IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: 28TH MAY, 2021 SUIT NO: NICN/YEN/38/2015
1. UDUAK AKPAN
2. GODFREY OLUFEMI AGHOMI
3. ZAINAB BENDY
4. ZAKARI RUFAI
5. ETUK EDIDIONG CLAIMANTS
6. PROMISE ADIELE
7. CYNTHIA ANYAKWU
8. UBONG DAVID
9. FYNEFACE PARAVA
(Suing jointly and severally)
THE CAVERTON HELICOPTERS ----------------------- DEFENDANT
1.1. The Claimants filed this suit vide Complaint and Statement of Facts on the 8th of July, 2015. With the leave of court the claimants filed a Further Amended Statement of Facts on 23rd November, 2020, wherein they claim against the Defendant as follows:
a. The 1st Claimant at the time of the said unlawful termination was 42 years old and had 23 more years to work in the defendant company until retirement at the age of 65 but for the unlawful termination. Total earning per month by the 1st Claimant was N106,480.00 = N106,480.00*12months = N1,277,760*23 years = N29,388,480.
b. The 2nd Claimant at the time of the said unlawful termination was 42 years old and had 23 more years to work in the defendant company but for the unlawful termination. Total earning per month by the 2nd Claimant was N77,100.00 = N77,100.00*12months = N925,200*23 years = N21,279,600.
c. The 3rd Claimant at the time of the said unlawful termination was 39 years old and had 26 more years to work in the defendant company but for the unlawful termination. Total earning per month by the 3rd Claimant was N138,600.01 = N139,600.01*12months = N1,663,200.12*26 years = N43,243,203.12
d. The 4th Claimant at the time of the said unlawful termination was 48 years old and had 17 more years to work in the defendant company but for the unlawful termination. Total earning per month by the 4th Claimant was N165,200.00 = N165,200.00*12months = N1,982,400*17 years = N33,700,800.
e. The 5th Claimant at the time of the said unlawful termination was 39 years old and would have retired at the age of 65 as provided in the company hand book and had 26 more years to work in the defendant company but for the unlawful termination. Total earning per month by the 5th Claimant was N31,300.00 = N31,300.00*12months = N375,600*26 years = N9,765,600.
f. The 6th Claimant at the time of the said unlawful termination was 39 years old and would have retired at the age of 65 as provided in the company hand book and had 26 more years to work in the defendant company but for the unlawful termination.
29,388,480+21,279,600+43,243,203.12+33,700,800+9,765,600+43,898,400+3,002,040+6,132,000+7,224,000 = N215,646,363.12 (Two Hundred and Fifteen Million, Six Hundred Forty Six Thousand, Three Hundred and Sixty Three Naira, and Twelve Kobo.
Or alternatively the sum of N215,646,363.12 (Two Hundred and Fifteen Million, Six Hundred Forty Six Thousand, Three Hundred and Sixty Three Naira, and Twelve Kobo)representing general damages for non-payment of redundancy allowances due to the claimants under the Labour Act which statutory provision the Defendant is in breach.
1.2. Trial in this suit commenced on 25th of October, 2018 when the Claimants opened their case by calling one Godfrey Ofufemi Aghomi (the 2nd Claimant on record) who testified on their behalf as CW. He then adopted his witness deposition made on 23rd of May, 2018, and the Further Further Deposition that was filed on the 23rd November, 2020 after he had been recalled to give further evidence. The following documents were tendered through CW and admitted by the court:
1. Caverton Helicopters Employee Handbook ------ exhibit CW1.
2. Letter of disengagement in the name of Godfrey Aghomi dated 10th June, 2015 ---- exhibit CW2.
3. Letter of disengagement in the name of Mr. Fineface Garaba dated 10th June, 2015 ---- exhibit CW3.
4. Letter of disengagement in the name of Uduak Akpan dated 10th June, 2015 ---- exhibit CW4.
5. Letter of disengagement in the name of Zakari Rufai dated 10th June, 2015 ---- exhibit CW5.
6. Letter of disengagement in the name of Cynthia Anyakwu dated 10th June, 2015 ---- exhibit CW6.
7. Letter of disengagement in the name of Mrs. Zainab Bendy dated 10th June, 2015 ---- exhibit CW7.
8. Letter of disengagement in the name of Edidiong Etuk dated 10th June, 2015 ---- exhibit CW8.
9. Letter of disengagement in the name of Mr. Promise Adiele dated 10th June, 2015 ---- exhibit CW9.
10. Letter of disengagement in the name of David Ubong dated 10th June, 2015 ---- exhibit CW10.
1.3. The witness was cross-examined by the Defendant’s counsel and there being no re-examination, the claimants closed their case on the 25th day of October, 2018. It is pertinent to note that with leave of court the witness was recalled on the 4th of February, 2021. He adopted his additional deposition of 23rd November, 2020, and further cross-examined by the learned counsel to the Defendant without any re-examination by the claimants’ counsel.
1.4. The Defendant opened her defence on the 19th day of October, 2020, by calling its sole witness Felix Ekpo (the Defendant’s Deputy Base Manager at the Nigerian Air Force Base in Port Harcourt, Rivers State). The witness identified and adopted his deposition made on the 21st of January, 2020. The following documents were then tendered through the witness and admitted in evidence:
1. Offer of Employment in the name of Promise Adiele dated 24th April, 2012 ------ exhibit DW1.
2. Offer of Employment in the name of Ubong Emma David dated 27th September, 2010 ------ exhibit DW2.
3. Offer of Employment in the name of Rufai S. Zakari dated 16th December, 2007 ------ exhibit DW3.
4. Offer of Employment in the name of Mrs. Zainab Bendy dated 19th September, 2012 ------ exhibit DW4.
5. Offer of Employment in the name of Aghomi Godfrey dated 8th February, 2011 ------ exhibit DW5.
6. Offer of Employment in the name of Uduak W. Akpan dated 3rd October, 2005 ------ exhibit DW6.
7. Offer of Employment in the name of Edidiong Etuk dated 19th April, 2011 ------ exhibit DW7.
1.5. The witness was cross-examined by the Claimants’ counsel, and since there was no re-examination, the Defendant closed its case on the 19th of October, 2020.
1.6. With the close of evidence, parties were directed to file their final written addresses beginning with the Defendant. While the Defendant’s Final Written Address was filed on the 13th of November, 2020, that of the Claimants was dated 9th December, 2020 but filed on the 15th of December, 2020. The Defendant filed a Reply on Points of Law on 27th of January, 2021. These processes were adopted by counsel on the 4th day of March, 2021, with N. H. Ajie appearing with I. Minikwu and E. F. Nte for the Claimants, while Adebowale Kamoru appeared with O. O. Olukoya and V. C. Onuoha for the Defendant. With the adoption of the parties’ Final Written Addresses, judgment was reserved.
THE CASE OF THE CLAIMANTS:
2.1. The case of the Claimants is simply that they were employed at various times by the Defendant, and worked in various capacities until they were disengaged on the 10th day of June, 2015, and one month salary in lieu of notice was paid to them.
2.2. That by the provision of Rule 3.3 of the Employee Handbook relating to redundancy, they were entitled to be on temporary placement or part-time work but the defendant terminated their appointments out rightly.
2.3. The Claimants further averred that even though contributory pension scheme deductions, tax deductions and union deductions were made from their monthly salaries, the amounts deducted were not remitted to their PFAs, the Board of Internal Revenue and the union by the defendant.
2.4. That even though the Defendant was under a duty to negotiate redundancy payment with them and pay their full entitlements, the defendant failed, refused and neglected to do so. That the summary termination of their employments has brought emotional trauma to them and the members of their families.
3.1. The Defendant’s case on the other hand is that while it is true that the claimants were her employees, the termination of their appointments was in accordance with the terms contained in their various letters of employment, the particulars of employment and the Company Handbook. That while the Handbook pegged retirement age at 65 years for employees, both parties were however at liberty to terminate the employment before the retirement age by giving appropriate notice.
3.2. According to the Defendant, the contributory pension scheme deductions, tax deductions and union deductions from the monthly salaries of the Claimants were duly remitted to the agencies concerned. That the Employee Handbook makes provision for redundancy, and also in worse case scenario termination of employment.
3.3. The Defendant pleads further that the instant suit does not disclose any reasonable cause of action against the Defendant, and that, in so far as the interests of the Claimants are not common, their employment with the Defendant not being joint employment, the suit is improperly constituted, and the court lacks the jurisdiction to entertain and determine the suit.
4.1. The defendant’s three (3) issues submitted for the court’s determination are:
1. Given that the Claimants’ employments with the Defendant were separate and distinct, is this action properly constituted?
2. Having regards to the Claimants’ pleading and evidence led thereof, is a reasonable cause of action disclosed against the Defendant?
3. Have the Claimants, upon the available evidence on the records, established their entitlements to the reliefs sought?
4.2. With respect to issue one (1) learned counsel drew the attention of the court to paragraph 1(a)(i) of the Amended Statement of Defence, exhibits DW1 – DW7 and exhibits CW2 – CW10, and submitted that while the claimants’ employments were separate, distinct, at different times and in respect of different work positions, the claimants who are nine (9) in number initiated this suit jointly and severally against the Defendant.
That only one witness gave evidence for the claimants even when he confirmed during cross-examination that he had no written power of attorney from the other claimants to represent them in the suit. That the instant suit is improperly constituted thereby depriving the court of the jurisdiction to determine the matter. See Bossa V. Julius Berger Plc (2005) 15 NWLR (Pt. 948) 409 at 429-430.
4.3. With respect to issues 2 and 3 which were argued together, it was submitted that, the evidence of CW (2nd Claimant) is hearsay as far as the claims of the 1st and 3rd to 9th Claimants are concerned, referring to the case of Okereke V. Umahi (2016) 11 NWLR (Pt. 1524) 438 at 489.
4.4. Learned counsel reproduced relevant portions of exhibits CW2-CW10, DW1-DW7 clauses 3.2 and 3.3 of the Employee Handbook (exhibit CW1) and paragraph 14 of the Amended Statement of Facts and argued that since the claimants were paid one month salary in lieu of notice, and disengagement of the claimants was not based on the declaration of redundancy, the defendant is not obliged to follow the redundancy procedure in clause 3.3 of exhibit CW1. That the defendant simply exercised the right to terminate the employment of the Claimants in line with clause 2 of the Particulars of Employment and clause 3.1 of exhibit CW1.
4.5. It was further argued that, since redundancy is not indicated in exhibits CW2-CW10 as the reason for the termination of their employments, the Claimants and indeed the court cannot read into the exhibits what is not stated there. That no court or tribunal can impose a servant on an unwilling master nor compel a servant to continue in employment if the servant does not desire the employment again. That the court cannot therefore compel the Defendant to place the Claimants on temporary or part-time work and pay their salaries. See Maiduguri Flour Mills Ltd V. Abba (1996) 9 NWLR (Pt. 473) 507; Odiase V. Auchi Polytechnic, Auchi (1998) 4 NWLR (Pt. 546) 49 at 477, Ilodibia V. Nigeria Cement Co. Ltd (1997) 7 NWLR (Pt. 512) 175, Layade V. Panalpina Word Transport Ltd (1996) 6 NWLR (Pt. 456) 545 and Ajayi V. Texaco Nig. Ltd (1987) 3 NWLR (Pt. 62) 577.
4.6. That even where the termination of the claimants’ employment is wrongful as alleged by them, that would only constitute a breach of contract by the Defendant thereby entitling the claimants to what they would have earned over the period of notice required to lawfully bring the contract to an end. See Osuma V. Edo Broadcasting Services & Anor (2011) 23 NLLR (Pt. 65) 212, Okeme V. Civil Service Comm., Edo State (2000) 14 NWLR (Pt. 688) 480 and NITEL plc V. Ocholi (2006) 5 NWLR (Pt. 12) 271.
4.7. With respect to the Claimants’ contention that their employments have statutory flavour, it was submitted that the category of employment with statutory flavour relates to public/civil servants whose employments are provided for in a statute. That the case of the Claimants does not have statutory flavour as they have not shown that the terms of their employments were based on any statute. It is rather an ordinary master and servant relationship. See Olaniyan V. University of Lagos Council (1985) 2 NWLR (Pt.9) 599, Shitta-Bey V. Federal Public Service Commission (1981) 1 SC 40, Nigeria Airways Ltd V. Okutubo (2002) 15 NWLR (Pt. 790) 376 and NITEL Plc. V. Akwa (2006) 2 NWLR (Pt. 964) 391 at 421-422.
4.8. The court was finally urged to resolve issues 2 and 3 in favour of the Defendant, and dismiss the suit for being unmeritorious and baseless with substantial cost.
5.1.The Claimants’ counsel nominated two (2) issues for the determination of this court, to wit:
1. Whether this action is properly constituted?
2. Whether the Claimants are entitled to redundancy payments?
5.2.While arguing issue one (1), learned claimants’ counsel referred the court to the provision of Order 13 Rule 1 of the Rules of this court 2017, and posited that all persons in whom any right to relief is alleged to exist whether jointly or severally may be joined as claimants in one action and judgment may be given for all of them. That the joinder of the claimants in this suit is permitted by the Rules of court which have the force of law and binding on the parties. See Onyemeuzio V. Ojiao (2000) 6 NWLR (Pt. 659) 25 at 46, Oyegun V. Nzeribe (2010) 7 NWLR (Pt. 1194) 570, Mako V. Umoh (2010) 8 NWLR (Pt. 1195) 82. That the authority of Bossa V. Julius Berger Plc. (supra) cited and relied upon by the Defendant’s counsel does not apply to the circumstances of this case in view of Order 13 Rule 1 of the Rules of this court 2017. That the instant suit is properly constituted.
5.3.With respect to issue two (2), learned counsel referred the court to section 20(3) of the Labour Act on redundancy, and submitted that upon the discharge or termination of the appointments of the claimants, the defendant was under a legal obligation to negotiate and pay redundancy allowances to them. Learned counsel further referred to the evidence of DW elicited during cross-examination, and argued that the testimony of DW that the defendant did not need a lot of people, and since it was no longer sustainable to keep a lot of people in the system so some of the staff were let go, is the exact situation contemplated by section 20 of the Labour Act to trigger redundancy payments upon the discharge of the workers involved. That since the word used in section 20(1)(c) of the Labour Act is ‘shall’ it connotes a command or an obligation on the part of the defendant. See Agip Nig Ltd V. Agip Petrol Int’l (2010) 5 NWLR (Pt.1187) 348 at 419 paras F-H. Reference was also made to clause 3.3 of the Employee Handbook (exhibit CW1) on the contention that the Claimants are entitled to redundancy payments.
5.4.It was further submitted that since the provisions of section 20(1)(c) of the Labour Act are clear and unambiguous, the court should give them their ordinary literal meanings, referring to Dangida V. Mobil Producing Nig. Unlimited (2002) FWLR (Pt. 97) 659 at 676 paras. A-C, FGN V. Zebra Energy Ltd (2001) 18 NWLR (Pt. 798) 162 at 200-201 paras. H-A and Alhaji Abdulganiyu Yusuf V. Mrs. Latifat Salawudeen & Ors (2012) FWLR (Pt. 637) 695.
5.5.That the evidence of DW under cross-examination with respect to the reason for the discharge of the Claimants is an admission of the Claimants’ case which the court can act on in determining the suit, because facts admitted need no further proof. That paragraphs 4, 6 and 15 of the Statement of Facts and 8, 11, 16 and 17 of the claimants’ witness deposition regarding redundancy payments and damages suffered remain unchallenged by the defendant. That where evidence of a party is not challenged or controverted by the opposite party who had the opportunity to do so, the court can act on such unchallenged evidence before it. See Unilorin V. Adesina (2010) (Pt. 1199) 331 at 401, C.B.N. V. Dinneh (2010) 17 NWLR (Pt. 1221) 125 at 162 paras C-D, Obinneche V. Akusobi (2010) 12 NWLR (Pt. 1208) 383, Idakula V. Richards (2000) FWLR (Pt. 14) 2439 at 2452, FJSC V. Thomas (2013) NWLR (Pt. 503) 549 para. D, and sections 20 and 21(1) of the Evidence Act, 2011.
5.6.It was further posited by the Claimants’ counsel that where a contract of employment is for specific period and the employee was wrongfully dismissed or removed from office, the measure of damages is the full amount of salary, allowance and other entitlements the employee would have earned had the contract allowed to run its full course. That this is the maximum amount recoverable except if the amount is reduced slightly for being payable as a lump sum. That the Claimants are therefore entitled to their full salaries, allowances and other entitlements accruable to then till the age of retirement. See Mobil Producing Unlimited V. Asuah (200)(sic) FWLR (Pt. 107) 1196 at 1222 paras C-D.
5.7.With respect to the claims for general damages, it was argued that general damages are presumed by law as the direct natural consequence or probable consequence of the act complained of. That the court should take into consideration the loss of earnings arising from the inability of the Claimants to work till retirement, the hardship and trauma they suffered and the defendant’s breach of section 20 of the Labour Act in not paying the claimants redundancy benefits in awarding general damages to the Claimants. See U.A.C. of Nigeria Plc V. Madam Irole (2002) FWLR (Pt. 113) 351 at 362, Chindo World Wild Ltd V. Total Nigeria Plc (2002) FWLR (Pt. 115) 750 at 959, Iyang & Ors V. Dr. Ebong (2002) FWLR (Pt. 125) 703 at 749-750, and British Airways V. Atoyebi (2010) 14 NWLR (Pt. 1214) 561 at 608.
5.8.The court was finally urged to enter judgment in favour of the Claimants.
DEFENDANT’S REPLY ON POINTS OF LAW:
6.1. The Defendant’s counsel filed a Reply Address on the 27th of January, 2021 wherein learned counsel replied with respect to the Claimants’ issue one (1) that contrary to the contention of the claimants’ counsel the Rules of this Court 2017 has not overridden the authority of Bossa V. Julius Berger (supra) because the provision such as contained in Order 13 Rule 1 of the Rules of court 2017 is not novel as it has been part of the Rules of various High Courts even when Bossa V. Julius Berger was decided. That Order 13 Rule 1 of the Rules of Court has not changed the law on requirement of common interest as a condition for joining multiple Claimants in an action. See Alafia & Ors. V. Gbode Ventures Nigeria Limited & Ors (2016) LPELR-26065(SC).
6.2. With respect to the claimants’ issue two (2) it was replied that, section 20(1)(c) of the Labour Act relied upon by the Claimants for redundancy payment does not stand alone, but should be read together with paragraphs (a) and (b) of the section which constitute the conditions precedent to the activation of the said provision in paragraph (c). That redundancy can only come up when it is declared and the trade union or workers’ representative is informed of it by the employer before other conditions including the condition in section 20(1)(c) can arise. That in the instant suit, no redundancy was declared, and notified to the claimants or their representative by the defendant, but their contracts of employment were simply terminated in line with the terms of employment. The court was urged to discountenance the submissions of the Claimants’ counsel and dismiss the suit.
7.1. Having carefully considered the pleadings, evidence and the submissions of counsel for the parties, this court shall adopt the two issues formulated by the learned counsel to the Claimants in determining this suit. These issues which are hereby adopted by the court are, to wit:
1. Whether this action is properly constituted?
2. Whether the claimants are entitled to redundancy payments.
7.2. The contention of the defendant’s counsel on issue one (1) is simply that, on the authority of Bossa V. Julius Berger Plc (supra), the claimants whose contracts of employment are distinct and personal to each of them do not have a collective right to have warranted them suing the defendant in one suit, or even take out a group action against the defendant. That the suit is therefore improperly constituted thereby depriving this court of the jurisdiction to determine same.
7.3. In resolving this issue, I have carefully perused the averments in the Further Amended Statement of Facts and it is glaring that even though the Claimants were employed at different times with distinct and separate employment letters personal to each of them, they were however disengaged on the same date being 10th June, 2015. While exhibits DW1, DW2, DW3, DW4, DW5, DW6 and DW7 are the claimants’ letters of appointment, exhibits CW2, CW3, CW4, CW5, CW6, CW7, CW8, CW9 and CW10 are the various letters of disengagement issued to the claimants all dated 10th June, 2015.
7.4. Order 13 Rule 1 of the Rules of this court 2017 provides for joint action by claimants thus: “All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.”
7.5. This provision of the Rules of this court reproduced above is in pari materia with the provisions of Order 12 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000, which came up for determination before the Court of Appeal in the case of National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & 400 Ors. (2016) LPELR-41396(CA), where the appellate court held that where there are no diverse interests of the plaintiffs in a subject matter of a suit, but a common interest, it is more convenient, advantageous, cost effective and prudent to have the issue determined in a single representative action than for each of the plaintiffs to embark on filing his own action to seek for his own relief. In that suit, the 1st Plaintiff (Emmanuel Sunday Omotusi) deposed in the affidavit in support of the Originating summons that he had the consent of the other 400 plaintiffs in the suit to depose to the affidavit.
7.6. While this court agrees with the argument of the learned counsel to the Defendant that employees with separate and distinct contracts of employment cannot bring a single suit to ventilate their individual grievances, I have however looked at paragraph 2 of the Further Further Statement on Oath of Mr. Godfrey Olufemi Aghomi (the 2nd Claimant who gave evidence as their sole witness) where he deposed to the fact that he has the consent and authority of the other claimants to make the deposition. The essence of the provision of Order 13 Rule 1 of the Rules of this court 2017 is to obviate the need for multiplicity of suits, and I am of the humble view that the claimants are in order in bringing this joint suit. Issue one (1) is therefore resolved in favour of the Claimants and against the Defendant.
7.7. With respect to issue two (2), it is obvious that from the pleadings of the claimants including the reliefs and the evidence on record the claimants are claiming redundancy payments ostensibly relying on the provisions of section 20(1)(c) of the Labour Act.
7.8. In order to establish their case before the court, the 2nd Claimant testified for and on behalf of all the Claimants as CW vide his witness statements on oath which were made on the 23rd of May, 2018 and 23rd day of November, 2020. Since the evidence as contained in the witness statements on oath is virtually a reproduction of the averments in the pleadings, there is no need to reproduce same again.
7.9. During cross-examination, the witness answered that he was asked by all the Claimants to represent them in the suit but that he has no power of attorney for the authorization. That the handbook of the defendant is in evidence before the court, and there is no written document concerning the disclaimer in paragraph 7 of his deposition. The witness affirmed that the contributory pension deductions and tax deductions were to be paid to the appropriate pension and tax offices, and that he did not write to the pension and tax offices to complain about non-remittance of the deductions. That from the agreement with the company he has the right to leave the company even before his retirement, and the company can also let him go based on the agreement.
7.10. After the recall of the witness (CW) on the 4th February, 2021, he was further cross-examined, wherein he answered that the claimants’ employment with the defendant is in writing, and that exhibits DW1-DW7 are the contracts of employment. That exhibits DW1-DW7 give them the right to give notice if they are to leave the organization, and that the Defendant also has the right to terminate their employment with notice. The witness confirmed that exhibits CW2-CW10 are the only letters of disengagement given to them by the defendant, and that they are asking for the payment of their salaries from the time their employments were terminated till when they attain the age of 65 years as redundancy payment.
7.11. The defendant on its part called one Felix Ekpo (the defendant’s Deputy Base Manager at the Nigerian Airforce Base, Rumuomasi, Port Harcourt, Rivers State) who testified as DW. He adopted his deposition which was made on the 21st of January, 2020. His evidence in chief just like that of the claimants’ witness is a reproduction of the averments in the Statement of Defence.
7.12. During cross-examination the witness affirmed that in paragraph 8 of his deposition he said the claimants’ employment shall be governed by the Handbook. That in 2015 due to economic downturn the defendant relieved some workers of their appointments because the HR and management felt that the number of workers was not needed at the material time. That considering the situation at the time it was not sustainable to keep them in the system. The witness refuted the insinuation that the claimants were redundant, and that they were not declared redundant but the company only activated a clause in the contracts of the Claimants. That while he could not give the exact figures of workers that were disengaged by the defendant, some workers including the claimants were however asked to go. That the company was not distressed because they had contracts with Shell, NLNG and Total, etc. That it is not correct that severance packages were paid to the retrenched workers except the claimants, and that the claimants were paid one month salary in lieu of notice. That by virtue of the Handbook the Claimants were entitled to work until retirement.
7.13. In a civil case as the instant one, the onus/burden of proof is on the Claimant to prove his case before the court on the balance of probability or preponderance of evidence. Particularly in an action for wrongful dismissal or termination of employment, the onus is on the claimant to prove not only the existence of a contract of employment between him and the defendant, but also the very term(s) of the contract breached by the employer in bringing the contract to an end. In the case of Bukar Modu Aji V. Chad Basin Development Authority & Anor. (2015) LPELR-24562(SC), the apex court held thus on onus of proof in a case of wrongful termination of employment: “For emphasis the Plaintiff/Appellant is enjoined by law when he complains that his employment has been wrongfully terminated, he has the onus of placing before the court the terms of contract of employment and then go on to prove in what way the said terms were breached by the employer. Failing on both counts in this instance, the case of the Appellant had no leg to stand on at the trial court which court said so in clear terms and the lower court agreed in toto and well backed by the materials available in the record. See Okomu Oil Palm Co. Ltd. V. Iserhienrhen (2001) FWLR (Pt.45) 6790 at 683; Amodu V. Amode (supra).” See also Civil Design Construction Nigeria Limited V. SCOA Nigeria Limited (2007) LPELR-870(SC), and Dr. George Nyong Ikpe Udofia V. Akwa Ibom State Civil Service Commission & Ors. (2011) LPELR-4055(CA), and sections 131, 132, 133 and 134 of the Evidence Act, 2011.
7.14. It is apposite to note that the Claimants are strictly claiming for redundancy payment from the defendant going by the pleadings and the reliefs before the court. The learned counsel to the claimants has argued that by the provision of section 20(c) of the Labour Act the claimants are entitled to redundancy payment. What is however evident from the provisions of section 20 of the Labour Act is that redundancy has to be declared, and it is a process that involves the participation of the trade union concerned before paragraph (c) of the section can come into play. In the circumstances of this case, there is no evidence that the defendant declared redundancy. In fact, the letters of disengagement issued to the claimants (exhibits CW2 – CW10) indicate clearly that they were disengaged in line with clause 2 of the particulars of employment which gives room for termination of employment by either party. The said clause two (2) of the particulars of employment (exhibits DW1 – DW7) clearly provide that, “your employment with Caverton Helicopters may be terminated by you or the Company without notice during your probationary period; after probation, either party may terminate the contract by giving one month’s notice or one month’s pay in lieu of notice.”
7.15. It is obvious that contrary to the claimants’ contention, they were not declared redundant by the defendant, rather the defendant terminated their appointments in line with the contracts of employment; and it is in evidence as admitted by the Claimants in paragraph 3 of the Further Amended Statement of Facts that they were paid one month salary in lieu of notice.
7.16. I have also looked at clauses 3.2 and 3.3 of the Handbook (exhibit CW1) relating to retirement and redundancy, and I do not see how the provisions will help the case of the Claimants. I say this because the reliefs in this suit are not redundancy computations but what the claimants would have earned as salaries from when they were disengaged till the time they will attain 65 years retirement age. In other words, they are asking for payment of monthly salaries for the remainder of the years they would have worked for the defendant up to the retirement age of 65 years.
7.17. The point must be made that, this suit has no statutory flavor being a master and servant relationship, and in labour law, a worker cannot be paid for the remaining years he is to attain the age of retirement. No court can grant a claim for payment of salary up to the retirement age of the employee because an employer does not guarantee a worker’s employment until he attains the age of retirement. See case Keystone Bank Ltd. V. Michael Femi Afolabi (2017) LPELR-42390(CA), Evans Bros. V. Falaiye (2005) 4 NLLR (Pt. 9) 108 CA, and Captain Benedict Olusoji Akanni (Rtd) V. Nigerian Army & 3 Ors. (Unreported) Suit No. NICN/ABJ/125/2018, decision of my lord the Hon. Justice B. B. Kanyip, PhD., FNIALS (Hon. President, NICN) delivered on 27th May, 2020.
7.18. I therefore hold that, since the claimants are not challenging the termination of their employment on the ground of unlawfulness, but are claiming payment of monthly salaries for the remaining years they will attain retirement age of 65 years, they have failed to prove their case, and the result is that the case is bound to fail. This court is bound by the reliefs in this suit, and can neither grant what is not claimed nor substitute the reliefs as claimed. See Cappa & D’Alberto Nigeria Plc V. Nigeria Deposit Insurance Corporation (2021) LPELR-53379(SC).
7.19. Consequently, issue two (2) is resolved in favour of the Defendant and against the Claimants, and the suit is hereby dismissed for want of proof and lacking in merit.
Judgment is entered accordingly.
No order as to cost.
Hon. Justice P. I. Hamman
N. H. Ajie with I. Minikwu and E. F. Nte for the Claimants.
Adebowale Kamoru with O. Chukwumerije for the Defendant.