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JUDGMENT In the Claimant’s amended Complaint filed on 12th July 2018 but deemed filed on 28th January 2019, he sought the following reliefs against the Defendants jointly and severally: 1. An Order of the court directing the Defendants to pay the sum of N32,088,69.4 being the sum owed to the Claimant in respect of his final disengagement benefits which is calculated as 3 months x number of years served. 2. The sum of N347,529.37 for the UBA social insurance trust fund [as pension scheme] which was not remitted to the new pension. 3. Arrears of 6 months’ salary from July – December 2011 amounting to N457,552.20. 4. Leave allowance of March to April 2011 which is N76,258.00 Total = N4,010,417.6 5. N10 million to represent general damages. 6. Interest rate at 24% on N4,010,417.6 from December 2011 to the day of judgment and thereafter interest rate at 10% on the total sum of N4,010,417.6 until the whole sum is fully liquidated. Upon the close of pleadings, intervening applications were taken and resolved and trial commenced on the 30th day of April 2019. The Claimant testified for himself as CW1. The Defendant rested its case on that of the Claimant and opted not to call evidence. Parties were therefore ordered to file final addresses starting with the Claimant in accordance with the Rules of Court. Addresses were duly adopted on 7th November 2019. CLAIMANT’S CASE The case of the Claimant, as stated in his statement of facts and in his evidence, is that the 1st Defendant is a limited liability company while the 2nd Defendant is a director of the 1st Defendant and was a director of the then Delserve Nigeria Ltd. He was employed by Delserve Nigeria Ltd in 1997 as a gardener. The offer of employment was signed by the 2nd Defendant as the Managing Director. His employment was confirmed at the end of the probation period with effect from 1st July 1998. The confirmation letter was signed by the 2nd Defendant. His appointment was terminated on 22nd December 2011 but the letter was wrongly backdated to 27th June 2011. The letter was signed by the 2nd Defendant. The 2nd Defendant also signed the CAC registration documents of the 1st Defendant. The Claimant averred further that it is safe to say that the 2nd Defendant was a Director of the 1st defendant when the name of the company was Delserve Nig. Ltd. Since it now bears the name of the 1st Defendant, the 2nd Defendant is liable to him. Before the termination of his employment, the defendants have refused him entry into the premises from 29th May 2011. It was the policy of Delserve to pay disengagement benefits which is three months salary multiplied by the number of years of service. He was also entitled to contributory pension scheme under the policy of the 1st Defendant. His monthly salary was N76,258.70. Multiplied by 3 gives N228,776.1 which when multiplied by 14 years of service, gives the sum of N3,208,265.4. The amount of pension he is entitled to is the sum of N347,000. The condition of service used for the payment of benefits of staff of the Defendants fall under NUPENG [oil and gas]. The Defendants also owe him 6 months’ salary arrears from July 2011 to December 2011 amounting to N457,552.20. The Defendants owe him the sum of N76,258 as leave allowance for the period march to April 2011. The defendants have refused to pay him all these entitlements despite repeated demands. When the Claimant was cross examined by counsel for the Defendants, he told the court that he was employed by Delserve and terminated by Delserve. He worked for Delserve and there is no letter of employment from 1st Defendant. He also said he does not have any document to show that Delserve changed its name to the 1st Defendant. In support of his case, the Claimant tendered some documents in evidence which are marked Exhibits A to L. The Defendants filed a joint statement of defence on 20th February 2019 along with the witness statement on oath of one Nurudeen Umar. However, on 13th June 2019 when the Defendants were to open their defence, their counsel informed the court that the Defendants will not call evidence but will rest on the case of the Claimant. CLAIMANT’S FINAL WRITTEN ADDRESS In their final written address dated 6th of August 2019, learned counsel for the Claimant addressed several issues that arose in the matter. The Claimant's counsel argued that his former employer, Delserve Nigeria Limited and the 1st Defendant are one and the same because they share one director in common and that the 1st Defendant took over the company. It was the submission of learned counsel to the Claimant that the Defendants failed to lead any evidence in support of their Defence thereby abandoning same and resting their case on that of the Claimant having abandoned their consequential joint statement of defence without adopting same as against the provisions of Order 40 Rules 1, NICN Civil Procedure Rules 2017 . On this assertion, learned counsel for the Claimant placed reliance on several facts an evidence of the case and urged the court to find in favour of the Claimant. DEFENDANTS FINAL WRITTEN ADDRESS In their final written address dated 17th October 2019, the Defendant formulated the following issues for determination to wit: a. Whether the documents marked Exhibits H, J, K and L respectively, are admissible in evidence. b. Whether the Defendants are permitted by law, to rest their case on that of the Claimant. c. Whether the Claimant has proved his case by discharging the burden of proof placed on him by law. d. Whether the Defendants are proper parties to this suit. Learned counsel for the Defendant submitted that the Defendants are permitted by law to rest their respective cases on that of the Claimant because the Claimant has not made out any case for the Defendants to answer. Counsel further argued that the Claimant has failed to prove his case against the Defendants, having not discharged the burden of proof placed on him. Counsel submitted that the Claimant failed to support his allegations with credible evidence that there was a contract of employment between himself and the 1st Defendant and/or the 2nd Defendant in his personal capacity to warrant the institution of this action against the Defendants. Counsel further submitted that the Claimant has failed to show how Delserve, the Company that employed him, is one and the same with Barelco General Trading Nigeria Limited, the 1st Defendant. On Issue One, it was the submission of the Defendants’ counsel that the listed exhibits ought to be rejected by the court as they are classified as public documents in the context of Section 102 (b) of the Evidence Act and that the Claimant laid no foundation as to why it was unable to present the original acknowledgment which ought to be in his custody. On Issue Two, the Defendants’ counsel submitted that having rested their case on that of the Claimant, the Defendants are not under any obligation to call evidence, and that they reasonably believe that on the evidence before the Court, the Claimant has not made out a prima facie case to which they may respond. See HON A. A. SULE LOKON MAKERA & ANOR vs. MUHAMMED BASHIR GALADANCHI & ORS (2011) LPELR-8821 (CA). With regard to a claim for unlawful dismissal/termination of contract and payment of outstanding benefits as in this case, counsel placed reliance on the case of MR. P.C.N. UZONDU vs. UNION BANK OF NIGERIA PLC (2009) 5 NWLR (Pt.113) 1 at 15-16; paras. H-B, and submitted that is trite law that the Claimant must at the minimum, establish certain criteria that the Claimant failed to admit. On Issue Three, counsel argued that the Claimant had no contract with the Defendants and that the 2nd Defendant merely signed the Claimant’s contract of employment as Managing Director of the company that employed the Claimant called Delserve Nigeria Limited. Counsel argued that where there was no contract of employment, there cannot be termination of the employment and urged the court to dismiss the Claimant counsel’s argument to the contrary. In addition, counsel submitted that there is no pleading or evidence before this court that there was a takeover of the assets and liabilities of Delserve Nigeria by the 1st Defendant, and that there is no evidence of a change of name. On Issue Four, Counsel placed reliance on the case of AKINDELE vs. ABIODUN (2009) 11 NWLR @ 1152) 392 Para C, and submitted that the 1st Defendant is not a proper party. In addition, counsel submitted that the Claimant has not been able to show by credible evidence, any connection between the 1st Defendant and his employer Delaney Delserve Nigeria Limited, to justify holding the 1st Defendant responsible for any alleged outstanding employment benefit. Counsel argued that the 1st Defendant is not privy to Exhibit A and cannot be sued in respect of it. Counsel further submitted that the mere signing of Exhibit A does not make the 2nd Defendant liable under the contract of employment because the 2nd Defendant was merely acting on behalf of Delaney Delserve Nigeria Limited and not in his personal capacity. Counsel emphasized that a Managing Director is not liable for acts carried out in the course of the business of the Company and that a Company will be civilly and criminally liable for its acts as if it were a natural person. See Section 65 of the Companies and Allied Matters Act, Cap C20, LFN 2004 (CAMA). Counsel urged the court to dismiss this suit in its entirety and award substantial costs against the Claimant. CLAIMANT’S REPLY In their reply on points of law dated 6th November 2019, learned counsel for the Claimant placed reliance on the documentary and oral evidence before the court to establish the nexus between the trinity of Delaney Delserve Nig. Ltd., Barelco General Trading Nigeria Ltd., and Mr. Ahmed Umar. Counsel pointed out the exceptions to the rule cited by the Defendants as to the liability of the company as seen in Section 65 of CAMA e. g. under Section 506 of CAMA which provides that where the activities of the company is been carried out in a reckless manner or when the company is a sham or puppet of its controlling shareholders, then the veil of incorporation may be lifted. See OLAOGUN ENT. LTD. vs. SAEBY J & M (1964) NNLR 30. Emphasizing on the fact that the Claimant’s arguments had not been contradicted, learned counsel for the Claimant submitted that the Defendant are barred on making arguments on facts which it failed to lead evidence on during the trial. Counsels urged the court to hold that the Claimant has established his case on the preponderance of evidence and is entitled to judgment. Counsel also urged the court to find in favour of the Claimant and to award damages against the Defendant. COURT’S DECISION: The Defendants did not call evidence in this case. I will determine this case solely on the strength of the evidence adduced by the Claimant. In doing that, the issue I will be examining is whether the Claimant has proved his case against the Defendants to entitle him to the reliefs he sought against them. Before I proceed to consider the issue, I will quickly examine the objections raised by the Defendants’ counsel to the admissibility of some documents tendered in evidence by the Claimant. On 30th April 2019 when the Claimant gave evidence in this suit, counsel for the Defendant raised objection to the admissibility of the documents admitted in evidence from the Claimant as Exhibits H, J, K and L, but this court directed that the objection be argued in the final written address. Accordingly, the Defendants counsel submitted in the final written of the Defendants that the documents marked Exhibits H, J, K and L, being NSITF certificate of membership, summons issued by Public Complaints Commissions, status report by Public Complaints Commission and solicitor’s letter to Public Complaints Commission respectively, are public documents but the copies tendered in evidence are mere photocopies’ which are not certified true copies. In response, the Claimant’s counsel submitted in the Claimant’s reply on points of law that the Claimant has given evidence to show that the originals of Exhibits J, K and L are with the Public Complaints Commission. This submission of the Claimant’s counsel further shows that the documents are public documents. The copies admissible in that situation are the certified true copies of the documents. See Sections 89 [e] and 90 [1] c] of the Evidence Act 2011. What the Claimant tendered in evidence are photocopies which are not certified as the true copies of the originals. The documents are not admissible in evidence. I so hold and expunge them from evidence. The claims of the Claimant against the Defendants include claims for terminal benefits, pension, arrears of salaries, leave allowance and general damages. The Claimant sued the Defendants for these claims based on his allegations that they were his employers and he was entitled to the claims upon the termination of his employment. In the 3rd issue of the Defendants’ final written address, learned counsel for the Defendants argued that the Defendants are not proper parties to this suit. It was submitted that the Defendants did not employ the Claimant, they did not terminate his employment and they are not responsible for the liabilities of the Claimant’s employer, Delserve Nigeria Ltd. This contention of the Defendants raises the issue as to who was the Claimant’s employer who should be liable for his claims in this suit. In the pleading of the Claimant as well as in the evidence adduced by him, he stated that he was employed by Delserve Nigeria Ltd in 1997 as a gardener and his employment was confirmed with effect from 1st July 1998. Delserve terminated his employment by a letter dated 27th June 2011 but served on him on 22nd December 2011. According to the Claimant, the employment letter, confirmation letter and the termination letter were signed by the 2nd Defendant as the Managing Director of the said Delserve Nigeria Ltd. These letters are Exhibits A, B and C respectively. These letters were the letters of Delserve Nigeria Ltd. The name of the 2nd Defendant appeared in the letters as the person who signed them in his capacity as the Managing Director of the said company. From the content of these letters and the evidence of the Claimant, the Claimant was employed by Delserve Nigeria Ltd and his employment was terminated by his employer. The Claimant did aver that the 1st Defendant is a limited liability company and that the 2nd Defendant is a director of the 1st Defendant as well as a director of Delserve Nigeria Ltd. Other than this reference to the 1st Defendant, the Claimant failed to show that Delserve has any relationship with the 1st Defendant. Exhibits D and E tendered by the Claimant are forms CAC 3 and CAC 7 of the 1st Defendant being the registered office address and particulars of the first directors of the 1st Defendant. These documents did not show that the 1st Defendant acquired Delserve or was incorporated to replace Delserve. There is also no evidence that Delserve changed its name to the 1st Defendant. The only link shown by the Claimant between Delserve and the 1st Defendant is the fact that the 2nd Defendant was the Managing Director of Delserve and also a Director of the 1st Defendant. This fact alone is not sufficient to shift the liabilities of Delserve to the 1st Defendant unless it is shown clearly that the 1st Defendant and Delserve are one and the same company or that there was a transfer of the liabilities of Delserve to the 1st Defendant. I find from the case presented by the Claimant that the 1st Defendant was not the Claimant’s employer. I also find that the 1st Defendant did not play any part in the employment contract from which the Claimant’s claims arose. The Claimant did not also show that the 1st Defendant assumed responsibility for his claims in this action. I agree with the Defendant’s counsel that the Claimant has not proved his claims against the 1st Defendant. For the 2nd Defendant, even though he was the Managing Director of Delserve, he is not the company. The 2nd Defendant is different from the company to which he was the Managing Director. Delserve was a limited liability company with capacity to contract on its own. I have seen the employment letter. The Claimant was employed by Delserve and not the 2nd Defendant. The employment contract was between the Claimant and Delserve. The 2nd Defendant signed the employment letter only in his capacity as the MD of the company. That fact did not create any employment relationship between the Claimant and the 2nd Defendant. The Claimant did not join Delserve in this suit. He failed to explain to the court why Delserve was not made a party in this suit. It is observed that the Claimant constantly referred to Delserve as “then” but he failed to tell the court what the word “then” implies. There is nothing presented before the court as to indicate that Delserve is no longer an existing company which can be sued. I have considered case of the Claimant extensively but I find that he has not made out any case against the Defendants. He has not given any reason why the Defendants should be liable for his claims. The Claimant has failed to prove his claims against the Defendants and his suit is dismissed as a consequence. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge