if their appointments had been confirmed. Counsel cited the case of UNITED BANK FOR AFRICA PLC. V AKPARABONG COMMUNITY BAWK (NIG.) LTD & ANOR (2005) 12 NWLR (Pt. 939) 232 on the meaning of assumption while contending that assumption does not qualify as proof and cited the case of ABDU MOHAMMED V. THE STATE (1991) 5 NWLR (Pt. 192) 438.

 

Counsel contended that cases are to be decided based on evidence and not conjectures while citing the cases of MALLAM MUHAMMADU JIYA V. MUHAMMADU KANYE AGBABO AWUMI & ANOR (2011) 4 NWLR (Pt. 1238) 467; UCHECHI ORISA V. THE STATE (2018) 11 NWLR (Pt. 1631) 453; AGIP (NIG.) LTD. V. AGIP PETROLI INTERNATIONAL (2010) 5 NWLR (Pt. 1187) 348 and BEN E. CHIDOKA & ANOR V FIRST CITY FINANCE COMPANY LIMITED (2013) 5 NWLR (Pt. 1346) 144.

 

In arguing issue five, counsel posited that the claimants never filed any defence to the defendant's counter claim and added that it is now trite that where a claimant failed to file any defence to the counter claim of the defendant, then issues have not been joined with the defendant. Counsel cited the cases of S.O. ATOYEBI& ORS v. DEACON T.K. BELLO & ORS (1997) 11 NWLR (PT. 528) at 268; UNION BANK OF NIGERIA PLC v MUSHEED DAWODU (2003) 4 NWLR (P. 810) 287; MAOBISON INTER-LINK ASSOCIATED LTD V U.T.C. (NIGERIA) PLC (2013) 9 NWLR (Pt. 1359) 197.

 

Counsel concluded that this court lack jurisdiction to determine this suit in the absence of letters of appointment while urging the court to grant the counter claim as claimed since there is no defence to same while dismissing the claims of the Claimants.

 

The Claimants in reaction filed their final written address on the 24th of June 2025 and arising therefrom, counsel to the Claimants B. Enyi Esq. formulated four issues for determination to wit:

i.        Whether it is justifiable in law for the Defendant Company to retain the Claimants as temporal workers for between 6 and 17 years without confirmation.

ii.        Whether the retention of the Claimants in the Defendant's Company for between 6 to 17 years without formal letter of confirmation, amounts to confirmation by conduct.

iii.        Whether the Claimants are entitled to the reliefs (e) and (f) by virtue of being implied confirmed staff of the Defendant after twelve (12) months of working for the Defendant is answered in the affirmative.

iv.        Whether the Defendant has made any valid counter claim in this suit.

 

In arguing issue one, counsel cited section 91 of the Labour Act, Cap 198 LFN 2004 and contended thereon that the Nigerian Labour Act does not provide for casual workers neither does it provide a legal framework for the regulation of the terms and conditions of casual workers, however, Section 7(1) of the Labour Act provides that a worker should not be employed for more than three months without the formal recognition of such employment.

 

Counsel cited the cases of Mr. Phillip Mwaikuoga Kwaza Vs. Jishida Plastics Industrial Company Limited Suit No: NICN/LA/350/2017 delivered on 21/7/2022 by Hon. Justice E.A. Oji; Abel V. Trevor Foundation Nigeria Limited, Suit No: NICN/PHC/55/2013, Digest of judgment of the NIC 2014, PP. 288-289 and section 73 of the Employees Compensation Act 2010 to contend that the Defendant's retention of the Claimants as temporary/casual workers for periods ranging from 6 to 17 years, which is far beyond the 12 months probationary period for an employee of the Defendant as stated in Paragraph 9 of the Condition of Service and Collective Agreement – Exhibit C3, without formal confirmation of their employment status is an act of slavery and constitutes an unfair labour practice.

 

In arguing issue two, counsel cited the cases of THE COUNCIL OF FEDERAL POLYTECHNIC, EDE VS. OLOWOOKERE (2013) All FWLR (Pt. 699) per Adumein JCA @ Page 1215, Paras B – E; Chukwuma vs. Ifeloye (2008) 18 NWLR (Pt. 118) 204 at 237-238; Raji V OAU (2014) LPELR-22088(CA) at 50-52 and section 169 of the Evidence Act 2011 to contend that the Defendant is estopped from denying that the Claimants were not impliedly confirmed by their conduct after the 12 months’ probation provided by Paragraph 9 of the Defendant Condition of Service and Collective Agreement. 

 

In arguing issue three, counsel posited that the reliefs claimed by the Claimants, particularly relief (e) was brought pursuant to the provisions of Exhibit C3 which is the Condition of Service and Collective Agreement of the Defendant and her workers/union.

 

Counsel contended that Exhibit D18 tendered by the Defendant is a phony document that was hurriedly made while citing the case of TAYLEK DRUGS CO. LTD v. ONANKPA (2018) LPELR-45882(CA) P. 24 on the effect of failure to confirm or terminate an employee’s appointment after probation. 

In arguing issue four, counsel contended that a counterclaim is usually a separate and independent claim that can stand on its own but an order seeking to dismiss the Claimant’s suit in limine is a procedural request rather than a substantive claim and does not constitute a counterclaim. Counsel cited the case of Abe & Anor vs. Damawa & Anor (2022) LPELR-57829(SC) and posited that failure to file a defence to counterclaim does not automatically led to success while urging the court to dismiss the counterclaim. 

 

Counsel concluded by urging the court to find favour of the Claimants in this suit in the interest of fairness, equity and justice. 

 

By way of reply on point of law filed on the 8th of July, 2025, counsel to the Defendant contended that the question of whether it is justifiable in law for the defendant company to retain them as temporary workers for between 6 and 17 years without confirmation, does not arise because the claimants were never compelled by the defendant company to remain with them as temporary workers therefore the provisions of sections 7(1), section 91 of the Labour Act, Cap 198 LFN, 2004, and section 73 of the Employees Compensation Act 2010 is of no moment. 

 

Counsel added that the cases cited by the Claimant does not apply in the light of Exhibits D8, D9 and D10 which Claimants hid from this court. 

 

Counsel also posited that by the same exhibits, there is no mention of probation period hence the case cited by the Claimants’ counsel on implied confirmation does not apply. Counsel urged the court to compare the exhibits with Exhibit D31.

Counsel argued that the Claimants never pleaded estopel and cited the case of BARR. M. A. ABUBAKAR V. COMRADE ABDULLAHI MOHAMMED TANKO(ORLANDO) & 2 ORS (2019) 3 NWLR (Pt. 1658) 1.

 

Counsel added that assuming the Claimants even pleaded estoppel, the Defendants never made any representation to make the claimants believe that their appointments will be confirmed because from the onset, the appointments of the claimants were never anticipated to be confirmed, hence they were not also subjected to any probation period before confirmation of their appointments. 

Counsel contended that there is no such thing as implied confirmed staff while rearguing that there is indeed a valid counterclaim before this court.  

 

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, observed their demeanour, and painstakingly examined all the exhibits tendered and admitted in evidence.

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 and reply on points of law. Arising from the totality of the issues raised and argued by learned Counsel on both sides, the lone issue for determination in this suit is:

 

Whether, in view of the facts, circumstances and evidence placed before the Court, the Claimants are entitled to the reliefs sought.

 

Before addressing the lone issue, I find it apposite to consider the challenge to the jurisdiction of this Court as raised by the Defendant in the Statement of Defence and final written address.

 

The issue of jurisdiction is paramount, as it is trite that jurisdiction is the lifeblood of adjudication. In:

 

ARDO & ANOR v. NYAKO & ORS (2013) LPELR-20887(CA)

the Court held that jurisdiction is a fundamental and threshold matter, the lifeblood of adjudication, which when raised must be determined before consideration of the substantive suit. Where a Court lacks jurisdiction, the entire proceedings, no matter how well conducted are a nullity. It is equally settled that it is the Plaintiff’s claim that determines jurisdiction.

 

The basis upon which the Defendant contends that this Court lacks jurisdiction is that the Claimants did not plead facts or place before the Court any contract of employment to sustain the reliefs sought, thereby rendering the suit incompetent.

 

The Claimants, for their part, appeared largely unperturbed by the objection. Learned Counsel merely contended that the objection was incompetent because it was raised in the Statement of Defence, was not accompanied by an affidavit, and was lumped together with the Counter-Claim.

 

In addressing this contention, I must state that an objection to jurisdiction may be raised in any form, provided that the Court and the opposing party are alerted to the challenge. Jurisdiction may even be raised for the first time at the Supreme Court.

 

It has long been settled, particularly in: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341, that a Court is competent and clothed with jurisdiction where:

1.     it is properly constituted as to the number and qualification of its members;

2.    the subject matter of the case falls within its jurisdiction, and there is no feature preventing the exercise of jurisdiction; and

3.    the case is initiated by due process of law and upon fulfilment of any condition precedent.

 

The question, therefore, is: which of these conditions has the Defendant alleged to be absent?

 

On examination, the ground of objection does not attack any of these jurisdictional pillars. Rather, the Defendant’s contention relates to alleged insufficiency of evidence to sustain the Claimants’ case. That is a matter for trial and evaluation, not a jurisdictional defect.

 

For avoidance of doubt, this suit concerns the Claimants’ employment status and whether they are entitled to the benefits claimed. By virtue of Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Court is expressly vested with jurisdiction over such matters. The suit was commenced by the procedure prescribed under the Rules of this Court, and the Court is properly constituted.

 

Accordingly, the Defendant’s objection does not disclose any feature capable of depriving this Court of jurisdiction. It therefore lacks merit and is hereby dismissed.

 

Having resolved the jurisdictional objection, I now consider the status of Exhibits C2, C3, D13 and D14, which were admitted under protest.

 

Exhibits C2 and C3 were tendered through CW1. Learned Counsel to the Defendant objected on the basis that the ID cards contained in Exhibit C2 were not legible, while Exhibit C3 allegedly bore no signature.

 

Learned Counsel to the Claimants responded that the ID cards tendered were exactly as issued by the Defendant, except that some had faded with time. Counsel further maintained that Exhibit C3, being the Conditions of Service issued by the Defendant, was duly signed by the Personnel Manager.

 

Upon review, I note that while some of the ID cards in Exhibit C2 contain faded inscriptions, others remain clearly legible. In any event, legibility goes to evidential weight, not admissibility. The objection therefore fails.

 

With respect to Exhibit C3, I find that the document does indeed bear a signature on its face. The objection premised on absence of signature is therefore misconceived and devoid of merit.

 

Consequent upon the foregoing, the objection to the admissibility of Exhibits C2 and C3 is hereby overruled, and the said Exhibits are hereby accordingly admitted in evidence.

 

With respect to Exhibits D13 and D14, learned Counsel to the Claimants objected on the basis that Exhibit D13 differs from what was frontloaded, while Exhibit D14 is a photocopy in respect of which no proper foundation was laid.

 

In response, learned Counsel to the Defendant submitted that Exhibit D13 is identical to the document earlier frontloaded, and that Exhibit D14 is a counterpart copy and not a photocopy.

 

Having carefully examined the documents in contention, I find that Exhibit D13 is an original letter titled Termination of Temporary Employment, dated 26th July, 2018. Exhibit D14, on the other hand, is a copy of minutes of meeting.

 

On the objection premised on frontloading, it is settled law that failure to frontload a document does not render it inadmissible. The Court of Appeal affirmed this position in: OGBORU v. UDUAGHAN (2011) 2 NWLR (Pt. 1232) 538.

 

Accordingly, the objection based on frontloading is misconceived, more so as the document in question was, in fact, frontloaded.

 

With regard to Exhibit D14, although the document appears to be a photocopy, I find it relevant to the just determination of this dispute. In the circumstances, and pursuant to Section 12(2)(b) of the National Industrial Court Act, 2006, which empowers this Court to depart from the strict application of the Evidence Act in the interest of justice, the said document is admissible.

 

Consequently, Exhibits D13 and D14 are admitted in evidence in the interest of justice.

 

Having resolved all preliminary issues, I now turn to the substantive suit and the lone issue formulated for determination. In addressing the said issue, it is apposite to state at the outset that the Claimants seek two principal declaratory reliefs, upon which the remaining reliefs are anchored.

 

For avoidance of doubt, reliefs A and B are as follows:

A.   A DECLARATION that the termination of the employments of the Claimants by the Defendant in August, 2018 was irregular, unjust and unlawful.

B.    A DECLARATION that the non-confirmation of the Claimants by the Defendant after the six months’ probation and further years of service to the Defendant was unjust and unlawful.

In the light of the foregoing reliefs, it is foremost to state that declaratory reliefs are not granted as a matter of course but upon presentation of concrete and convincing evidence. The court in the case of OBE v. MTN (2021) LPELR-57730(SC) held that:

"It is also settled in numerous authorities that a declaratory relief being discretionary in nature, the onus of proof lies on the claimant and he must succeed on the strength of his own case and not on the weakness of the defence, except where the case of the defence supports the appellant's case. Thus, the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfactory of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant, in the event that the plaintiff fails to establish his entitlement to the declaration by his own evidence. See Akande v. Adisa & Anor. (supra) and Chief & Ikechi Emenike v. P.D.P. (2012) 12 NWLR (Pt. 1315) 556." Per SAMUEL CHUKWUDUMEBI OSEJI, JSC (Pp 31 - 32 Paras D - A). 

In the same vein, the court in the case of DIAMOND BANK PLC. V. YAHAYA & ANOR. (2011) LPELR-4036(CA) held that:

"The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. Sowhere the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187." Per ONYEMENAM J.C.A. (P. 27, paras. B-D).

 

The declaratory reliefs sought by the Claimants as can been seen is particularly in relation to the status of their employment as they in relief one seeks for the court to declare that the termination of their employment is irregular, unjust and unlawful while also declaring that the failure of the Defendant to confirm the Claimants employment after six months’ probation is unjust and unlawful. 

 

Bearing in mind that the averments of the Claimant points to the employment relationship between the Claimants and the Defendant not being one that is with statutory flavour, it is imperative to state at this juncture that the termination of such employment can only be declared wrongful if found to be so. In this regard, 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 addition to the foregoing, it is settled that the Claimants bear the burden of proof in establishing that the termination of their employment is wrongful and in doing so, they are required to present before this court the contract of employment and how the contract of employment was breached by the Defendant. Equally so, the Claimant are required to through the contract of employment establish that they are to be on probation for specified period which has been surpassed. 

 

With regards to what the Claimants must do to discharge the burden of proof placed on them, the court in U.T.C. NIGERIA LTD. v. PETERS (2009) LPELR-8426(CA) held that:

"It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus: (i) To place before the trial court the terms of the contract of employment; and (ii) To prove the manner in which the said terms were breached by the employer thereof. See JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C." Per SAULAWA, J.C.A (P. 41, paras. A-D).

 

In addition, the court in ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) held that:

“Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356”. Per NDUKWE-ANYANWU, J.C.A. (Pp. 20-25, paras. B-G).

 

The next question which necessarily arises, in the light of the foregoing authorities, is whether the Claimants have placed before this Court the terms governing their contract of employment, and whether they have demonstrated in what manner those terms were breached.

In proof of their case, the Claimants tendered the following documents: their respective identity cards admitted as Exhibit C2; the Defendant’s Conditions of Service and Collective Agreement admitted as Exhibit C3; statements of account admitted as Exhibit C4; a letter written to the Defendant by the Claimants’ solicitors dated 30th July, 2018 admitted as Exhibit C5; the Defendant’s response thereto admitted as Exhibit C6; another letter written by the Claimants’ solicitors dated 17th August, 2018 admitted as Exhibit C7; a petition to the Speaker, Rivers State House of Assembly dated 27th August, 2018 admitted as Exhibit C8; a letter addressed to the Chairman, House Committee on Sustainable Development, Rivers State House of Assembly dated 12th December, 2018 admitted as Exhibit C9; a further letter written by the Claimants’ solicitors to the Defendant dated 15th October, 2020; selected Query Forms admitted as Exhibits C11(a)–(e); hospital cards admitted as Exhibits C12(a)–(c); and Hospital Authorization Forms admitted as Exhibits C13(a)–(e).

 

Upon a careful evaluation of the foregoing exhibits, I find that none of them contains or reflects the specific terms of employment personal to each of the Claimants. This, in essence, forms the gravamen of the Defendant’s contention that the Claimants failed to place before the Court the contract(s) of employment upon which their claims are founded. I agree with the Defendant to the extent that an identity card, bank statement, hospital card or authorization form does not constitute a contract of employment, nor do such documents disclose the terms and conditions regulating the employment relationship between the parties for the purpose of determining whether the termination complained of is wrongful.

I further observe that the Claimants placed considerable reliance on the Defendant’s Conditions of Service and Collective Agreement tendered as Exhibit C3, contending that under paragraph 9 thereof, they were entitled to confirmation of appointment after six months on probation. However, upon review, it is evident that Exhibit C3 is not personal to any of the Claimants. It merely bears the name of the Defendant and does not establish that it formed part of the contractual terms individually binding each of the Claimants.

The Claimants contend that, by virtue of this provision, although they were never expressly confirmed, the law should imply their confirmation after working beyond the maximum probationary period of twelve months.

 

Attractive as this argument may appear on the surface, the difficulty is clear and apparent; the Claimants have placed nothing before this Court to show that they were ever placed on probation at all. Exhibit C3 bears only the Defendant’s name; it is not personalized to any Claimant, nor is there any documentary nexus tying the Claimants’ employment to that document.

 

Conversely, the Defendant contends that the Claimants were engaged as temporary staff, to whom the general Conditions of Service did not apply. Rather, their engagement, remuneration and obligations were governed strictly by the temporary employment forms issued to them upon appointment.

 

This position finds strong support in the evidence. Under cross-examination, the Claimants’ witnesses all admitted applying as temporary workers and being issued forms which contained the applicable daily salary. The Defendant tendered some of these application forms as Exhibits D2–D7, while the specific temporary employment forms completed by the 1st, 16th and 25th Claimants — all of whom testified — were tendered as Exhibits D8–D10.

 

A close examination of Exhibits D8–D10 reveals that each document is expressly headed:

 

“The Conditions and Terms of Temporary Staff.”

 

The opening paragraph states clearly:

 

“The employee shall be employed by the employer as a temporary staff in the operation within the seasonal workforce demand in the operation.”

 

While the document contains provisions relating to daily pay, allowances and free meals, paragraphs 8 and 9 are particularly instructive:

 
“8. The employee agrees that he shall not be entitled to any gratuity or redundancy/severance payments and shall accept the payment stated above (as may be applicable) in full discharge of all claims whatsoever against the employee

9. The Condition of service of the company shall not be applicable to temporary workers whose employment shall be governed by this agreement” (emphasis mine).

 

The effect of these provisions is unmistakable.

 

The Claimants voluntarily applied for and accepted employment as temporary staff, on clearly stated terms, which expressly excluded them from the general Conditions of Service and Collective Agreement they now seek to rely upon.

 

The inference is irresistible that the Claimants were well aware of these terms. Their decision not to tender the temporary employment documents themselves strengthens the conclusion that doing so would have undermined the foundation of their case.

 

Exhibits D8–D10 therefore conclusively establish that:

·         the Claimants were engaged strictly as temporary workers;

·         their employment was governed solely by those written terms;

·         the Conditions of Service and Collective Agreement (Exhibit C3) were expressly excluded from applying to them; and

·         no representation was ever made by the Defendant promising confirmation.

There is therefore no factual or legal basis for estoppel, as urged by learned Counsel for the Claimants.

 

Equally important is the fact that Exhibits D8–D10 contain no provision placing the Claimants on probation for any period whatsoever. The argument that probation must be implied and confirmation deemed is untenable where the governing contract expressly excludes the same conditions of service they sought to rely upon.

The documents merely describe them as temporary workers. Significantly, they expressly state that Exhibit C3 — the Defendant’s Conditions of Service and Collective Agreement — is not applicable to them. This Court is not a court of sentiment and cannot import into the contract terms which the parties themselves did not incorporate. Since the documents voluntarily signed by the Claimants do not provide for probation or confirmation, the Court cannot speculate otherwise.

In the circumstances, the applicable legal principle is not estoppel but the doctrine of pacta sunt servanda — that agreements freely and lawfully entered into must be honoured. The contract executed between the Claimants and the Defendant is binding and must be treated as sacrosanct. It is trite that a court of law does not re-write contracts for parties under the guise of doing justice. Where, as in this instance, Exhibits D8–D10 have been expressly identified as the documents governing the employment relationship between the parties, the non-confirmation of the Claimants cannot ground a complaint of wrongful termination — particularly as no implied confirmation can arise from the facts of this case. The authorities cited by learned counsel for the Claimants are clearly distinguishable, as they relate to situations where the employee was expressly placed on probation — unlike the present case where the Claimants were never so designated.

It is also pertinent to note that the Defendant tendered before this Court the findings of the investigation conducted by the House Committee of the Rivers State House of Assembly pursuant to a petition lodged by the Claimants. The Committee concluded that the Claimants were temporary staff and not owed by the Defendant. The said report was admitted as Exhibit D16.

I am equally mindful of the submission of learned counsel for the Claimants that the Labour Act requires the issuance of a written contract of employment within three months, and that the Act allegedly makes no provision for casual employment, reliance being placed on sections 7 and 91 thereof. With respect, that argument is misconceived. The Claimants were not employed as casual workers. Indeed, Exhibit C3 expressly refers to casual workers as a separate category to whom the Conditions of Service apply. The Claimants, however, were categorized as temporary workers, and notwithstanding the duration of their engagement, their employment status was never converted. Moreover, Exhibits D8–D10 constitute written contracts of employment and therefore satisfy the requirement of section 7 of the Labour Act.

Counsel for the Claimants further contended that Exhibits D8–D10 do not contain provisions authorizing the issuance of queries and therefore the Defendant lacked the power to query the Claimants. This submission is untenable. A query is simply an administrative step taken to afford an employee the opportunity to respond to allegations in compliance with the principles of fair hearing. Whether expressly stipulated in the contract or not, such a process is lawful — indeed desirable — and cannot invalidate the employment relationship.

Upon a comprehensive evaluation of the entirety of the evidence placed before this Court particularly the documents tendered by the Defendant demonstrating the true nature of the relationship between the parties, and most notably Exhibits D8–D10  and having also considered the Claimants’ failure to produce their contract of employment in proof of their allegation that the Defendant breached any contractual term, this Court reaches the irrefutable conclusion that the Claimants are not entitled to the declaratory reliefs sought in reliefs A and B.

 

The Claimants have failed, on the strength of their own case, to produce cogent and compelling evidence establishing that the termination of their employment was irregular, unjust or unlawful, or that the refusal to confirm them was wrongful. Reliefs A and B are therefore refused.

 

The remaining reliefs sought by the Claimants are ancillary to the declaratory reliefs claimed in reliefs A and B. They are for:

1.     An ORDER quashing the termination of the Claimants’ employment by the Defendant in August 2018.

2.    An ORDER directing the Defendant to reinstate the Claimants and confirm them, having allegedly served a six-month probation and further years with the Defendant meritoriously.

3.    An ORDER directing the Defendant to pay to the Claimants the cumulative sum of all arrears of salaries, allowances, entitlements and/or remunerations allegedly due to them, on the footing that they had been duly confirmed by the Defendant in line with the Defendant’s Conditions of Service and Collective Agreement, amounting to the sum of ?835,096,065.00 (Eight Hundred and Thirty-Five Million, Ninety-Six Thousand, Sixty-Five Naira) only.

4.    An ORDER directing the Defendant to pay to the Claimants the sum of ?100,000,000.00 (One Hundred Million Naira) only, as exemplary damages.

As earlier demonstrated, the Claimants failed to place before the Court the specific terms of their individual contracts of employment and also failed to establish that they were ever placed on probation or that they were entitled to confirmation under Exhibit C3. The Court has equally found that the Claimants were engaged as temporary workers under Exhibits D8–D10, and that Exhibit C3 did not apply to them, as such no implied confirmation could arise on the facts of this case. It follows therefore that the foundation upon which reliefs A and B were predicated has failed.

It is trite that where declaratory reliefs fail, ancillary or consequential reliefs which are wholly dependent on them must also fail. The claim for an order quashing the termination of the Claimants’ employment presupposes that the termination was shown to be wrongful or unlawful. In the absence of proof of any contractual or statutory provision breached by the Defendant in bringing the employment to an end, there is no legal basis upon which this Court can nullify the termination. The contract between the parties, as evidenced by Exhibits D8–D10, did not guarantee permanence of employment nor did it fetter the Defendant’s right to bring the temporary engagement to an end.

Similarly, the relief for reinstatement and confirmation rests on the assumption that the Claimants had acquired a right to be confirmed under Exhibit C3 and that the termination was in breach of that right. The Court has found that Exhibit C3 is inapplicable to the Claimants and that they remained temporary staff throughout. In a simple master–servant relationship governed by contract, reinstatement is not granted as a matter of course; it is only ordered in exceptional cases, notably where the employment enjoys statutory flavour and the mode of termination is shown to be in breach of statute. The Claimants have not shown that their employment was statutorily protected, nor have they established any breach of a statutory or contractual provision. The prayer for reinstatement and confirmation is therefore without legal foundation and cannot be granted.

With respect to the monetary claim of ?835,096,065.00 as arrears of salaries, allowances and entitlements “assuming they were duly confirmed”, the relief is speculative and conjectural. The Claimants’ entire computation is hinged on a hypothetical status of being “confirmed staff” under Exhibit C3, a status which the Court has firmly held they never attained. Courts of law do not award damages or arrears of salaries on the basis of assumptions or suppositions. In the absence of cogent evidence and a valid contractual foundation, that relief is utterly unsustainable.

Turning to the claim for ?100,000,000.00 as exemplary damages, it is settled law that exemplary (or punitive) damages are only awarded in limited circumstances, such as oppressive, arbitrary or unconstitutional acts by government; where the defendant’s conduct has been calculated to procure a profit exceeding any compensation payable; or where they are expressly authorized by statute. In addition, there must be clear evidence of outrageous or egregious conduct warranting such punishment. In the instant case, the Claimants have not pleaded or proved any facts bringing their claim within the recognized categories for the award of exemplary damages. The Defendant simply brought a temporary employment relationship to an end in accordance with the governing documents. The failure of the Claimants to establish that the termination was wrongful necessarily undermines any claim for exemplary damages. There is therefore no factual or legal basis upon which this Court can grant that relief.

In the light of the foregoing findings, and upon the Claimants’ failure to prove that the termination of their employment was wrongful or that their non-confirmation was unjust or unlawful, it is axiomatic that the prayers for nullification of the termination, reinstatement, confirmation, payment of alleged arrears, and exemplary damages must fail. Accordingly, reliefs three, four, five and six are devoid of merit and are hereby refused.

Having so held, the lone issue formulated for determination in this suit is resolved against the Claimants. On the totality of the facts, circumstances and evidence placed before this Court, I hold that the Claimants have not established their entitlement to any of the reliefs sought.

In the final analysis, the Claimants’ case lacks merit in its entirety and it is hereby dismissed without further hesitation.

I make no order as to cost.

I now turn to the Counterclaim presented by the Defendant wherein the Defendant seeks the following reliefs:

a)    An Order of Court dismissing this suit in limine against the Claimants and in favour of the Defendant.

b)   General damages in the sum of One Hundred Million Naira (?100,000,000.00) only against the Claimants jointly and severally for bringing the Defendant wrongly to court.

c)    The sum of Ten Million Naira (?10,000,000.00) only as cost of defending this suit.

The Defendant predicated the counterclaim on the Statement of Defence and contended, in essence, that while the Claimants seek reinstatement, the Defendant has incurred litigation expenses in defending what it considers a frivolous claim.

The Claimants, on their part, did not file a separate process specifically titled “Defence to Counterclaim”, but merely responded in paragraph 16 of their Reply to the Statement of Defence, asserting that the counterclaim is of no moment and should be discountenanced because the Claimants did not wrong the Defendant and their claims are meritorious.

From the foregoing, it is evident that by the counterclaim the Defendant seeks, principally, the dismissal of the substantive suit in limine, the award of general damages for being wrongfully brought to court, and the award of costs.

In respect of relief (a), this Court appreciates the basis upon which learned counsel to the Claimants argued that the Defendant has no valid counterclaim. The relief seeking dismissal of the suit in limine is not a proper subject of a counterclaim. It is, by its very nature, a preliminary challenge to the competence of the suit and ought to be raised at the threshold typically by way of a preliminary objection or other interlocutory process not as a substantive counterclaim. The phrase in limine means “at the outset” or “as a preliminary matter”.

More importantly, this Court had earlier considered and dismissed the Defendant’s objection to jurisdiction, holding that the Court is duly vested with the competence to entertain the substantive suit. That determination remains extant. Accordingly, relief (a) of the counterclaim is misconceived, lacks merit and is hereby dismissed.

The second relief seeks general damages in the sum of ?100,000,000.00 for allegedly bringing the Defendant wrongly to court. With respect, this claim is equally untenable. Access to the Court is a constitutional right. Where a party considers itself aggrieved in an employment relationship, the proper forum to ventilate such grievance is the court of law. The mere fact that a litigant’s claim ultimately fails does not, without more, constitute a wrongful act capable of grounding liability in damages. There is no dispute that the parties herein were in an employment relationship; therefore, the Claimants were well within their rights, pursuant to section 254C of the Constitution, to approach this Court for adjudication.

There is nothing before the Court to suggest malice, abuse of process, or conduct so egregious as to justify an award of punitive or general damages against the Claimants merely for instituting this action. The claim is thus wholly unmeritorious and is accordingly refused.

The third relief is a claim for the sum of ?10,000,000.00 as cost of defending the suit. This relief suffers the same defect. Cost is always at the discretion of the Court, though such discretion must be exercised judicially and judiciously. In the substantive judgment, this Court has already directed that parties bear their respective costs in the circumstances of this case.

To now award cost in favour of the Defendant under the guise of a counterclaim after the Court has declined to do so in the substantive suit would amount to an indirect review of that decision. The counterclaim is not a proper vehicle for such reconsideration. Consequently, the third relief equally lacks merit and is refused.

In the final analysis, the counterclaim of the Defendant is devoid of merit in its entirety and it is hereby dismissed.

Judgment is accordingly entered.

 

…………………………………………………………….

HON. JUSTICE Z. M. BASHIR, Ph.D

JUDGE