IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 30TH DAY OF JUNE, 2020
SUIT NO: NICN/MKD/49/2017
1. BEMGA ATSER
2. NYIOR SABASTINE CLAIMANTS
3. WASHIMA ADUKU
4. TYOAKURA ANUME
NORAD SECURITY FEAT LTD. DEFENDANT
T.A. Ikpa for the Claimant.
No appearance for the Defendant.
This suit was commenced by way of a complaint filed on 30/06/2017 featuring the following claims endorsed against the Defendant:
"a) A DECLARATION that the termination of the of 1st Claimant’s employment by the Defendant without giving him adequate notice (one month’s notice or one month’s salary in lieu of notice) is unlawful.
b) A DECLARATION that the dismissal of the 2nd, 3rd and 4th Claimants from the Defendant’s employment without giving them an opportunity to be heard on the alleged misconduct they were said to have committed is unlawful.
c) A DECLARATION that the Claimants are each entitled to their annual leave of 2014 and 2015, having earned same prior to their termination/dismissal from the Defendant’s employment.
d) AN ORDER of the Court directing the Defendant to pay to the 1st Claimant the sum of Forty-Eight Thousand Naira (N48,000.00) only being the 1st Claimant’s one month’s salary in lieu of notice terminating the 1st claimant’s employment with the Defendant.
e) AN ORDER of court directing the Defendant to pay to the Claimant the sum of Ninety-Six Thousand Naira Only (N96,000.00) each being the sum due and accruing to each of the Claimants as their accumulated annual leave of 2014 and 2015.
f) AN ORDER of Court directing the Defendant to pay to the Claimants interest at 20% per annum on their 2014 and 2015 Annual Leave unlawfully withheld by the Defendant.
g) AN ORDER of Court directing the Defendant to pay to the Claimants the sum of Two Million Naira (N2,000,000.00) each as damages for breach of contract.
h) AN ORDER of Court directing the Defendants to pay to the Claimants the sum of Five Hundred Thousand Naira (N500,000.00) only being the cost of this litigation.
i) AN ORDER of court directing the Defendant to pay to the Claimants 20% post judgment interest on the judgment sum per annum till same is liquidated.”
The claimants' case as deducible from their Joint Statement of facts is that they were by way of oral contract employed as security guards by the Defendant since 2005 and placed at the NNPC Depot, Apir, Makurdi on an initial salary of N20,000.00 (Twenty Thousand Naira Only). The claimants further aver that in the year 2014 their contract of employment received an upward review, increasing their salaries to N48,000.00 each.
The Claimants are however of the view that the Defendant maliciously refused to issue them with letters of appointment even after they made demands for same. Also, that the benefits accruing to them from the reviewed contract were denied them without justification. Some such benefits include annual leave of one month with the full pay, payable alongside June salary of each year. Also Christmas bonus of a full month’s salary payable alongside November salary of every year has been denied them. That they were only paid Christmas bonus of 2014, while they were not paid annual leave for the years 2014 and 2015 even though they were given promises and assurances that it would be paid eventually.
The claimants averred that the defendant failed and/or refused to issue them with copies of the reviewed terms despite demands for same.
The claimants have therefore claimed their annual leave for the 2 years (that is, 2014 and 2015 at the rate of N48,000.00 each, being the equivalent of their monthly salaries amounting to N96,000.00, all together culminating to N384,000.00.
The claimants have decried their termination by the Defendant. They are particularly pained that the Defendant rather than pay their accrued benefits but chose to terminate them without the requisite length of notice. And besides that, that the defendant premised the termination of the claimants on ground of misconduct but failed to accord them the opportunity of being heard on the alleged incidents of misconduct. The claimants are alleging that their termination by the defendant is not only wrongful but also a fragrant abuse of their constitutional right to fair hearing.
The Claimants have therefore sought to bind the Defendant by placing reliance on terms and conditions that were applied to certain other colleagues of theirs within the same cadre at about the same time under consideration.
According to the Defendant's Statement of defence filled on 02/08/2017, the Defendant essentially stated that the claimants were engaged as casual staff and as such, their conduct required observation and vetting to be certified by management before the claimants could be issued with letters of appointment.
The Defendant averred that the salaries of the claimants were increased to N48,000.00 each because the claimants were carrying on the same work as the confirmed staff that they were working with them and not necessarily because their contract of employment had received an upward review. The defendant has pointedly refuted having reviewed the contract of employment of the claimants.
The Defendant maintains that the claimants were not paid annual leave for 2014 and 2015 because being casual staff, they were not entitled to same and so the Defendant cannot be liable to them for that reason. That as casual staff, the claimants were under probation on the condition that if their conduct met the expectation of management they would be confirmed and converted from casual to permanent staff. Alas, management adjudged the conduct of the claimants unsatisfactory and deemed it expedient to terminate them in 2015 without giving one month notice or the month’s salary in lieu of notice. This was because the employment status of the Claimants did not enjoy that pre-requisite.
The Defendant admitted that the 1st claimant was terminated in July 2015 while the 2nd, 3rd, and 4th Claimants were dismissed from service in August 2015 for misconduct. The Defendant maintained that the 2nd, 3rd and 4th Claimants were given ample opportunity to defend the complaints leveled against them but they failed to do so.
The matter came for trial on 12th of March 2019 with the 1st Claimant, Bemgba Atser swearing to the Bible and testifying as CW1. The CW1 adopted his sworn statement of 30/06/2017 as his Evidence in Chief. The following documents were then tendered by the CW1:
1. Letter of Appointment dated 1/08/2018 – EXHIBIT BA1
2. Termination letter dated 28/07/2015 - EXHIBIT BA2
3. Letter of dismissal dated 28/08/2015 issued on the 2nd Claimant - EXHIBIT BA3
4. Letter of dismissal dated 28/08/2015 issued on the 3rdClaimant - EXHIBIT BA4
5. Letter of dismissal dated 28/08/2015 issued on the 4th claimant - EXHIBIT BA5
6. letter of demand dated 17/05/2017 - EXHIBIT BA6
There was no Cross Examination of the CW1 hence the witness was discharged and the Defendant foreclosed from cross examining him.
The matter was then slated for defence on 14/05/2019. On the slated date when the defence was to be opened however, the Defendant’s counsel was not in court so the case was further adjourned to 27/06/2019 for Defence. On the said date of 27/06/2019, the Defendants’ counsel was again not in court despite service of Hearing Notice on him. Consequently, the Defendant’s right to defend the matter was foreclosed and the matter was adjourned to 27/09/2019 for adoption of final addresses, while the court directed the issuance of Hearing Notice on the Defendant but regrettably the defendant and her lawyer did not appear as well.
The Claimant’s final address filed on 11/09/2019 was adopted on 07/02/2020. Claimant’s Final Written Address posed a sole issue for determination by the Honourable Court, to wit: whether from the facts and peculiar circumstances of this case, the claimants have proved their case on the preponderance of evidence to entitle them to judgment.
Learned Counsel for the claimants in calling upon the court to find that the befitting answer to the question should be in the affirmative submitted that the court is enjoined by law to enter judgment for the claimant where there is no Defence. Cited IWUEKE V. I. B. C. (2005) 17 NWLR (PT. 955) 447 @ 4775 PARA B-D, amongst others.
With regards to the case being made by the Claimants, learned counsel for the claimant argued that the claimants put forward credible evidence in proof of their case such that the Defendant rather opted not to controvert same despite the many opportunities given for doing so. Counsel therefore submitted that the Defendant had impliedly admitted the case of the claimants by the mere failure to adduce evidence to contradict same. Cited AMADI V. NWOSU (1992) 5 NWLR (PT. 241) 273 S. C.
In further submission counsel noted while relying on the letter of an erstwhile colleague of the claimant (i.e. Exhibit BA1) that the termination of the 1st claimant was unlawful because he was not given adequate notice. That even if there were no express term as to the length of notice to be given indicated in the appointment letter, in this event the requirement for reasonable notice would be inferred by the operation of the principle of common law. Counsel cited SHENA SECURITY CO.LTD V. AFROPAK (NIG) LTD (2012) I NILR P. 190 – 197 Para. A-F, A-C, amongst others.
As to the issue of wrongful dismissal of the 2nd, 3rd and 4th claimants without fair hearing, learned counsel for the claimants submitted that whilst the law is fairly settled that an employer can dismiss an employee with or without good reason or for no reason at all, if a reason is adduced by an employer then such reason must be cogent and plausible. Counsel therefore expressed the view that the 2nd to 4th Claimants were entitled to fair hearing before their employment with the Defendant could lawfully be determined. Cited NITEL V. L. D. AKWA (2012) P. 233, Para.D-E.
In conclusion, counsel urged the Honourable Court to find on the balance of probabilities that the evidence adduced by the claimants tilts the suit in favour of the claimants and to grant the reliefs sought.
OPINION OF THE COURT
Having gone through the pleadings of the parties, the documents admitted and the submission of the Counsel for the claimants, I need to refer to the case of SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS.(2008) LPELR-3052(SC)where MUHAMMAD, JSC.defined a contract of employment as follows:
“A contract of employment 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. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff”.
It is the general practice that an agreement should be reduced into writing and where there is an agreement in writing, the person who is alleging the existence thereof will readily have a documentary evidence to backup his claim.
A contract of employment is a specie of contract and is governed by the general Principles of Law of Contract.
In B. Stabilini & Co. Ltd V. Obasa (1997)NWLR(Pt.520), 293, the court of appeal held that contracts need not necessarily be in writing as the conduct of the parties may also create contractual obligations. A contract maybe express or implied from the conduct of the parties.
Also in Buhari V. Takuma (1994) NWLR (Pt.325),183, it was held that where there is no written document evidencing contractual relations between the parties and there is no third party to prove the contractual relationship, the court will fall back on the circumstances surrounding the relationship between the parties as narrated by both of them to determine whether there was such a contract.
Similarly, a contract of employment need not be in any particular form, it maybe oral, written or partly oral and partly written. It may also be inferred from the conduct of the parties. Nigerian Airways V. Gbajumo (1992) NWLR(Pt.244)735.
In a contract of employment between a master and servant without statutory flavour as in the instant case, once the master complies with the terms of agreement, he may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason. See OLATUNBOSUN VS NIGERIAN INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH COUNCIL (1988) 3 NWLR (PART 80) 25. SEE ALSO OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (PART 9) 599 AND OFORISHE VS N.G.C. LTD (2018) 2 NWLR (PART 1602) 35 AT 41 SC. The master must in addition give the servant fair hearing as enshrined in the Rules of Natural Justice where there is allegation of misconduct.
It is settled law that in the event of allegations being made against an employee, the employee must be heard to enable him explain his own side of the case. Meanwhile the employer is entitled to feel dissatisfied or set up a panel to investigate the allegations. It is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written before it. Once the panel concludes its inquiry and finds any person to be at fault, the employer must first inform such an employee of the case against him and give him the opportunity to refute or explain in defence thereto, before the employer can dispense with his services, See BABA V N.C.A.T.C (1991) 5 NWLR (PART 192) 388.
In the instant case, the2nd to 4th Claimants were not given query or invited and presented an opportunity to make representation with regards to the allegations leveled against them, precipitating their termination from service. In the peculiar circumstances of this case, the fact remains that the Claimants were lured to work for the Defendant as its employees; with the consequence that the Defendant by implication served as the employer. It is queer that the Defendant despite not having employed the Claimants by written contract subsequently opted to terminate them by serving on them letters of termination/dismissal which are before me. The Defendant in her statement of defence alleged misconduct and insubordination on the part of the 2nd to 4th claimants to the community authorities. However there is no evidence adduced to support the said averment in the statement of defence. It is an established principle of law that where pleadings are not supported by evidence such pleadings go to no issue and are deemed abandoned. See Ademeso V Okoro(2006) LPELR - 1984(SC).
The claimants in paragraph 6 of their joint statement of facts avered that in 2014, their contract of employment was reviewed up ward and the Defendant increased their salaries to N48, 000.00 each. The Defendant admitted this fact in paragraph 4 of her statement of defence though denied that the contract of employment was reviewed. It is trite that facts admitted need not be proved. See Abobo Baalo V. FRN (2016) LPELR - 405000(SC).
Admittedly, there is no written contract of offer of employment that directly speaks to the case of the claimants. But the Defendant It admitted the monthly salaries of the claimants.
On the whole and going by the above, I find that the termination and dismissal of the claimants as the case maybe is wrongful and the claimants are entitled to one month salary in lieu of notice. See section 11 of the Labour Act.
I however hold the respectful view that the letter of employment of one Mr. Amua Mathew as pleaded and relied upon by the claimants in this case is not helpful in the sense that the said person is not party to this suit. In any case, the court has not been satisfied as his standing relative to the claimant's. Accordingly, the claim for annual leave allowance is refused.
In all, I find that the case of the claimants only succeeds in part and the Defendant shall pay the claimants each the sum of 48,000 as one month salary in lieu of notice.
Judgment is entered accordingly. Cost of N50,000.00 is awarded against the defendant.
HON. JUSTICE S. H. DANJIDDA