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:  THURSDAY 14^TH MAY 2026                     

SUIT NO: NICN/LA/503/2018

BETWEEN     

MR. NURUDEEN O. DAWODU                                               CLAIMANT

AND

1. IKEJA HOTEL PLC

2. DESACOM INTERNATIONAL LIMITED                   DEFENDANTS

3. IHL SERVICE LIMITED

Representation:

O. Bode Thorpe with Y. Bode Thorpe for the Claimant

O.E. Oku with U.N. Onyinyechi and TD Adewumi for 1^st and 3^rd Defendants

                                                            JUDGMENT

Introduction and Claims:  

On the 5^th day of October 2018, the Claimant filed this suit via the General Form of Complaint, seeking the following reliefs against the Defendants, to wit: 

 

1. A declaration that the claimant is entitled to the payment of his salary arrears and gratuity/terminal benefits by the defendants, jointly and/or severally. 
2. An order directing and mandating the defendants, jointly and severally, to pay over to the claimant the outstanding sum of Nl,874,540.00 (one million eight hundred and seventy-four thousand, five hundred and forty Naira) being arrears of salaries of the claimant for the months of March 2015 to June 2015 plus accruing interest thereon at the rate of 28% per annum from 1^st July 2015 till the date of judgment in this suit, and thereafter at the rate of 10% per annum until the final liquidation of the sum thereof.
3. An order directing and mandating the defendants, jointly and severally, to pay over the claimant the sum of N25,947,692.30 (twenty-five million nine hundred and forty seven thousand six hundred and ninety two Naira thirty Kobo) representing the claimant's gratuity and terminal benefits accrued from 5^th February 1996 to 30^th June 2015 plus accruing interest thereon at the rate of 28% per annum from 1^st July 2015 till date of judgment in this suit, and thereafter at the rate of l0% per annum until the final liquidation of the sum thereof. 
4. An order directing the defendant, jointly and severally, to pay the claimant the sum of N5,000,000.00 (Five million Naira) being cost of this action. 
5. Such further or other order(s) or relief(s) as the Honourable Court may deem fit to make in the circumstances. 

 

2.  In response to the claims, the Defendants filed their Statement of Defence dated 4^th day of December 2018.  The Claimant, on 19^th February 2019, filed a Reply to the Statement of Defence.  Trial commenced in the suit on the 19^th day of July 2022.    The Claimant called two witnesses; himself as CW1 and Emmanuel Uche Nesiayali (CW2).   They were both cross examined.  CW1 tendered exhibits C1 – C34; while the CW2 tendered exhibits C35 – C51:

S/N	DOCUMENT	EXHIBIT
1	Letter of appointment dated 2nd February 1996	C1
2	Claimant’s staff ID card	C2
3	Claimant’s electronic tax clearance certificate	C3
4	Claimant’s pay slip for January 2015	C4
5	Claimant’ staff data bank form dated 7th December 2005	C5
6	Claimant’s memo dated 22nd January 2006	C6
7	1st Defendant’s memo dated 24th January 2006	C7
8	Letter of introduction to BHC dated 24th August 2006	C8
9	Letter/award for long term service dated 9th December 2005	C9
10	Claimant’s memo dated 26th June 2007	C10
11	1st Defendant’s memo dated 5th February 2009	C11
12	A copy of internal memo dated 16th June 2009	C12
13	3rd Defendant’s memorandum dated 29th August 2011	C13
14	Letter to the Deputy British Higher Commission dated 3rd May 2013	C14
15	Claimant’s memo dated 24th July 2023	C15
16	1st Defendant’s client’s letter dated 15th January 2024	C16
17	Claimant’s memo dated 11th March 2014	C17
18	1st Defendant’s letter dated 18th February 2015	C18
19	Claimant’s memo dated 16th March 2015	C19
20	Claimant’s letter or resignation dated 10th April 2015	C20
21	Claimant’s Pension Account Statement for 2014 fourth quarter	C21
22	Claimant’s Pension Account Statement for quarter ended 30th September 2016	C22
23	Claimant’s Pension Account Statement for quarter ended 31st December 2016	C23
24	Claimant’s Pension Account Statement for quarter ended 31st March 2017	C24
25	1st Defendant’s letter to NLPC dated 28th March 2017	C25
26	1st Defendant’s letter dated 1st July 2015	C26
27	1st Defendant’s letter dated 3rd May 2017	C27
28	1st Defendant’s letter dated 27th February 2017	C28
29	Receipt of payment dated 28th February 2017	C29
30	1st Defendant’s letter dated 28th February 2017	C30
31	Claimant’s memo dated 21st June 2017	C31
32	1st Defendant’s memo dated 22nd June 2017	C32
33	Claimant’s lawyer’s letter dated 30th May 2018	C33
34	1st Defendant’s letter dated 6th June 2018	C34
35	Mr. Emmanuel Nesiayali’s application letter dated 12th April 2001	C35
36	Mr. Emmanuel Nesiayali’s application letter dated 2nd May 2001	C36
37	Mr. Emmanuel Nesiayali’s application letter dated 17th November 2001	C37
38	Mr. Emmanuel Nesiayali’s staff ID card	C38
39	Copy of Mr. Nesiayali’s e-tax clearance certificate	C39
40	Copy of the memo to All staff dated 9th May 2006	C40
41	NLPC Pension Fund Administrators letter dated 8th June 2006	C41
42	Retirement savings Account statement for 2nd quarter 2015 for Mr Nesiayali	C42
43	Memo from the 1st Defendant dated 2nd August 2011	C43
44	Memorandum from the 3rd defendant to All staff dated 29th August 2011	C44
45	Mr. Nesiayali’s pay slip of November 2014	C45
46	Mr. Nesiayali’s pay slip of January 2015	C46
47	Copy of 1st Defendant’s letter dated 18th February 2015	C47
48	Copy of memo to the defendants dated 30th June 2015	C48
49	Mr. Emmanuel Nesiayali’s letter of resignation dated 16th September 2015	C49
50	Copy of memo to the defendants dated 16th September 2015	C50
51	Copy of letter to the defendants dated 20th May 2016	C51

 

3.  The Defendants opened their case on 14^th June 2023, and called 3 (three) witnesses: (i) Adeyemo Oluwole (DW1), (ii) Bimpe Sonaiya (DW2) and (iii) Olorunfunmi Osineye (DW3). All the Defendants’ witnesses were cross examined.  DW2 tendered exhibit D1, while the DW3 tendered exhibits D2 – D8.  The following documents were tendered by the Defence:

 

S/N	DOCUMENT	EXHIBIT
1	Pay slip of Osineye Olorunfunmi of December 2013	D1
2	Letter of Employment dated 18th March 2010	D2
3	Confirmation of appointment dated 27th January 2011	D3
4	Pay slip of Ikeja hotel for December 2013	D4
5	Pay slip of Ikeja hotel for April 2013	D5
6	Letter from the 1st defendant dated 27th February 2015	D6
7	Pay slip of G.M. Ibru & Co of March 2015	D7
8	Letter of Resignation of Olorunfunmi Osineye	D8
9	Claimant’s online activity	D9
10	CAC status report	D10

 

At the end of trial, the Court order the parties to file their respective final written addresses. The Final Written Addresses were adopted on 25^th March 2026 and the Court thereafter adjourned the case for judgment

THE CASE OF THE CLAIMANT

4.  The Claimant was employed by the 1^st Defendant in February 1996 via a letter from the 2^nd Defendant. Despite the initial letter, the Claimant performed work for all three defendants for almost 20 years and the 1^st Defendant paid his salaries, benefits, taxes, and pensions; provided official vehicles, and confirmed his employment to third parties (like the British High Commission and pension administrator). The 3^rd Defendant was designated as his department. The Defendants are sister companies which, together with other corporate entities, form part of a group of companies used by the popular Ibru family.  In early 2015, the 1^st Defendant announced it would cease paying salaries to him and some staff. The Claimant was not paid for March 2015 and the Claimant submitted his resignation in April 2015, expecting his terminal benefits. At the 1^st Defendant's request, he suspended his resignation and continued working until June 2015.  In July 2015, he was engaged as a consultant, which automatically terminated his employment. Subsequent requests by the Claimant for his unpaid salary (March-June 2015) and gratuity were refused. The 1^st Defendant denied being his employer and did not direct the other defendants to pay. The Claimant claims that the group's complex structure, which he was told was "for tax purposes," was a sham arrangement that should not deprive the Claimant of his entitlements. Further, that the 1^st Defendant is estopped from denying being the Claimant’s employer due to its past conduct and representations. The Claimant is suing to compel the defendants to pay his owed salary and gratuity/terminal benefits.

THE CASE OF THE DEFENDANT

5.  It is the case of the Defendants that the Claimant was employed by the 2^nd Defendant in 1996 and remained its employee until his resignation and that the three defendants are distinct corporate entities responsible for their own management. The 1^st Defendant admits paying the Claimant's salary and deducting taxes, but claims this was done purely as an administrative convenience and as a loan to assist the 2^nd Defendant due to its poor cash flow. These payments were to be debited as a debt owed by the 2^nd Defendant to the 1^st Defendant. They state that due to the 2^nd Defendant's overwhelming debt from this arrangement and the 1^st Defendant's own obligations, the 1^st Defendant notified the 2^nd Defendant in February 2015 that it could no longer pay the 2^nd Defendant's staff salaries. This led to the Claimant's voluntary resignation. They admit engaging the Claimant as a consultant from July 2015, with a separate contract that was terminated in June 2017. They claimed all dues under this consultancy contract have been paid. They deny ever contracting to pay the Claimant gratuity for his prior service, stating his terms of engagement were exclusive and exhaustive.  The Defendants state that the award and benefits given to the Claimant (like a long-service award) are characterized as gratuitous acts extended to staff of associated companies, not proof of employment. Any representations of the Claimant as the 1^st Defendant's staff were only a consequence of the internal administrative arrangement for salary payments, not a true reflection of the employment relationship and that the Claimant's lawsuit is "mischievous, gold-digging and exploitative," aimed at misleading the court to benefit from the internal financial arrangement between the companies

CLAIMANT’S REPLY TO THE STATENMENT OF DEFENCE

6.  The Claimant responds that the defendants are not separate entities and that the 1^st Defendant effectively managed and controlled the 2^nd and 3rd Defendants, sharing major directors. The 2^nd Defendant had no independent company account and all its expenditures were executed through the 1^st Defendant. Further, the 2^nd Defendant did not solely employ the Claimant; rather the Claimant was the employee of the Group, which included all three defendants, and had an employment relationship with all of them.  The 2^nd Defendant was a "contraption and/or a shelf company" created by the 1^st and 3^rd Defendants to be used for their benefit (e.g., to acquire companies, secure foreign loans). The Claimant denies that the 1^st Defendant's payments were a "loan" or "assistance" to the 2^nd Defendant and that the defendants were "one and the same," as shown on pay slips, and that the 1^st Defendant directly approved his allowances and provided meals.  More so, when the 2^nd Defendant executed jobs for clients (e.g., Federal Palace Hotels), all payments were made to the 1^st Defendant.  The Claimant denies his resignation was voluntary and claims that at least 10 other former staff of the 2^nd Defendant had their gratuity paid by the 1^st or 3^rd Defendant upon resignation, setting a precedent and that his gratuity claim is not based on his later consultancy agreement (2015-2017) but on his prior 19-year employment with the Group.

SUBMISSIONS ON BEHALF OF THE 1^ST AND 3^RD DEFENDANTS

7.  The 1^st and 3^rd defendants raised five issues for determination as follows:

1. Whether the Claimant has been able to establish privity of contract between himself and the 1^st and 3^rd Defendant. 
2. Whether the Claimant has been able to show any implied agreement between the Claimant and the 1^st and 3^rd Defendant such as to entitle the Claimant to the reliefs sought. 
3. Whether the Claimant has been able to prove his entitlement to gratuity and terminal benefits from the 1^st and 3^rd, or any of the Defendants. 
4. Whether Exhibits C5, C6, C8, Cl0, Cl1, C12, C14, C15, C16, C17, C18, C19, C25, C26, C27, C30, C31, C33; C36, C37, C38, C39, C40, C41, C42, C43, C44, C46, C47, C48, C50, and C51 are admissible under Sections 88, 89, and 90 of the Evidence Act 2011. 
5. Whether in the unlikely event that the court does not hold that Exhibits C5, C6, C8, C10, C11, C12, Cl4, C15, Cl6, Cl7, C18, C19, C25, C26, C27, C30, C31, C33, C36, C37, C38, C39, C40, C41, C42, C43, C44, C45, C46, C47, C48, C50, and C51 are inadmissible, said documents carry probative weight/relevance such as to establish an employee/employer relationship with the 1^st and 3^rd Defendant 

8. Issue one - Whether the Claimant has been able to establish privity of contract between himself and the 1st and 3rd Defendants. The Defendants argued that the Claimant has not presented any contract whether oral, written, express, or implied with the 1^st or 3^rd Defendants and that the Claimant’s only employment agreement (Exhibit C1) is with the 2^nd Defendant. They relied on the case of Umera V. N.R.C. (2022) 10 NWLR (PT. 1838) 349; Markwe v. Nwukor (2001) FWLR (PT. 63) 1 AT 14. They also argued that the principle of privity of contract means only parties to a contract can sue on it. Since the Claimant was employed by the 2^nd Defendant, he cannot sue the 1^st and 3^rd Defendants for employment-related claims. They referenced the Claimant's own testimony admitting his appointment letter was from the 2^nd Defendant (F & A Services) and that the payslip he relies on was "common to other sister companies."

9. Issue two - Whether the Claimant has been able to show any implied agreement between the Claimant and the 1^st and 3^rd Defendant such as to entitle the Claimant to the reliefs sought. The Defendants argued that no implied agreement exists and that the Claimant's key exhibit (payslip C4) is generic and used for staff of multiple companies within the group just like exhibits D1, D4, D5. They state that their witness (DW1) testified that the 1^st Defendant paid salaries on behalf of the 2^nd Defendant as an administrative arrangement. They also argued that the Claimant's own memo (Exhibit C19) shows he performed services for other clients on the 2^nd Defendant's direction. Crucially, they point to the Claimant's LinkedIn profile (Exhibit D9) and Corporate Affairs Commission records (Exhibit D10) showing the Claimant was the "Managing Partner of TFD Consults Limited" from 1995, which they submit is contradictory evidence regarding his employment status. They relied on the case of Okereke v. State (1998) 3 NWLR (PT. 540) 75 and Edozien v. Edozien & Anor. (2015) LPELR 256659 CA, they argue this contradictory evidence should be rejected.

10. Issue three - Whether the Claimant has been able to prove his entitlement to gratuity and terminal benefits from the 1st, 2nd, 3rd, or any of the Defendants. The Defendants argued that the Claimant's claim for gratuity hinges on a memo from the 3^rd Defendant (Exhibit C13). The Defendants argued that this memo was never addressed to the 2^nd Defendant or the Claimant personally, and thus does not entitle him to its benefits. They state the Claimant's expectations were "disabused" by a subsequent memo (Exhibit C32). The Defendants relied on the case of Mr. Charles Ughele v. Access Bank Plc (Unreported, NICN/LA/287/2014) and Brown v. Delta Hotels (2018) LPELR-49243(CA), and argue that the Claimant bears the burden of strictly proving his monetary claim, including demonstrating how the claimed amount is precisely determined by law or agreement, which he has failed to do.

11. Issue four - Whether Exhibits C5, C6, C8, C10, C11, C12, C14, C15, C16, C17, C18, C19, C25, C26, C27, C30, C31, C33, C36, C37, C38, C39, C40, C41, C42, C43, C44, C46, C47, C48, C50, and C51 are admissible under Sections 88, 89, and 90 of the Evidence Act 2011. The Defendants submit that all the listed exhibits are photocopies and are therefore inadmissible as secondary evidence under the cited sections of the Evidence Act, which require primary evidence except in specific cases. They argue these documents were presented to mislead the court.  On issue five - Whether in the unlikely event that the court does not hold that the listed exhibits are inadmissible, said documents carry probative weight/relevance such as to establish an employee/employer relationship with the 1st and 3rd Defendant; the Defendants argued that even if the court admits the exhibits, they lack probative value to establish an employment relationship with the 1^st and 3^rd Defendants. They analysed each exhibit (C5-C51) in detail, contending that:

• Many are internal memos or forms generated by or for the 2^nd Defendant, not the 1^st or 3^rd Defendants.
• Letters of introduction to the British High Commission (C8, C14) were for visa purposes and referred to the Claimant as part of the 2^nd Defendant's team.
• Documents related to pension contributions and tax (C21-C25, C45, C46) were processed by the 1^st Defendant only as an administrative arrangement on behalf of the 2^nd Defendant, the true employer.
• The consultancy agreement and related vehicle sale documents (C26-C30) relate to a separate contract from 2015-2017, not the period of claimed employment.
• The gratuity memo (C13, C44) was addressed to staff of the 3^rd Defendant, not the 2^nd Defendant or the Claimant.
• The resignation letter (C20) was addressed to the 2^nd Defendant.

They conclude that none of the documents imply an employer-employee relationship with the 1^st or 3^rd Defendants.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

12.  The Claimant raised two issues for determination of this suit as follows:

1. Whether the defendants are liable jointly and severally, to pay the claimant the sums sought in his reliefs?
2. Whether the claimant is entitled to his claims and reliefs sought in the general complaint and statement of facts dated 5th October 2018, against the defendants?

13. Issue One - Whether the defendants are liable jointly and severally, to pay the claimant the sums sought in his reliefs? The Claimant argues that the 1st, 2^nd, and 3^rd Defendants are interrelated entities within the Ibru family group of companies and that the Defendants admitted this relationship in their pleadings (paragraphs 2, 3, 4(v), 4(vi), 4(vii) of their defence) and through witness testimony (DW3 admitting a written arrangement for the 1^st Defendant to pay salaries of absorbed companies). They relied on the case of Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 370, that material facts in his Statement of Facts were not specifically traversed and are therefore deemed admitted. He further argued that the structure is a "contraption" designed to avoid liabilities, as evidenced by CW2 applying for a job at the 1^st Defendant but receiving an appointment letter from the 2^nd Defendant.  The Claimant argued that he was in a "horizontal joint employment" relationship with all three Defendants, a concept recognized internationally and which the Court can consider.  The Claimant relied on Section 7(6) of the National Industrial Court Act. He argues that while his appointment letter (Exhibit C1) was from the 2^nd Defendant, the 1^st Defendant exercised real control by: paying his salaries and benefits (Exhibit C4); deducting and remitting his taxes and pension (Exhibits C21-C24); representing him to third parties as its employee in letters to the British High Commission (Exhibits C8, C14) and in a client appointment letter (Exhibit C16); and providing him with official vehicles later sold to him (Exhibits C28-C30). The Claimant relied on the case of U.T.C (Nig.) Plc vs. Peters (2022) 18 NWLR (Pt. 1862) 297.  The Claimant argued that the relationship is established by conduct and admission, not solely by a written contract. He relies on Section 91 of the Labour Act 2004 and Section 54(1) of the National Industrial Court Act 2006, which define employment broadly. The Claimant also relied on the case of Inji V. Isa (2022) LPELR-59193(CA) and Ajagu v. JAMB (2022) LPELR-59537 (CA), and urged the Court to apply the principle of primacy of fact.  The Claimant, relying on those same cases   submits that a contract can be implied from conduct and that an employment relationship can be established even without a letter of appointment if there is substantial admission by the respondent. He argued that the Defendants' own documents (Exhibits C8, C14, C25) are admissions against interest, which are binding, relying on the case of Fagunwa vs. Adibi (2004) 17 NWLR (Pt 903) 544.

14. Issue two - Whether the claimant is entitled to his claims and reliefs sought in the general complaint and statement of facts dated 5th October 2018, against the defendants? On his relief for declaratory and other orders, the Claimant argued that he worked from March to June 2015 but was not paid, as confirmed by his resignation letter (Exhibit C20) and uncontroverted testimony. He submits that his claims for pre and post judgment interest is warranted, relying on the case of NPA v. Ibrahim & Co. & Anor (2018) LPELR - 44464 (SC) and O.A.N. Overseas Agency (Nig) Ltd. v. Bronwen Energy Trading Ltd & Ors. (2022) LPELR-57306(SC), which is in line with the provisions of Order 47 Rule 7 of the Rules of this Honourable Court which among others, permits the Court to order interest at a rate that is not less than 10% per annum, which is to be paid upon any judgment.  The Claimant also argued that his entitlement to gratuity is grounded in:

1. The Defendants' memo on the gratuity scheme (Exhibit C13), in which he falls under (Category 3).
2. A handwritten note on his 2007 memo (Exhibit C12) stating "No cause for alarm, he will be paid @ point of exit!"
3. The Defendants' failure to cross-examine him on these documents, which he argues that it constitutes an admission per Eresia-Eke v. Orikoha (2010) 8 NWLR (Pt 1197) 421.

In response to the Defendants' objections to some exhibits tendered by the Claimant, the Claimant argued that the challenged exhibits (C5, C6, C8, etc.) are admissible because:

1. They are relevant, pleaded, and admissible in law by relying on Agboola & Drs. vs. A. S. B. Investment Ltd (2022) LPELR-58151(CA).
2. They are secondary evidence properly admitted because the originals are in the Defendants' possession and a Notice to Produce was served, relying on  Idyo & Anor v. Nungwa & Drs. (2015) LPELR-41769(CA).
3. In the alternative, the Court should admit them in the interest of justice under Section 12(2)(b) of the National Industrial Court Act 2006; to avoid relying on technicalities, they relied on the case of Kwara Co-Operative Federation & Ors. v. Yusuf (2014) LPELR-23793(CA).

THE DEFENDANTS' REPLY ON POINT OF LAW

15. On the issue of the Claimant’s employer, the Defendants replied that the Claimant fundamentally misunderstands the principle of separate corporate personality.  They submit that they are each, a distinct legal entity and that a subsidiary has a separate personality from its parent, and the acts of one cannot be ascribed to the other. That the Claimant failed to outline or prove the specific ownership structure between the Defendants. The Defendants relied on the case Bulet Int'l (Nig.) Ltd. v. Olaniyi (2017) 17 NWLR (PT. 1594) 260 @ 293 SC and Ecobank Trans. Inc. v. Broad Comms. Ltd. (2021) 5 NWLR (PT.1769) 209 @ 248 CA.  The Defendants further replied that the Claimant misapplies the law regarding proof of international best practice and submit that relying on Section 7(6) of the National Industrial Court Act requires the Claimant to plead and prove such practices by credible evidence, relying on Oak Pensions Ltd & Ors v. Olayinka (2017) LPELR-43207(CA). The Defendants also replied that the Claimant misconstrues the law concerning entitlement to declaratory reliefs (which form the basis of his claim); emphasising that a claimant must prove his entitlement on the strength of his own case.  That, declaratory reliefs are not granted even on admission by a defendant if the claimant fails to establish his own entitlement and cannot rely on the weakness of the defense or alleged omissions. They relied on the case of Amobi v. Ogidi Union Nigeria (2023) 1 NWLR (PT. 1864) 183 SC and NDUUL V. WAYO (2018) 16 NWLR (PT. 1646) 586 SC.  On Claimant’s assertion of defendants being his co-employers, the Defendants argued that the law only imputes a co-employer relationship in specific circumstances, such as involving private employment agencies, their workers, and end-users. They cited the unreported judgment of this Court in Jennifer Onyebuagu v. Cellulant Nigeria Ltd & Mastercard Foundation (Suit No: NICN/ABJ/298/2020), which referenced ILO Convention 181, to argue that the 2^nd Defendant was not a private employment agency, and thus no tripartite employment relationship exists. The Defendants argued that the Claimant provided no evidence that the 1^st or 3^rd Defendant exercised major control over his day-to-day job activities, recruitment, supervision, or setting of his employment terms and that the Claimant misapplies Section 54(1) of the National Industrial Court Act 2006, as a written contract (Exhibit C1) clearly exists between him and the 2^nd  Defendant. They relied on the case of Intels (Nig.) Ltd & Ors. v. Williams E. Bassey (2013) ALL FWLR (PT. 675) 376.  

COURT’S DECISION

16.  I have carefully read and considered the processes filed by all the parties, the evidence put forward, and the arguments of the parties in their respective final written addresses.  I am convinced that the following issues would resolve all the issues in this case:

1. Whether, in the context of this case, the 1^st and 3^rd Defendants are employers or co-employers of the Claimant?
2. Whether the exhibits C5, C6, C8, Cl0, Cl1, C12, C14, C15, C16, C17, C18, C19, C25, C26, C27, C30, C31, C33; C36, C37, C38, C39, C40, C41, C42, C43, C44, C46, C47, C48, C50, and C51 are admissible under Sections 88, 89, and 90 of the Evidence Act 2011?
3. Whether the Claimant is entitled to the reliefs he seeks in this suit?

17.   Issue one - Whether, in the context of this case, the 1^st and 3^rd Defendants are employers or co-employers of the Claimant?  This suit is brought by the Claimant against the Defendants; jointly and/or severally, for the payment of his salary arrears and gratuity/terminal benefits.  The contention of the Claimant is that, though his employment letter was issued by the 2^nd Defendant, he was actually employed by and for all the Defendants.  He invites the Court to disregard the letter of appointment issued by the 2^nd Defendant, and applying the doctrine of primacy of facts, to determine the relationship between him and the three Defendants.  On the other hand, the 1^st and 3^rd Defendants rely on the letter of appointment, issued by the 2^nd Defendant to insist that they were not privy to the Claimant’s employment, and hence not his employers.  The Defendants argue that the Claimant did not plead any good or international best practice in labour or industrial relations in his Statement of Facts and did not prove said existence by credible evidence such as to move the discretion of this Honourable Court as provided by Section 7 (6) of the National Industrial Court Act 2006 on the application of international best practices. 

 

18.  Though it is trite that there must be privity of contract before a Court can enforce the terms of a contract against or in favour of any party.  A contract of employment as defined by section 91 of the Labour Act 2004, means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.  This definition of ‘contract of employment’ by the Labour Act clearly shows that a contract of employment is not only created by the presentation of a letter of employment, but can be oral, or implied.  When a Court is invited to consider the existence of a contract of employment by implication, the Court is invited to consider if in the circumstances, a contract of employment exists between the parties.  The implication of this definition is that it is the facts that determines when a person is in a contract of employment or not, and not only the presentation of a contract document.

 

19. Going through the evidence before this Court in this suit, what is created is an ambiguous contract of employment relationship.  The 2^nd Defendant issued the Claimant with a letter of appointment (Exhibit C1) dated 2^nd February 1996.  Exhibit C1 is signed by JWK Duncan and YA Disu.  The letter head shows GM Ibru(Chairman), YA Disu, AU Ibur, CB Ososami and Nze Mark Odu, as Directors.  The Claimant is issued with two Identity cards (exhibit C2); one issued by the 1^st Defendant, and the second issued by the 2^nd Defendant.   The Claimant is admittedly paid by the 1^st Defendant and issued with payslip emanating from the 1^st Defendant.  Exhibit C4 (payslip) shows the Claimant’s department as IHL-006 IHL SERVICES, MAINTEANCE DEPARTMENT – DES; representing the 2^nd and 3^rd Defendants as departments.  Exhibit C5 is Staff Data Bank (Input Form) and has the company as the 1^st Defendant.  Exhibit C6 is a memorandum from the Claimant to YA Disu, AA Thomipulos, AU Ibru, W Makinde and JWK Duncan.  The subject of the Memo is “Review of Conditions of Engagement”, and the Claimant wrote:

                        Sirs,

Further to our telecom of Saturday 21^st January 2006 on above, I consider the following as a fair deal towards my continued, unalloyed service to the group…

1. An immediate reimbursement of all my expenses (to South Africa) as submitted in my memo dated 16 June 2002 for the sum ….
2. An official communication to reflect the following conditions:
3.   A revised monthly salary of N450,000.00(though negotiable) per month.
4. The provision of a driver to be attached to a “functional” official car for my use.
5. The provision of an Official Laptop Computer within two weeks after this review.
6. An agreed effect date for item 2.1 as this issue had been pending since 2002/2003.

20.  The above memo was written to the GROUP and the Group replied via exhibit C7 dated 24^th January 2006 as follows:

                        SUBJECT:  REVIEW OF CONDITIONS OF ENGAGEMENT

Sir,

We refer to your memorandum of the 19^th and 22^nd January 2006 (revd. 23/1/06) on the above subject matter and the subsequent discussion held with you on Monday, 23^rd January 2006.

This correspondence serves as a confirmation of the understanding reached on each issue in the said memos:

The understanding was that the company will reimburse you part of the expenditure.  Though delayed, the company will refund a sum of N150,000 as a fulfilment of its earlier pledge.

Currently you are using an official car which needs a replacement because of its frequent mal-functioning.  This car will be sold and a functional one bought as a replacement.   In respect of the drivere, the company will monetise you the sum of N15,000 per month to cover the salary of a driver which you may employ.  The said driver will not be a staff of the company.

The request for this item to replace the desktop computer was considered from efficiency point of view to be expedient, and will be implemented.

Your monthly gross salary effective from 1^st January 2006 shall be N200,000 per month.

For the record, your salary from:

1^st August 2004 – 31^st July 2005 is N130,000 per month, and 

1^st August 2005 – 31^st December 2005 is N162,000 per month

Your will be paid arrears of the increases up to 31^st December 2005.

Signed

JW Kofi Duncan                                                     Mr YA Disu

General Manager                                                  Director.

21.  This response by the Group, could not have been made to a person regarded as a non-staff of the group.  Exhibit C8 is a letter dated 24^th August 2006, from the 1^st Defendant, representing the Claimant to the Consulate of the British High Commission, as its staff.  This is repeated in exhibit C14 dated 3^rd May 2013.  When the 1^st Defendant had a Management Retreat from 26^th to 28^th June 2009, the Human Resources Manager wrote a memo to that effect, and the Claimant was one of the recipients of that memo.   The memo was signed by Lucky Odogun.   The same Lucky Odogun signed exhibit C9, a memo by the Human Resources Manager informing the Claimant that he is one of the recipients of the Long Service Award for the 5-year category.   Mr. Lucky Odogun also signed the Remuneration Advice to the Claimant dated 5^th February 2009.  All these correspondences were made to the Claimant, not by the 2^nd Defendant, but by staffers and Directors of the 1^st Defendant.  In Exhibit C12, the Claimant wrote to the 1^st Defendant Directors and Human Resources Manager, seeking clarification on his employment status.  He noted that “I have observed several times that depending on the axis of the dial, the issue of DESACOM/Ikeja Hotels has been explored severally to numerous interpretations.  The Claimant wrote:

Over the years, deductions for Staff Retirement Benefit were made and the Certificate issued to me has Ikeja Hotel as insured.  Can a non-staff benefit from such a principal?   The same thing applies to Tax Clearance from Lagos State Government issued to DESACOM staff.  In the days of NSITF, the Employer’s name is Ikeja Hotel Plc and many more.

The issues begging for answers now are as follows:

1. Since DESACOM Staff are not Ikeja Hotel Staff (as we are made to believe), what is the Status of all these deductions from our salaries?
2. If and when we eventually leave the organisation or the organisation declares us redundant, what becomes of our benefits vis-à-vis a “normal” Ikeja Hotel Staff?
3. Economic considerations are the same – as products bought from the markets are identically priced.  Then who is fooling who?

Warm Regards,

Nurudeen O. Dawodu

Senior Quantity Surveyor.

22.  This question which the Claimant asked on 26^th June 2007, is what has come up for determination in this suit.  This is the response the Defendants gave on 28^th June 2007; "Discussed with YAD/WAkanide, No cause for alarm, he will be paid @ point of exit! 28/06/07."  “No cause for alarm”, to me, means that the Defendants truly appreciated the concerns of the Claimant, and assured him that there will be no problem at the point of exit.   It needs to be pointed that all these documents were before the Court and the Defendants did not deny them or seek to controvert them, in any way.  What is more; in a memorandum dated 29^th August 2011 from the Human Resources Manager (signed by the same Lucky Odogun who had been corresponding with the Claimant as HRM), the Defendants updated the staff on the gratuity scheme in exhibit C13 as follows:

TO:                  ALL STAFF

FROM:             HUMAN RESOURCES MANAGER

DATE:  29^TH AUGUST 2011

SUBJECT: RE: GRATUITY SCHEME

 

We refer to our memo of 22^nd August and hereby inform staff of the update on gratuity scheme as follows:

 

Category 1 –   For staff who have clocked 15 years before 1^st January 2007, gratuity will be calculated on 18 weeks gross pay for each completed year of service, until the completion of 21 years where gratuity will be calculated at 420 weeks gross pay and does not change until the resignation/termination of employee’s employment.

Category 2–    For staff who have clocked 15 years as at 1^st January 2007, gratuity will be calculated on 285 weeks gross pay at point of exit.

Category 3 –   For below 15 years as at 1st January 2007, gratuity will be calculated on 240 weeks gross pay at point of exit.

 

For the first category gratuity is pegged at 21 years i.e. irrespective of additional number of years spent, gratuity will be based on 420 weeks gross.

 

For the second category, gratuity is pegged at 21 years and will be based on 285 weeks gross irrespective of years spent.

 

This memo supersedes the one dated 22^nd August on same subject.

Regards.

Lucky P. Odogun 

Human Resources Manager

 

23.  The above memo described the different categories of gratuity, payments, and calculations based on the number of years a staff has spent in the defendants employ as at 2007. From evidence, as at the time of the memo in 2007, the Claimant had spent 11 (eleven) years in the employment of the defendants and by the memo of 29^th August 2011 - exhibit C13, the claimant was considered to be in category 3 for the payment and entitlement to the gratuity scheme proposed by the 1^st defendant. From everything that had happened between the Claimant and the Defendants; I agree with the Claimant’s submission that he has a legitimate and vested right for his claims against the Defendants for his gratuity.    

24.  In ambiguous contract of employment relationships such as convoluted in this case, and as laid down by international labour jurisprudence, this Court applies the primacy of facts in determining privity of contract.   This is as laid down in the ILO Report titled: The Scope of the Employment Relationship; ILO Office: Geneva, 2003 at page 24 and 25).  This principle has been applied by this Court in many cases.  See for instance the case of PENGASSAN v. Mobil Producing Unlimited Suit No. NIC/LA/47/2010 delivered on 21^st March, 2012 by B.B Kanyip and O.A. Obaseki-Osaghae J.J, and Stephen Ayogu & 16 Ors v Mobil Producing Nigeria Unlimited & Anor Suit No.NIC/LA/38/2010 Ruling delivered on 13^th December 2012.  The principle of primacy of facts in my view, is also consistent with the definition of contract of employment in section 91 of the Labour Act which recognised “agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”.  The implication of this definition (and principle) is that it is the facts that determines when a person is in a contract of employment or not, and not only the presentation of a contract document.

25.  Having had the benefit of considering the facts of this case, and applying the primacy of facts in this case, I do not find that there was any form of outsourcing relationship created by the 2^nd Defendant, to the benefit of the 1^st Defendant.  In outsourced employments, the outsourcing company continues to be in charge of the salary and other benefits of the employee.  The employee always wears the badge of the recruiting company.  Not so in this case as the exhibits show.   Exhibits C2 – C14 are communications either to the Claimant or relating to the Claimant, by the 1^st Defendant.  Going further, exhibit C16 is a letter by the Defendants’ client to the 1^st Defendant, with attention of the Claimant.  It was with the issue of exhibit C18 terminating the payment of the Claimant’s salary by the 1^st Defendant that the Claimant wrote exhibit C19.   I agree with the Claimant as stated in exhibit C19, that “the name or vehicle that Ikeja Hotel chose to engage me … were all a matter of choice and convenience as we were told this was for tax purposes etc. It was not my decision and I had no input in all these”.   The 1^st Defendant sought to introduce the existence of an arrangement with 2^nd Defendant and projected the 2^nd Defendant as a recruiter for the 1^st Defendant.  Yet the Defendants failed to tender in evidence, the recruiting agreement or anywhere that the 2^nd Defendant refunded the funds the 1^st Defendant expended on its behalf.  The evidence of DW2 and DW3, in addition to CW2 corroborated the evidence of the Claimant that the Defendant companies were part of a single organization.  CW3 for instance, admitted that there is an arrangement between the defendants. She testified that she was employed by GM Ibru and Co; a firm, and that the firm was one of the companies absorbed by the 1^st Defendant for administrative convenience.  During cross examination, she further testified that:

 

Question: refer to your paragraph 5. So, the 1^st Defendant was paying your salary. 

Answer: Yes, as per the arrangement at the time.

Question: what arrangement? 

Answer: when the 1^st Defendant was converted to a PLC, there was an arrangement from the companies that were absorbed that the 1^st Defendants will undertake the payment of the salaries and other monies of the absorbed company's staff.

Question: How come you are aware of this arrangement? 

Answer: I was employed as secretary, and I deal with files and also the 1^st Defendant was paying me. 

Question: Was the arrangement written or oral 

Answer: The arrangement should be written. The arrangement was in writing.

 

26.  Like has been said already, there is no evidence of this or any other arrangement between the 1^st Defendant and the 2^nd Defendant.  The DW’s pay slip is identical with the Claimant’s pay slip, showing they were all in the same employment.  I see from exhibit C35, in the case of CW2 who wrote an application letter to the 1^st defendant - Ikeja Hotel Plc for the job of driver but was given a letter of appointment from the 2^nd Defendant, and his salary and other interests were covered by the 1^st Defendant, the same way CW3 has a letter from CM Ibru & Co, and all her HR needs were met by the 1^st Defendant.   CW3’s pay slip also reads IHL-015 IHL Services, LEGAL DEPARTMENT, just like the CW1 and CW2, and presenting CM Ibru & Co, as a department in the 1^st Defendant.  The 3^rd Defendant also appears in all the pay slips - exhibits C4, C45, C46, Dl, D4 & D5 which are pay slips tendered through the different witnesses called by the claimant and the defendants. In all these pay slips, the 1^st defendant- Ikeja Hotel Plc stands out as the entity making the salary payments. Exhibits C4 & C45 also show the department to be IHL services, Maintenance Department while exhibits Dl, D4 & D5 show the department as IHL services, Legal Department. I also see that when in exhibits C13/C44 the 3^rd Defendant issued out memos on behalf of the group, it was stated as coming from HUMAN REOURCES MANAGER and informed ALL STAFF of their gratuity scheme.  Exhibit C13 is signed by Lucky P. Odogun, who also signed exhibits C9(Long Service Award,) C10(Remuneration Advice), C11(Ikeja Hotel Management Retreat), and C14 (letter to the British High Commission).  All these show that the Defendants are one and the same company.   The import given by the Claimant to these documents were not contradicted or disputed by the defendants neither did the defendants cross-examine the claimants on the documents. All these lends further credence to the claimant's submission that the defendants are effectively the same, and also responsible for the payment of the claimant's salary arrears and other entitlements.   The sole purpose of the 1^st Defendant issuing letters of appointment in the names of the 2^nd Defendant was for its convenience, and does not affect the status of the Claimant, as its staff.  The Defendants cannot use this masking of its employees’ employment status to deprive the employees of their benefits; already provided for and acknowledged as shown in exhibits C12 and C13.  I find that the 1s Defendant is the Claimants employer, with the 2^nd and 3^rd Defendants being part of the 1^st Defendant.

 

27.  Issue two - Whether the exhibits C5, C6, C8, Cl0, Cl1, C12, C14, C15, C16, C17, C18, C19, C25, C26, C27, C30, C31, C33; C36, C37, C38, C39, C40, C41, C42, C43, C44, C46, C47, C48, C50, and C51 are admissible under Sections 88, 89, and 90 of the Evidence Act 2011?  During trial, the Defendants had reserved their objection to the documents tendered to their final written address.  The Defendants have now raised the issue of the admissibility of the exhibits listed above.  The ground for their objection is that by section 88 of the Evidence Act 2011, which requires that "documents shall be proved by primary evidence except in the cases mentioned in this Act. The grouse of the Defendants is that the Claimant did not lay adequate foundation before tendering copies of the said document.    I find these documents to be relevant and pleaded.  I have seen at page 224 of the case file, that the Claimant served a Notice to Produce these same documents on the Defendants.  The said Notice to Produce is dated 27^th May 2019.  Having failed and refused to provide the originals of the said exhibits, in effect the claimant had no option than to tender the secondary form of the exhibits at his disposal. With respect to the documents tendered by the CW2, the CW2 stated that the originals were in another Court (NICN) or with the Defendants.   Based on the above, I am convinced that proper foundation was laid for the admission of the listed documents.   The documents are therefore relevant, pleaded and admissible.  

 

28.  Issue three - Whether the Claimant is entitled to the reliefs he seeks in this suit?  To resolve this issue, I shall take the reliefs sought by the Claimant; seriatim.

Relief ‘i’ - A declaration that the claimant is entitled to the payment of his salary arrears and gratuity/terminal benefits by the defendants, jointly and/or severally. Based on the findings on issue one, I declare that the Claimant is entitled to the payment of his salary arrears and gratuity/terminal benefits by the defendants, jointly and/or severally.

 

Relief ‘ii’ - An order directing and mandating the defendants, jointly and severally, to pay over to the claimant the outstanding sum of Nl,874,540.00 (one million eight hundred and seventy-four thousand, five hundred and forty Naira) being arrears of salaries of the claimant for the months of March 2015 to June 2015 plus accruing interest thereon at the rate of 28% per annum from 1^st July 2015 till the date of judgment in this suit, and thereafter at the rate of 10% per annum until the final liquidation of the sum thereof.   From evidence, I see that on 18^th February 2015, the 1^st Defendant wrote to a Mr. Kofi Duncan informing him that it will no longer pay salaries of his staff, referring to staff of the 2^nd Defendant.  I have already found that issuing the Claimant’s letter through the 2^nd Defendant was a façade for the 1^st Defendant’s convenience, and does not detract the fact that the 1^st Defendant was the employer of the Claimant, in fact.  After the letter of 18^th February 2015, the Claimant wrote exhibit C19, to the Defendants reacting to exhibit C19.  In it, the Claimant noted that the choice of which name to use and engage him was that of the Defendants and does not affect him. The Claimant requested that his status be defined to him.  The Claimant resigned on the 10^th of April 2015.  The Claimant was offered appointment as a consultant by the 1^st Defendant on 1^st July 2015.  The Claimant gave evidence that due to the cordial relationship that existed between the Claimant and Directors of the Group, the 1^st Defendant requested that the Claimant suspend his resignation until the outcome of the 1^st Defendant's last tender was known. The Claimant therefore, remained in the employ of the Group and continued to perform his official duties till 30^th June 2015 with the assurance that he would get paid in full for the period of March to June 2015.  The Claimant made a request for this payment via memo dated 21^st June 2017(exhibit C31). The 1^st Defendant responded via memo of 22^nd June 2017(exhibit C32) denying the claim only on the ground that it is not the Claimant’s employer.  My finding of co-employership means that this relief is proved.  In the circumstance, this relief succeeds and is granted as sought.

 

Relief ‘iii’ - An order directing and mandating the defendants, jointly and severally, to pay over the claimant the sum of N25,947,692.30 (twenty-five million nine hundred and forty seven thousand six hundred and ninety two Naira thirty Kobo) representing the claimant's gratuity and terminal benefits accrued from 5^th February 1996 to 30^th June 2015 plus accruing interest thereon at the rate of 28% per annum from 1^st July 2015 till date of judgment in this suit, and thereafter at the rate of l0% per annum until the final liquidation of the sum thereof. I have found and held that the Claimant was a staff of the 1st Defendant; and that he is entitled to benefit from exhibit C13 by virtue of being staff of the Defendants.  However, this lump sum demand for N25,947,692.30 (twenty-five million nine hundred and forty seven thousand six hundred and ninety two Naira thirty Kobo) representing the claimant's gratuity and terminal benefits accrued from 5^th February 1996 to 30^th June 2015 plus accruing interest thereon at the rate of 28% per annum from 1^st July 2015 is not proved.  This is because, though the Claimant falls under category 3, the Claimant has not proved the calculation he used to arrive at the sum claimed.  This Court cannot begin to imagine, assume or conjecture what makes up the claimed sum.  Was the Claimant’s salary the same amount from 1996 to the time he resigned?  When did the calculation start and ended?  A lot of questions on how this amount was arrived at, without answers.  I refer to the case of Abdulrahman v. NNPC (2021) 12 NWLR (Pt. 1791) 405 and the dictum of the Court as presented by the Claimant himself: 

 

"A terminal benefit is a lump sum of money awarded in contract at the expiration of employment. It is accruable to an employee when his services are no longer required. A terminal benefit is readily and easily accessed as it is calculable from the agreement between parties on terms and conditions of employment based on specific statutes or common laws rules."(Emphasis mine). 

 

As I have pointed out, the lump sum sought under this relief is not calculable from the documents before this Court.  This relief is declined for not being proved.

 

Cost of this action is set at N2,000,000.00 as this suit succeeded substantially, save for the unascertainable nature of relief ‘iii’.  

 

Judgment is entered accordingly.

 

 

 

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Hon. Justice (Prof) Elizabeth A. Oji