IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: 30TH OF APRIL, 2020 SUIT NO.: NICN/IL/04/2018
1 MR BABA IDIRISU MOHAMMED
2 MR ADEBAYO JOSEPH OLUFEMI
3. MR ALABI OJO JAMES
4. MR AJIBOLA OMOTUNDE ELIJAH
5. MR MUILI OYENIRAN
6. MR ALEEM SEGUN A ALESINLOYE
7. NR OLAYIWOLA OLANIYI
8. MR ADETUNJI ADEBAYO …………. CLAIMANTS
9. MR MOHAMMED KOLLO
10. MR OLALEYE MUKAILA KOLAWOLE
11. MR SMART EMEAFAH
12. MR AFOLAYAN CONSTANT OLABISI
13. MR JIMOH OYENIRAN
14. MR HENRY IDORNIGIE
15. MR SAMUEL BISI ADEOYE
16 MR OLU OLORUNFEMI
DURACLEAN CHEMICAL & ALLIED PRODUCTS LTD. DEFENDANT
Joseph Oboitefor the claimants.
H.O Abraham with him Oluwaseun Ayodele for the defendant.
The claimants approached this Court vide an Originating Summons dated 30th of April, 2018. However on the 7th of August, 2018, by a Court order the claimants filed a General Form of Complaint against the defendant praying for the following reliefs;
1. A declaration that the claimants are entitled to be paid all their accumulated monthly basic salaries and allowance for 4 months (June- September, 2016) ranging between N30, 000 (Thirty Thousand Naira) and N100, 000 (One Hundred Thousand Naira monthly) and amounting to N2, 900,00 (Two Million Nine Hundred Thousand Naira) only owed them by the defendant.
2. An Order of this Honourable Court directing the defendant to pay the claimants all their accumulated monthly basic salaries and allowances for 4 months ranging between N30,000 (Thirty Thousand Naira) and N100, 000 (One Hundred Thousand Naira monthly) and amounting to N2, 900,00 (Two Million Nine Hundred Thousand Naira).
3. A declaration that the employment of the claimants by the defendants subsists from their date of employment till date, same having not been and or properly terminated.
4. An Order of this Honourable Court directing the defendant to pay the claimants all their accumulated monthly basic salaries and allowances from Month of October, 2016 till date and any other subsequent amount that may accrue to the claimants after judgment based on their respective monthly salaries and allowances till date of final liquidation of the judgment sum.
5. Cost of filing and prosecution of this suit.
It is claimants’ case that they were employed at various times between April and May, 2016 by defendant. That it was agreed that the claimants will receive their first salaries and allowances at the end of the month of May, 2016. That they were placed on salary scales and other allowances amounting to the sum of N360,000 and N1,200,000. They pleaded that the defendant did not pay their May 2016 salaries but pleaded with them though the 12th claimant MrAfolayan Constant Olabisi to accept half payment of their salaries. That they accepted same in anticipation that the outstanding will be paid off in June, 2016. They stated that in June, 2016 they were not paid their salaries for June and the remaining balance of their May 2016 salaries. Claimants pleaded that at the end of July they were only paid the remainder balance for May leaving the salaries for June and July unpaid. It is the averments of the claimants that despite their salaries remained unpaid from June to September, 2016, they still report to work and carriedout their duties despite the fact that the defendant locked them out in September. That the defendant has not terminated their employment up till the date of instituting this suit and also that since the month of October 2016 when this suit was filed till date, the defendant has refused to pay their salaries and allowances for a period of 22 months.
The defendant stated that it locked out the claimants in 2016 because of their misconduct and unruly behaviour. It stated that the claimants were engaged by the 12th claimant as his support group to work as casual workers for the production of a certain consignment of materials within a specified period. That it did not issue any employment letter to the claimants and that all the purported letters of employment attached to the process are forged and falsified as same did not bear the signature of the Chief Executive Officer, Chief F.M Emeya who alone has the prerogative to sign. It averred that the claimants were paid 3 full salaries for 3 months till August, 2016 and that it terminated the employment of the 12th claimant on the 25th of August, 2016. That they were not paid for September, 2016 as they did not work and that it had no contract with the claimants to engage them in perpetuity.
By way of counterclaim, the defendant averred that the defendant to counter claimant as a result of their negligence made it incur losses in the sum of N30,000,000 of raw material supplied to its factory at Bacita for the production of Ethanol.
Whereof the defendant counterclaimant claims against the claimants as follows;
i. N5 million for loses of profit by the defendant counter claimant on the investmentof over N30million raw materials.
ii. 10% interest on the judgment sum per annum since September, 2016 when the products ought to have been delivered and sold.
iii. 5% interest of the judgment sum until liquidation.
iv. N5 million general damages for the inconvenience deprivation and discomfiture suffered by the defendant as a result of the negligence of the defendant counter claimant.
During trial, the claimants testified through one Afolayan Constant Olabisi the 12th claimant himself as CW. He adopted his written statement on oath on the 7/8/18 and on the 6/11/18 as his evidence in the case. He tendered document which were admitted in evidence as Exhibit A. The defendant testified through one Elisha Tsado. He adopted his witness statement on Oath on the 16/8/18 and 29/10/18 as his evidence in this suit.He tendered documents which were admitted in evidence as Exhibits T-T3.
Parties caused their final written addresses to be filed at the close of trial, the defendant filed on the 19thMarch, 2019canvassing two (2) crucial issues for the determination of the Court, the Claimant also filed his on the 18th march, 2019 and submitted two (2) main issues for the Court’s determination; significant portions of which would be referred to in the course of writing this judgment.
I have had an in-depth examination of the processes filed by the parties, their supporting documents, the testimonies of witnesses, documents tendered in buttressing their case and the written submissions of counsel, it is in view of this that I find the issues distilled by counsel as apt and rephrase the issues framed in the consideration of this suit thus:
1. Whether the claimants have proven their case to be entitled to same.
2. Whether the defendant counterclaimant is entitled to its claim.
It is pertinent to say that the defendant vide paragraph 5 to 9 of its statement of defence denied engaging the services of the claimants save for the 12th claimant. it stated that the employment letters purportedly tendered by the claimants were all forged as it was not signed by the CEO one Chief F.M Emeya who alone has the sole authority to sign employment letters for prospective employees and to that extent it is not in any contractual relationship with the claimants. The claimants vide paragraphs 3.02 to 3.08 of their final written submission have argued that the defendant have failed to succinctly prove by credible evidence that the claimant were not employed by it. Learned counsel stated that the defence counsel in a bid to prove its case has helped the case of the claimants when it stated that it only employed the CW and that is only the CEO one Chief F.M Emeya who can sign the letter of employment but by the testimony of CW under oath he stated he was issued his employment letter on the 30th of March, 2016 and the said letter was signed by M.A Emeya who is the daughter of CEO one Chief F.M Emeya who was acting as General Manager. It relied on the case of R.T.O.D.A v (Tegas) D.N Ltd  AFWLR (Pt. 811) 1369 @ 1386. It is the law by Sections 131 and 132 of the Evidence Act, 2011 that he who asserts a fact must prove that the fact he asserts exists otherwise he shall not be entitled to the judgment of the Court. See the cases of Jimoh v Hon Minister Federal Capital Territory &ors  LPELR 46329 SC; Ashcroft v Heritage Banking Co Ltd &ors  LPELR 44913 CA. The defendant as stated above have argued that it does not have any employment relations with the claimants save for the 12th claimant and also stated that the employment letters tendered in evidence by the claimants to prove their case was forged and falsified. It is clear that the allegation of forgery and falsification are criminal in nature which by plethora of decision must be proved beyond reasonable doubt. See the cases of Aderounmu v FRN  LPELR 46923 CA;Agbanimu v FRN  LPELR 43924 CA. It is substantial to say that there is nothing attesting credibly that the defendant has succinctly put forth evidence to corroborate their assertion. It tried to so do under cross-examination with CW who it admitted to have an employment relations with but it was as clear as the noon day that the saidCEO one Chief F.M Emeya does not have the sole power to sign an employment letter as the defendant would want the Court to believe on the reasoning that CW’s letter of employment exhibit A dated 30th March, 2016 was signed by one M.A Emeya (General Manager). Also the defendant by paragraphs 10 a,b, and 11 of its statement of defencehave averred to paying the claimants their 3 months’ salary from June to August 2016 and denied paying their salaries by installment.The defendant further stated that it locked out the claimants in 2016 because of their misconduct and unruly behavior. If I may ask, is it possible to lock out the claimants if they were not in any employment relationship with it? This in all amounts to an admission by the defendant that it is infact in a contract of service relationship with the claimants. I equally find it impossible for all the claimants herein to have forged their letters of employment. It is thus on the balance of probabilities that find that the letters of employment were issued to the claimants by the defendant. Consequent upon which I also find that the issuance of employment letters to the claimants by the defendant evinces a master/servant relationship between the claimants and the defendant. I say so in the light of the position of law that where the employer pays wages/salaries to an employeeit is a contract of service. Seethe case ofShena Security Co. Ltd v. Afropak (Nig) Ltd 18 NWLR (PT. 1118) 77.I so hold.
It is the claimants claims that they are entitled to their basic salaries and allowances for 4 months (June- September, 2016) ranging between N30, 000 (Thirty Thousand Naira) and N100, 000 (One Hundred Thousand Naira monthly) and amounting to N2, 900, 00 (Two Million Nine Hundred Thousand Naira) only owed them by the defendant. It is counsel to the claimants’ submission that there is no dispute that the claimants worked for the defendant for a period of 5 months that is between April/May and September 2016 and out of which the defendant paid one month salary albeit in two installments. Counsel stated that this claim by the claimant the defendant vehemently denies but has failed to prove how and when she paid the claimants 3months salaries and allowances. Counsel cited the case of Farajoye v Hassan  AFWLR (Pt. 368) 1070 @ 1094 paras A,C &Eand urged the Court to so hold. The defendant’s counsel in response stated that in cases of contract the Court cannot go outside the terms agreed to by parties by altering and or re couching same. He stated that the monetary claim was not substantiated in view of the express admission by the claimants in Affidavit in support of the originating summons where they admitted to have received their pay till and including August leaving only September and as such the admission binds them. He cited Section 24 of the Evidence Act and the case of Dairo v R.T.A.D Lagos  5SC (Pt. 11) 69. It is counsel’s submission that even though the Originating summons has been converted to Writ of summons that the process is still part of the Court file and the Court has the burden to consider and take judicial notice of.In response to the argument of learned defence counsel, it is the law that cannot be overemphasized that unless the action was initiated in accordance with the due process of law, which includes its commencement by or with a valid initiating or originating process, it is incompetentand the proceeding no matter how well conducted is a nullity. See the case of Registered Trustees of Divine Commission Int’l Church v Ikolodo  LPELR 44199 CA. The defendants on the6th of June, 2018 filed a notice of preliminary objection to strike out this suit filed under the Originating summons and the Court on the 16th of July, 2018 pursuant to Order 3 Rule 17 (2) of theNational Industrial Court Rules,, 2017 directed the Claimants to file their General form of complaint. What this means is that the Originating Summon and its accompany processes is incompetent before this Court and the reliance on same will make any decision stemming from it a nullity. I so find and hold. Regarding this claim it is germane to state that the burden of proof in civil matter lies on the party against whom the judgment of the court would be given if no evidence were produced on either side. See the case of Union Bank v Ravih Abdul & co ltd  LPELR 46333SC.The claimants in this suit tendered nothing to evince their claim for the sum claimed; they failed to tender their pay slip or anything that could grant them their claim. In the case of SurajuRufai v Bureau of Public Enterprises &ors unreported Suit No NICN/LA/18/2013 delivered on the 4th of June, 2018, this Court per Hon Justice B.B Kanyip PhD, FNIALS PNICNHeld that;
Inlabour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he /she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it.”
Pleadings without evidence to prove the facts averred is of no use in settling a dispute. Pleadings require evidence to be of any help to the parties and the Court of trial.See the cases of CBN &Ors v Okojie  LPELR 24740 SC;Alalade&ors v Ododo&ors  LPELR 46888 CA. It is so clear from the above cited authorities that the claimants having failed to adduce cogent evidence to their claim, have abandoned samein this regard. I so find and hold.
It is the claimant’s further claim that their employment still subsist same having not been terminated by the defendant. Learned claimant’s counsel argued that the defendant ought to adhere to the terms and conditions of the claimant’s employment and there is no evidence to show that claimants employment has been terminated as they were only locked out in September, 2016 and not that the defendant terminated their employment as there was no termination notice and as such they are entitled to their salaries and allowances. In response counsel to the defendant responded that the claimants having not been confirmed workers are not entitled to damages more than 7 days’ pay in lieu of notice. It is right as stated by the claimants that their employment were not terminated by the defendant as there is nothing on record stating so save for the 12th claimant whose employment was by exhibit T terminated on the 25th ofAugust, 2016.Is it then right to find that the claimants’ employment still subsists? The law is settled that the Courts are reluctant and infact lack the competence to force a willing servant upon an unwilling master in a contract of employment for personal service. See the case of Odibo v First Bank Plc  LPELR 46628 CA. It is clear from the facts as presented by both parties that the defendant is no longer interested in having an employment relationship with the claimants as seen by paragraph 21 of the claimants’ statement of facts and paragraph 3 of the defendantstatement of defence that sometimes in September, 2016 they were locked out and denied access into the premises of the defendant and which impliedly means a termination of employment. It is undoubtful that the mode of termination of the claimants’ employment is without much ado wrongful as it is not as stated in exhibit A. A cursory examination of Exhibit A reveals that the claimants until their employment is confirmed they are entitled to 7days notice of termination or 7days pay in lieu of notice. The claimants in this suit as statedabove wereemployed between the months of March, April and May2016 and thus under probation as their employment were terminated in September, 2016.It is the law of common that the remedy available to an employee who had been terminated wrongfully is an action for damages. Where the parties have agreed that the contract of employment may be terminated by either party upon the giving of notice or the payment of the equivalent salary for the period of notice, the measure of damages for wrongful termination or dismissal is the amount the servant would have earned over the period of notice.See the cases of Obanye v. Union Bank LPELR- 44702SC;IsongUdofiaUmoh v ITGC  4 NWLR (Pt. 703) P. 281; Beckham v Drake  2 HCC 579 at 607; Denmark Production Ltd v Boscobel Productions Ltd  1 ALLER 513. The consequence of the above cited cases is that the claimants are entitled to damages which is 7days salary in lieu of notice as provided in exhibit A. I so find and hold.
The claimants claims salaries from the Month of October, 2016 till date and any amount that might accrue to them after judgment till date of final liquidation of the judgment sum.Defence counsel in response to the above stated that the claimant cannot claim for work not done.It is trite and an elementary principle of labour and employment Jurisprudence that no employee is entitled to be paid for work not done.No employer is under any obligation to pay salaries and allowances to an employee who has not worked for the period; differently put an employee is not entitled to salaries for work not done. See the cases of Nwafor v Anambra State Education Commission &ors  LPELR 42026 CA; Keystone Bank v Afolabi  LPELR 42390 CA. In the case of AdekolaOluwakemiFunlola v. C&M Exchange  64 NLLR (Pt. 228) 553.The Court held that, “the Court will not order salary to be paid a worker for services not rendered. The claimant’s appointment herein was terminated by a letter dated 21/12/12 with immediate effect. Without much ado, the then existing relationship was effectively brought to an end by that letter. From that date, it is not open to the claimant to regard the relationship as still subsisting. She could also not claim for any salary effective from that date of termination. The reason being that there is no basis for such a claim.” the claimants stopped working for the defendant in September, 2016. It is therefore on that premise and the above settled judicial decisions that I find that the claim of the claimantsfor payment of salaries from October 2016 till date fails. I so hold.
Claimant also claims cost of litigation of the suit. It is settled law by Order 55 Rule (1) of the National Industrial Court of Nigeria Rules, 2017 that cost is awarded at the discretion of the Court. It is equally trite that a successful party in litigation, except he misconducts himself, is entitle to cost. See Mekwunye v. EmiratesAirlines LPELR-46553SC.A claimants having succeeded in some parts of their claims against the defendant areentitled to cost. Consequently, I exercise my discretion by awarding the cost of N100,000.00(One Hundred thousand naira) to the claimants.
On issue two, defendant counterclaimant claims against the defendants to counter claim in the sum of N5 Million Nairafor loses of profit by the defendant counter claimant on the investmentof over N30million raw materials.Defence counsel submitted that the way bills which are evidence of purchase are sufficient to show that the raw materials were actually purchased for the use of the claimants which they wasted, depleted and stole same. Claimants counsel stated that the defendant has not led any evidence to prove its claim because all the exhibits tendered by the defendant to prove their claim predates the date of employment of the claimant except exhibit T2 dated 21/6/2016 and therefore the claimants could not have wasted materials contained in exhibit T2. To prove its claim it tendered exhibit T2 waybills receipts. A keen perusal of exhibit T2 does not at anywhere show the monies alleged to be expended by the counterclaimant. It is just receipt of goods bought and not actual receipts to prove the sum of N5Million Naira as claimed. It is thus in the absence of cogent and credible proof of the defendant’s counter claim that I find and hold that this claim and claims ii, iii and iv of the counterclaimant’s claim fail in its .
On the whole, it is obvious that the claimant claims fail in parts and the defendant’s counter claim fail in its entirety. For avoidance of doubt, I declare and Order as follows;
1. That the claimants were employees of the defendant.
2. That the claimants’ claims 1, 2 and 4 fail.
3. That each of the claimants is entitled to damages which is 7days salary in lieu of notice.
4. I award N100,000.00 as cost to be paid by the defendant to the claimants jointly.
5. That the defendant counter claims fail.
Judgment is accordingly entered.
Hon. Justice O.O.Oyewumi