IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/PHC/135/2018
DATE: OCTOBER 30, 2020
MR. AMADI OKAKA LUCKY ERUSI - CLAIMANT
1. HENRY SPENCER NIGERIA LIMITED ] - DEFENDANTS
2. HENRY STEPHEN ADEBOLA
Simple I. Dioha, Esq. (with I. Orlu-Akwu and L.S Kinanee) - for the Claimant;
Joshua Kehinde, Esq. (with Arthur Miller, Esq.) - for the Defendants.
1. By a General Form of Complaint with the accompanied frontloaded processes dated and issued on 28th November 2018, the Claimant commenced this Suit against his former employer and its Chairman/Chief Executive, seeking for the following reliefs:
(1.) A Declaration of this Court that the employment given to the Claimant by the Defendants both as staff , contract(sic) and later staff again is legal and remain valid.
(2.) A Declaration of this Court that the refusal of the Defendants to pay to the Claimant all money owed the Claimant by the Defendants is harsh, wrongful, illegal and breach of the Claimant’s rights to his salary and legal contract executed by the Claimant and the Defendants which the Claimant performed and completed his obligation to the Contract.
(3.) The sum of N1, 930,000.00 (one million nine hundred and thirty thousand naira) only being and representing the total amount of money owed Claimant by the Defendants less the N59, 400.00 (fifty nine thousand, four hundred naira) paid by the Defendants to the Claimant on 14th day of November 2018, which will be N1, 870,600.00 (one million, eight hundred and seventy thousand six hundred naira).
(4.) The sum of N1, 000,000.00 (one million naira) only being and representing damage caused by the Claimant by non-payment of the money owed him by the Defendants and cause (sic) of litigation.
2. Upon service of the originating court processes, the Defendants reacted with its Counsel’s Memorandum of Conditional Appearance filed along with the Defendant’s Statement of Defence with other defence frontloaded processes, all dated and filed on 21st December 2018, denying the Claimant’s claims. In response, the Claimant filed a Reply to the Defendants’ Statement of Defence, dated and filed on 24th January 2019, and joined issues with the Defendants on his claims. The matter was set down for Trial at the proceedings of 20th March 2019. The Claimant testified for himself as Claimant’s Witness (CW). He adopted his two Written Statements on Oath of 18th November 2018 and 24th January 2019, and tendered 7 sets of documents, admitted in evidence and marked as ‘Exhs.C1-C7’, as described in the Claimant’s List of Documents dated 27th November 2018. They are: 1st letter of employment of the Claimant by the Defendants dated 01-09-05 (Exh.C1); Staff Identification Card issued to the Claimant by the Defendants dated 10th March 2014 (Exh. C2); 2nd letter of employment of the Claimant by the Defendants dated 18th March 2015(Exh.C3); The Claimant’s letter of resignation dated 13th July 2018 (Exh. C4); Photocopy of the list of the Defendants’ indebtedness to the Claimant(Exh.C5); A copy of Claimant’s Solicitors’ letter to the Defendants dated 25th October 2018(Exh.C6); and Claimant’s Ecobank Statement of Account(Exh.C7). CW was thoroughly cross-examined by the Defendants’ counsel, and there was no Re-Examination.
3. Gleaning from the Claimant’s pleadings and testimony at the trial, the case of the Claimant is that with active involvement of the 2nd Defendant, he was employed by the 1st Defendant at two separate periods and also was engaged in some contractual services at separate fees, but was owed some sums of money, which he seeks to recover. CW testified that sometime in September 2005, he met with the 2nd Defendant who on discovering that he is a welder employed him in the services of the 1st Defendant vide an employment offer letter dated 01-09-05 (Exh.C1). That he accepted the offer and have had a smooth working relationship until sometime in 2009, when the Claimant left on a good note for a contract job he secured somewhere else. That sometime in 2011 after he had completed the contract job he was doing elsewhere, he was re-engaged by the 1st Defendant through the 2nd Defendant, in the course of which he undertook varieties of welding jobs in the 1st Defendant’s marine boat, for separate fees.
4. CW went on, that in the course of the working relationship, the Defendants usually owe him, but he always agree to the pleas of the 2nd Defendant given the cordial family relationship they share, which led the debt to accrue to the tune of N1,360,000.00 as at January 2014. CW testified that while the debt remained unpaid, the 1st Defendant on 6th February 2014 re-engaged him as a staff Crew Member (Able Seaman) on a monthly salary of N20, 000.00. That he was issued with a Staff Identity Card dated 10th March 2014 (Exh.C2), but without a fresh employment letter. CW also testified that from the said 6th February 2014 when he was re-employed, he was not paid any salary until February 2017, (a period of 3 years). And that by the February 2017, his salary was increased from N20, 000.00 to N30, 000.00 per month. That upon increasing his salary, the salaries of February , March, April, May and June 2017 (5 months ) were paid to him, and thereafter further payment stopped.
5. It is also the Claimant’s case that while his owed salaries remained unpaid, and based on mutual understanding between the Claimant and the Defendants, he conceded not to be paid salaries for January, February and March 2018, as the contract obtained by the Defendants was sub-let to him. That at the end of the contract job, he resumed normal work again with the Defendants, and he was paid for the months of April and May 2018, and then the usual indebtedness resumed up to 13th July 2018, when, out of frustration and anger, he resigned his employment, vide a Resignation Letter dated 13th July 2018 (Exh.C4). CW further testified that when he resigned, he sent a Memo to the 2nd Defendant containing details of the owed contract sums, of which he cancelled some, yet did no payment was made (Exh.C5). That he went on to appeal to the 2nd Defendant’s wife, yet the promise that payment would be made was not accomplished. And after several demands, he instructed his Solicitors who wrote a letter of demand dated 25th October 2018 to the Defendants requesting payment of the outstanding sums, of which letter was received on 31st October 2018 (Exh.C6). That after receipt of the said Solicitors’ letter, the Defendants made a payment of the sum of N59,400.00 ) into the Claimant’s Ecobank Account on 14th November 2018, as shown in his said bank account statement (Exh.C7). That the payment has reduced the outstanding debt to N1,870,600 being claimed after deduction of the sum of N59,400.00 from the initial debt of N1,930,000.00. CW provided details of the debts from the contract job covering 2011-2014, in the sum of N1,360,000.00; Outstanding salaries from February 2014- January 2017 atN20,000.00 per month , amounting to N360,000.00; Outstanding Salaries from July 2017- December 2017 at N30,000.00 per month, amounting to N180,000.00, and outstanding salaries for June 2018 at N30,000.00 only.
6. On the alleged staff loan of N500,000.00 of which the Defendants alleged in their Defence that the Claimant was owing, CW wholly denied ever taking any loan from the Defendants throughout his services with the Defendants, and further contended that it was the Defendant that once issued a dud cheque in the sum of N250,000.00 to him, which made him to block the office entrance of the 1st Defendant and the Defendants got him arrested but the police freed him when the correct version of the incident was narrated. CW contends that after he resigned there was no further interface with the Defendants after his Solicitors wrote a demand letter to the Defendants in October 2018. CW concluded and prayed the court to grant the Claimant’s claims in the interest of justice.
7. The Defendants thereafter opened their defence at the proceedings of 24th May 2019. One Stephen Aluku (Admin. Manager of the 1st Defendant Company) testified for the Defendants as sole Defendants’ Witness (DW). He adopted his Witness Statement on Oath deposed to on 21st December 2018, as his evidence-in-chief for the Defendants, and tendered one document (doct.no.1) out of the two documents listed in the Defendants’ list of documents dated 22nd December 2018. Same was admitted without objection and marked as Exh.D1, which is the Reply letter to the Claimant’s Solicitors’ demand letter by the Defendants’ Solicitors dated 9th November 2018. From the testimony of DW and the Defendants’ pleadings in defence of the suit, the case of the Defendants aligned with that of the Claimant on the employment history but differed markedly on the Claimant’s employment status and entitlement to the monetary claims in respect of the alleged owed sums.
8. It is the Defendants’ case that the Claimant was one of its casual workers and at the same time a contractor of the 1st Defendant, as he was never employed as its full worker, and has not been on its payroll as at 2005, and contends that the Defendants paid him fully for all works carried out for the Defendants, and that the Claimant never complained either orally or in writing. That it was the Claimant, instead that owed the Defendants, as he owed the sum of N500, 000.00, as loan he took to pay for his accumulated accommodation rent. That he displayed truancy at work and usually abscond from his duty post to unknown destination. That when he absconded from duty post since 2017 and resurfaced again in March 2018, he was advised to resign rather than being dismissed from the job.
9. It is also the Defendants’ contention that the Claimant carried out a welding job for the Defendants on 1st and 3rd November 2018, and the sum of N59,400.00 was paid into his account, and he was not owed any sum at all. And that when the Claimant’s Solicitors’ letter of demand was received, the Defendants also instructed their Solicitors to reply the said letter, which was done vide a letter dated 9th November 2018 (Exh.D1).
Concluding, DW prayed the court to dismiss the suit against the Defendant, as it did not disclose any reasonable cause of action, and also incompetent, as this court lacks jurisdiction to adjudicate on matters of simple contract. Thereafter, Final Written Addresses were ordered to be filed and exchanged between both parties’ counsel.
Submissions by Defendants’ Counsel:
10. Learned Defendant’s counsel, J. Kehinde, Esq., in his Final Written Address dated and filed on 11th June 2019, raised two issues for determination, viz: (1). Whether the Claimant has proved his case against the Defendants to be entitled to the reliefs sought?; and (2). Whether this Court has jurisdiction to adjudicate over debt owed the Claimant arising from simple contract?
11. Canvassing arguments on his issue (1), learned counsel submitted that the Claimant has not proved his case against the Defendants as he did not discharge the onus on him as an employee. Citing and relying on Honika SawMill (Nig) ltd v. Hoff 4NWLR (Pt.238]673 C-F, counsel submitted that there are duties imposed on both employee and employer, and that the onus is on the employee to prove that the employer employed him on stipulated salary and that he worked for the employer during the relevant period, and then it is for the employer to prove not only that he paid the employee his salary for the relevant period but also how much paid. Counsel contended that there was no evidence provided by the Claimant to show that his salary was in deed increased from N20, 000.00 to N30,000.00, and even exh.C7 showing payment of N59,400.00 in the Claimant’s account did not establish that claim. Counsel urged the court to discountenance the claim of increase of salary as it is not supported by any evidence, and court is not supposed to speculate , citing and relying on Olaloye v. AG (Osun State) (2015) ALL FWLR (pt.774)37 @68 ; Fed Mortgage Finance Ltd v. Ekpo (2015)ALL FWLR (pt.248)16667@1681.
12. On his issue(2), referring to S.7 National Industrial Court Act, counsel submitted that this court lacks jurisdiction on the part of the case involving simple contract, as this court is not established to adjudicate over debt on contract. Citing and relying on Maduko v. Nkemdilim (1962)1ALL NLR 587 @590, the locus classicus on jurisdiction, counsel contended that as an issue of jurisdiction is very important, where jurisdiction is lacking in a suit , no matter how well conducted, it is a nullity, and pointed that the part of the Claimant’s claim against the Defendant that concerns outstanding debt from the contract of 2011 to 2014, which amounts to N1,360,00.00, falls outside the jurisdiction of this court, being simple contract debt. Counsel urged the court to so hold and decline jurisdiction on that claim.
Submissions by Claimant’s Counsel:
13. On the Claimant’s part, learned Claimant’s counsel, Simple I. Dioha, Esq., in his Final Written Address dated 9th July 2019 and filed on 23rd July 2019, raised a sole for determination- Whether by the total evidence before this court, the Claimant has proved her (sic) case to entitle her (sic) to the reliefs sought and dismissing the counter claim (sic) of the Defendant? Arguing the sole issue, learned counsel submitted that the Defendants neither joined issues nor challenged the exhibits and averments in paragraphs 1,2,3 and 5 , and expressly admitted averments in paragraphs 6a& b , 7,8 and 11 of the Claimant’s pleadings. Counsel submitted that on the authority of Monkom v. Odili 2NWLR (Pt.1179)419 @442; Longe v. F.B.N Plc 3NWLR (Pt.967)228@251; C.A.P Plc v. Vital Inv. Ltd 6NWLR (Pt.976)220 @230; S.122 (2) Evidence Act, the court should give full effect to such unchallenged and uncontroverted evidence, which were not also discredited during cross-examination.
14. Counsel further submitted that there was an admission that the Claimant was an employee of the 1st Defendant and resigned on 13th July 2018. That the main contention is whether the Claimant was owed salaries and other wages, and whether the Claimant borrowed the sum of N500,000.00 from the 1st Defendant. Counsel contended that the evidence before the court succinctly shows how the Defendants owed the Claimant his salaries and other wages accrued from extra job assigned to him by the Defendants with the understanding that the Defendant’s will pay him for those other jobs. Counsel refers to paragraphs 7, 9(d), 10 and 13 of the Claimant’s Statement of Facts , and paragraph 8 of the Claimant’s Reply to the Defendants’ Statement of Defence; all of which averments the Defendants admitted and were not disputed.
15. On the Defendants’ defence that the Claimant was indebted to the Defendants in the sum of N500,000.00, which they claimed he borrowed from the 1st Defendant, and that while the Defendants were benevolent to the Claimant, he was a truant who always abscond from his duty post to unknown destination, counsel submitted that these assertions were not substantiated at the trial. Counsel pointed that the Claimant had in his Reply to Statement of Defence denied these assertions, and maintained that he never borrowed any money from the Defendants, and that all request for money he had made was for his salary and wages for work done for the Defendants. And that the Claimant had denied being a truant and had never absconded from work and was never issued with any query letter by the Defendants. Counsel contended that all these assertions were not established, and even under cross-examination, DW also failed to establish that the Claimant borrowed N500,000.00, from the Defendants. Counsel also pointed that Defendants have failed to show that the N59,400.00, which the Defendants paid into the Claimant’s account on 14th November 2018 was for work they claimed he did for them on 1st and 3rd November 2018. Rather, the evidence points that it was paid by the Defendants in response to the Claimant’s Solicitors’ letter of demand to the Defendants on 31st October 2018.
16. Counsel submitted that as there are two aspects of burden of proof in civil litigation; the legal burden and evidential burden, the Claimant has discharged both aspects, as he adduced sufficient evidence and tendered exhibits which were never challenged or discredited during cross-examination of CW by the Defendants’ counsel. Counsel contended that it is the evidential burden of the Defendants who insist that the Claimant has been paid his salaries and other wages, to proof same by evidence, of which the Defendants have failed to establish, but relies on evasive denial. Citing and relying on Sanyaolu v. INEC  7NWLR (Pt.612)600CA @611,paras.C-D, counsel urged the court to discountenance all submissions by learned Defendants’ counsel in his Written Address, which tend to constitute evidence, as it is trite law that address of counsel, no matter how brilliant does not take the place of evidence.
17. Reacting to the issue of jurisdiction raised by the Defendants’ counsel, learned Claimant’s counsel submitted that the jurisdiction of the court is determined by the Claimant’s originating process, and that the subject matter of the Claimant’s claims are within the jurisdictional scope of this court, going by the provisions of S.254C(1) 1999 Constitution of Nigeria (as Amended), which confers this court with exclusive jurisdiction over civil causes and matters relating to or connected with any labour, employment , trade unions, industrial relations and matters arising from workplace, among others. Counsel urged the court to uphold its jurisdiction that the Claimant’s claims fall within the provisions of S.254C (1) 1999 Constitution (as Amended). Counsel also urged the court to hold that the suit sufficiently disclosed reasonable cause of action against the Defendants, given the judicial interpretation and application of the concept of cause of action, as stated in S.P.D.C (Nig) Ltd v. Addico (2016) ALL FWLR (pt.816)439; Ojukwu v. Reg. T.A.L.B.O.N (2016) ALL FWLR (pt.829)1181, to the effect that “A cause of action means the wrongful act of the defendant and the consequent damage suffered by the plaintiff. It entails the facts which when proved, will entitle a plaintiff to a remedy against a defendant”. Counsel finally urged the court to uphold the Claimant’s case and grant all his reliefs.
18. At the resumed proceedings of 28th October 2020, both counsel adopted their respective Final Written Addresses, adumbrated on same, and urged the court to uphold their respective submissions in favour of their respective parties. Judgment was thereafter reserved.
19. I have reviewed the processes filed in the suit as well as submissions of both counsel filed and exchanged in their respective Final Written Addresses. I have also duly evaluated evidence tendered at the proceedings and observed the demeanor of witnesses who testified for their respective parties. Learned Defendant’s counsel raised two issues for determination-(1). Whether the Claimant has proved his case against the Defendants to be entitled to the reliefs sought? And (2). Whether this Court has jurisdiction to adjudicate over debt owed the Claimant arising from simple contract? The Claimant’s counsel on his part, raised a sole legal issue- Whether by the total evidence before this court, the Claimant has proved her (sic) case to entitle her (sic) to the reliefs sought and dismissing the counter claim (sic) of the Defendant? I noted the inelegant drafting of the issue raised by the learned Claimant’s counsel. I also noted that although the Claimant’s counsel raised just a sole issue relating to the Defendant’s issue (1), yet took out space to also address issue (2) raised by the Defendants’ counsel.
20. Upon a review of the issues commonly raised and/addressed by both counsel in line with the crux of the dispute between the parties, I find them comprehensive to resolve the matter in dispute, only that the Defendant’s issue (2) would be swapped as issue (1), given the pre-eminence of jurisdictional issue in judicial adjudication; being a threshold gateway into the terrestrial field of litigation, without a valid entry, all efforts would be wasted!
21. On that note, I have harmonized the issues raised and arguments canvassed in support by both counsel, into two main issues underpinning the reliefs sought in the Suit. They are: (1).Whether this Court has jurisdiction to adjudicate on the disputes between the parties in this Suit? (2).Whether from the facts and evidence led, the Claimant is entitled to the grant of his reliefs sought? We will proceed along these issues underpinning the dispute in this suit.
22. On issue (1) - Whether this Court has jurisdiction to adjudicate on the disputes between the parties in this Suit: Learned Defendant’s counsel had taken a stout position that part of the Claimant’s claims fall outside the jurisdiction of the court, and therefore such claims should be severed and released for adjudication at a regular High Court. To counsel, the claim in the sum of N1, 360,000.00 being the outstanding contract work which the Defendants owed the Claimants arising from extra contract job he did for the Defendants not strictly as an employee is outside the jurisdiction of this court, and by S.7 National Industrial Court Act (NICA), the matter being a simple contract is outside the jurisdictional mandate of this court. On the other hand, relying on the provisions of the S.254C (1) 1999 Constitution of the Federal Republic of Nigeria (As Amended) learned Claimant’s counsel disagreed. Counsel vehemently contended that the extra work done by the Claimant for the Defendants arose in the course of employment between the parties, and as such, a dispute arising therefrom is within the jurisdiction of this court, pursuant to S.254C(1)of the Constitution (As Amended).
23. I have taken another analytical look at the factual scenario of this objection, and gauged the arguments of both counsel with the prescriptions of the said S.254C(1) of the Constitution, cited and relied on by the learned Claimant’s counsel, as well as S.7 NICA relied on by the Defendants’ counsel. I find as common ground between the parties that the employment relationship between the parties spanned for some intervals from January 2005 (exh.C1) and continued up to the time of the Claimant’s resignation in July 2018 (exh.C4). The said extra contract work took place between 2011 and 2014, which falls within the same period of the long span intervals of the employment relationship between the parties. In the main, I find that the Claimant was not hired to do the extra contract work from outside their existing employment relationship, which subsisted even after completion of the extra contract work and other intervals of their employment relationship.
24. It is this extra contract work the Defendants engaged the Claimant to perform within the subsisting interval of their employment relationship that gave rise to the part of the debt being sought to be recovered from the Defendants, as part of the whole outstanding claims, inclusive of owed salaries. I also find from the state of pleadings on record, that the Defendants did not frontally deny this debt, but merely raised jurisdictional challenge, preferring a severance of the claim for adjudication in another court, which he believes has jurisdiction other than this court. In essence, the Defendants would prefer bifurcated proceedings of the same dispute in different courts.
25. What the Defendants’ counsel however, forgot in his tenacious posturing of jurisdictional challenge in this manner, is that this court has been imbued with jurisdiction over any matter arising from, related to or connected with employment, courtesy of the provisions of S.254C(1) 1999 Constitution (3rd Alteration ), effective 4th March 2011. I dare say that this provision has over time become a one stop-shop for gauging the amplification of the new jurisdictional mandate of this court in its one-subject matter adjudicatory stock- employment and labour related, connected and/or arising matters! It is actually from the backdrop of the phrasal concept of ‘arising from, connected with or related with labour/employment’ used variously in the provisions of S.254C(1) of the extant Constitution that this court derives its amplified jurisdiction to entertain other core civil claims bordering on contract and tort, such as tenancy, libel, negligence and even criminal jurisdiction. In the circumstance, I take the firm view that the entire claims arising from the dispute between the parties herein fall squarely within the ample jurisdiction of this court. Accordingly, this issue of jurisdictional challenge against this court over adjudication of the subject matters of the dispute herein is resolved in favour of the Claimant. The objection is hereby discountenanced and dismissed. I now assume full jurisdiction to consider and resolve the remaining issue slated for determination. I so hold.
26. On issue (2).-Whether from the facts and evidence led, the Claimant is entitled to the grant of his reliefs sought: The Claimant’s Relief (1) seeks a “Declaration of this Court that the employment given to the Claimant by the Defendants both as staff , contract(sic) and later staff again is legal and remain valid”. I find that from the state of pleadings and evidence lead, parties are not really disputing the legality or otherwise of combined employment and service model undertaken by the parties, whereby the Claimant at some intervals in their employment relationship was hired by the Defendants to perform same job of welding work at a separate fee, which fell into debt.
27. Rather, the Defendants’ core contention is that the Claimant was a casual worker who was not in regular employment but was engaged to undertake some contract works for the Defendants. This position was maintained by the Defendants even in the face of exh.C1 (employment letter) and C4 (resignation letter), which were tendered by the CW, to establish regular employment relationship between the parties, spanning from January 2005 to July 2018; a period of about 13 years. The Defendants three prong response to the exh.C1 was to argue that it was not signed and therefore a worthless document; that the Claimant was a truant who absconds from duty and returns to work at will; and that the Claimant could not have received an employment letter as he was a casual worker.
28. I find that the Defendants’ core grouse with exh.C1 is that it is not signed, not necessarily that it was forged. This sort of allegation would amount to criminal allegation, of which burden of proof would lie on the Defendants to establish beyond reasonable doubt, in line with the evidential standard of proof of criminal allegation in civil litigation, and no longer on balance of probability as in wholly civil trial. See: Nwobodo v.Onoh (1984) 1All NLR 1, (1984) 1 SCNLR1 and Omoboriowo v. Ajasin (1984)1SCNLR 108, wherein the same panel of the Supreme Court Justices decided the fate of two Governors relying on the same set of incident, which turned out differently, because, in one, the pleadings introduced criminal allegations, which in law is required to be proved beyond reasonable doubt, rather than balance of probability required in civil trial.
29. I find also that the Defendants in disputing the employment relationship and the employment letter (exh.C1) did not also offer any evidence of instrument with which the Claimant was engaged as a ‘casual worker’ for that length of time. The learned Defendants’ counsel, indeed, misled his Clients on this path, when he further maintained this erroneous position in his adumbration submissions while adopting his Final Written Address. I have examined this exh.C1, which is a basic employment letter, and I find that it contains basic information of the employment contract between the Claimant and the 1st Defendant, and the name of the author was clearly written. From the record, I find that the Defendants did not deny knowing the person indicated therein as the author of the letter written in the 1st Defendant’s Business letter-headed paper.
30. Incidentally, despite his erroneous posturing in his submissions, learned Defendants’ counsel could not cite any apt authority wherein, as in the instant suit, a person who issued a letter without appending a signature in addition to the name indicated as the author, could successfully dispute the same letter when confronted with it by the person that received it, on the ground merely that it was not signed by the person who wrote it. In the face of the court’s equitable jurisdiction to do substantial justice, it is doubtful if the owner of such a letter can be heard contending that the same letter is a worthless paper, lacking evidential value, as learned Defendants’ counsel would want the court to uphold.
31. Invariably, the Defendants could not establish how the absence of signature on the letter written by the 1st Defendant with name of the author indicated, could be disputed by the same 1st Defendant that gave it to the Claimant through the 2nd Defendant. Counsel forgot that the said exh.C1 was also admitted in evidence without any objection from him, while playing his role at the trial, as a learned counsel for the Defendants. Again, in disputing the employment relationship established by exh.C1, the Defendants ignobly glossed over and did not dispute other supporting exhibits suggesting existence of the employment relationship, such as exh.C2 (Staff Identity Card) and exh,C4( the Resignation letter).
32. Even while disputing the Claimant’s status as a regular employee on monthly salary, the Defendants aided by their counsel, also contradictorily, joined issues with the Claimant on his computation of owed salaries based on increment from N20,000.00 to N30,000.00, on the ground that there was no evidence of the increase, thereby strengthening the Claimant’s evidence of employment as a regular staff earning monthly salaries at some point. See: Adewale v. Olaifa  17 NWLR (Pt. 1330) C.A. 478, on effect of contradictory evidence adduced by a party.
33. I also find that the Defendants who engaged the Claimant as a regular staff and also contracted him to execute extra professional welding work, as a contractor in employment, and even swapped salary with work fees at some point, did not present any evidence to dispute legality or validity of such employment arrangement. Judicial guide to resolution of the issue of employment status has been offered in Ngun v. Mobil Producing Nig.Unlimited (2013) LPELR-20197(CA), wherein it was held that: “Employer and employee relationship exists where a worker is employed under a contract of employment, i.e a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law...”
34. In my considered view, there is nothing within the extant employment legal regime that restricts or invalidates a contract between an employer and employee whereby an employee is engaged outside a regular work schedule, to render extra job at a fee, in form of contractor in employment, while their employment relationship is subsisting. And a dispute arising therefrom does not require bifurcation of proceedings in different courts, but wholly falls within the purview of the jurisdiction of this court, being matter arising from or connected with employment, pursuant to S.254C(1) of the Constitution of Federation of Nigeria( As Amended). I so hold. In that regard, it is clear, and I find that the Claimant, by the strength of his evidence, has established his declaratory relief in respect of the status of his employment arrangement with the Defendants. In the circumstance, the Relief (1) succeeds to the extent that the employment relationship that existed between the Claimant and the Defendants both as a regular staff and contractor in employment is hereby declared as legal and valid. I so hold.
35. The Relief (2) is for a “Declaration of this Court that the refusal of the Defendants to pay to the Claimant all money owed the Claimant by the Defendants is harsh, wrongful, illegal and breach of the Claimant’s rights to his salary and legal contract executed by the Claimant and the Defendants which the Claimant performed and completed his obligation to the Contract”. The Claimant having established that he was employed and also engaged by the Defendants to perform other extra work at a fee, but was owed some money, and such employment having been declared valid and lawful, would deserve payment of his proved outstanding debts arising therefrom. On that note, Relief (2) succeeds to the extent that it is hereby declared that non-payment of the Claimant’s proved debt owed by the Defendants arising from their employment contract arrangement amounts to breach of their said contract. I so hold.
36. The Relief (3) is a substantive relief, seeking for the “sum of N1, 930,000.00 (one million nine hundred and thirty thousand naira) only being and representing the total amount of money owed Claimant by the Defendants less the N59, 400.00 (fifty nine thousand, four hundred naira) paid by the Defendants to the Claimant on 14th day of November 2018, which will be N1, 870,600.00 (one million, eight hundred and seventy thousand six hundred naira). From the record, I find that in making this claim, the Claimant had itemized the particulars of the various outstanding debts: N1,360,000.00 contract debts as at January 2014; owed salaries from Feb. 2014- Jan. 2017= 3years @ N20,000.00 per month= N360,000.00; ( paid Feb-June 2017 claimed was paid based on increment to N30,000); owed salaries July 2017-Dec.2017=6 months @N30,000 = N180,000.00; (Jan-March 2018 work done in lieu of salary, resumed salary payment and was paid for April and May 2018); owed salary for June 2018@N30,000.00 ( resigned July 2018). From the record, the Claimant computed the sums owed as follows: N1,360,000 + N360,000.00 +N180,000.00+N30,000.00= N1,930,000.00 less N59,400.00,(which Claimant established was paid in his account by Defendants on 14th November 2018 after his resignation and following his solicitors’ letter of demand), leaving a balance sum of N 1,870,600.00, which he seeks to recover in this relief.
37. The Defendants had set up their defence disputing this sums claimed by the Claimant, on the basis, that: the Claimant owed a loan of N500, 000.00; the Claimant was a truant and often abandoned duty post; the Claimant did not discharge the burden of proof of being owed salaries; and that there was no evidence of increment of the Claimant’s salary from N20, 000.00 to N30, 000, which the Claimant used to compute the owed salary from Feb.2014-Jan.2017 (3 years); July 2017-Dec.2017 (6months); and June 2018 (1 month). Curiously, the Defendants who had set up their main defence in form of set-off, given the alleged debt of N500,000.00 owed by the Claimant as a loan to pay his accumulated house rent, abandoned the defence when the Claimant joined issues on it, and even narrated how he was ,issued with a dud cheque of N250,000 by the 2nd Defendant, which even resulted in police case.
38. At the end, the Defendants who have this evidential burden to establish the alleged defece of set-off failed to lead any iota evidence to establish the averment. In Akande v. Adisa  15 NWLR (Pt. 1324) S.C. 538@ P. 574, Para. D, the Supreme Court while deciding on treatment of averment not supported by evidence, held that: “Where an averment is not supported by evidence, the averment is deemed abandoned”. In Olusanya v Osinleye 7NWLR (Pt.1367)SC148 the apex court further elucidated the effect of pleading not backed by evidence and held that “any pleading not backed by evidence goes to no issue and should be disregarded by the court. Pleadings do not constitute evidence, and therefore where such pleading is not supported by evidence oral or documentary, it is deemed by the court as having been abandoned. Facts deposed to on the pleadings which are not admitted by the opponent ought to be proved by evidence or else they are deemed abandoned”.
39. On that note, the alleged defence of set-off in the sum of N500, 000.00 said to be loan taken by the Claimant from the Defendants fails as mere unsubstantiated bare averment not leaning on a solid wall of evidence. It has collapsed, and is hereby discountenanced. I so hold. Defendants also contended that the Claimant has been truant as he usually absconds from workplace. I need remind the Defendants that the law still remains that issue of employee truancy and low performance at workplace remains at the realm of overriding disciplinary powers of an employer over its employees, which conversely, includes the right of the employer to also condone indiscipline at work place. I find that after the Claimant had joined issues with the Defendants on this averment, no iota of evidence was provided by the Defendants in rebuttal to sustain the averment. There being no evidence of any query or any disciplinary action taken by the Defendants against the Claimant to address the alleged averment of truancy and absconding from duty, same fails and is hereby discountenanced. I so hold.
40. It is also the Defendants’ contention as a defence, that the Claimant has not discharged his burden of proof to establish the alleged sums of money he is claiming as owed salaries. I agree with the learned Defendants’ submission that the burden of proof to show that the Claimant was employed by the Defendants and at how much salary lies on him, and the burden of proof of payment of salaries lies on the Defendant employer. Despite setting forth the principles of law correctly, yet the learned Defendants’ counsel quibbled, when he submitted that the Claimant has not shown how he received the salaries he was said to be paid and the correct sum he was owed. In my considered view, the issue as to payment or non-payment of salary where employment relationship is already established is a particular fact, which imposes evidential burden of proof on the employer, being a party though not bearing the general burden of proof, but would fail if no evidence is led to establish the controverted fact of payment of salary. See: S.136 (1) (2) Evidence Act 2011; M.W.T (Nig) Ltd v. PTF 15 NWLR (Pt.1058) CA451@ 492-493 Para.G-C.
41. On that note, although the Claimant has a general burden of proof to establish his claims, nevertheless, as the burden of proof in civil trial is never static but preponderates, I hold the view that it is the duty of the employer (like a debtor) to establish how a disputed payment of salary was made to an employee who denies receiving due salary at workplace and to justify why the salary is withheld if not paid. The rearing question is, has the Defendants discharged the evidential burden of this particular fact? From the pleadings and evidence led, I find that the Defendants merely denied the claim of non-payment of salaries at various intervals outlined. I however, find as a strong defence the issue of increment of salary from N20,000.00 to N30,000.00. The Claimant made this averment but could not present any proof of any such increment which the Defendants vehemently denied and, which legal and evidential burden rest on the Claimant’s head undischarged.
42. Accordingly, I find in favour of the Defendants, that the salary remained N20,000.00 per month which is the sum established in evidence as the monthly salary for the Claimant throughout the duration of the employment relationship between the parties. In the circumstance, the sum owed would be recomputed with the sum of N20,000.00 being the base salary for the affected payment period, as already established in evidence. A recomputed owed salaries from Feb. 2014- Jan. 2017= 3years @ N20, 000.00 per month= N360, 000.00; owed salaries July 2017-Dec.2017=6 months @N20, 000 = N120, 000.00; owed salary for June 2018@N20,000.00 (resigned July 2018). From the available evidence on record, the recomputed sums owed are as follows: N1,360,000 (contract work debt) + N360,000.00 +N120,000.00+N20,000.00 = N1860,000.00, less N59,400.00,(which Claimant established was paid in his account by Defendants on 14th November 2018 after his resignation and following his solicitors’ letter of demand), leaving a balance sum of N 1,800,600.00.
43. In the circumstance, Relief (3) succeeds to the extent that the Defendants are hereby ordered to pay to the Claimant the sum of N 1,800,600.00, being the proved total outstanding debts owed to the Claimant arising from their employment contract arrangement. I so hold.
44. Relief (4) prays for “the sum of N1, 000,000.00 (one million naira) only being and representing damage caused by the Claimant by non-payment of the money owed him by the Defendants and cause (sic) of litigation”. From the record, I find that the available evidence proffered by the Claimant points to the unwarranted delay and deliberate efforts by the Defendants to disclaim liability for payment of his outstanding owed salaries and contract sum. This seemingly unjustified holding on to payment of the Claimant’s entitlements constituted the financial hardship the Claimant complained about, inclusive of returns from expected profitable ventures the sums would have been accruing to the Claimant if he was paid at appropriate time, when resigned from his employment in July 2018, due to the frustrating conduct of non-payment of the outstanding debts by the Defendants when they parted ways.
45. I had in a recent Judgment in Abe Adewunmi v. Equinox International Resources Ltd (Suit No. NICN/LA/166/2015, Judgment delivered June 17 2020), held the view that: “such acts of protracted post-employment dispute over recovery of accrued salaries and entitlements, which would have been wisely sorted out along with the employment termination, constitutes a specie of the emerging jurisprudence of the concept of unfair labour/employment practice, of which this court frowns at, and curtails, howsoever it rears up”. This conduct is usually compensated by way of general damages. I so hold.
46. The rational for award of damages in litigated matter of this kind, has been further elucidated in Shukka v. Abubakar 4NWLR(Pt.1291)CA497, when the court stated: “The basic object of award of damages is to compensate the plaintiff for the damage or injury or loss he had suffered as a result of the action of the defendants, premised on the guiding principle of restitution in interregnum- that is, putting the plaintiff in a position in which he would have been, if he had not suffered the wrong for which he is being compensated”. In N.A.C.B Ltd v. Achagwa 11 NWLR (Pt.1205) CA 339 @369. Paras.C-D, the court clarified how general damages are determined thus: “One of the characteristics of general damages is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of”. See also: Odumosu v. A.C.B Ltd (1976)11SC55; Samouris v. Maja 7NWLR (Pt.460)336; Union Bank of Nigeria v. Alhaji Adams Ajabule & Anor (2011) LPELR- 8239(SC). In the circumstance, this Reliefs (4) succeeds, to the extent that I award the sum of N500,000.00 (five hundred thousand naira) as general damages in favour of the Claimant against the Defendants, for the wrongful withholding of his accrued salaries and not paying him off upon his resignation since July 2018, thereby exposing him to undue financial difficulties, and making him incur more costs in litigation. I so hold.
47. For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:
1. The issue of jurisdictional challenge against this court over adjudication of the subject matters of the dispute herein is resolved in favour of the Claimant. The objection is hereby discountenanced and dismissed.
2. Relief (1) succeeds to the extent that the employment relationship that existed between the Claimant and the Defendants both as a regular staff and contractor is hereby declared as legal and valid.
3. Relief (2) succeeds to the extent that it is hereby declared that non-payment of the Claimant’s proved debt owed by the Defendants arising from their employment contract arrangement amounts to breach of their said contract.
4. Relief (3) succeeds to the extent that the Defendants are hereby ordered to pay to the Claimant the sum of N 1,800,600.00, ( one million eight hundred thousand and six hundred naira), being the proved total outstanding debts owed to the Claimant arising from their employment contract arrangement.
5. Reliefs (4) succeeds, to the extent that I award the sum of N500,000.00 (five hundred thousand naira) as general damages in favour of the Claimant against the Defendants, for the wrongful withholding of his accrued salaries and not paying him off upon his resignation since July 2018, thereby exposing him to undue financial difficulties, and making him incur more costs in litigation.
6. Monetary payments due in this Judgment shall be made and paid by the Defendants to the Claimant within two (2) months of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
48. Judgment is entered accordingly. I make no order as to cost.
HON. JUSTICE N.C.S OGBUANYA