IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICUAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTCE SANUSI KADO
26TH DAY OF MARCH 2021 SUIT NO. NICN/ABJ/19/2016
1. JONATHAN MICHEAL
2. JOSEPH ACHIMUGU
3. NUHU ISAH
5. KAKAL GABRIEL
6. M.D. LOKOJA
7. EMMANUEL JACOB
8. EMMANUEL PATRICK
9. JIBRIL MUHAMMED
10. EMEKA UGBEH
11. MALIKI MOHAMMED
12. WADEH EDMOND
13. CO FLIS E UTOMOH
14. MUHAMMAD IBRAHIIM
15. lBRAHIIM SULAIMAN
16. DAVID ELIJAH
17. MOSES OJONUBA
18. FRIDAY MATTHEW
19. ALHAJI S.M
20. USMAN DANLAMI
21. ABDULSALAM DAUDU
22. MUSA IBRAHIIM
23. AGBALA O JOHN
24. EMMANUEL FEMI
25. SAMUEL OGUNTUASE
26. SOLOMON AKPOMANU CLAIMANTS
27. EMMANUEL S. EGO
28. AZEMA ONYEKA
29. MICHEAL JOH 'SO
30. SALIU OCHEJA
31. AUGUSTI E GABRIEL
32. DANJUMA MOM OH
33. ADAMU MOHAMMED
34. OMALE MOHAMMAD
35. IBRAHIIM SUMAILA
36. FRIDAY ATTAH
37. OLUMIDE AJETUNOBA
38. OGAR PETER
39. HASSAN ISMAEEL
40. ABDUL ISAH
41. CHRISTOPHER ARIZE
42. MUHAMMAD UGONOH
43. JEREMIAH OGBENE
44. GENTLE OYIBO
45. SEGUN HABIB
46. SALIU VINCENT
47. MUSA JOSEPH
48. SULAIMAN ALIH
49. GIFT ONACHONA
50. CHIMA CHUKWU
51. BALA ABUH
52. MUHAMMAD ABUH
53. ADELEKE PAUL
54. IBRAHIIM NDANUSA
55. FIDELIS ENO
56. JOSHUA OCHENI
57. STEPHEN OMERA
58. YAHAYA IBRAHIM
59. OJODALAWA SULE
60. TONY UTOMODU
61. ADAMA ABDULKAREEM
62. BENJISUS ATAH
63. EZEKIEL JULIUS
64. DANJUMA BALA
65. DANLADI SULAIMAN
66. RICHARD CLEMENT
67. MONDAY JAMES
68. DANJUMA PAUL
69. USMAN YUSUF
70. ABUBAKAR NDANUSA
71. HARUNA ALI
72. YUSUF ANAJA
73. ABDULSALAM DAUDA
74. SUNDAY DANLADI
75. ATTAH SUNDAY
76. ABDULAH ALFA
77. EDWIN EGWUJE
78. JOHN UCHEJU
79. EJEH ALOH
80. HUSENI MOMOH
81. BELLO SULAIMAN
82. FLORENCE MOMOH
83. NELSON JOSEPH
84. EARNEST JOHN
85. ROLAND IKPEME
86. ABUBAKAR SALIFU
87. ABDULKAREEM YAHAYA
88. ANTHONY JOMBO
89. ACHENEJE OKUTACHI
90. MAJESTY OJOCHEGBE
91. SALAMU MUMINI
92. ALIH MOMOH
93. GETH OCHEJE
94. SILAS UDOKWU
95. DICKSON OMAH
96. SHEHU ALHAJI
97. MUSA SEIDU
98. SANI KABIRU
99. MARK OGWU
123. ABUBCAKAR ZEKE RI
141.BISMARK N. IDASI
162.ABUBAl(AR UMA.R A.
168.SALIU E. YAKUBU
180.UGBEDA MA TTEW
1. ZHI JIANG NIGERIA LIMITED
2. CINAFINDEV NIGERIA LTD
1. The judgment in this suit was initially fixed to be delivered on 24/2/2021. However, due to my posting from Abuja Division to Calabar Division, the judgment could not be delivered within the 90 days as provided for in section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In view of this I shall in conformity with the provision of section 294(60 of the Constitution, as amended, send a report on this development to the Honourable, The Chief Justice of Nigeria and Chairman of the National Judicial Council.
2. The claimant commenced this action vide a general form of complaint filed on 14/01/2016. The complaint was accompanied by statement of facts, witness statements on oath, list of witnesses, and photocopies of documents to be relied on at the trial. Vide the claimants joint further amended statement of facts filed on 27/1/2020, the claimants claim against the defendants is as follows::-
1. A declaration that each and every one of claimants was entitled to and ought to be issued with a Contract of Service/Letter of Appointment and Letter of Confirmation of Appointment by the defendants in pari material with the Terms and Conditions of service for junior employees in the building and civil engineering industry in Nigeria and other labour laws in Nigeria.
2. Damages in the sum of NS00,000,000.00 (Five hundred million naira) only against the defendants for non-issuance of Contract of Service/Letter of Appointments to the claimants after having promised to do so.
3. An Order mandating the defendants to pay to the claimants the sum of N364,063,733.64 (Three hundred and sixty four million, sixty three thousand seven hundred and thirty three naira, sixty four kobo) for forcing the claimants to work extra hours and unlawfully denying them holidays without compensation from 18th September, 2012- December, 31 2015 as follows:
Entitlements of 1st, 22nd, 23rd, 28th, 151st -180th, 182nd and 183rd claimants from 18th September, 2012 when the last of them was engaged-17th March, 2014.
1 ¼ of N454.55 (N568.1875) x 3 hours overtime x 36 workers x 346 days (Mondays Fridays) =N21,232,030.05
1 ¼ of N454.55 (N568.1875) x 11 hours x 36 workers x 78 Saturdays = N17,550,175.05
1 ½ of N454.55(N681.825)x 11 hours x36 workers x 77 Sundays =N20,790,207.09 200% of N454.55(N909.0l)x 11l hours x 36 workers x 12 public holidays=N4,319,615.52
From 18th March, 2014 (Commencement of Exhibit C)- 30th December, 2014 when the first of them was disengaged
1 ¼ of N590.9l (N738.6375)x 1 hour overtime x 36 workers xl 97 days (Mondays Fridays)=N5,238,417.15
1 ¼ of N590.91(N738.6375) x 11hours x36 workers x 41 Saturdays= N11,992,518.45 11/2 of N590.91(N886.365) x 11 hours x36 workers x 41 Sundays=N14,391,022.14
200% of N590.91(N1181.82) x 11 hours x36 workers x 8 public
Entitlements of 3rd, 4th, 24th -38th, 42nd, 53rd, 55th, 56th, 57th, 82nd -150th and 184th claimants from 1st September,2013 when the last of them was engaged-
17th March, 2014. ·
1 ¼ of N454.55(N568.1875)x 3 hours overtime x 11 9 workers x137 days (Mondays Fridays)=N27,789,482.438
1 ¼ of N454.55(N568.1875)x11 hours x 11, 9 workers x28 Saturdays=N20,825,208.25 1½ of N454.55(N681.825) x11 hours x119 workers x28 Sundays=N24,990,249.09 200% of N454.55(N909.0l) x 11 hours x 11, 9 workers x 6 days=N7,139,364.54
From 18th March, 2014 (Commencement of Exhibit C) -12th December, 2014 when the first of them was disengaged
1¼ of N590.91(N738.6375)x 1 hour overtime x119 workers x188 days (Mondays Fridays )=N16,524, 798.15
1 ¼ of N590.91(N738.6375)x11 hours x 11, 9 workers x39Saturdays=N37,708,183.13 1½ ofN590.91(N886.365)x11 hours x11, 9 workers x 39 Sundays=N45,249,819.615
200% of N590.91(N1181.82)x 11 hours x 11, 9 workers x 8 public holidays N12,376,019,04
Entitlements of 2nd, 39th -41st, 58th -81st and 181st claimants from 12th January, 2014 when the last of them was engaged- 17th March 2014.
1 ¼ of N454.55(N568.1875) x3 hours overtime x29 workers x40 days (Mondays Fridays)=Nl,977,292.05
1 ¼of N454.55(N568.1875) x 11 hours x29workers x 11 Saturdays=Nl,993,769.9375 1½ ofN454.55(N681.825) x 11 hours x29 workers xl0 Sundays=N2,175,021.75 From 18th March, 2014 (Commencement of Exhibit CJ-31st December,2015 when the first of them was disengaged
1 ¼ of N590.91(N738.6375) 1 hour overtime x29 workers x446 days(Mondays Fridays) = N9,553,537.425
1 ¼ of N590.91(N738.6375) x 11 hours x 29 workers x 93 Saturdays = N21,913,158.713 1½ of N590.91(N886.365) x 11 hours x 29 workers x 93 Sundays=N26,295,790.455
200% of N590.91(N1181.825) x11 hours x 29workers x22 public
holidays=NB,294,04 7.85 TOTAL= N364,063,733.64
4. An order of this Honourable Court awarding against the defendants the sum of N4,440,000.00 (Four million four hundred and forty thousand naira) representing one month's salary of N24,000.00 (Twenty four thousand naira only) being the least of the claimants' salaries in lieu of one month's notice as damages for the wrongful dismissal of all the claimants .
5. A declaration that the defendants by their actions and inactions have rendered casual the employment of the claimants.
6. An order of this Honourable Court awarding against the defendants the sum of NS00,000,000.00 (Five hundred million naira) only as damages for their attempts and steps taken to convert the employments of the claimants to casual one by attempting to shroud the terms of their contracts in secrecy on account of their willful refusal and failure to issue Letters of and Confirmation of Appointment to the Claimants after having promised to do so amongst other obnoxious anti-labour practices.
7. A declaration that the defendants are vicariously and tortuously liable for the physical and psychological assaults, battery and abuses inflicted by some of its agents on the claimants out of malice and which has impacted on their self-esteem and human indignity.
PARTICULARS OF MALICE
a. The claimants assaulted did not do anything provocative to be punished with kicks, slaps and spitting upon.
b. Assuming but not conceding that the claimants have committed some wrongs assaulting and battering them is not part of the disciplinary measure employable.
c. These treatments were only limited to the claimants and not to the Chinese staffs of the defendants who were not treated with such contempt, disdain, malice and humiliation.
d. The natures of the batteries were of such severity and with the intent of injuring the claimants and humiliate them.
e. The defendants especially the first had the capacity to restrain their agents from assaulting the claimants but willfully refused to so act.
f. Refusal of the 1st defendant to sanction its agents who committed the infractions against the persons of the claimants and its failure to provide redress for the victims reflects its tacit approval of such mean measures.
8. An Order of this Court awarding against the defendants the sum of N600,000,000.00 (Six hundred million naira) only as exemplary and aggravated damages being remedy for the assault, battery and humiliation of the claimants by agents of the defendants and which inflicted an emotional distress on the claimants.
9. A declaration that the defendants are in violation of the rights and entitlements of the claimants as contained in the National Uni-on of Civil Engineering, Construction, Furniture and Wood Workers circular of 14th January, 2014; Terms and Conditions of Service of National Joint Industrial Council for the Building and Civil Engineering Industry in Nigeria, the Terms of Agreement regulating contractual relations between the claimants and themselves and extant labour laws in Nigeria.
10. General Damages in the sum of Nl,000,000,000 (One billion naira) only.
11. Any order or such further other orders the Honourable court may make in favour of the claimants.
3. The claimants called four witnesses that testified in proof of their claims viz: Jonathan Michael, Nuhu Isah, Ismail Hassan and Stephen Joseph, who testified as CW1, CW2, CW3 and CW4. The witnesses after identifying their respective witness statement on oath adopted same as their evidence in this suit. The claimants through their witnesses tendered documents in evidence which were admitted and marked accordingly.
4. The grouse of Claimants in this suit is about non-issuance of Letters of Appointment and conditions of their service despite the defendants promising to do so. They alleged that the claimant renege on its promise to provide the letter of employment and conditions of service has denied them of the opportunity to take advantage of them. They are also complaining about arrears of entitlements owed in respect of works done in excess of the hours of work and on public holidays, which according to the claimants were not paid for by the defendants. The claimants are also alleging that they were assaulted by the Chinese workforce of the 1st defendant and the 1st defendant did not do anything to stop the assault by its officers, despite complaint to appropriate authority.
5. The 1st defendant entered a Conditional Appearance on 28th January, 2019. While the 2nd defendant entered appearance on the 17th March, 2016. The first defendant in addition to entry of appearance also filed statement of defence. But, called no witness. Both the 1st and 2nd defendants at different times did file preliminary objection and after taking argument they were accordingly dismissed for lacking in merit.
6. The Claimants have stated that they will be abandoning the fifth and sixth reliefs.
THE SUBMISSION OF THE CLAIMANTS:
7. The claimants formulated twin issues for determination. They are:-
1. Whether from the state of pleadings, evidence adduced and facts surrounding the circumstances of this case it can be inferred that there is a contractual relationship of employment between the claimants and the defendants.
2. Whether the Claimants are not entitled to the reliefs sought considering the weight of evidence adduced in their favour alleging the breach by the defendants of the agreement terms contained in Exhibit CW 2A which served as their condition of continuous service with the defendants and other unfair labour practices irrespective of the refusal of the defendants to debunk same when the onus of proof shifted to them.
8. Issue one: in arguing issue one, S. A. Lawal, Esq; counsel for the claimants refers to section 91(1) (b) of the Labour Act, on definition of contract of employment and contended that Contract of Employment has been defined by the section as " 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." The Act further goes ahead to define worker to mean "any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour ...... ".
9. Counsel argued that from the foregoing it can be gleaned that a contractual relationship may be expressed or implied; written or oral. In this case part of the cause of action that arose is the refusal of the defendants to issue Letters of Appointment with Conditions of Service to the Claimants. In spite of this the fact that there is a contractual relationship with the Claimants as workers and defendants as employers is firmly established. To illustrate this the Claimants in the course of this case called four witnesses and tendered the following documents marked: CW Al-23, CW 1B, CW C, CW 2A and CW 3. CW Al-23 are some of the Identity Cards issued by the employers (defendants) to the workers (Claimants).
10. According to counsel CW2A is an agreement between the defendants and representatives of the Claimants as a condition guaranteeing continuous stewardship of the workers in the service of their employers when dispute arose upon the failure of the latter to issue the former with Letters of Appointment amongst other issues. Therein the Claimants were liberally referred to as workers of the defendants without objection.
11. It is submitted all these documents admitted as Exhibits were frontloaded and served along with the Statement of Fact of the Claimants on the defendants. The defendants received them, entered appearances and did not deny them. The Claimants further went on to aver in paragraph 18 of their Amended Statement of Facts dated and filed 27th January, 2020 the type of tasks they performed in the employ of the defendants. A subpoenaed witness, CW 4 resident in the locality where the defendants carry on business testified unchallenged and unequivocally as knowing the Claimants as workers of the defendants.
12. It is the contention of counsel that the above set of unchallenged and uncontroverted facts constitutes overwhelming and unassailable circumstantial evidence that there is a contractual relationship of employment between the Claimants and the Defendants. It was further contended that the failure to issue Letters of Appointment led to a dispute between the two parties in the course of work and the defendants eventually conceding to issuing these documents to the Claimants as contained in Exhibit CW 2A in itself constitutes a proof in favour of the Claimants case.
13. Counsel contended that it is in anticipation of situations as this that the wise draftsmen of the Rules of this court; The National Industrial Court Rules 2017, provides in Order 30 Rule 13 that "Wherever any contract or any relationship is to be implied from a series of letters or conversations, or otherwise from a set of circumstances, it shall be sufficient to allege such contract or relationship as a fact, and to refer generally to such letters, conversation or circumstances without setting them out in detail .... " . Thus showing that apart from an express written Contract of Employment it can be gleaned from circumstances surrounding a case to discover whether there is a contractual relationship of employment between parties.
14. It is further submitted that where a written Letter of Appointment is lacking a court will consider whether there are implicit circumstances to suggest the existence of a contractual relationship that made the court to decide that a contract of employment existed in support of this contention counsel relied on the case of Olaja v Kaduna Textile Limited (1970) NNLR 42, between the Appellants and the Respondents even when there is none written. We also urge My Lord to tow this age-long precedence and resolve this issue in favour of the Claimants. Doing otherwise will however allow the defendants to benefit from their mistake of not issuing these requisite documents to the Claimants even after promising to do so and thereby took advantage of them in the payment of work done by them for the defendants' benefit. This is an obnoxious practice frowned at by our jurisprudence which has as its fundamental cannon the principles of natural justice, equity and good conscience.
15. This principle of not allowing a party to benefit from its mistake as the defendants seek to do herein by not issuing the Claimants with Letters of Appointment so as to obviate their obligations towards them has been the subject of countless erudite decisions of our superior courts of record. For instance in the case of Kano Textile v G&H Ltd (2002) 2 NWLR PT 751 this principle was enunciated in the la tin maxim Nullus commodus capereprotes de injurias uapropriaie parties shall not be allowed to benefit from their own wrong. See also SPDC Nigeria Limited v Allaputa (2005) 9 NWLR PT 931 475@502 F-G
16. Counsel reiterated that the defendants have benefitted from the contractual relationship between them by exploiting their labour without any denial from the defendants, according to counsel the only way justice can be done and seen to agreement be done is to affirm that a contractual relationship of employment has existed between them.
17. It is further argued that where there is a contractual terms between two parties and one of the parties have derived benefit therefrom that party will not be allowed to rescind therefrom even if the contract or agreement is founded on illegality so long as the other party did not-know. On this reliance was placed on the case of Chidoka v F.C.F.C (2013) (Pt.1346) and that of Veritas Insurance v Citi Trust Investment Limited (1993) PT 281, Ibrahim v Osim (1988) Pt 82."
18. Counsel urged the court to resolve this issue unhesitatingly in favour of the Claimants.
19. Issue two: in arguing this issue counsel contended that four witnesses testified in proof of the claimant’s case after several interruptions in-between, despite that the defendants failed and neglected to cross examined the four witnesses who testified on behalf of the claimants at the trial. Thus, why they were eventually foreclosed.
20. Counsel contended that the 1st defendant after entry of appearance abandoned the statement of defence fled in this action.
21. On the claim of the claimants, it is submitted that the defendants upon engaging the claimants promised to issue them with Letters of Appointment with conditions of their service. These it was said will be issued from 1st defendant's office in Lagos and in the interim Identity Cards were issued to them. However the promise to issue these Letters of Appointment with the Conditions of Service was a ruse to deceive the Claimants to slave it out in their employments.
22. It is contended that the defendants are estopped from disclaiming their non-obligation on disputes to wrest a commitment to issue these documents from the defendants the Claimants were able to get the defendants to make an agreement contained in Exhibit CW2A that same will be issued. It is pursuant to this commitment the claimants are seeking for a declaratory relief and an award of damages to remedy their losses. Counsel referred to the case of Chukwuma V Shell Petroleum (1993) 4 NWLR PT 289 512 SC 560 para. F, where the Supreme Court stated the following factors to be considered in granting a declaratory relief:
a.) A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time for the action to be tried, if at the time the action was brought it raised substantial issue of law.
b.) The claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to the relief in the fullest meaning of the word.
c.) A declaration will only be granted when there is a breach.
d.) The plaintiff must establish a right in relation to which the declaration can be made, hence the court will not generally decide hypothetical questions.
e.) The relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant
f.) The relief should also not be contrary to the accepted principles upon which the court exercises its jurisdiction.
23. Counsel contended that marrying the foregoing with the trite law that a party seeking declaratory relief cannot secure same without adducing oral evidence, Bello v Iweka (1980) 1 S.C, it is respectfully submitted that going through their pleadings and evidence adduced by them the Claimants satisfied the prescribed conditions upon which the declaratory reliefs sought by them can be granted more so when it is discovered that the defendants are in breach of the Labour Act, CAP 1 Laws of the Federation of Nigeria 2004, as will be shown anon.
24. It is argued that the claimants subject to grant of declaration, are also seeking for an award of damages as remedy for losses occasioned by the willful refusal of the defendants to issue them Letters of Appointment containing their condition of services. According to counsel damages are in their fundamental character compensatory and the primary aim is to place a party in as good a position, so far as money can do it, as if the matter complained of had not occurred. On this contention counsel relied on the case of Awolowo v Kingsway Stores (1968) 2 All NLR 217 at 259, and that of Umudje v Shell BP Petroleum Development Company Nigeria Limited (1975) 9-11 SC 155 at 162-163.
25. To further buttress the claimants position counsel refers to exhibit CW2A, which contains the agreements reached between the Claimants and the defendants became operational from 18th March, 2014. Prior to then the Claimants have been slaving it away in the employment of the defendants who took the advantage of the absence of a written Contract of Employment to pay them a wage slavery likeable to that of the Dickensian Era and denied them of other entitlements accruable from working overtime, on holidays, provision of safety gears etc.
26. Counsel also refers to section 7(1) of the Labour Act, Laws of the Federation, 2004 which provides:-
7 (1) Not later than three months after the beginning of a worker's period of employment with an employer, the employer shall give to the worker a written statement specifying
(i)The name of the employer or group of employers, or where appropriate of the undertaking by which the worker is employed.
(b )The name and address of the worker and the place and date of his engagement
(c)The nature of the employment;
( d)If the contract is for a fixed time, the date when the contract expires
( e-)The appropriate period of notice to be given by the party wishing to terminate the contract due regard being had to Section 11 of this Act
(f)The rate of wages and method of calculation thereof and the manner and periodicity of payment of wages.
(g) Any terms and conditions relating to;
(i)hours of work
(ii) holidays and holiday pay, or
(iii) incapacity for work due to sickness or injury including any provision for sick pay; and
(h) any special condition of the contract.
27. It is the position of counsel for the claimants that the failure of the defendants to issue the defendants with their letters of employment and conditions of service breached the provisions of section 7 of the Labour Act and worked injustice against the interests of the claimants. This is because this willful refusal by the defendants to obey this statutory provision occasioned the absence of a plank on which the Claimants can rely on and a basis upon which their claims for the fruits of their labour can be ascertained and assessed.
28. Counsel urged the court to grant the declaration sought and damages for the protection of junior workers like the Claimants; like in the cases of Evans Bros (Nig) Publishing Ltd v Falaiye (2003) 13 NWLR (PT 838) 564, Olaja v Kaduna Textile Co. Ltd (supra). Counsel also contended that it is also noteworthy that Section 21 Labour Act made the violation of Sections 7 above and 13 which shall be referred to soon a criminal offense.
29. The Claimants are also seeking for payment for the arrears of works the defendants forced the claimants to do after their mutually agreed hours of work and on holidays as pleaded in their Statement of Fact and partly contained in Exhibit CW2A and which were not paid for. Public holidays are designated to be work-free days by the Public Holidays Act. The Evidence Act, 2011 also enjoined taking judicial notice of these days in Section 122 (2)(g) thereof. To further buttress his point counsel relied on the case of Auto Import Export v Adebayo (2003) FWLR (PT 140) 1686.
30. Still on hours of work counsel refers to section 13 (1),(2),(3) and (7) Labour Act, which provides thus:
13 (l)Normal hours of work in any undertaking shall be those fixed(a) by mutual agreement; or
a.) (b) by collective bargaining within the organization or industry concerned; or
( c) by an industrial wages board ( established by or under an enactment providing for the establishment of such board) where there is no machinery for collective bargaining,
(2)Hours which a worker is required to work in excess of the normal hours fixed under subsection (1) of this section shall constitute overtime.
(3)Where a worker is at work for six hours or more a day, his work shall be interrupted (to the extent which is necessary having regard to its character and duration and to working conditions in general) by allowing one or more suitably spaced rest-intervals of not less than one hour on the aggregate.
(7)1n every period of seven days a worker shall be entitled to one day of rest, which shall not be less than twenty-four consecutive hours; if any reduction takes place in the weekly rest-period-
(a)corresponding time-off from work shall be allowed as soon as possible (and in any case not later than fourteen days thereafter);
(b) wages at overtime rates shall be paid in lieu thereoftitalics mine for emphasis)
31. lt is trite law that statutes are to be given their primary, literal meaning when being interpreted. This is more so when the mandatory word 'shall' is employed like the section under reference. It is further submit that the defendants being foreigners the occasion has arisen via the cause of action in this case to stamp judicial feet on the ground and send the message that the courts in Nigeria will not sit by idly as foreigners trampled upon her laws with impunity as her laws are not subservient to the whims and caprices of any foreign nationals who must conform to its provisions as long as their stay here lasts. Noteworthy is the fact that other countries do not hesitate to bring the full force of their laws to bear on Nigerians in their own countries rightly or wrongly. This is the only way Nigerians can be rescued from another round of economic imperialism. Enforcing the provisions of this Act against the defendants will send such signal.
32. Pursuant to the provisions of this Act the Trade Union to which the Claimants belong, the National Union of Civil Engineering Construction, Furniture and Wood Workers has resolved on an eight hourly working time in its collective agreement pleaded and admitted as exhibit before this court and this is the duration of hours of work the Claimants pleaded they agreed with the defendants, specifically 8 am-4 pm daily .But as strenuously averred in the Amended Statement of Fact of the Claimants, especially paragraphs 20-22 they were made to toil eleven hours every day Saturdays, Sundays and Public Holidays inclusive. Though Exhibit CW2A is silent in respect of overtime allowances for ordinary working days, but if it was mutually agreed that workers worked overtime on public holidays what can one then say of ordinary working days? This is what is meant by Section 167 Evidence Act 2011 when it provides" The Court may presume the existence of any fact which it think likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the fact of the particular case".
33. Counsel submitted that it was not until 18th March, 2014 that it was mutually agreed between the representatives of the Claimants and the defendants that the Claimants be prevailed upon to be working ten hours daily, one hour break inclusive. This is contained in Exhibit CW2A. This also goes to show that the defendants benefited from the resolutions of this agreement by deriving advantage of a longer working hour from the Claimants but refused to fulfill their own side of the bargain by refusing to pay the Claimants for works performed during the extra two hours constituting overtime. Apart from being precluded from enjoying and resting with their families and friends on days declared as holidays without being paid for if they also work overtime on these days as well.
34. Counsel posited that in paragraph 24 of their Amended Statement of Fact, the claimants declared that by the provision of their collective agreement their wages calculated daily amounts to N454.55 (Four hundred and fifty four naira fifty five kobo) from 18th September, 2012 when the last person amongst the 1st, 22nd, 23rd, 28th, 151st-180th, 182nd and 183rd to 18th March, 2014 when the resolutions contained in Exhibit CW 2A became operational and the new amount was mutually agreed at N590.91 (Five hundred and ninety naira ninety one kobo) though they are paid monthly but not documented in pay slips as averred in their Amended Statement of Fact. This is the amount payable till the first worker amongst them was dismissed on December 30, 2014. They are to be paid 1 ¼ of these sums for working overtime on ordinary working days and Saturdays and 1 ½ of these sums on Sundays.
35. For working on public holidays they are to be paid 200% of the sums. These are contained in paragraphs 23-31 of their Statement of Facts and adopted as oral testimonies in the Witness Statement on Oaths of their witnesses. The foregoing also holds true for the 3rd, 4th-21st, 24th-38th, 4znd_53rd, 5Sth-57th, 82nd-15Qth and 184th Claimants in paragraphs 32-34 and the 2nd, 39th, 40th, 41st, 58th-81st and 181st Claimants in paragraphs 35-38 of the Statement of Fact.
36. Apart from the agreements contained in Exhibit CW2A the Claimants have severally alluded to the collective agreement of their industry severally in their pleadings and tendered same in evidence. Though it has become trite law that collective agreements may not be made binding on an employer chiefly on account of the principle of Privity of Contract, see Chukwumah v Shell Petroleum Development Company of Nigeria (1993) 4 NWLR (PT 289) 512, Union Bank of Nigeria v Edet (1993) 4 NWLR (PT 287) 288. However, this is not always so. It has been held in African Continental Bank v Nwodika (1996) 4 NWLR (PT 443) 470 473-474 that collective agreement may be binding subject to the following conditions: (a) its incorporation into the contract of service if one exists. (b) the state of pleadings(c) the evidence before the court, (d) the conduct of the parties. See also Shuaibu v Union Bank of Nigeria PLC (1995) 4 NWLR (PT 388) 173 at 184.
37. Counsel argued that the resolution reached as far exhibit CW2A, in so far as that agreement can be referred to as a condition of service of the Claimants from the time it was made is in pari material with the terms and conditions contained in the Claimants' collective agreement apart from the varied hours of work which saw an increase in working hours from eight to ten. This leads to no other conclusion than that the parties intended to make the collective agreement binding in their relationship. The most obvious pointer in this direction is the fact that Exhibit CW2A in its concluding paragraph states that provisions of labour law applicable to other companies was considered in arriving at that agreement indicate that collective agreements of the industry to which the claimants belong is relevant and applicable in considering the obligations of the parties in this case to one another. The companies referred to are naturally supposed to mean those under the sphere of operation of the same trade union which the Claimants belong. Also as all regulations, rules, agreements etc are deemed laws by laymen the law mentioned therein can only be deemed to refer to the collective agreement.
38. Another factor which proves this point is to consider the state of pleadings, the evidence adduced and the conduct of the parties in this case as enjoined by the case law precedence above. All these conditions are met in this case which is most demonstrated by the fact that the collective agreement was pleaded, not objected to by the defendants and admitted unopposed by them. Thus the Claimants have based their claims on the mutual agreements contained in Exhibit CW 2A with a bent of their collective agreement.
39. Counsel submitted that the Claimants have also complained about the maltreatment by way of physical assaults, batteries, insults and other tortious infractions they were subjected to in the services of the defendants. These facts were pleaded in paragraphs 10 and 11 of their Amended Statements of Fact and elaborated upon in the testimonies of the witnesses called by them. As a party is not bound to call all witnesses or a particular number of witnesses but those sufficient enough to establish his case, they have called two of themselves to establish this aspect of their case. It also formed part of the resolutions contained in Exhibit CW2A that the defendants stop the act of beating the Claimants and humiliating them.
40. In support of his contention counsel refers to the case of KLM Airline v Taber 2014 4 NWLR (PT 1393), where it was stated thus: "it is well established that assault is the tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. Because assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary. It need not involve actual contact. It only needs intent and the resulting approach."
41. Furthermore the court went on to say "a battery can occur without a preceding assault, such as if a person is struck in the back of the head. Three elements must be proved to establish tortious assault;
a.) The plaintiff apprehend immediate physical assault
b.) The plaintiff had reasonable apprehension (the requisite state of mind)
c.) The defendant's act of interference was intentional (the defendant intended the resulting apprehension) ........... the plaintiff must prove that there was fear of life or personal safety and there must be an action that specifically shows there were some means by which to inflict harm."
42. It is submitted that all these elements are present in the Claimants' case and the fact that it forms part of the resolutions contained in Exhibit CW2A that the defendants stop assaulting their workers is a prima facie evidence of these malodorous practice by the defendants. As it is trite law that ubi jus ibiremedium (whenever there is an injury there must be a remedy) the Claimants have sought an order of exemplary and aggravated damages as remedy from the defendants for these injuries from their agents.
43. It is submitted by counsel that Exemplary damages has been held to be a concept by which a defendant is taught some hard lessons for the unusual and unexpected inhuman or outrageous conduct of the defendant to the plaintiff. It is usually awarded to punish a defendant for an abhorrent behavior or conduct. On this contention reliance was placed on the case of Odiba v Muemue (1999) 6 SC (PT 1) 157 at 170-171, Rookes v Bernard (1964) AC 1129.
44. On Aggravated damages, counsel argued that is awarded where the conduct of the defendant was such as to spite or injure the plaintiffs feeling of pride and dignity. In support of this contention reliance was placed on the case of Williams v Daily Times (1990) 1 NWLR (PT.124) 1 at 31. Aggravated damages have also been held to be compensatory in nature in Onagoruwa v Inspector General of Police (1991) 5 NWLR (PT 193) 593 at 649. It will also be awarded once it is established by evidence that the defendant's conduct towards the plaintiff is actuated by malice, ill feeling and bad faith.
45. Counsel submitted that the Claimants' witnesses made mention of their attackers amongst the servants of the defendants, the dates, time, activities which indicate the fact that the tortious acts complained of occurred whist the attackers were acting in the course of their employments with their masters (defendants) as well as all other necessary particulars. It has been held that "the nature of the negligent act or tort complained of is immaterial and the master will still be liable vicariously for the tort of his servant committed in the course of his employment even where liability depends upon a specific given state of mind and it is established that his own state of mind at all material time is innocent" See IfeanyiChukwu (Osondu) v SolelBoneh Limited (2000)5 NWLR (PT 656 322. Counsel asked; what then can one say of a master whose mind is not innocent like the defendants here?
46. Counsel also contended that in Omoudu v Obayan & Ors. (2016) 65 NLLR (PT 231) 408 NIC this court held that "the practice of relying on general principle of best practice in international labour in the domestic forum is not unique to Nigeria". The court further went ahead to justify its decision relying on decided cases from Botswana and Trinidad and Tobago. The Claimants also seek for damages on account of the arbitrary and wrongful manners in which the defendants dismissed all of them from their services at different periods. This fact was pleaded in several parts of the Amended Statement of Fact. Though it is conceded that in ordinary master-servant relations like that between the Claimants and the defendants it is often the case that the employee holds his employment at the mercy of his employer and the court will not impose an employee on an unwilling employer. on this view counsel cited Ajayi _v Texaco Nigeria Ltd (1987) 3 NWLR (PT 62) 577, Union Bank of Nigeria Ltd v Ogboh (1995) 2 NWLR (PT 380) 647, Ridge v Baldwin &Ors (Supra).
47. However, counsel submitted that it is only when an employee has been manifestly guilty of a serious misconduct which has been found to be of weighty and grave character that he can be summarily dismissed. In support of this contention reliance was placed on the case of Ante v University of Calabar (2001) 3 NWLR PT 700 239@ 258-259.
48. It is submitted by counsel that in this case the defendants have not alleged or disclose any act of serious misconduct against any of the Claimants yet they were all summarily dismissed at different times. The agreement between the Claimants and the defendants as contained in Exhibit CW2A is that they will be confirmed in their appointments after a probation period of six months. As can be deduced from their pleading all the Claimants present in this case exceeded the six months period. The collective agreement in their industry also mandated that they must be given a month's notice before any termination or dismissal and if suspected of any misdeed how they are to be disciplined. All these ought to be included in the contract of employment and conditions of service the defendants fail to issue on the Claimants. The Claimants have therefore claim to be paid one month's salary in lieu of the notice the defendants failed to give them at a the most minimum salary the least of them received.
49. Counsel posited that all that the Claimants have complained about the defendants before this court amounts to unfair labour practices, as far Section 245 C 1 (f) of 1999 Constitution (As Amended). This court in the case of Omoudu v Obayan & Ors. (supra) have this to say about this practice: " In this instance Section 254 (l)(f) of the 1999 Constitution (As Amended) creates an entirely new concept and right of "unfair labour practice", which is both at the same time foreign to the common law concept of master and servant relationship and the industrial relations jurisprudence hitherto existing in Nigeria. This new right when infringed, it is naturally and logically expected that there must be remedy; or else the whole purpose of creating the right would have been defeated. If no specific remedy is directly created by the Constitution, the court is bound to inquire into what obtains from the jurisdiction where this concept has been borrowed and introduced into Nigeria as guidance. The court is therefore bound to give the provision a broad interpretation that construe it as both accommodative of granting a right and imposing a remedy for its breach. And in line with the ratio of the Supreme Court in Amaechi v INEC 2008 LPELR-446 SC 96 C-G this court is bound to improvise a remedy: On the principle of ubi jus ibiremedium, if the court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by statutes. In Oyekanmi v NEPA (2000) 15 NWLR (PT.690) 414 this court per Onuh J.S.C said p.444: On the principle of ubi jus ibiremedium" in Bello and 13 ors v A.G Oyo State (1986) 5NWLR (PT 45) 828 at 890 this court per Oputa JSC held that if from the facts available before the court it is satisfied:
(i) that the defendant is under a duty to the plaintiff ii. that there was a breach of duty
(iii) that the defendant (sic) suffered legal injury
(iv) that the injury was not too remote, it will surely provide a remedy i.e create one irrespective of the fact that no remedy is provided either at common law or by statutes." Counsel urged the court not to depart from the unassailable wisdom enunciated in this apex court precedence earlier towed by this court.
50. Counsel submitted that in support of their case before this court the Claimants have placed heavy reliance on Exhibit CW2A amongst other exhibits .To properly evaluate the premium to this document it was held in Amedo v UBA (2008) 8 NWLR PT 1090 623@ 659 PARAH to the effect that "Parties are bound by their agreement and where the document is clear and unambiguous a court of law must give strength to plain and bare words without any hesitation or quibble". Also reference was made to celebrated case of Union Bank of Nigeria v Ozigi (1994) 3 NWLR (PT333) 385, Amason Farms Ltd v NAL Merchant Bank Limited (1994) 3 NWLR (PT 331) 241, African Reinsurance Corporation v Fantaye (1986) 1 NWLR (PT 14) 113.
51. Admittedly a plaintiff will not rely on the weakness of a defendant's case to establish his case but will rely on the strength of his own case. However, it cannot be argued that the effect of unchallenged and uncontroverted evidence and testimonies is lost on Your Lordship. It is trite that where material allegations and or averments are not denied such allegations and averments are deemed admitted. In support of this contention reliance was placed on the case of Mat Holdings Ltd v UBA PLC (2003) 2 NWLR PT 803 71 @ 87 C-D, where it was held that " An uncontroverted affidavit evidence is deemed admitted. The court is to act on such unchallenged or uncontroverted evidence.” Reference was also made to the cases of Economiates v Thompoulous 1951 F.S.C 7, David Akpan& Orv UdoUtin& 19 Ors (1996) 7 NWLR (PT 463) 634. It is also trite that what is admitted need no further proof, as based on such admission the court can give judgment to a plaintiff. See Sir Olateru Olagbegi v Oba Ogunoye II &Or (1996) 5 NWLR (PT 448) 332@ 357.
52. This the more when the decision of the Supreme Court in Executors of the Estate of Late General Abacha (Deceased) v Eke-Spiff &Ors (2009) 2-3 S.C PT II to the effect that " ..... where a defendant offers no evidence in support of his pleadings the onus of proof in such a case is naturally discharged on minimal proof is considered." Counsel submitted that the Claimants have proved their case beyond minimal proof demanded of them by law. To buttress this submission, reliance was placed on the cases of Nzeribe v Dave Engineering Company Limited (1994) 8 NWLR PT 361124, Okoebor v Police Council & 2 Ors. (2003) 5 SCNJ 52 66, Nwabuoku v Ottih (1961) 1 All NLR 487 490 to mention a few.
53. Counsel further argued that the claimants in proof of their claim have also adduced credible oral evidence relevant to their case in their witness' respective Statement on Oath apart from documentary evidence tendered. These testimonies remain unchallenged and not debunked despite the presence of the defendants in the case. It was stated in GE Int'l Operations Limited v Q. Oil & Gas Services (2015) 1 NWLR PT 1440 244 Pages 270-271 H-A that " A witness statement on oath which is properly adopted represents the testimony of the witness. To regard such as mere allegation gives an indication of complete misconception of the true and proper effect of a witness statement on oath, which if properly adopted, represent the testimony of the witness. In other words, to conclude that the testimonies contained in a witness statement on oath need to be proved or corroborated is a clear confirmation of lack of appreciating the intent of Rules of Court or Practise Direction relating to witness statement on oath," See also Aregbesola v Oyinlola (2011) 9 NWLR (PT 1253) 458.
54. Counsel submitted that the above dictum applies where such witness statement on oath is confronted by counter evidence or not. What then happens where it is not contradicted at all? The answer was supplied by the Supreme Court when it held in Arabambi v Advance Beverage Industries Limited (2005) 19 NWLR (PT 959) 1 SC 32 C-D that "Evidence that is related to a matter in controversy that is neither successfully debunked nor controverted at all for that matter is good and credible evidence that ought to be relied upon by a trial judge. Thus the court can properly accept and rely upon any evidence before it which is unchallenged and un-contradicted, provided that it is relevant to the issue before it. In this case, the evidence of the respondent's witness was unchallenged and uncontroverted. The trial court was therefore entitled to rely on it on the issue of special damages."
55. The Supreme Court did not stop there but also went to reiterate the point when it further held in Durosaro v Ayorinde (2005) 8 NWLR (PT 927) 407 SC@ 427 G-H that "Where relevant admissible and credible evidence stands unchallenged and uncontradicted, the court has no alternative but to accept it and act on it to establish or controvert a fact or matter in issue." In this case the task before the Claimants is to establish the facts in issue and as they too have adduced unchallenged and uncontroverted evidence before this court counsel prays the court to use them, accept them and rely on them to establish the facts in issue and award them the special and general damages they claim as enjoined by the Supreme Court.
56. Counsel also submitted that on the flip side of the above dictum of the Supreme Court was also considered in the case of Bisong v Ekpenyong (2003) 5 NWLR PT 812 156@ 163-164, PARAS E-B where the law was handed down that "It is not the function of a court, whether a trial or an appellate court in a criminal case or civil action to by its own exercise or ingenuity supply or arrive at evidence or work out a possible answer which only evidence tested under cross examination could supply or to speculate on possibilities which are not supported by evidence. Thus it is not proper for a court to draw conclusion other than those based on evidence. Akpabio v State (1994) 7 NWLR (PT 339) 635, Mohammed v State (1997) 9 NWLR (PT 520) 169 referred to.
57. Counsel also argued that the Claimants have on the preponderance of evidence adduced established they are entitled to the relief sought. It has been held that "the standard of prove in civil cases is on preponderance of evidence or on the balance of probabilities. The evidence adduced by the plaintiff should be put on one side of an imaginary scale and evidence adduced by the defendant put on the other side of the scale and both should be weigh together, not by the number of witnesses called by either side but by probative and qualitative value to see which side preponderates. This is what is meant when it is said a civil case is decided on preponderance of evidence or balance of probabilities. In the instant case as there was no evidence offered by the appellant the imaginary scale prepoderated heavily in favour of the respondent" -Sosan v HFP Engineering Nigeria Limited (2004) 3 NWLR (Pt.861) 546, Mogaji V Odofin (1978) 4 SC 91, Balogun V Labiran (1988) 3 NWLR (Pt.8-0) 66.
58. In concluding his submission counsel contended that the two major issues for determination be resolved in favour of the claimants, considering the foregoing they have adduced more than the minimal proof demanded of them by the law. Counsel urged the court to grant the reliefs.
59. I have carefully considered the processes filed in this suit and the submission of counsel for the claimants.
60. It is pertinent to note at the onset that the defendants In this suit did not deemed it fit and necessary to put up a defence to the claimants claim. However, this does not mean that judgment must be given in favour of the claimants, as failure to file defence does not translate to automatic judgment for the claimants. The law still requires the claimants to meet up with minimal proof for them to be entitled to judgement. By the minimal evidential requirement, a claimant should not expect the court to give in his favour, just because the other party did not adduce any evidence before the court. See Mr. Lawrence Azenabor v. Bayero University, Kano  25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye  4 NWLR (Pt. 1057) 218 SC at 247. See also this Court’s decision in Attorney General Osun State v. NLC & ors  34 NLLR (Pt. 99) 278 NIC.
61. The counsel for the claimants has made heavy whether on discharge of burden of proof based on the witness statement on oath of the witnesses of the claimants and documentary evidence tendered and admitted in evidence by the court which admission was due to lack of objection to the admissibility of the documentary evidence.
62. The claimants vide this suit are praying the court for declarations, issuance of letters of appointment, confirmation of appointment, payment of damages, payment of overtime, forced work done on public holidays, payment of one month salary in lieu of notice, payment of damages for assault and battery. The reliefs being sought clearly revealed claims for declaratory reliefs and special and general damages.
63. The law is well settled that for a claimant to be entitled to declaration, he must succeed on the strength of his evidence and not on weakness or admission by the defendants. For a claimant to be granted declarations by the court he must convinced the court of his entitlement to the declaration in the fullest sense of the word. The claimants would succeed by adducing cogent, credible and compelling evidence.
64. For the claim on overtime and work done on public holidays, they are claims for special damages, the claimant is required to strictly prove entitlement to the special damages. Therefore, the onus cast on the claimant for proving claim for special damages is pretty onerous. See 7UP Bottling Company Plc v. Augustus  LPELR-20873(CA), which states that the claim must be particularized and strictly proved. And by NNPC v. Clifco Nigeria Ltd  LPELR-2022(SC), what appears to be an admission cannot apply to a claim for special damages. Thus, a claim for special damages cannot succeed because it is admitted. Claims for special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. The law is trite that the fact that defendants did not appear or file defence is not sufficient to be the proof of declarations and the monetary claims of special damages by the claimants.
65. The apex court has in the decision in the case of Gabriel Ativie v. Kabelmetal (Nig.) Ltd  LPELR-591(SC);  10 NWLR (Pt. 1095) 399;  5 - 6 SC (Pt. II) 47 that said that:
‘‘A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.’’
66. Before proceeding to determine the merit of the claimants claim, it behoves on me to first and foremost consider the evidential value of the exhibits tendered in evidence which the claimants are heavily placing reliance on in proof of the case before the court.
67. In the course of writing this judgment while considering exhibit CW1B and exhibit CW2A1-5, I discovered that the life span of exhibit CW1B is for a period of 2 years. See Article 5 of exhibit CW1B, but, it shall continue to be in force until review. Vide exhibit CW2A1-5, with its attachment which is the amendment to NJIC collective agreement of 30th November 2011, it was to take effect from 1st November 2013. This means that there is NJIC collective agreement of 2011, which exhibit CW2A1-5, amended. This means that amendment in exhibit CW2A1-5, is not for exhibit CW1B, as the claimants are assuming. Throughout the duration of the trial the witnesses that testified never made reference or tendered the NJIC agreement which exhibit CW2A1-5 amended. This means that the NJIC collective agreement of 30/11/2011, was the one amended by exhibit CW21-5, but the collective agreement of 2011, was never tendered in evidence before the court for its perusal.
68. The law is trite that documents must be tendered as a whole rather than in piecemeal or in parts or as the Court noted in Zenith Bank Plc & Anor. v. Chief Dennis Ekereuwem & Anor (2012) 4 NWLR (Pt.1290) 207 at 236, “pockets convenient to a party and a party is not to choose extracts therefrom that is convenient to his case”. The rationale for this position is to enable the Court an opportunity to have a holistic view and understanding of the document tendered. In tendering NJIC agreement all that the claimants did was to pick and choose which NJIC collective agreement to tender. That is not allowed in law where reference is made to a document such document must be laid before the court otherwise the chosen document are incomplete for the omission of the document that was referred in the tendered document. It is the law that court has a bounden duty to ensure that documents improperly admitted as exhibits at trial without objection, are discountenanced notwithstanding that it is at the stage of evaluation of the document. The Court of Appeal in Timothy & Anor v. Okpein&Ors. (2018) LPELR-44182 quoting B. Manfg (Nig.) Ltd v. M. S.O.I. Ltd. (2007) 14 NWLR (Pt. 1053) 139paragraphH stated the position of the law as follows –
"The law is elementary that a trial judge has the right to expunge from record a document which he wrongly or wrongfully admitted. He can do so suo motu at the point of writing judgment. He needs no prompting from any of the parties, although a party is free to call his attention to the document at the stage of address."
69. In line with settled position of the law and my finding that there is NJIC agreement of 2011 which was referred to in exhibit CW2A1-5, and which has not been tendered in evidence, therefore, exhibits CW1B and exhibit CW2A1-5, were not complete document and they were wrongly admitted as exhibits. I therefore expunge them from records and shall place no reliance on them in the determination of this suit, as they lacks evidential value due to omission of the referred document i.e NJIC of 30/11/2011.
70. For exhibit CW1C, is an agreement that is a stranger in this case, the said purported agreement is between the 1st defendant and Allo Community, in the circumstance it cannot serve as part of the conditions of service of the claimants and therefore not binding on the parties to the dispute before the court. The case before the court is between the claimants and the defendants; Allo Community is a complete stranger to the employment relationship between the claimants and the defendants. In view of this finding exhibit CW1C is inapplicable in this case. No evidential value can be attached to exhibit CW1C as far as this suit is concerned. In the circumstance I hereby discountenanced exhibit CW1C for the purposes of this judgment.
71. It is very clear to me that exhibit CW2A, is another stranger to the dispute before the court, the said exhibit contained decisions of the reconciliation committee on the conflicts between the 1st defendant and its workers. It was reached or taken by Hon. Moses Ado Okino, MD/CE Kogi investment and Properties Ltd Lokoja and one Mr. Harry Zhang, GM of 2nd defendant. The law is well settled that agreement is only binding on parties to it, only parties to an agreement are bound by its terms, non-parties are not bound and cannot even sue on it even if it was made for their benefit. In view of this well settled principle of law I hereby expunged exhibit CW2A, for having been wrongly admitted in evidence since it has no evidential value in so far as this case is concerned. It has no evidential utility. It is a worthless piece of paper. It is incapable of being used for the resolution of facts disputed by the parties in this case. See Dizengof W.A. (NIG) Ltd V Agric Service Training Centre and Marketting Ltd (2018) LPELR-46361(CA), Rebold Industries Ltd V Magreola (2015) ALL FWLR (Pt.794) 94 @ 106, SC; Basinco Motors Ltd V Woeman Line Ltd (2009) All FWLR (Pt.488) 1634 @1636. In the same vein, I expunge exhibit CW2A, from the record of this case being a wrongly admitted piece of evidence. I expunged same from the record as it was inadvertently admitted.
72. In view of the foregoing finding, the submission of counsel for the claimant to the effect that exhibits CW1B, CW1C, CW2A1-5 and CW2A, are binding on parties in this suit, while placing reliance on the cases of Amedo V UBA (supra), UNB Nigeria Ltd V Ozigi (supra), Amasa Farm Limited V NAL Merchant Bank (supra) and Africa Renaissance Insurance Corporation V Fantaye (supra), was based on misconception of the evidence adduced by the claimants.
73. The four documents having been found by this court not to have evidential value in the eyes of law and not applicable to this suit, as they are strangers, they cannot be used to ground any claim. If that is done it will amount to importing extraneous matters.
74. It is pertinent to point out that the law is not absolute that simply because documents have been admitted the court must make utilize them. The court has a bounden duty to ensure that for documents to be admitted before the court have evidential value before they can be acted upon. The law is settled that where such inadmissible evidence or document was erroneously and wrongly admitted in evidence in the course of the trial the court in writing judgment has been invested with requisite vires to expunged or disregard such evidence in arriving at a decision in the case since a court can only act and rely on legally admissible evidence for its decisions. See Magaji V Ogele (2012) LPELR-9476(CA); Amaechi V Solaja (2017) LPELR (CA); ROYOK (NIG) Ltd V A.G. & C. CJ Sokoto & Anor (2017) LPELR- (CA). The reliance on the four exhibits by the counsel for the claimants is based on misconception of law. On the whole, and for the reasons given, I hold that Exhibits CW1B, CW2A1-5, CW1C and CW2A, are inadmissible and so have no evidential value. They will be discountenanced for purposes of this judgment.
75. The position taken by the claimants seems to be based on the assumption that the contract of service between the claimants and the defendants is governed by the NJIC collective agreement. However, with the finding that the exhibits being relied upon by the claimants on this assumption have no evidential value, then the question that need to be answered is was there any contract of service between the parties in this case, if the answer is yes then what are the terms and conditions of service applicable to the contract of service.
76. It is to be noted that in a contract of employment the relationship between a master and his servant or an employer and his employee is a contractual one and is governed by the terms and conditions of the contract between them. This means an employee is only entitled to make claims from his employer based on stipulations contained in the terms and conditions of the contract. See NWAUBANI V GOLDEN GUNEA BREWERIES PLC (1995) 6 NWLR (Pt.400) 184.
77. However, it must not be forgotten that a contract of service, is a relationship entered into between two or more persons employer and employee (master and servant) where by the employee or servant agree to serve the employer or master and to be subject to the control of the master either for a fixed term or a term of indefinite duration in return for a benefit i.e payment of salary or wages. See NIGERIA AIRWAYS V GBAJUMO (1992) 5 NWLR (Pt.244) 735. In that case the court of appeal recognized that contract of service may be under seal, oral or even inferred from the conduct of the parties and payment of wages and salaries. The court went further to say that where one party employs another, appoints him to various positions in its establishment, pays his salary and allowances, these acts constitute sufficient fact from which a contract of employment can be inferred.
78. The claimants in this suit claimed that they were engaged by the defendants and given Identity Cards showing that they are employees of the defendants, but the defendants refused to give them letters of appointment. They also aver that their monthly salary was paid cash without pay slips evidencing the payment. Taking into consideration the provision of section 91 of the Labour Act, it will be correct to state that contract of service can take the form of being in writing, oral, express or implied from the facts and circumstances.
79. In view of rejection of exhibits CWb1, CW1C, CW1A1-5 and CW2A, we are left with exhibit CW1A1-23 and the testimony on payment of salary by cash as proof the the contract of service between the parties in this suit.
80. For exhibit CW1A1-23, is photocopies of Identity Cards of some of the claimants. They were tendered to show that they are employees of the 1st defendant. A careful perusal of the said exhibit will reveal that some of the photocopies of the identity cards are for persons that are not named in the complaint as parties in this suit. They are:-
a.) Nuhu Agonor,
b.) Rabiu Seidu,
c.) Hamidu Baba,
d.) Umar Abubakar,
e.) Kasumu Danjuma, and
f.) Sheidu Baba.
81. The above names whose photocopies of their Identity cards were tendered in evidence were not listed as parties in the complaint. This means that they are not properly before the court in the circumstances; I hereby discountenanced the photocopies of identity cards of the persons who are not parties to this suit for not being relevant to the determination of the dispute submitted to the court for adjudication. The said photocopies of the identity cards are not relevant to this suit, they are hereby expunged from the record of the court.
82. Amongst the claimants listed as parties only 17 have their photocopies of identity cards tendered before the court in evidence. They are:-
83. 1st, 31st, 41st, 55th, 103rd, 106th, 113rd, 118th, 121st, 123rd, 129th, 133rd, 159th, 160th, 168th, 175th and 180th. For these claimants I accept that they are employees of the 1st defendant going by exhibit CW1A1-23. However, for the remaining claimants who have not tendered their identity card or any other concrete and credible evidence establishing their employment, I hereby find and hold that they are not employees of any of the defendants in this case. The excuse given to the effect that their Identity cards got lost when their counsel to whom they handed over the Identity cards to was relocating to a new office is not acceptable to me for the simple reason that there is no evidence that can give credence to the assertion. The claimants should have made report to the police for the loss or deposed to an affidavit showing when the said identity cards were lost. It will also be incredible to believe that a party will part with an important document like identity card without keeping a copy of it.
84. The law is trite that where the contract of service was entered into by way of parole, and where there are no express words available, the terms and conditions will be inferred from the evidence and circumstances surrounding the case as well as conduct of the parties and statutory provisions See DANIELS V SHELL BP PETROLEUM DEVELOPMENT (1962) 1 ALL NLR 19, B. STABILINI & CO. LTD V OBASA (1997) 9 NWLR (PT.520) 293, BUHARI V TAKUMA (1994) 2 NWLR (PT.325) 183, the court in this case held that where there is no written document evidencing contractual relationship, the court will fall back on the circumstances surrounding the relationship between parties as narrated by both of them to determine whether there was such a contract. Also in IBAMA V SHELL PETROLEUM CO. NIG. LTD 1998 3 NWLR PT.542 493, the court lucidly stated that in certain contracts where no such express words are available, then implied terms may be imported into the contract in so far as they do not contradict the express terms of particular contract.
85. There is no doubt, the claimants were not given letters of appointment when they were engaged, showing the terms and conditions of their service and the rejection of the four exhibits relied on by the claimants as conditions of service by the court we are left with bare contract of employment without terms and conditions of service. Where there is absence of conditions of service, like in the present case, the court will be right to in the absence of any condition of service resort to the provisions of labour Act and case law in deciding the dispute between the claimant and the defendants in this case.
86. The counsel for the Claimant has urged this court to hold that the Claimants have established their case vide minimal proof and have gone to proof also on preponderance of evidence. As pointed out earlier the reliefs being sought are declaratory in nature and special damages which require proof to be on strength of the claimants’ case and not on weakness of defence or admission. There is also claim for salary in lieu of notice which was predicated on wrongful dismissal from service. For the Claimants to succeed in their claim, they must do so by evidence to prove that they are employees of the Defendants. The claimants place heavy reliance on exhibit CW1A1-23. Apart from the documents in respect of 17 claimants as shown above who have photocopies of identity cards, all the other defendants have nothing to prove that they are employees of any of the defendants apart from the pleadings and witness statement on oath.
87. In a claim for wrongful dismissal the claimants have the onus of to tender letters of their appointment and conditions of service. The apex Court has held that letter of appointment and conditions of service are bed rock of contract of employment. It is those documents that establish relationship of employer employees. They determined the extent of rights and obligations of the parties without which the court will be helpless in determining existence of contract of employment. See KATTO V CBN (1999) 5 SC (PT.II) 21, AMODU V AMODE (1990) 9-10 SC 61, OKOMU OIL PALM CO. LTD V ISERHIENRHIEN (2001) 3 SC 140.
88. The claimants in the case at hand are under an obligation to plead and establish their contract of employment and conditions governing the contract of employment. Though the claimants have in their joint further amended statement of facts pleaded and place reliance NJIC collective agreement as the terms and conditions of service, they have however failed and neglected to tender the appropriate NJIC. This is because by the statement of facts the claimants were employed as from 2012 to 2015 when they were all dismissed from service, at different times, the relevant NJIC that was applicable as at 2012, was never tendered in evidence by the claimants. For those employed in 2013, the NJIC collective agreement of 2013 made reference to NJIC of 2011 and that agreement having not been made available to court there is no complete agreement from which this court will ascertained the rights, duties and obligations of the parties in suit.
89. The claimant’s failure to tender the 2011 NJIC which is supposed to be the collective agreement in existence at the time some of them were purportedly engaged by the 1st defendant means that if that document is produced before the court it will be detrimental to the interest of the claimants.
90. It is to be noted that the claimants relied heavily on exhibits CW1B, CW1C, CW2A1-5 and CW2A, in proof of their claim before the court. The finding of the court that those exhibits have no evidential value and were wrongly admitted has deprived the claimants of the right to place any reliance on these documents to prove their claims before the court.
91. Apart from the 17 parties listed above whose photocopies of identity cards were tendered in evidence, all the other claimants have not tendered any document to establish their employment. The assertion that their identity cards got missing has not been establish. If they really lost their identity cards they should have tendered police report to that effect and affidavit for loss of the said identity cards. This is because, if such document got to the hands of criminals they can be used to commit crime and may implicate the bear of the identity card in question. And it will be unwise for any person to surrender his original identity card to another person without keeping a copy of it. In view of lack of any evidence showing that the claimants whose photocopies or original identity cards have not been brought are not employees of the defendants, I find and so hold. For those claimants whose identity cards have been tendered in evidence I find and hold that they are employees of the defendants.
92. For those on whose favour finding of contract of employment is made, they will have to cross another hurdle of establishing the terms and conditions of service. There was no evidence before me in proof of the pleading of the claimants to establish the terms and conditions of purported contract of service, what are the claimants’ rights and obligations. This court is confronted with assertions not backed by concrete and credible evidence. Furthermore, some of the claimants’ statement of facts are too vague and contradict each other.
93. However, having made a finding that the 17 claimants whose photocopies of identity cards were tendered in evidence are employees of the defendants, I shall consider the reliefs and see if there is any proof of entitlement to any of the reliefs being sought.
94. Reliefs 1 and 2 are for declaration that the claimants are entitled to be issued with letters of employment in line with NJIC and payment of damages for failure to issue the letters of employment and confirmation. These reliefs being dependent on the NJIC cannot be granted in view of the finding on exhibits CW1B, CW1C, CW1A1-5 and CW2A, since these documents have no evidential value no relief can be granted based on them. In the circumstances reliefs 1 and 2 are hereby dismissed for lack of proof.
95. Reliefs 3 is for an Order mandating the defendants to pay to the claimants the sum of N364,063,733.64 (Three hundred and sixty four million, sixty three thousand seven hundred and thirty three naira, sixty four kobo) for forcing the claimants to work extra hours and unlawfully denying them holidays without compensation from 18th September, 2012- December, 31 2015. The evidence adduced b the claimant in proof of this relief are exhibits CW1B, CW1C, CW1A1-5 and CW2A, these exhibits having been found not to have evidential value, there was no evidence in proof of the claim.
96. Even if the exhibits were found to have evidential value, the claimant will still not succeed due the fact that there is evidence in the pleadings that the claimant down tools and they resumed work after execution of exhibit CW1C and when they discovered that the defendants are not ready to change they embarked on strike and that according to the claimants forced the defendant to seek intervention of Kogi State Investment and Properties which resulted in exhibit CW2A. The claim under relief 3 included the period of down tools and strike which are period when the claimants did not work for the defendants and cannot make clam for period not worked for. Having lumped the claim to include period when there was no work has deprived the claimants of entitlement to the relief. Therefore relief 3 is hereby dismissed for lack of proof.
97. Relief 4, is for an order of this Honourable Court awarding against the defendants the sum of N4,440,000.00 (Four million four hundred and forty thousand naira) representing one month's salary of N24,000.00 (Twenty four thousand naira only) being the least of the claimants' salaries in lieu of one month's notice as damages for the wrongful dismissal of all the claimants. The claimants in the evidence before the court have averred that they were wrongfully dismissed without any disciplinary action or being queried and without payment of salary in lieu of notice. There is no disputing the fact that an employer has the right to dismiss his employee from service. However, for the dismissal to proper the terms and conditions of service have to be complied with. In the case at hand there are no terms and conditions of service tendered in evidence, the contract of service was orally made. In the circumstances recourse has to be made to Labour Act. For any dismissal to be valid the employee must be given opportunity to respond to whatever allegations or reasons for his dismissal. In the case at hand there is no evidence that the claimants were duly informed of the reason for their dismissal and opportunity given to them to react in the circumstance I accept that they were wrongly dismissed and they are entitled to be paid damages for wrongful dismissal. The law is trite an employee wrongfully dismissed is entitled to payment for the period of notice he is entitled to. See Osisayan V Afribank (NIG) Plc (2007) 6 NWLR (Pt.1031) 565 @ 586; Onuminya V Access Bank Plc (2014) LPELR-22461(CA); U.T.C. (NIG) Ltd V Peters (2009) LPELR-8426(CA). In view of this finding I hold that the claimants are entitled to payment of one month salary in lieu of notice in the sum of N24,000.00 (Twenty Four thousand Naira).
98. On reliefs 4 and 5, the claimants have decided to withdraw these reliefs, in the circumstances they are hereby struck out.
99. Reliefs 7 and 8, are for physical assault and battery, the evidence of the claimants on this having not been contradicted I accept it in proof of these reliefs, I hereby granted same only to the extent to which I shall assess anon.
100. Relief 9, is dependent on exhibits CW1B, CW1C, CW1A1-5 and CW2A, these exhibits having been found not to have evidential value, there was no evidence in proof of these reliefs same is hereby dismissed.
101. In view of the foregoing, the claimants have succeeded in their claim in part.
102. For avoidance of doubt the orders of the court are as follows:-
a. The photocopied of identity cards of those who were not named as claimants in this case are hereby expunged, for not being relevant to this suit. The names are:-:
I. Nuhu Agonor,
II. Rabiu Seidu,
III. Hamidu Baba,
IV. Umar Abubakar,
V. Kasumu Danjuma, and
VI. Sheidu Baba.
b. The names of the claimants whose photocopies of their Identity cards were tendered and admitted in evidence are the appropriate parties in this suit and are the parties that have contract of service with the defendants. They are:-
1st, 31st, 41st, 55th, 103rd, 106th, 113rd, 118th, 121st, 123rd, 129th, 133rd, 159th, 160th, 168th, 175th and 180th claimants.
c. Each of the 17 claimants that tendered their photocopies of identity cards and same admitted in evidence are entitled to be paid the sum of N24,000.00 (Twenty Four thousand Naira), being one month salary for wrongful dismissal. They will be paid total sum of N408,000.00 (Four Hundred and Four thousand Naira) only.
d. Each of the 17 claimants mentioned in paragraph 102 b above are entitled to payment of compensation for assault and battery. Each shall be paid the sum of N300,000.00 (Three Hundred Thousand Naira), making the total sum to be N5,100,000.00 (Five Million One hundred Thousand Naira).
e. Cost is assessed at the sum of N500,000.00 (Five hundred thousand naira).
f. The total amount for this judgment, being one moth salary in lieu of notice, assault and battery and cost amount to the sum of N6,008,000.00 (Six Million and Eight Thousand Naira) only.
g. The defendants are hereby given 30 days within which to pay the judgment sum failing which interest at the rate 10% shall apply per annum.
103. Judgment entered accordingly.
S. A. Lawal, Esq; counsel for the claimants.