MR. CHUKWUEMEKA ONYEDIKA -VS- G-OSSY COMPANY DRUGS LIMITED & 2 ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI

DATE: WEDNESDAY 3^RD OCTOBER 2024 SUIT NO: NICN/LA/208/2018

BETWEEN

MR. CHUKWUEMEKA ONYEDIKA CLAIMANT

AND

1. G-OSSY COMPANY DRUGS LIMITED

2. MR. OSITA IZUCHUKWU DEFENDANTS

3. G.O.C. INVESTMENT LIMITED

Representation:

EA Okorie with CC Ottih and TE Umeaku for the Claimant

Kennedy Okwara with B Nwodo for the Defendant

JUDGMENT

Introduction and Claims:

1. The Claimant flied this suit on the 28^th day of March 2018. On the 24^th day of October 2018, the Claimant filed an Amended Statement of Facts together with list of Claimant’s witnesses, the Claimant’s witness statement on oath, list of documents, and copies of the documents to be relied on by Claimant at the trial of this suit. The Claimant claims against the Defendant as follows:

a. The sum of N10, 200,000.00 (Ten Million Two Hundred Thousand Naira Only) being the Claimant entitlement pursuant to the oral agreement between the Claimant and the Defendants made on the 7^th of January 2010.

b. Interest at the rate of 21% on all sums due and owed to the Claimant calculated from the 8^th of January, 2016 being the date of settlement till date of judgment and at the rate 10% from the date of judgment until the judgment sum is fully liquidated.

c. The sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira Only) for the Defendants’ breach of Contract to settle the Claimant as at when due.

d. General Damages in the sum of N5,000,000.00 (Five Million Naira Only) for the delay, loss of economic opportunity, undue hardship suffered in prison occasioned by the Defendants.

e. Cost of this suit assessed at the sum of N2, 000, 000(Two Million Naira Only) only.

2. In response to the claims, Defendants filed a joint Statement of Defence together with a list of Defendants’ witness and Defendants’ witnesses’ statements on oath and list of documents and copies of documents to be relied on at the trial. Trial commenced in the suit on 11^th of March 2020. The Claimant called two witnesses; himself (CW1) and one Mr. Uchenna Alozie (CW2); Claimant’s brother. The Claimants’ witnesses gave evidence by adopting their witness statements on oath deposed to on the 24^th day of October 2018. They were cross-examined accordingly. During the examination in chief, the CW1 tendered in evidence the following documents:

i) Exhibit C1 - A certified true copy of the Claimant’s hand written statement to the police dated the 18^th of January 2016.

ii) Exhibit C2 - A certified true copy of the 2^nd Defendant’s hand written statement to the police dated the 1^st of January 2016.

iii) Exhibit C3 - A certified true copy of the record of proceedings of the Lagos Magistrates’ Court, Tinubu, Lagos, in Charge No: A/13/2016.

iv) Exhibit C4 - A certified true copy of the judgment of the said Lagos Magistrates’ Court, Tinubu, in the same charge above.

v) Exhibit C5 - A copy of the Claimant’s I. D. card.

3. The Defendants called three witnesses; The second Defendant (DW1), Mr. Paul Ogbu(DW2), and Mr. Jonas Ewulum(DW3). The Defence witnesses gave evidence by adopting their witness statements on oath and were subsequently cross examined. The Defendants tendered the following exhibits:

1. A total of 16 handwritten bio data of the Claimant and other former apprentices of the 3^rd Defendant - Exhibit D1

2. Typed rules and regulations of the 3^rd Defendant - Exhibit D2.

3. A copy of the 3^rd Defendant’s Sales Record Book covering the period 2014 to 2015 (entire book) - Exhibit D3

4. Copy of hand written version of the 3^rd Defendant’s Rules and Regulations - Exhibit ‘D4’

5. A hand written record made by DW2 of the manner in which the Claimant refunded his said employers’ fund he stole in 2015 - Exhibit D5.

6. A collection of internet print outs showing the Claimant’s personal photographs, musical company name, musical tracts, facebook & instagram addresses and generally his exploits in the musical industry while still employed and serving as an apprentice at the 3^rd Defendant - Exhibit D6.

At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Addresses were adopted on 24^th July 2024 and the Court adjourned for judgment.

THE CASE OF THE CLAIMANT

4. On the 7^th of January 2010, the Claimant entered into an oral agreement with the 2^nd Defendant pursuant to which the Claimant undertook to serve the 1^st & 3^rd Defendants as a sales personnel for a period of six years and also as a house boy for the 2^nd Defendant, after which they were bound to settle the Claimant with the sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira Only) or its equivalent in pharmaceutical goods. The said agreement was a ‘usual trade practice amongst the Igbos in trade business’. The said oral agreement was personally witnessed by one Mr. Chidi Erondu who introduced the Claimant to the 2^nd Defendant and also acted as an intermediary for the purposes of the negotiation that preceded the said oral agreement. From the said date of the 7^th of January 2010, the Claimant began to reside in the 2^nd Defendant’s house where he served the 2^nd Defendant as a house boy. In his status as a house boy, he performed such house chores as sweeping, cleaning, laundering, washing and cooking for the 2^nd Defendant’s house hold for the entire duration of his apprenticeship. The Claimant was a sales personnel to the 1^st & 3^rd Defendants. The Claimant was responsible for issuing invoices and also maintained the companies’ ledger books. Aside the Claimant, there were a number of other young boys who also served the Defendants in the same capacities. Some of the boys were Mr. Chukwuemeka Onyedika, Mr. Paul Ogbu etc. The Defendants are very notorious at the Idumota Drugs’ market for not settling their apprentices and dismissing them at the slightest excuse towards the end of their agreed date of settlement. After the Claimant had served them for about five years and two months and therefore approaching his agreed settlement date, the 2^nd Defendant suddenly became hostile and antagonistic towards the Claimant. Sometime in January 2015, the 2^nd Defendant falsely accused the Claimant of stealing the sum of ?750,000.00 (Seven Hundred and Fifty Thousand Naira). The Claimant was reported to the police and was intimidated and tortured into confessing to the alleged crime. The 2^nd Defendant conditioned the Claimant’s settlement on the refund of the said stolen sum. The Claimant approached his elder brother, one Mr. Uchenna Alozie who assisted him. The Claimant was constrained to make the said repayment so as not to forfeit his said agreed settlement of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira Only) or its equivalent in pharmaceutical goods which was almost due. Rather than settling the Claimant, immediately following upon his repayment of the said sum of ?750,000.00 (Seven Hundred and Fifty Thousand Naira), the 2^nd Defendant ejected the Claimant from the employment of the Defendants. One Mr. Chuwkuemeka Onyedika and others were amongst the apprentices that were mistreated, dismissed and sent away without settlement by the Defendants. In early 2016, after the Claimant waited and the Defendants failed to settle him, the Claimant and members of his family reached out to the 2^nd Defendant and put a strong protest. In the same 2016, while still expecting to be settled, the 2^nd Defendant invited the Claimant and his elder brother and further alleged that ?16,133.000 (Sixteen Million, One Hundred and Thirty Three Thousand Naira Only) was still missing and that the Claimant was responsible. The 2^nd Defendant demanded the refund of the alleged additional missing sums. On the complaint of the 2^nd Defendant to the Police, the Claimant was arrested by the police and detained at the Ebute Ero police station for three days. At the said station he was inhumanly tortured and coerced by the Police to admit stealing the said N16,133,000.00 (Sixteen Million One Hundred and Thirty-Three Thousand Ninety Naira which he declined. The Claimant was thereafter arraigned before Hon. K. B. Ayeye at the Lagos State Magistrates’ Court, Tinubu, Lagos. The Claimant was granted bail by the said Magistrates’ court and because of the condition attached, the Claimant spent about 58 days at correctional centre before perfecting his said bail and was thereafter discharged and acquitted of the said criminal allegation. Notwithstanding the Claimant’s discharge and acquittal, the Defendants have still refused to settle the Claimant in breach of their said employment agreement of January 2010.

THE CASE OF THE DEFENDANT

5. It is the case of the Defendants that the Claimant was never employed by the 1^st Defendant. That the 1^st Defendant is a much smaller sister company strictly into wholesale drugs’ dealership and that it is only the 2^nd Defendant and an in-house pharmacist that work at the 1^st Defendant’s company. The 1^st Defendant typically does not employ apprentices. All the apprentices that were ever employed and resided with the 2^nd Defendant were all employed by the 3^rd Defendant. The 1^st Defendant is located at a completely different business address from the 3^rd Defendant. The Claimant began his apprenticeship with the 2^nd & 3^rd Defendants in 2010 and there was a prior oral agreement between the Claimant and the 2^nd Defendant that he would undergo the said apprenticeship for a duration of six (6) years after which he would be settled. There was no collateral agreement that the Claimant would be paid the alleged huge sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira) or alternatively gifted pharmaceutical goods of that worth. Contrary to the allegation of the Claimant, there is no usual practice or custom amongst Igbos in trade business that permits an intending apprentice to sit down in advance and negotiate and agree upfront on the sum of money he would be paid or goods of equivalent monetary value that would be gifted to him as settlement at the conclusion of his agreed tenure of apprenticeship. It is the case of the Defendants that settlement in the context of the Igbo trading apprenticeship practice or custom meant training the Claimant, guiding him and equipping him with the requisite trading skills that will enable him at the end of his agreed tenure of training to be able to stand on his own and succeed. The payment of money and/or gifting of goods as part of the said settlement process is secondary, discretionary and based on both the employer’s financial capability at the material and relevant time of settlement and its objective assessment of the performance of an apprentice for the duration of his training.

6. Mr. Chidi Erondu, a former apprentice of the 3^rd Defendant introduced and brought the Claimant to the 2^nd Defendant. Mr. Chidi Erondu never participated nor witnessed the consummation of the said oral agreement between them in January 0f 2010. The Claimant was not employed, at all, as a house boy to the 2^nd Defendant and also never acted in that rather lowly capacity throughout the tenure of his apprenticeship. Though an apprentice, it was customary that the Claimant should perform domestic chores while residing in the house of the 2^nd Defendant. Every other apprentice did that and the Claimant did not transform into a house boy by virtue of his performance of the said house chores. It is the case of the Defendants that the Claimant acted as a sales person, issued invoices and maintained ledger books at the 3^rd Defendant. The 2^nd Defendant treated him as fairly as he did to his co-apprentices. It is completely false that it is in the character of the 2^nd Defendant to cook up excuses to dismiss his apprentices and renege on his agreement to settle them towards the end of the agreed tenure of their apprenticeships. Upon the commencement of his apprenticeship, the rules (handwritten and typed) were handed to the Claimant. The said rules and regulations were also pasted at conspicuous places in the Claimant’s room and the office of his direct employer. The Claimant brazenly serially violated the said rules and regulations. The 2^nd Defendant never wrongly accused the Claimant of stealing the 3^rd Defendant’s sum of ?750,000.00 (Seven Hundred and Fifty Thousand Naira). The Claimant actually stole the said sum, confessed and on his own volition refunded same to his direct manager at the 3^rd Defendant. Rather than the 2^nd Defendant, it was the Claimant’s manager and co-apprentice, Mr. Ogbu, that detected his said theft, confronted him and he confessed and the said case of theft by the Claimant was not reported to the police at all because the Claimant admitted same and willingly refunded the sum involved. The case prompted the Claimant’s dismissal in February 2015 and accordingly, he forfeited his entitlement to settlement. It is the case of the Defendants that on the complaint of the 3^rdDefendant, the Claimant was arrested by the police at Ebute Ero and arraigned in Court for stealing its employer’s additional sum of over ?16,000,000.00 (Sixteen Million Naira). It is untrue that the Claimant was detained for three days and tortured at the instance of the 2^nd Defendant at the said police station before the Claimant was arraigned at the Tinubu Magistrates’ Court, Lagos. It is also not true that he spent over 50 days in prison before regularising the bail granted him by the said Court. Although the Claimant was eventually discharged and acquitted of the said charge mainly because the reconciliation report prepared by the 2^nd Defendant and relied upon by the prosecution was not prepared by a qualified chartered accountant/auditor; the Claimant knew that the moment he stole he automatically becomes disentitled to settlement and also knew that some other employee who were found guilty of stealing were dismissed without settlement.

SUBMISSIONS ON BEHALF OF THE DEFENDANTS

7. The Defendants raised four issues for determination as follows:

1. Whether from the parties’ competing pleadings and evidence he adduced at the court, the Claimant established that the 1^st Defendant Company was also his employer for the said tenure of his apprenticeship so as to justify its joinder to this suit?

2. Whether the Claimant established to the required probative standard that he was not only additionally employed as a house boy for the 2^nd Defendant but also actually served him in that lowly capacity throughout the five years and two months’ tenure of his apprenticeship?

3. Whether the Claimant discharged the evidentiary burden placed on him to prove that he is entitled to the alleged huge sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira Only) or its worth in pharmaceutical goods at the material time he ended his apprenticeships with the 2^nd & 3^rd Defendants and especially under the alleged ‘usual trade practice amongst Igbos in trade business?

4. Even if (without conceding at all) that there was truly an oral agreement in January 2010 pursuant to which the Defendants undertook to settle the Claimant at the successful end of his agreed six (6) years tenure of apprenticeship with the alleged huge sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira) or its equivalent worth in pharmaceutical goods, whether his theft of his employers’ fund (in evident material breach of the fundamental rules and regulations which he subscribed to at the outset), the attendant confession and refund of the same, resulting in his dismissal in February 2015 for gross misconduct, did not completely disentitle him from settlement?

8. As a point of departure and before venturing into the meat of this issue, the Defendants contended that there is the necessity for the Court to resolve conclusively the nature of the subject matter contract, that it to say, whether is it one for the employment of the Claimant by the Defendants as a sales representative as he pleaded in his statement of facts and reinforced in his statements on oath or of apprenticeship as contended by the Defendants, also both in their joint defense and statements on oath of the 2^nd Defendant and their two other witnesses.

9. On issue one, “whether from the parties’ competing pleadings and evidence he adduced at the court, the Claimant established that the 1^st Defendant company was also of his employer for the said tenure of his apprenticeship so as to justify its joinder to this suit”, the Defendants argued that after they raised the fact that the 1^st and 3^rd Defendants are separate entities and that the Claimant was only employed by the 3^rd Defendant, which fact the Claimant did not reply despite having opportunity to do so, amounting to admission on the part of the Claimant. The Defendants relied on Order 15 Rule 7 of the National Industrial Court Civil Procedure Rules 2017, Order 30 Rules 6(1) & (2) of the Rules and the case of Asafa Food Factory v. Alraine Nigeria Ltd. & Anor (2002) 12 NWLR (Pt.781) 353 @ 379 para. D-G. The Defendants also argued that the Claimant failed to call witnesses to confirm the Claimant’s position and that the oral evidence of the Claimant’s 2^nd witness(CW2), Mr. Uchenna Emelogu Alozie (during his cross examination on the 12^th of March 2020) is unhelpful to the Claimant’s case as it is purely hearsay evidence. The CW2 had under cross examination stated that:

No, I did not work with the Claimant at his employer’s business. I did not live with him at the 2^nd Defendant’s house. The things I stated concerning happenings at his business and residence are what he told me.

10. The Defendants reopened their objection to the admission of exhibit C5(Claimant’s identity card) and asked that the exhibit be expunged. The Defendants argue that the 2^nd Defendant who is the managing director of both the 1^st & 3^rd Defendants who purportedly signed the said exhibit C5 on behalf of the 1^st Defendant disowned it completely because according to him not only did the Claimant not train and/or work for the company but also he could not have been and was not issued its identification card. That, even though the 2^nd Defendant’s signature appeared on the said exhibit, it was forged or scanned into the document.

11. Issue two “whether the Claimant established to the required probative standard that he was not only additionally employed as a house boy for the 2^nd Defendant but also actually served him in that lowly capacity throughout the five years and two months’ tenure of his apprenticeship? The Defendants argued that although the Claimant stated that he was also employed to work as a house boy and that Mr. Chidi Erondu witnessed the oral agreement, his failure to call the said Mr. Chidi Erondu as witness to justify his claims, is fatal to his case. The Defendants submit that in Nigeria, contracts of apprenticeship is regulated by statute (the Labour Act), common law, customary law/practice and the agreement of the parties and that at common law, an apprentice is bound to perform domestic chores or duties while being trained and residing in his master’s house and that the performance of the said domestic duties or chores does not, at all, transform him into a house boy or domestic servant. The Defendant relied on the book ‘Nigeria Labour Law’, fourth Edition by Professor Akintunde Emiola, page 123 where he stated that “‘Although an apprentice does to some extent the class of work which would be done by a servant…..he does not do it as a servant’’.

12. Issue Three “Whether the Claimant discharged the evidentiary burden placed on him to prove that he is entitled to the alleged huge sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira Only) or its worth in pharmaceutical goods at the material time he ended his apprenticeships with the 2^nd & 3^rd Defendants and especially under the alleged ‘usual trade practice amongst Igbos in trade business? The Defendant argued that because of the abject failure of the Claimant to adduce credible and acceptable evidence to establish his said weighty allegation that he orally agreed with the 2^nd Defendant, in advance, to pay him a huge sum of ?10,200,000.00 (Ten Million Two Hundred Thousand Naira Only) or its worth in pharmaceutical goods, at the conclusion of his apprenticeship, the burden of proof did not shift and hence remains with the Claimant. Furthermore, the Claimant’s alleged ‘that it is usual practice amongst Igbos in trade business’, the parties joined issues on what the true practice amongst Igbos in business is vis a vis settlement in apprenticeship and thereby imposed an obligation on the Claimant to adduce evidence to establish his said allegation. The Defendants contend that beyond the said evidentiary burden the Claimant shoulders, it is trite that customary law, rule of custom, custom or practice is a question of fact which the Claimant is bound to adduce evidence to establish, except where it has already been judicially noticed by the Courts. The Defendant relied on Sections 70 of the Evidence Act 2011.

13. Issue four “Even if (without conceding at all) that there was truly an oral agreement in January 2010 pursuant to which the Defendants undertook to settle the Claimant at the successful end of his agreed six (6) years tenure of apprenticeship with the alleged huge sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira) or its equivalent worth in pharmaceutical goods, whether his theft of his employers’ fund (in evident material breach of the fundamental rules and regulations which he subscribed to at the outset), the attendant confession and refund of the same, resulting in his dismissal in February 2015 for gross misconduct, did not completely disentitle him from settlement? The Defendants submit that whether or not the Claimant truly contracted with the Defendant that he would be settled with the alleged huge sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira) or its equivalent worth in pharmaceutical goods at the end of his apprenticeship, whether or not he contracted to serve the 3^rd & 1^st Defendants jointly as an apprentice for the said agreed tenure, whether or not he not only contracted to additionally serve but also actually served the 2^nd Defendant as a houseboy for his same duration of training, regardless of whatever role the said Claimant’s uncle, Mr. Erondu played in facilitating the subject matter apprenticeship agreement, regardless of whatever variant of Igbo apprenticeship practice or custom that is applicable to the said apprenticeship agreement and also irrespective of the nature and content of settlement that was negotiated and agreed between the Claimant and the 2^nd Defendant at the outset of his training in January 2010, his premature and ignominious dismissal from his masters’ employment for theft and gross misconduct (in material breach of his employers’ fundamental rules and regulations) completely disqualified him from settlement.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

14. The Claimant raised three issues, for determination as follows:

1. Whether there is valid oral employment contract between the Claimant and the Defendants?

2. Whether by virtue of the Defendants’ failure to settle the Claimant, the Defendants have not breached the contract validly contracted by parties?

3. Whether from the totality of evidence adduced in this matter, the Claimant is not entitled to the reliefs sought?

15. The Claimant first responded to the Defendants’ submissions. On the issue that the Claimant’s failure to reply to new facts amount to admission, the Claimant replied that there were no new and weighty issues raised by the Defendants and therefore there was no need to file a Reply to the Defendants’ joint defence. The Claimant also submits that the 2^nd Defendant being the director of both 1^st and 3^rd Defendants, will instruct the Claimant to work for the 1^st Defendant and the 3^rd Defendant and that the 1^st Defendant is a necessary party to this suit having gainfully benefitted from the Claimant’s services. The Claimant submits that it is trite law that a party who has benefitted from a contract cannot turn around and resile from such contract. The Claimant relied on the case of Matab Oil & Gas Ltd V. F.F.S. Ltd. (2020) 17 NWLR (Pt.1752) CA.

16. Claimant’s issue one - Whether there is valid oral employment contract between the Claimant and the Defendants? The Claimant places reliance on the 2^nd Defendant’s admission in paragraphs 9 and 13 of his witness deposition wherein the 2^nd Defendant partly admitted that the Claimant was employed by the 2^nd and 3^rd Defendant and further places reliance on exhibit C5 (Claimant’s ID card) given to the Claimant as a staff of the 1^st Defendant which also shows that he worked for the 1^st Defendant, in addition to working for the 2^nd and 3^rd Defendants respectively. The Claimant submits that all the employees who served the 2^nd Defendant served the 1^st and 3^rd Defendants without exception as the running of both businesses are intertwined and cannot be separated since the 2^nd Defendant is the alter ego of both companies respectively. The Claimant further submits that it is trite law that facts admitted needs no further proof and that the 2^nd Defendant’s admission as contained in (DW1) Defendant’s witness statement on oath dated 21^st January, 2020 admitting that the Claimant was an employee of the 2^nd and 3^rd Defendant is unassailable and need no further proof that there was a valid oral contract between Claimant and 2^nd and 3^rd Defendant. The Claimant relied on the case of Baalo V FRN (2016) LPELR – 40500 (SC).

17. Issue two - Whether by virtue of the Defendants’ failure to settle the Claimant as contracted, the Defendants have not breached the contract validly contracted by parties? The Claimant relied on Exhibit C3 and C4 to argue that having been discharged and acquitted by a competent Court of law, of the allegations of theft against him; the Defendants have no ground whatsoever for withholding the Claimant’s entitlements on any flimsy excuse whatsoever. The Claimant submits that the Defendants’ stubborn refusal and/or failure to pay him amount to a fundamental breach of contract. The Claimant further relied on the case of Best Nigeria Ltd v. Blackwood Hodge (Nigeria) Ltd & Ors (2011) 5 NWLR (PT. 1239) 95, the Supreme Court held per FABIYI JSC (as he then was) that:-

“There is no gain-saying the point that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or incapacitates himself from performing same or in a way back down from carrying out a material term.”

18. Issue three - whether from the totality of evidence adduced in this matter, the Claimant is not entitled to the reliefs sought? The Claimant argues that it is trite that a party cannot resile/renege from a contract after benefitting from the contract by refusing to fulfill his own contractual obligations - Attiogbey v. UBA Plc & Ors (2013) LPELR-20326(CA); and submits that the Defendants have gainfully benefitted from the Claimant both at home and at the work place for a period of 5 years and 2 months without settlement but rather inflicted pains and misery on the Claimant by spitefully incarcerating the Claimant using the police and eventually prosecuting him maliciously at the Magistrate Court of Lagos State for which he was discharged and acquitted. Claimant submits that the Defendants are notoriously known for unjustly benefitting from the labour/sweat of apprentices and eventually sacking them few months to the expiration of their contract. The Claimant argues that this is unfair labour practice and urges this Court to jettison such practice by holding the Defendants accountable for their actions. Counsel submits that of a truth, no young man in his right senses will agree to serve a master for a period of 6 years without any agreed financial consideration and therefore the Defendants’ argument is preposterous and bereft in logical reasoning and tainted with unfair labour practices. Counsel further submits that it is pure wickedness and moral decadence on the part of the Defendants to continue to unlawfully withhold the Claimant’s entitlements. The Claimant argues that failure on the part of the Defendants to pay the Claimant’s entitlement, the Claimant has employed the service of his Counsel to prosecute this matter and thus incurred the sum of Two Million Naira and that cost follows events and a successful party in a litigation process is entitled to cost. The Claimant relied on the cases of Adenaiya v. Governor-in-Council (1962) 1 SCNLR 442.

THE DEFENDANTS’ REPLY ON POINTS OF LAW

19. The Defendants pointed out that the Claimant’s Counsel infused extraneous matters that are not only contained in the parties pleading but also not part of the evidence before the Court and therefore should be discountenanced by the Court completely or expunged as the submissions of Counsel does not amount to pleading. On the issue whether there is valid oral employment contract between the Claimant and the Defendants; the Defendant argues that the manner this issue is conceptualized and couched is faulty and misleading because it smacks of the existence of a dispute between the parties on the validity of the subject matter apprenticeship agreement. That a consideration of the parties’ competing pleadings shows that the validity of the said agreement was never put in issue by them because the Defendants admitted that there was truly an oral agreement between them in the material year 2010. The divergence is on the content of the agreement itself, the parties’ who witnessed its consummation, the nature of settlement contemplated there under and also the particular variant of Igbo apprenticeship custom that applies to it.

20. On exhibit C5, the Defendants argue that though the Claimant’s solicitors were served with a copy of their address where they re-argued their objection to exhibit C5, the Claimant neither challenged, countermanded nor in any other way reacted to their additional grounds of objection to the admissibility of exhibit C5. The Defendants submit that the legal implication of the said abject and inexplicable failure on the part of the Claimant’s solicitors is that the Claimant is deemed to have conceded and admitted the said further grounds of objection; which now operates as estoppel thereby forbidding him from re-opening any argument on the said matter of exhibit C5. The Defendants however further argued that while it is true that oral argument cannot be permitted to vary, alter, add to or countermand the contents of a document, there is an exception to it and it is that the content of a document can be challenged on grounds of fraud. On the issue that the act of the Defendants amount to unfair labour practice against the Claimant, the Defendants replied that it is not part of the Claimant’s case at the trial, and that the Court cannot oblige the Claimant with that, as it is trite that parties and the Court are bound by the pleadings before the Court. On issue of cost of ?2,000,000.00 (Two Million Naira) as solicitors fee, the Defendants replied that there was nowhere that the Claimant pleaded any material fact, at all, to support this specific relief and that in the absence of clear and unquestionable material facts and especially documentary evidence this relief should fail.

DECISION

21. I have carefully considered the processes filed in this case, the evidence led, the written submissions and authorities cited by Counsel in their final written addresses. I also evaluated all the exhibits tendered and watched the demeanour of the witnesses called in this suit. Having done all these, I set a lone issue down for determination:

· Whether in view of all the surrounding facts and circumstances; the Claimant has established a case of breach of the apprenticeship contract between him and the Defendants, as to entitle him to the reliefs sought in this case?

22. This case is founded on oral apprenticeship agreement as prevalent among the Igbos and particularly the practice of settlement at the end of the apprenticeship. Parties are agreed that there was an oral apprenticeship agreement. However, the Claimant alleges that at the point of the commencement of the apprenticeship, parties agreed that he would be settled with the sum of N10,200,00.00(Ten Million Two Hundred Thousand Naira). The Claimant’s evidence is that he was not settled at the end of his apprenticeship, but was accused of stealing the Defendants’ money. The Claimant’s contention is that since he was discharged and acquitted of the stealing charges, the Defendants should fulfill their contract with him by settling him with the agreed N10,200,00-.00(Ten Million Two Hundred Thousand Naira) only.

23. As suggested by the Defendants, it is important to determine the real relationship between the Claimant and the Defendants. The Claimant pleaded and gave evidence that:

On the 7^th of January, 2010, the Claimant entered into an oral agreement with the 2nd Defendant to render the services of a sales personnel to the 1^st & 3^rd Defendant and to serve the 2nd Defendant as a Houseboy for the period of six (6) years, at the expiration of which the Claimant will be settled with the total sum of N10,200,000.00 or its goods (pharmaceutical products)equivalent. Claimant will contend at trial that this agreement is the usual trade practice among the Igbos in trade business.

24. The need to determine the real status of the Claimant’s relationship with the Defendants is because the legal regime regulating an agreement to render services of a sales personnel and that of an apprenticeship agreement differ. The case of the Defendants is that the Claimant was engaged as an apprentice, and not as sales personnel. Though the Claimant stated that he was employed to render the services of a sales personnel, his Counsel’s submissions are replete with his understanding of the status of the Claimant to be an apprentice. See for instance, Claimant’s following submissions:

5.10 … Further submits that a holistic appreciation of the concept of “apprenticeship” presupposes that the employee does not choose who to serve or not but follows the instructions of the master; of which in the instant suit the 2^nd Defendant is the Claimant’s master and alter ego of both 1^st and 3^rd Defendant and therefore it is next to impossible for the Defendants to allege the Claimant was not involved as a staff of the 1^st Defendant.

5.13 … My lord, will easily decipher that the DW2 is a junior in the rank

of apprenticeship as he came later than the Claimant and cannot state what was agreed between the Claimant and the 2^nd Defendant when the Claimant was employed as an apprentice in the Defendants’ employment.

5.18 … Moreso, my lord, it is a course of dealing in the Igbo

apprenticeship scheme that servants are settled by their masters at the end of the contractual period. This fact is well known and undisputed.

5.41 … Counsel submits that the Defendants are notoriously known for

unjustly benefitting from the labour/sweat of apprentices and eventually sacking them few months to the expiration of their contract.

5.47 … Counsel submits that the evidence of DW2 was to erroneously

abrogate that there is no sums fixed with apprenticeship, but wittingly admitted under cross examination and also at paragraph 14 of his witness deposition, that he served and was settled without mentioning or specifying what the amount he was settled with by the 2^nd Defendant. It is also submitted that the evidence of DW3 and DW2 is to also put into perspective that an apprenticeship is entitled to settlement.

25. The preponderance of evidence before this Court, is to the overwhelming effect that the parties’ relationship, subject matter of this suit, is one of apprenticeship. For instance, in Exhibit C3(proceedings in charge No. A/13/2016), the Claimant personally deposed as follows; “on the 28^th of December 2009, sent words to my parent through one of my uncles that he needed somebody to work with for him as his apprentice. On my arrival at the complainant’s house on the 7^th of January 2010, I reached an agreement with him that I will work for him as apprentice for a period of 6 years after which he will settle me.” This was also the evidence of CW2 in the same Exhibit C3; as follows; “I know the complainant, he was my younger brother’s boss. PW1 runs a pharmaceutical Company. In January 2010, PW1 came through his nephew who is my friend to take my brother as an apprentice under the condition that Defendant will work for him for 6 years and after which PW1 will settle him with money.’ In exhibit C4 (judgment in charge No: A/13/13/2016), the Chief Magistrate K. B. Ayeye found that; “the deductible evidence is that; the Defendant had an apprenticeship agreement with the PW1 to serve him for 6 years beginning 2010.” In the course of his cross examination in this suit, on the 11^th of March 2020, the Claimant stated as follows; “Mr. Erondu was present when it was agreed that at the end of my apprenticeship I will be paid ?10.2 Million… We were up to 10 apprentices… The 2^nd Defendant was feeding and taking care of all of us throughout the apprenticeship.’ In the light of the foregoing, I am convinced that the contract of the 7^th of January 2010 between the Claimant and the Defendants was one of apprenticeship. I so hold.

26. In this suit, the Claimant alleges breach of agreement to pay him ?10.2 Million at the end of his apprenticeship. The Defendants do not contest that there was an apprenticeship agreement which included that the Claimant would be settled at the end. The Defendants however vehemently disagrees that they ever agreed to the payment of ?10.2 Million. Since there is no written agreement to this fact, it is for the Claimant to call oral evidence to prove that this agreement was entered into. The DW1 gave evidence refuting the Claimant’s claim, and states that:

Paragraph 8: The 2^nd & 3^rd Defendants state further that settlement in the

context of the said oral agreement between the Claimant and the 3^rd Defendant never, at all, meant or implied payment of the alleged sum of ?10,200,000.00 (Ten Million, Two Hundred Thousand Naira Only) or any other huge sum of money or their worth in pharmaceutical goods, at all, to the Claimant at the successful conclusion of his said agreed 6 years apprenticeship tenure.

Paragraph 9: The 2^nd & 3^rd Defendants add that though there is a long

history and prevailing culture of trading apprenticeship among Igbo traders, it certainly does not include and/or contemplate an employer or master entering into an advance agreement regarding the specific amount of money and/or goods that would be paid to or gifted to a would be or trading apprentice upon the successful completion of his tenure of apprenticeship.

Paragraph 10: The 2^nd & 3^rd Defendants state that settlement in the said

time worn and settled custom of Igbo trading

apprenticeship/training means essentially guiding, disciplining

and training the Claimant in the fundamentals of the business of

drugs and other pharmaceuticals products dealership and also

equipping him with the basic trading skills that will help him to

succeed on his own after his term of apprenticeship.

Paragraph 11: The 2^nd & 3^rd Defendants state that the training,

knowledge, exposure and experience an apprentice receives during

the duration of his training and apprenticeship is so invaluable that

it cannot be accurately measured in terms of Naira and Kobo.

Paragraph 12: It is further hereby stated that the payment of money or

its equivalent in goods, if any, is not only of secondary

consideration in the said settlement process but also determined by

the performance and conduct of an apprentice all through the

duration of apprenticeship and always at the discretion of the

employer/master.

Paragraph 17: The 2^nd & 3^rd Defendants reiterate that it was not, has

never been and is still not a usual trade practice among Igbos in

the trading business for an employer or master and his intending

apprentice (not even guaranteed a complete and successful apprenticeship as a result of the vagaries of human life) to agree in advance as to any specific sum of money (and/or goods of a specified monetary value) to be paid/gifted to the said apprentice at the end of a successful term of apprenticeship.

27. The Defendants gave evidence that such a custom did not exist, and could not have been agreed upon, as no one can determine how the apprenticeship will run. DW3 gave evidence that:

It is not true that an employer or master could ever, first and foremost sit down with his intending apprentice to discuss, negotiate and agree in advance as to the amount of money and/or worth of goods the said proposed apprentice will be settled with or gifted at the end of his successful tenure of apprenticeship.

That what usually intending apprentice or his family discusses and agrees in advance with his employer or master at the outset is the tenure of apprenticeship, that it to say, the number of years the apprentice is required to serve and train under his employer before he is settled and branches out to be on his own business.

That under the said age long Igbo trading apprenticeship system, to employ a young school leaver as an apprentice is a huge favour to both the apprentice and his family by the employer because during the period of apprenticeship, the master automatically assumes the role of a parent to the apprentice and is expected to train and guide him in not only all aspects of the master’s business but also discipline and life generally.

That under the said Igbo apprenticeship tradition/custom/practice, for the agreed duration of training, an apprentice is required to be obedient, humble, honest, hard working and also perform all manner of house chores while residing in his master’s house.

28. The Claimant did not lead any evidence to refute the Defendants’ assertion that it is not the custom in apprenticeship contracts to agree to a settled and certain sum as settlement at the commencement of the apprenticeship. The Claimant had claimed that he was taken to the 2^nd Defendant to be apprenticed by Mr. Chidi Erondu who still lives in Lagos and who had introduced him to the 2^nd Defendant and also served as an intermediary between him and the 2^nd Defendant during negotiation. The Claimant failed to call Mr. Chidi Erondu as witness, as the only other person who was present when this oral agreement was reached. The Claimant’s evidence therefore, did not establish that there was an agreement that he will be paid N10.2M upon completion of his apprenticeship in particular, or that such a custom exists, generally. The Claimant did not give evidence of a single apprentice whose settlement sum was agreed at the commencement of the apprenticeship. I find that, from a preponderance of evidence, that it is not the custom and practice in the apprenticeship industry under examination, for employers (masters) to agree with their apprentices on how much money or goods they will be settled with. Therefore, the Defendants could not have agreed with the Claimant on the settlement sum of N10.2M upon completion of the apprenticeship. I so hold.

29. Are the Defendants liable to settle the Claimant with any other sum? The case of the Claimant for the sum of N10.2M having failed, should the Claimant be awarded any other sum as settlement? Both parties concede that they agreed that the Claimant should be settled at the completion of the apprenticeship. The facts before this Court reveal that the Claimant did not stay the full term of his apprenticeship. The apprenticeship was commenced on 7^th of January, 2010 and was to end in 2017. The Claimant gave evidence that:

That in a bid to frustrate me, the 2^nd Defendant falsely accused me of stealing the sum of N750,000.00 belonging to the 1^st Defendant and threatened not to settle me if I failed to return the said sum.

That the 2^nd Defendant threat not to settle me was in spite of the fact that my master knew that I did not have the means of paying the alleged sum since I was a servant without salary.

The 2^nd Defendant invited the Police to arrest and torture me to admit the allegation of stealing, after being brutally tortured and coerced by the Police and 2^nd Defendant, I admitted stealing the sum of N750,000.00

That after 7 days of returning the alleged stolen sum, the Defendants suspended me from their employ after I had worked and served the Defendants for a period of 5 years and 2 months and was about completing my last 8 months service to the Defendants when the Defendants preposterously suspended and/or ejected me with the sole intent to discard me without settlement.

30. From the above testimony of the Claimant, he suggests that the Defendants involved the police to exact an admission for the theft of N750,000.00 and the subsequent repayment of the said sum. The Claimant further gave evidence that after the incident, he was suspended and when he returned to ask for his settlement, he was then further accused of stealing more of Defendants’ money. However, and in contradiction, the Defendants testified that the Defendants never invited the police on the theft of the N750,000.00, as the Claimant admitted it and commenced its repayment. The Defendants state that as a result of the Claimant’s misconduct, the Claimant was dismissed and therefore not entitled to any form of settlement. DW2 gave evidence that:

39. As to paragraphs 13 & 14 of the statement of facts, the 2^nd Defendant vehemently denies accusing the Claimant falsely of stealing the said sum of?750,000.00 belonging to the 3^rd Defendant. The 2^nd Defendant further denies ever threatening not to settle the Claimant if he failed to return the alleged stolen sum.

40. The 2^nd Defendant further states that the Claimant not only stole the said sum but actually admitted committing the said act of dishonesty and also volitionally refunded same. To the knowledge of the Claimant, the said criminal act was in serious breach of one of the cardinal rules and regulations of his employer, the 3^rd Defendant, which he undertook at the outset of his said apprenticeship to observe faithfully.

41. Having been investigated by his own direct manager, found culpable, personally admitting stealing the said sum and also refunding same, the 2^nd Defendant had no reason to doubt that the Claimant actually committed the said criminal act. There was also no reason for the other apprentices and/or employees to be investigated for the said allegation because the Claimant himself not only whole heartedly admitted it but also it was a customer he sold the 3^rd Defendant goods to, refused to record the sales and pocketed the proceeds that indirectly exposed and implicated him.

42. The 2^nd Defendant further states that he operates at a completely different office though within the same Idumota Drugs’ market, Lagos and was not present when the said crime was detected and investigated by the Claimant’s direct manager, Mr. Ogbu. The said fraud and stealing were only reported to the 2^nd Defendant after the Claimant delayed in refunding the said stolen sum. The four different instalmental refunds (between the 28^thof January 2015 and the 11^th of February 2015) of the said stolen sum (as explicitly recorded) was also not made to the 2^nd Defendant directly but to the same Claimant’s manager who made a record of its dates and applicable sums, in the presence of other employees and apprentices.

31. The Claimant did not lead evidence to counter the Defendants’ evidence of his theft of the N750,000.00. Claimant’s evidence concerning the theft of N750,000.00 is inconsistent with the documentary evidence available before this Court. The Claimant gave evidence that after the theft of N750,000.00, he was arrested and tortured by the police to accept commission of the offence; whereas, there is no proof that the matter was ever reported to the police. DW2 again stated that:

62. The 2^nd Defendant further states that after the expulsion of the Claimant from the 3^rdDefendant’s employ for gross misconduct, because of the circumstances under which the said fraud and theft were detected, he embarked upon a comprehensive review and reconciliation of the receipt booklets and sales books of the company where entries of the sales made in the previous year were compulsorily meant to be entered and not only discovered that a good number of the said invoice booklets were missing. Even some of the ones that were seen, were deliberately torn or mutilated, beyond legibility. There were also cases of forged signatures which were traced to the Claimant as the person directly in charge of the said booklets and the entries therein.

63. The said review and reconciliation resulted in the discovery of additionally missing and unaccounted total sum of ?16,138,090.00. It was exactly the same way that the Claimant perpetrated the said fraud and theft of the earlier sum of ?750,000.00 that the said new missing sum was detected. It was additionally found that a good number of the invoices that the Claimant wrote over the said period, he did not submit the sums involved to the cashier.

32. The Claimant’s evidence is tainted and not one to be believed. While from the evidence before the court, the said criminal incident of 2015 for which the Claimant was dismissed from his employer’s service was neither reported to the police nor charged to court, in his statement on oath (his evidence in chief), he unabashedly stated that; “further to paragraph 15, the Defendants sacked the cashier whilst the investigation of the said missing sum was ongoing, all in a calculated ploy to indict me. That upon sacking the cashier, the 2^nd Defendant invited the police to arrest and torture me to admit the allegation of stealing. After being brutally tortured and coerced by the police and 2^nd Defendant, I admitted stealing the sum of ?750,000.00.”

33. Exhibit C1 tendered by the Claimant is the Claimant’s statement to the police upon allegation of the theft of ?16,138,090.00. In exhibit C1written in January 2016, the Claimant related how he had admitted stealing and refunding ?750,000.00 in January of 2015. It is clear the theft of ?750,000.00 was not made a police case, contrary to Claimant’s evidence. Exhibit D5 also shows Claimant’s admission of stealing and refunding ?750,000.00. Also, exhibit D5 where the Claimant admitted the theft and refunded the money, was made about one year before the police case. The Claimant was clearly in breach of his apprenticeship by stealing in violation of laid down Rules of the Defendants as shown in exhibits D2 and D4. The Claimant’s evidence is infected with apparent falsehood, that dents his entire evidence and make them unreliable. Exhibit D6, showing the Claimant’s musical adventures; suggests that the Claimant was not dedicated to the course of the apprenticeship. By all these, the Claimant is not on good legal or moral ground to demand for settlement.

34. On the issue whether the 1^st Defendant Company was also the Claimant’s employer for the said tenure of his apprenticeship so as to justify its joinder to this suit. The 2^nd Defendant admitted that the Claimant was apprenticed to him from 2010 till he was sent away sometime in January 2015. He admitted during cross examination that his is the Managing Director of the 1^st and 3^rd Defendants. He admitted that he is the alter ego and majority shareholder of the two companies. He stated “I entered an oral agreement for the Claimant to serve for 6 years”. I am of the view that having been apprenticed to the 2^nd Defendant for the period, and the 1^st and 3^rd Defendants being owned and managed by the 2^nd Defendant, the oral apprenticeship could not have intended to exclude the Claimant from being involved in the 1^st Defendant as an apprentice. The Defendants in support of their defence that the 1^st Defendant was not Claimant’s employer, argued that the fact that the Claimant sued only the 1^st & 2^nd Defendants; and later joined the 3^rd Defendant after the said original Defendants filed their initial joint memorandum of appearance and statement of defense dated the 26^th day of June 2018 in response to this suit and vehemently denied that the 1^st Defendant company was ever the employer of the Claimant that the Claimant realised the necessity for the joinder of the 3^rd Defendant. Contrary to the argument of Counsel to the Defendants, I rather take that fact as evidence that the Claimant’s services must have been to the two companies owned by his master; the 2^nd Defendant. This finding is made independent of the existence of exhibit C6. There is no need to begin a determination of the validity or otherwise of the said exhibit C6 - Claimants identity card alleged to be from 1^st Defendant, but challenged as being forged. In the circumstance of the parties’ relationship, I find that the 1^st Defendant was properly joined in this suit. I so hold.

35. On the issue whether the Claimant was additionally employed as a house boy for the 2^nd Defendant, the evidence of the Claimant was that as an apprentice, he lived in the 2^nd Defendant’s house and that the 2^nd Defendant was taking care of him. He gave evidence that all the other apprentices of the 2^nd Defendant also lived with him and also were provided for by the 2^nd Defendant. The Claimant stated as follows: “we were up to ten apprentices… The Defendant was feeding me and taking care of us”. This is also, actually the evidence of the Defendants. DW3 also gave evidence consistent with the evidence of the CW1 that:

20. That during my own days as an apprentice under the 2^nd & 3^rd Defendants, we were more than ten (10) apprentices/trainee traders serving and training under the 2^nd Defendant, residing in his family house and also being fed, clad and generally taken care of by him and his family.

23. That I was never employed as a house by the 2^nd Defendant. My service and employment under the 2^nd & 3^rd Defendant did not also require me to perform the functions of a house boy. On his own part, I know that the Claimant was also never employed as a house boy to the 2^nd Defendant, even though he resided in his house throughout his tenure of apprenticeship. He also was neither treated as a house boy nor required to do house boy duties while residing with the 2^nd Defendant for the said tenure of his apprenticeship.

24. That there is a world of difference between a house boy and an apprentice under the Igbo apprenticeship system/custom. While the status of a house boy is a lowly position that mandated one to perform lowly and demeaning duties in the house of his employer, a trainee trader or apprentice is a future successful trader in the making and his position is a dignifying one.

25. That as I make these depositions, most of my said apprentices are now carrying on with their own separate and independent businesses and happily married. Some, to the glory of God, are even more materially successful and comfortable than the 2^nd Defendant.

36. DW2’s evidence above is consistent with Claimant’s evidence that as apprentices, they lived with the 2^nd Defendant in his home and were taken care of by the 2^nd Defendant. The 2^nd Defendant could not have had all apprentices as houseboys as well. By preponderance of evidence, I am inclined accept that the Claimant was in the house of the 2^nd Defendant as an apprentice and not as a house boy. The house chores he did in the 2^nd Defendant’s house were done as 2^nd Defendant’s apprentice, living with him, and not as a house boy. I so hold.

37. From the evidence in this suit, the Claimant has not been able to establish a case of breach of the apprenticeship contract between him and the Defendants by the Defendants. He is therefore not entitled to his relief for the sum of N10, 200,000.00 (Ten Million Two Hundred Thousand Naira Only) for failing to prove that the Defendants agreed with him, at the commencement of the apprenticeship, that he will be paid N10.2M upon completion of his apprenticeship. He also failed to prove that a custom/practice exists in the industry for employers to agree, while taking on an apprentice, that he will be settled with any specific amount.

38. Relief two for “interest at the rate of 21% on all sums due and owed to the Claimant calculated from the 8^th of January, 2016 being the date of settlement till date of judgment and at the rate 10% from the date of judgment until the judgment sum is fully liquidated”, fails, due to the failure of relief one in this suit. All the other reliefs fail, as a consequence.

Judgment is entered accordingly. I make no Order as to cost.

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji