IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: MONDAY 14TH DECEMBER, 2020
Suit No: NICN/YEN/65/2016
BETWEEN
1. Mr. Maxwell Ejekwu CLAIMANTS
2. Mr. John Alozie
AND
1. Little China Nigeria Limited
2. Michel A. Chagoury DEFENDANTS
3. Mr. Tony Chagoury
REPRESENTATION
Mr. O.Sam Egbelogwu Esq for the Claimants.
Mr. Ndeze Anthony Esq for the Defendants.
JUDGMENT
INTRODUCTION AND CLAIMS
The Claimant commenced this action by a way of complaint dated and filed on the 31st day of March, 2016. The Claimant however filed a motion on notice for amendment dated the 25th day of February, 2019 and filed on the 11th day of March, 2019 which was moved and granted on the 8th day of April, 2019. By his amended complaint dated the 24th day of April, 2019 the Claimant claimed against the Defendants as follows:
1. The sum of N700, 000. 00 {Seven Hundred Thousand Naira} only representing unpaid salaries of the 1st claimant from November, 2010 to December, 2011.
2. The sum of N511, 000 {Five Hundred and Eleven Thousand Naira} only representing unpaid salaries of the 2nd claimant from November, 2010 to December, 2011.
3. The sum of N56, 000. 00 {Fifty Six Thousand Naira} only being the Claimants’ Christmas bonus for the year 2010 and 2011.
4. The sum of N205, 000.00 {Two Hundred and Five Thousand Naira} only representing the 1st Claimant’s entitlement following service disengagement by the Defendants in December, 2011; which include salary in lieu of notice of termination of employment, entitlements and ex gracia.
5. The sum of N145, 000.00 {One Hundred and Forty Five Thousand Naira} only representing the 2nd Claimant’s entitlement following service disengagement by the Defendants in December, 2011.
6. The sum of N5,000,000.00 {Five Million Naira} only being general damages for wrongful termination of employment, emotional and psychological trauma and inconveniencies suffered as a result of non payment of accrued salaries and allowances.
7. Cost of this action as evidenced in the receipt payment of professional fees to Claimants’ counsels in the sum of Five Hundred Thousand Naira {N500, 000.00} only.
8. Award of ten percent {10%} post judgment interest per month on the judgment sum from the date judgment is delivered until the judgment sum is liquidated.
Accompanying the complaint were the statement of facts, witness deposition on oath, list of witnesses and list of documents to be relied upon during trial.
A memorandum of conditional appearance dated the 18th day of January, 2018 was entered on behalf of the Defendants, it was filed alongside a motion on notice for extension of time to file their statement of defence. The Defendants filed a joint statement of defence dated the 5th day of February, 2019 and filed on the 27th day of February, 2019 and other accompanying processes.
Trial commenced on the 10th day of June, 2019. The Claimants called two witnesses. Cw1 who is the 1st Claimant in the suit testified and adopted his statement on oath dated 24th April, 2019 as his evidence in the suit and tendered 11 documents which were marked as exhibits Cw001 – Cw0011. Cw2 who is the 2nd Claimant in this suit testified and adopted his statement on oath dated 24th April, 2019 as his evidence in the suit. Both Cw1 and Cw2 were duly cross examined. The defence witness elder Ogedi Kalabo JP also adopted his statement on oath dated 27th February, 2019 as his evidence in chief and tendered 3 documents which were admitted in evidence and marked as “exhibits DWLC 001, DWLC 002 and DWLC 003 and was cross examined. At the close of case both counsel filed their written address but on the day slated for adoption the Defendant’s counsel was not in court and the court adopted all the processes in line with the rules of this court. With the leave of the court learned counsel to the claimant adopted his final written address dated and filed on the 27th February, 2020.
CLAIMANTS’ CASE IN BRIEF
By letters of employment dated 25th September, 2008 and the 18th December, 2008, the 1st and 2nd claimants were respectively employed by the Defendants as Cooks. The Claimants avers that the copies of their employment letter was shown to them by the Defendants and were informed that the appointment letters will be given to them after the three months of probation period which the Defendants failed to give them and kept giving excuses until their employment was terminated by the Defendants. The Claimants further avers that the Defendants did not pay their salaries from November, 2010 to December, 2011 and when they approached the Defendants, the Defendants pleaded with the Claimants to exercise some patience. The Defendants still failed to pay them and the 1st Claimant on behalf of the staff of the Defendants wrote a petition against the Defendants to the Controller, Federal Ministry of Labour and Productivity, Rivers State dated 7th June, 2011. The Federal Ministry of Labour and Productivity on the 14th day of June, 2011 wrote a letter to the Defendants requesting for a meeting with the Defendants which took place on Tuesday 21st June, 2011 at 11:30a.m. The defendants were represented by a lawyer and the Controller, Ministry of Labour in the meeting asked the lawyer to ensure that the claimants be paid and if the services of the claimants are no longer needed the defendants should properly terminated their appointments in accordance with their terms of employment and pay them their arrears of salaries. The claimants on a letter dated 26th February, 2011 further appealed to one Hon. Martins Chike Amehule, a member of Rivers State House of Assembly for interventions in the non payment of their salaries and allowances.
The Claimants aver that on the 21st day of December, 2011 while on duty, the Defendants served them undated letters captioned “notice of entitlement following service disengagement of 30th November, 2010” and stating the sum of N83, 000.00 {Eighty Three Thousand Naira} only as the 1st claimant’s entitlement and the sum of N65, 000.00 {Sixty Five Thousand Naira} only as the 2nd claimant’s entitlement. The claimants further averred that after the receipt of the letter, they went to the defendants to ask for the meaning of the letters issued to them but the 2nd Defendant told them that their services were no longer needed.
Under cross examination Cw1 stated that the last time he received his salary was in November, 2010 the sum of N50, 000. 00 {Fifty Thousand Naira} only was paid to him and stated that the 1st Defendant does not issue payment slip. Cw1 further argued that he was not issued any cheque after his last salary payment. He admitted that he was employed by the 1st defendant based on the contract given to it by D.W. C. Drilling services. He has been on standby from December, 2010 and when on standy one can be called by the Company from time to time to come and work. Cw2 under cross examination stated that he doesn’t work for D.W.C. Drilling Company but for the 1st Defendant as a Cook and was cooking for D.W.C. Drilling Company. Cw2 stated he cannot remember when he was employed or when he stopped working and the last salary he received was N36, 500.00. He admitted that the 1st Defendant is not owing him any salary. He stated that it is not true to say that he received his last salary because the contract between the 1st Defendant and D.W.C. Drilling Company had elapsed, neither was he called by the Defendants to come and collect any cheque for severance. Cw2 further stated that himself and Cw1 are not the only staff working for the Defendants and he does not know any Obedi Kalabo.
CASE OF THE DEFENDANT
Dw1 in his written deposition on oath, averred that he is the Community Liaison Officer of the 1st Defendant Company and he knows the Claimants very well as Cooks in their company for the DWC Drilling Company and he knows the Claimants very well as Cooks in their Company for the DWC Drilling company Ltd and Addax project which they handled the Catering/Housekeeping Contract. He stated that all was well until November, 2011 when the 1st Defendant shut down its operations with DWC Drilling Company due to non payment for services rendered and became incapable to continue the operations as they became highly indebted to their suppliers and staff. Dw1 further averred that the Management invited all the staff numbering above 35 of them in January, 2012 and everyone was handed a cheque but the 1st claimant rejected his cheque claiming it was inadequate and he took time to explain to him the situation of the Company which fell on deaf ears and the 1st Claimant threatened to deal with the Defendants.
Under cross examination, Dw1 admitted that the Claimants were employed as Cooks and were served with exhibit Cw001 as a Notice of Disengagement which the Claimants protested against on the ground that that same was not their entitlement and have to be paid their entitlement including the periods they stayed at home. Dw1 stated that there is evidence to show that the Claimants were invited to come and collect their cheques but it is not with him in court. Dw1 further stated that it is not true to say that the Defendants admitted that what the Claimants were given is not their entitlements in exhibit Cw001 and Cw005.
SUBMISSIONS BY DEFENDANTS’ COUNSEL
Learned counsel to the Defendants formulated a sole issue for determination in his final written address to wit:
“Whether the Claimants are entitled to the reliefs sought”?
In arguing the sole issue for determination learned counsel submits that the claimants have failed to prove their case on the preponderance of evidence and balance of probability hence not entitled to the reliefs sought. Learned counsel argued that the onus is on the claimants to prove their assertion to warrant the grant of their reliefs. He relied on section 133 of the Evidence Act and the case of Agbi vrs Ogbeh {2006} 11 NWLR pt. 990 @ 65 SC.
It is the submission of learned counsel that it is the evidence before this court that the claimants were employed by the 1st Defendant to carry out catering services for DWC Drilling Company whom awarded the contract to the 1st Defendant hence their employment. This testimony was corroborated by Cw1 under cross examination when he told this court that “DWC Drilling Company gave Little China the contract hence the employment of our services to Little China. That it is in evidence that the claimants were employed in the year 2008 as Cooks, with the job description of Cooking for DWC Drilling Company and it is also in evidence that the 1st Defendant had never owed the claimants’ salaries until the institution of this suit when Pw1 and Pw2 told this court that “as at November, 2010 when I received my last salary, the defendants were not owing me”. This shows that the disengagement of the claimants by the 1st defendant was because the contract which the 1st defendant had with her client {DWC Drilling company} had wound up hence the claimants were disengaged since there were no longer jobs to be carried out and hence their services were no longer required as communicated to them and distribution of cheques with the claimants inclusive as evidenced in exhibit Dw001, Dw002 and Dw003.
It is also the submission of learned counsel that the testimony of Pw1 under cross examination where he stated that “we were on standby and while we were on standby we did not do any job for Little China” shows that the claimants were informed of the predicament of the 1st Defendant. And the services of the claimants were no longer needed hence the negotiations as to their payment and the eventual issuance of cheques to all staff including the claimants which they refused to collect. Learned counsel submit that facts admitted needs no further proof. He cited the case of Em-Kop vrs Ani {2013} 33 N.L.L.R. pt. 95 @ 256 NIC.
Learned counsel argued that neither the claimant nor their counsel disputed in the letter dated the 22nd day of May 2012 hence confirming the sum of N133, 200. 00 as amount owed the 1st claimant and the sum of N62, 000. 00 owed to the 2nd claimant as evidenced in exhibits Dw001, Dw002 and Dw003 representing salaries in lieu of notice which represents the claimants’ legitimate entitlement in compliance with the provision of section 11 of the Labour Act. Learned counsel argued that the Defendant cannot be forced to keep the Claimants under her employment. He referred to the case of Samuel vrs Rector Federal Polytechnic Bida & Ors {2013} 33 N.L.L.R pt. 95 219 NIC. Learned counsel argued that with the winding up of the 1st Defendant’s contract with her client {DWC Drilling Company} the 1st Defendant was left with no option than to disengage the claimants, since the claimants had no other job to be carried out for the 1st Defendant hence the Claimants cannot claim to have suffered any form of hardship or injustice.
Learned counsel submits that from exhibit Cw011, the claimants had allegedly paid the sum of N500, 000. 00 to their counsel as professional fees which shows that the claimants are only on an exploitative voyage as one wonders why the said payment which was for the institution of this suit, was allegedly made on the 20th March, 2016 while the suit was filed on the 31st March, 2016, as one unanswered obvious answer is how the claimants’ counsel anticipated the correct suit number of this suit as one being paid for as evidenced in exhibit Cw011 issued eleven days before the filing of this suit.
In conclusion learned counsel urged this Honourable court to dismiss this suit in its entirety for lacking in merit.
SUBMISSIONS BY CLAIMANT’S COUNSEL
Learned counsel to the claimants in his final written address dated the 27th day of February, 2020 and filed on the same day formulated two issues for determination to wit:
a. Whether the claimants are entitled to the payment of their salaries and entitlements up to the termination of their appointments on the 21st December, 2011 upon the service of the notice of entitlement while working in the employment of the Defendants that being the only notice served on the claimants?
b. Whether from the totality of evidence adduced before the court, the claimants have proved their case against the defendants to entitle them to the reliefs sought against the defendants?
In arguing the first issue, learned counsel answered in the affirmative and submits that it is trite law that whoever desires any court to give judgment as to any legal right or liability depend on the existence of facts which shall prove that those facts exist. Learned counsel referred this Honourable court to section 131 {1} of the Evidence Act and the case of Onwula vrs Uche {2010} 2 NWLR {part 1179} 589 @ 583. Learned counsel further submitted that the burden of proof placed on the claimants by virtue of section 134 of the Evidence Act, 2011 is not that of proof beyond reasonable doubt as in criminal cases, but on the balance of probability and preponderance of evidence. The claimants have proved by credible evidence before the court that they are entitled to all the reliefs sought against the defendants.
It is the submission of learned counsel that the claimants having been employed by the defendants are entitled to the full payment of their salaries and allowances up to the date of termination. The claimants while on duty on the 21st day of December, 2011 were served undated letters captioned “Notice of entitlement following service disengagement of 30th November, 2010” {exhibit Cw001} which the Claimants acknowledged the receipt of same by endorsing the date of service which the Defendants collected and still in possession of the Defendants and the Defendants failed to tender the said acknowledged receipt of exhibit Cw001 showing when same was served on the Claimants.
Learned counsel argued that by the provision of section 167 {d} of the Evidence Act, 2011 the court may presume that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it.
It is the submission of learned counsel that under cross examination of Dw1, he identified exhibit Cw001 and stated it was served on the claimants as notice of disengagement/redundancy, this shows that the defendants have admitted that exhibit Cw001 was the only notice served on the claimants by the defendants and what is admitted need no further proof. He referred to the case of Biezan Exclusive Guest House Ltd vrs Unions Homes Saving & Loans Ltd {2011} NWLR {pt. 1246} 246 @ 285, paras C – D.
Learned counsel submit that by the service of exhibit Cw001 on the Claimants on the 21st December, 2011 the Claimants’ employment were presumed to have terminated by the said exhibit Cw001, and the Claimants were entitled to the full payment of their salaries and other entitlements from November, 2010 when the Defendants stopped the payment of their salaries while still in the Defendants’ employment up to the 21st December, 2011 when exhibit Cw001 was served on them while working in the Defendant’s company as provided by section 11 {9} of the Labour Act. Learned counsel submit that it is trite law that an employer who has wrongfully dismissed an employee has by implication put an end to his contract of service and the employee is therefore entitled to damages for breach of contract. He referred to the case of Savannah Bank Nig. Plc vrs Fakokum {2007} 1 NWLR {pt. 749} 544 ratio 6.
On issue two, whether from the totality of evidence adduced before the court, the Claimants have proved their case against the Defendants to entitle them to the reliefs sought against the Defendants? Learned counsel answered in the affirmative and submitted that a trial court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates. He referred to the case of Wachukwu vrs Owunanne {2011} 14 NWLR {pt. 1266} p. 1 @ 36 – 37 paras G – C. Learned counsel argued that the Claimants have proved by credible evidence that they are entitled to all the reliefs sought and all the pieces of evidence were neither challenged nor debunked by the Defendants. Where evidence given by a witness is not contradicted by any other admissible evidence, the trial court is bound to accept and act on such evidence. He referred to the case of Adeleke vrs Iyanda {2001} 13 NWLR {pt. 729} 1 @ 22 – 23 paras A – C. Learned counsel further submitted that the Claimants tendered exhibit Cw001 served on them on the 21st December, 2011 and during cross examination of Dw1 had identified exhibit Cw001 as the purported notice of disengagement. The Defendants deliberately refused to insert date on exhibit Cw001 in order to fraudulently conceal facts and to deprive the Claimants of their full salaries and other entitlements up to the termination of their employment on the 21st December, 2011.
Learned counsel argued that the Defendants in their final address in paragraph 4 of their argument states that the disengagement of the Claimants was on the ground that the contract between the 1st Defendant and her client {DWC Drilling Company Ltd} had wound up. Learned counsel in response to the argument submitted that by the provisions of section 9 {7} Labour Act, the deliberate and fraudulent act of the Defendants in using the undated exhibit Cw001 served on the Claimants on 21st December, 2011 as notice of termination and fraudulently relating it back to 30th November, 2010 is an unfair labour practice which attracts compensation for an award of general damages. By the provision of section 136{1} Evidence Act, 2011 the burden of proof is on the Defendants to show that the Claimants were served with notice of disengagement on any date other than 21st December, 2011. In civil cases, the onus of proving a particular fact is fixed by the pleadings, it does not remain static but shift from side to side. He referred to the case of Gbefa vrs Gbefa {1996}6 NWLR {pt. 455} p. 417 @ 432 paras D – F.
It is the submission of learned counsel that the Defendants in paragraph 4 of their written address argued that the contract of employment is between the Claimants and the 1st Defendant. This is false as the Claimants were employed by all the Defendants on record. Exhibits Dw001, Dw002 and Dw003 which was tendered by Dw1 clearly showed that same was issued by the 2nd Defendant. The Claimants were employed by all the Defendants and the Claimants’ salaries were paid not only by the 1st Defendant but all the Defendants specifically the 2nd Defendant and therefore jointly and severally liable to the Claimants’ claim. Learned counsel referred this Honourable court to exhibits Dw001, Dw002 and Dw003 and submitted that the best evidence of the content of a document is the production of the document itself. He referred to the case of Ojoh vrs Kamalu {2005} 18 NWLR {pt. 958}523 @ 580 para C.
It is the submission of learned counsel that by exhibit Cw011 which is the receipt of payment of Claimants’ counsel professional fee, after the payment of counsels’ professional fee before the filing of this suit, the receipt for payment was withheld for the purpose of filing and inserting the suit number, as that is the practice of the Claimants’ Counsel Law Firm. Learned counsel further argued that Dw1 stated during cross examination that he was the person who employed the Claimants, while issues have been settled in the pleading of both parties that the claimants were employed by the defendants. Dw1 further testified under cross examination that he was not in the meetings stated in paragraph 11 of his deposition and therefore any other averments therein amounts to hearsay and hearsay evidence is not admissible as its probative value is substantially outweighed by the danger of unjust prejudice. He referred to the case of Fatunbi vrs Olanloye {2004} 12 NWLR {pt. 887} 229 @ 247 para C. Learned counsel further submitted that an employer who wrongfully dismissed an employee by implication put an end to his contract of service, the employee is therefore entitled to damages for breach of contract which the Claimants in the instant case are entitled to their salaries and other benefits. He referred to the case of Savannah Bank Nig Plc vrs Fakokum {2002} 1 NWLR {pt. 749} 544 ratio 6.
In conclusion learned counsel submitted that from the totality of evidence adduced before the court, the Claimants have established by credible evidence that they are entitled to all the reliefs sought against the Defendant and urged this Honourable court to grant same in the interest of justice.
COURT’S DECISION
Having read through all the process filed and exhibits tendered by learned counsels for and on behalf of respective parties, listened to and observed the demeanors of the witness who testified before this court and have heard the submission of counsels in support of their cases.
Before I go further, the law is settled already that the burden of proving wrongful termination or dismissal of a contract of employment rests on the shoulders of the employee who claims such wrongful action of the employer. Failure on the part of the employee to plead and prove the contract of employment is indeed fatal to his case. Suleiman vrs Civil Service Commission of Ondo State & Ors {2015} LPELR – 41796 {CA}; Nepa vrs Adeyeri {2006} LPELR – 5932 {CA}.
In Morohunfola vrs Kwara State College of Technology {1990} 4 NWLR {pt. 145} pg 506; the Court made it clear on how such facts can be pleaded. It is essential that the Claimant pleads in his statement of claim the fact that there was a contract of employment between him and the Defendant. He is to spell out in the statement of claim what the terms of the contract were or the aspect which has been breached. To my humble mind, it is sufficient enough if the Claimant is able to spell out the facts in a manner that a reasonable man is able to comprehend and appreciate, without any equivocation that there exists an employment relation between the parties. A cursory look at the particulars of the Claimant’s claim, particularly paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shows that the Claimants indeed pleaded some terms of their contract of employment between them and the Defendants.
The position of the law as espoused in Morohunfola’s case and indeed in the authorities on this head is to prevent the Court from speculating on the existence of a contract of employment and its particulars between the parties involved.
The Claimants also went on to plead the alleged breach of the terms when they stated that without been giving any form of notice the Defendants purported to have terminated their employment without notice and without settling all their arrears of salary with the Claimants on these fronts, in their Statement of Defence and relied on series of authorities to prove and support their case.
Having done all these, I narrow the issues for determination of this case down to the following:
Whether taking into consideration the circumstances of the case, the claimants have proved their case to be entitled to all or some of the reliefs sought.
On the lone issue of whether taking into consideration the circumstances of this case, the claimant has proved his case to b3e entitled to all or some of the reliefs sought, it is trite that uncontroverted and unchallenged evidence should be accepted by the court. See Mobil Producing Nig. vrs Udo {2009} ALL FWLR pt. 482, pg 1177 @ pg 1202 – 1203, paras H – A. Also, it is the duty of the court to strictly interpret the document that gives right to the contracted relationship.
Furthermore, under a contract of employment the court is not entitled to look outside the contract of service as to the terms and conditions. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See Daudu vrs U.B.A Plc {2004} 9 NWLR {pt. 878} 276 CA; Akinfe vrs U.B.A Plc {2007} 10 NWLR {pt.1041} 185. And the terms and conditions governing the contract of employment between the Claimant and the Defendant is normally being contained in the letter of appointment/employment.
Having said all these, from the pleadings filed by both parties one can see that parties are in agreement that there exist a master/servant contract of employment between the Claimants and the 1st, 2nd Defendants. There is nothing in the pleadings filed by both parties to show the extent or involvement of the 3rd Defendant in this contractual relationship. The Defendants contend that the 3rd Defendant is only the father of the 2nd Defendant, and that the 2nd Defendant is the Managing Director of the first Defendant. See paragraphs 4, of the Joint Defendants’ Statement of Defence filed on the 27th February, 2019. And this fact was never controverted by the Claimants, in view of that its my ardent belief that the 3rd Defendant is not a necessary party in this suit and as such the name of the 3rd Defendant is hereby struck out. I so hold.
From the evidence before me the 1st and 2nd Claimants contended that they were employed by the 1st and 2nd Defendants vide a letter of employment dated 24th April, 2010 and 18th December, 2008 respectively. And that after the issuance of the said letters of employment, the Defendants retrieved same and were never returned to the Claimants, a fact which the Defendants denied in paragraphs 1 of the Defendants’ Joint Statement of Defence by a way of general traverse. And its trite that a general traverse is evasive and may be treated as placing no burden of proof on the Claimants unless other paragraphs in the statement of defence contain a denial of the Claimants’ averment. See Atuchukwu vrs Adindu {2012} 6 NWLR {pt. 1297} pg 534; Ogbeide vrs Osula {2004} 12 NWLR {pt. 866} pg 86.
Furthermore, there must be a proper and specific traverse of a fact contained in the pleadings. And where a positive and specific allegation or statement of fact was made by a party in his pleadings, there must be an express and specific traverse of such allegation or statement of fact for an issue to be properly joined by the parties on such fact. So, if a Defendant wishes to join issues with a Claimant on any statement of fact in the statement of claim{complaint}, he must state specifically the facts of the denial in the statement of defence otherwise there would be no proper traverse which gives rise to an issue joined in the pleadings. And a denial in the statement of defence that “the Defendant denies paragraph… of the statement of claim or statement of facts {as done by the Defendants in this case} amounts to insufficient denial or insufficient traverse. See Ogu vrs MIT & MCS Ltd {2011} 8 NWLR {pt 1249} pg 345; Osafile vrs Odi {1994} 2 NWLR {pt. 325} pg 125.
Therefore, the Claimants having alleged in their pleadings that their employment letters were collected from them by the Defendants, and the Defendants having failed to traverse specifically these facts, same is hereby deemed as admitted. I so hold. Therefore, this court having held that the Claimants were issued with an employment letter, this court will now go ahead and determine if the employment of the Claimants was terminated in compliance with the terms of employment.
From the evidence adduced there is no any document to show before this court the terms of contract of employment between the parties. In the amended complaint the claimants are claiming for arrears of unpaid salaries from November, 2010 to December, 2011, Christmas bonus for the year 2010 and 2011, salary in lieu of notice of termination of employment, ex-gratia, General Damages for wrongful termination of employment and cost of this action. The Claimants in their pleadings had stated they are entitled to Christmas bonus, and they failed to lead evidence to show how they earned the said Christmas bonus for 2010 and 2011. There is nothing placed before this court to prove this assertion. And averment not supported by evidence deemed abandoned. Therefore, the claims for Christmas bonus of 2010 and 2011 {reliefs 3} are hereby dismissed for lack of proof.
On reliefs 1, 2, 4, 5 which deals with the arrears of salaries of the Claimants from November 2010 to December, 2011, salary in lieu of notice of termination of employment, entitlement and ex-gratia, its in evidence that the Claimants contends that the Defendants terminated their employment sometimes in December, 2011 when they were issued with exhibit CW 001. And Exhibit Cw001 reads as follows:
“NOTICE OF ENTITLEMENT FOLLOWING SERVICE DISENGAGEMENT OF 30TH NOVEMBER, 2010
Following the termination of the contract with DWC Drilling Company, your subsequent disengagement from service, as of November 30th 2010. Your entitlement are stated as follows:…”
Therefore by exhibit CW001 and can see that the employment of the Claimants was terminated on the 30th November, 2010. But the Claimants contends that they are entitled to their salary from November, 2010 to December, 2011 reason being that they were served with the letter of disengagement {ext. CW 001} on the 21st day of December, 2011 while on duty. And that all along they have been battling with the Defendants on non payment of their outstanding salaries as evidenced in exhibits Cw003, Cw004, Cw005, Cw006, Cw007, Cw008 and Cw009. But in their defence, the Defendants in paragraphs 5, 6, 7 of the Joint Statement of Defence contends that when the 1st Defendant had issues with the DWC Drilling Company due to the non payment for services rendered, the 1st Defendant placed its workers on redundancy as there was no any ongoing project. And that in January, 2012 the 1st Defendant paid all its staff their entitlements and disengaged them. I must state here that since there is no any document before me stating or outlining the conditions of service guiding the employment of the Claimants, I have to make recourse to the provisions of the Labour Act with regards to the issue of redundancy. Section 20 of the Labour Act deals with the issue of redundancy. It is the duty of the employer to inform the Trade Union or workers representative concerned of the reasons for an extent of the anticipated redundancy. And the employer shall use his best endeavours to negotiate redundancy payments to any discharged worker. From the pleadings there is nothing placed before this court which tends to suggest that the above stated provisions were complied by the Defendants as provided by the Labour Act. And since there is no document outlining the conditions of service, the provisions of section 20 of the Labour Act must be complied with. Its in the pleadings filed by the Defendants that redundancy was declared but the Defendants failed to abide by the steps provided by the Labour Act. And its trite that when a statute directs that a certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such a procedure must be strictly followed, otherwise the court will declare void any act done not in accordance with the procedure. See U.T.H.B. vrs Nnoli {1994} 8 NWLR {pt. 363} per Onu JSC. The court also went ahead to state in pg 413 that, the non-observance in the process of reaching any decision renders the decision itself a nullity. See also Okocha vrs C.S.C. Edo State {2004} 3 NWLR {pt. 861} pg 582 paras E – C. Therefore, the action of the Defendants in declaring redundancy without complying with the provisions of section 20 of the Labour Act is null and void. I so hold.
The Defendants served exhibit CW001 on the Claimants to show their entitlements upon severance. But after a critical and microscopic view of the said exhibit one can see that the said document is undated and unsigned. And its trite that a document made by a person in whatever capacity ought to be signed by him in order to authenticate it with stamp and authority. A document which is not signed by the maker is a worthless document which does not have any efficacy in law. An unsigned and undated document commands no value in legal proceedings. It follows therefore that such a document cannot be admitted in evidence. See Anyaoha vrs Obioha {2014} 6 NWLR {pt. 1404} pg 445.
Therefore, having admitted ext. Cw001 in error I declined to ascribe any probative value on same. Having said that, since exhibit Cw001 is no more in existence and in the absence of any evidence then I have to agree with the Claimants that their employment was terminated by the Defendants sometimes in December, 2011 and that may not be unconnected with the reasons why the Defendants refused to put a date in the letter of termination, and this court cannot aid the Defendants to benefit from their own wrong. And the Defendants also failed to lead evidence to prove when they terminated the employment of the Claimants. To prove my point the Defendants even admitted in paragraph 7 of their statement of defence that other staff numbering above 35 were given their severance benefit in January, 2012. Therefore its not true to say that the employment of the Claimants was terminated in 2010 but rather in December, 2011. I so hold.
Having established the fact that the Claimants’ employment was terminated in December, 2011, then they are also entitled to their salary from November, 2010 to December, 2011. Also in the absence of any condition of service recourse has to be made to the provisions of section 11 {2} {d} of the Labour Act and the Claimants are entitled to one month salary in lieu of notice. And by the community reading of paragraphs 6, and 7 of the Claimants’ amended statement of facts and paragraph 5 and 6 of 1st Claimant’s written deposition on oath together with exhibit CW002, and the Defendants having failed to denied those facts, I come to the conclusion that the 1st Claimant’s monthly salary is N50, 000. 00 {Fifty Thousand Naira} per month, while the 2nd Claimant earns N36, 500 as his monthly salary. I so hold.
On reliefs 3, 4 and 5 the Claimants failed to lead evidence to show that they are entitled to Christmas bonus, severance package and as such the said reliefs are hereby dismissed.
On general damages, this flows naturally from the wrongful act of the Defendant complained of and in awarding general damages, the court would simply be guided by the opinion and judgment of a reasonable men. See Taylor vrs Ogheneove {2012}13 NWLR {pt. 1316} pg 46. In view of that I award the sum of Two Hundred Thousand Naira {N200, 000. 00} against the Defendants as general damages.
On the issue of relief 7, which the Claimants are claiming the sum of Five Hundred Thousand Naira as the cost they incurred in instituting this action and even tendered ext. Cw011 in evidence. I must state here that the courts have always frowned at and condemned the practice of claiming for solicitors fees from the opponent but this practice has persisted. See Chukwudinma vrs Access Bank Plc {2015} 56 N.L.L.R {pt. 192} pg 407 at pg 436 – 437 per Kola – Olare J. See also Oyebode vrs Gabriel {2013} ALL FWLR {pt. 669} 1043 at 1083; Uchegbu vrs Eco Bank Nig. Plc {2015} 52 N.L.L.R {pt. 176} at pg 603 – 604. Therefore the prayer or relief 7 is hereby refused.
Before I draw curtain, let me briefly state here that the act of the Defendants to withheld the letter of employment of the Claimants is contrary to section 7 {i} of the Labour Act and such acts amounts to unfair labour practice as contained in section 254 {c} {i} {f} of the constitution of the Federal Republic of Nigeria 1999 {as amended}.
Finally, its my ardent belief that the Claimants had proved some of their claims as enumerated ab-initio. For the avoidance of doubt and for all the reasons stated in this judgment, I hold as follows:
1. That the 1st Claimant is entitled to the sum of N650, 000. 00 being unpaid salaries from November, 2010 to December, 2011 at N50, 000.00 per month.
2. That the 2nd Claimant is entitled to the sum of N474, 500. 00 being unpaid salaries from November, 2010 to December, 2011 at N36, 500. 00 per month.
3. That both the 1st and 2nd Claimants are entitled to one month salary in lieu of notice at N50, 000. 00 and N36, 500. 00 respectively.
4. I award the sum of N200, 000. 00 as damages.
5. I refused to grant reliefs 3, 4, 5 and 7 for lack of proof.
6. I award 10% post judgment interest per month on the judgment sum from the date judgment is delivered until the judgment sum is liquidated.
7. Parties are to bear their respective costs.
8. All terms of this judgment are to be complied with by parties and their respective counsel within 30 days from today. This is without prejudice to the right of appeal against the judgment by any of the parties dissatisfied by the judgment of this court.
Judgment is hereby entered accordingly.
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HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
YENAGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA