Download PDF
REPRESENTATION Adetunji Aregbe with Ayodeji Acquah and Taofiq Muritala for the Claimant. Bola Adegbesan for the Defendant. JUDGMENT The reliefs sought by the Claimant against the Defendant in this suit filed on 5/8/13 are as follows - 1. An order that the defendant do pay to the claimant the earned wages of the Claimant for the period 1st – 14th of September, 2011 and 10th – 13th of October 2011 at the rate of =N=900 per day. 2. An order that the defendant do pay to the Claimant the terminal benefits of Claimant at termination on 14/9/11 of Claimant’s employment with Defendant. Alternatively: 1. Judgment in the sum of N5,000,000.00 (Five Million Naira) for the Claimant against the Defendant for engaging Claimant for a period of 9 years without issuing written particulars of terms of contract, contrary to Section 7 of the Labour Act. 2. An order for the payment by Defendant of pension contributions of =N=1,350.00 (One Thousand, Three Hundred and Fifty Naira Only) monthly for 9 years which the Defendant is required by law to contribute for Claimant’s benefit to the national pensions fund based on a monthly salary of =N=18,000 (Eighteen Thousand Naira Only) per month, amounting to the sum of =N=145,000.00 (One Hundred and Forty-five Thousand, Eight Hundred Naira Only). 3. An order that the defendant do pay to Claimant a month’s salary at =N=900 per day in lieu of notice of termination. 4. A declaration that the Defendant unlawfully interfered with Claimant’s contract of employment with Lagos Oriental Hotel Limited and by so doing, engaged in restraint and unfair labour practices. 5. Judgment in the sum of =N=15,000.000.00 (Fifteen Million Naira Only) as exemplary and/or special damages for the Claimant against the Defendant for Defendant’s unlawful interference with the contract of employment between the Claimant and Lagos Oriental Hotel. Alternatively: 1. Judgment in the sum of =N=38,000.00 (Thirty-eight Thousand Naira Only) per month from January, 2011 until year 2040 when the Claimant will reach the retirement age of 60 years, being minimum wages Claimant would have earned from his contract of employment with Lagos Oriental Hotel but for Defendant’s unlawful interference with said contract. 2. The sum of =N=500,000.00 (Five Hundred Thousand Naira Only) being Solicitors’ Fee for the cost of this action against the Defendant. 3. Costs of this action. Claimant accompanied his Complaint with all processes as required by the Rules of this Court. The Defendant reacted by filing a statement of defence and Counterclaim. The counterclaims are as follows - 1. The sum of =N=27,126.08 (Twenty-Seven Thousand, One Hundred and Twenty-Six Thousand Naira, Eight kobo) only being the total amount the Defendant illegally collected on diverse dates between January and September, 2011 as salary while in its employment until he absconded after accepting similar employment from Lagos Oriental Hotel. The Defendant/Counter-Claimant hereby pleads and shall at the trial of its counter-claim rely on documents showing the computation of the salaries wrongly collected by the Claimant. 2. Costs of this action. 3. The sum of =N=1,500,000.00 (One Million, Five Hundred Thousand Naira) only due and payable to the Defendant/Counter-Claimant’s Counsel as legal fees. The Defendant/Counter-Claimant hereby pleads and shall at the trial of its counter-claim rely on the Bill of Charges submitted by its Counsel for defending the main suit and prosecuting its counter-claim. Subsequently, the Claimant filed a Reply and Defence to Counter-Claim dated 12/5/14. The trial of this case commenced on 30/6/14 when the Claimant testified as CW1. Claimant adopted his statement on oath dated 5/8/13 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted as exhibits and marked as Exh. C1 - Exh. C5. The case of the Claimant as deducible from the pleadings filed is that he was employed by the Defendant; that several workers of the Defendant were deplored to work at Lagos Oriental Hotel; that as a result of his stellar work performance he was offered employment as a Welder by the Lagos Oriental Hotel; that the Defendant prevailed on the Hotel to revoke his employment; that a Mr. Wu of the Defendant later terminated his employment with the Defendant; that the Defendant did not pay his salaries for 1st - 14th September 2011 as well as from 10th - 13th October 2011 and that by this suit he has incurred Solicitors' fees. Under cross examination, CW1 stated that he started work with Defendant on 16/4/02; that he worked with Defendant for 9 years and 7 months; that address of the Defendant is 23, WEMCO Road Ogba, Ikeja, Lagos; that he was given a letter of appointment with Oriental on 18/1/11; that any information from Oriental Hotel must be in writing; that communication from Defendant is usually verbal and that computation of his salary from Defendant was in writing. Witness added that he did know if the request by Mr. Wu to Oriental Hotel for his temporary release to Defendant was in writing; that Defendant and Oriental Hotel are the same company; that he did not know if any request from Defendant to Oriental Hotel would be in writing; that he was not given a letter of appointment by Defendant; that he did not know if it is possible to be employed twice in the same company; that Exh. C2 was not addressed to anybody; that it has no date; that Exh. C2 was served by Mr. Wu; that he was given employment letter by Oriental Hotel; that Oriental Hotel and Defendant have the same Management Board; that he was not keeping two jobs with Defendant and Oriental and that Exh. C2 is the only document he has from Defendant and no formal letter of termination. Under re-examination, CW1 stated that after he was employed by Oriental Hotel, he still went to work with Defendant before his appointment was terminated; that the Director of Defendant spoke with Director of Oriental Hotel and he was asked to go back to work with Defendant; that Oriental Hotel paid his January salary for the days he worked with them while Defendant paid for 5 – 13 January. The Defendant opened its defence on 8/10/14. It called one Oduntan Saheed as its DW1. Witness adopted his written deposition made on 24/10/14 as his evidence in chief and tendered 6 documents as exhibits. One of the documents was rejected and so marked while the remaining 5 were admitted as exhibits and marked as Exh. D1 - Exh. D5. The case of the Defendant is that the Claimant was its former employee; that the Defendant and Lagos Oriental Hotel are two separate and distinct entities; that the Defendant does not post or transfer its workers from one company to the other; that the Claimant fraudulently filled and signed an application for the position of a Welder with Lagos Oriental Hotel while still in his employment; that the Claimant nether resigned nor relieved of his employment with the Defendant; that rather Claimant absconded and that the Claimant is indebted to the Defendant in counter claim for the sums sought. While being cross examined, witness stated that Claimant and others in his category are daily paid workers in employment of Defendant; that Exh. D2 is a summary of D3; that Claimant was paid for 3 days on Exh. D31; that daily paid workers don’t clock in as they come for work; that they don’t sign register when they come for work; that they are attached to Supervisor who marked their attendance on a card provided; that daily paid workers are paid by the markings of the Supervisors; that on Exh. D3 Claimant was paid =N=27,126.08; that Claimant was paid for work not done; that counterclaim of Defendant is for =N=27,126.08 on Exh. D3; that Defendant did not do any work for Lagos Oriental Hotel; that Defendant has different departments; that he does not know if any of the sections goes to work outside and that his duty is to receive card from Supervisors and prepare the wages of staff. Witness added that he knows Mr. Wu a Chinese national who is a Supervisor with Defendant; that Mr. Wu does not write in both English and Chinese languages; that he writes only in Chinese; that Exh. C2 does not show the signature of Mr. Wu; that he has never come across Exh. C3 and Exh. C4; that he does not know when Claimant was employed by Defendant; that his duty is not to issue query to a staff; that he is not aware if any query was issued to Claimant; that the appointment of Claimant is not yet confirmed; that the Personnel Manager knows when an employee is to be confirmed; that Defendant has workers handbook; that the handbook is given only to confirmed staff and that if a staff works for 9 years he ought to be confirmed; that he was employed by Defendant 2003 though not as a wages officer but was elevated to Wages Officer in 2007 and he would have known from the available records if Claimant was employed in 2002. At the close of the trial, and pursuant to a direction from the Court, learned Counsel side filed their final written addresses for adoption. In his final written address dated 27/10/14 and filed on 28/10/14, learned Counsel to the Defendant submitted the following issues for determination - 1. Whether the Claimant’s employment with the Defendant was wrongfully terminated by Exhibit C2 (i.e. the undated and unaddressed terse note alleged to have been written by Mr. Wu). 2. Whether the Defendant unlawfully interfered with the Claimant’s contract of employment with Lagos Oriental Hotel Limited. 3. Whether the material contradictions in the evidence adduced by the Claimant during trial is sufficient to entitle him to succeed on his claims. Arguing issue 1, learned Counsel submitted that in master/servant relationship, the master is not obliged to give reasons for terminating the employment of his servant; that the master can terminate the contract with his servant at any time and for any reason or no reason citing Samson Babatunde Olanrewaju v. Afribank Plc (2001)7 SC (Pt. 111) 1 at 8. Counsel further submitted that any notice of termination must be in clear and unambiguous term citing Honika Sawmill Limited v. Hoff (1992)4 NWLR 237. According to Counsel the Court should not place any reliance on Exh. C2 for the simple reason that it is undated, not addressed to the Claimant or anybody in particular, does not have the address of the Defendant, not on the letter head of the Defendant and does not form an internal memo of the Defendant. Learned Counsel urged the Court to hold that Exh. C2 carries no probative value. On issue 2, learned Counsel submitted that the Defendant did not interfere with the employment of the Claimant with the Lagos Oriental Hotel. Learned Counsel referred to the testimony on oath of DW1 that the Defendant and the Lagos Oriental Hotel are two distinct legal entities; that the Defendant was not in a position to monitor or supervise the Claimant at the Lagos Oriental Hotel and that when the Claimant was employed by Lagos Oriental Hotel it was without the knowledge of the Defendant and that the Claimant secured the employment while still in the employment of the Defendant and that the Claimant failed to show the nexus between the two legal entities. Learned Counsel urged the Court to hold that the Claimant has failed to prove that the Defendant or Mr. Wu interfered with his contract of employment with Lagos Oriental Hotel. Respecting issue 3, learned Counsel referred to contradictions in the testimonies of the Claimant. Counsel thus asked why would the Claimant be given a formal employment by Exh. C1 with Lagos Oriental Hotel when he already had one with the Defendant; that did the employment offered to the Claimant form a new contract of employment with the Defendant or was it re establishing the former employment with the Defendant and that would the alleged undated letter purported to have been written by Mr. Wu not have also terminated his employment with Lagos Oriental Hotel. Counsel urged the Court to hold that the Claimant contradicted himself in both his written oath and oral testimony. Finally, learned Counsel urged the Court to dismiss the claims of the Claimant with substantial cost. Claimant's final written address was filed on 10/3/15. In it learned Counsel set down the following issues for determination - 1. Whether the Claimant was a worker of the Defendant at all?. 2. If the Claimant was indeed a worker of the Defendant, has the Defendant demonstrated that it complied with Sections 7 and 75 of the Labour Act, Cap. LI, Laws of the Federation of Nigeria, 2004, regulation 13 (Part II) of the Labour Regulations and Section 1(2) (b) of the Pension Reform Act, Cap. P4, Laws of the Federation of Nigeria, 2004 regarding its statutory obligation to the Claimant?. 3. Whether the Defendant unlawfully interfered with Claimant’s contract with Lagos Oriental Hotel?. 4. Whether the Defendant is entitled to its counter-claim against the Claimant?. Respecting issue 1, learned Counsel cited section 91 of the Labour Act and the definition of ''worker'' by Black's Law Dictionary, Eight Edition, 2004 and Exh. D2 and Exh. D3 and submitted that the Claimant was indeed a worker of the Defendant. Citing Shena Security Co. Limited v. Afropak (Nig.) Ltd & Ors. (2008) 4-5 SC (Pt. 11)117 Counsel prayed the Court to so hold. On issue 2, learned Counsel submitted that it has not been demonstrated during the trial of this case that the Defendant complied with the mandatory provisions of the law. According to Counsel, by section 7 of the Labour Act, an employer is mandated to give an employee a written particulars of the terms of employment and that by section 75 of the same Act, an employer is expected to keep record of compliance with the provisions of Labour Act. Also Counsel stated that by section 1(2)(b) of Pensions Reforms Act, Cap. P4, Laws of the Federation of Nigeria, it is mandatory for any employer who has more than 5 persons in his employment to ensure the establishment of a contributory pension scheme. Learned Counsel submitted that the there is no evidence that the Defendant complied with either the provisions of Labour Act or those of Pensions Reforms Act. Counsel urged the Court to so hold. Respecting issue 3, learned Counsel submitted that the defendant unlawfully interfered with the contract of employment of the Lagos Oriental Hotel. Counsel further submitted that the Defendant and the Lagos Oriental Hotel have a relationship in that the Claimant was posted to the latter by the former to work on its project; that the Defendant admitted in its statement of defence that it worked on various project needs of clients and that it was Mr. Wu who actually put pressure on Lagos Oriental Hotel to stop the employment of the Claimant with that Hotel. Counsel added that for over 9 years that the Claimant worked with the Defendant, Claimant was not issued with a formal notice of termination in line with the provisions of the Labour Act and also refused to issue the Claimant with a release to enable him resume his new employment at the Lagos Oriental Hotel and that all these go to show that the Defendant had engaged in an unfair labour practice against the Claimant in clear violation of the provisions of Labour Act. Learned Counsel urged the Court to so hold. As regards issue 4, learned Counsel submitted that the sum counter claimed was actually the sum due to the Claimant for work done. According to learned Counsel, failure of the Defendant to put in evidence the job cards of the Claimant in its custody is fatal to the case of the Defendant, citing Section 167(d), Evidence Act, 2011. Submitting further, learned Counsel stated that even if it is assumed, though not conceded that the Claimant did not do any work on those days the Defendant alleged that the Claimant was paid, that that must be attributed to laxity on the part of the Defendant since by Section 17, Labour Act, it is the duty of the employer to provide work for the employee on the days the employee presents himself for work. Counsel added that in fact the Defendant having failed to address its counter claim same has been abandoned and should be treated as such. He prayed the Court to so hold. Learned Counsel urged the Court to enter Judgment for the Claimant and dismiss the counter claim of the Defendant. The one and half page reply address filed by the Defendant did not contain anything inform of reply as envisaged by law and judicial authorities. It was a mere re-argument of the issues already canvassed by the Defendant. having found same to be of little or no utility, I elect to discountenance same within the context of this Judgment. I have read all the processes filed by learned Counsel on either side in this case. I listened with attention to the witness called, watched their demeanor carefully evaluated all the evidence tendered and admitted. In addition I listened attentively to the oral submissions of learned Counsel for either side. Having done all this, I set down two main issues which have become critical for the just determination of this case as follows - 1. Whether the Claimant has proved his case to be entitled to any or all his reliefs. 2. Whether the Defendant/Counter claimant has sufficiently proved its counterclaims to be entitled to same. The law is trite and generally accepted that the burden of proof rests on the person making claims. In other words, he who asserts must prove same. The proof required here is by cogent, credible and admissible evidence. See Access Bank Plc v. Trilo Nigeria Co. Limited (2013) LPELR-CA/K/22/2012 & Osigwelem v. INEC (2011)9 NWLR (Pt. 1253) 425. Failure to prove a claim, cause or matter will leave the Court with no option than to refuse a grant and dismiss same accordingly. See Western Publishing Co. Limited v. Fayemi (2015) LPELR-CA/Ek/18/2014 & Odunze v. Nwosu (2007)All FWLR (Pt. 379) 1295 at 1332. Has the Claimant adduced enough evidence in proof of his claims to be entitled to a grant of same? The evidence led by the Claimant in proof of his case are as follows 1. Appointment letter from Lagos Oriental Hotel Exh. C1; 2. - Exh. C2; 3. Letter dated 5/12/11 from Claimant's Solicitors - Exh. C3; 4. Letter dated 5/11/12 from Claimant's Solicitor - Exh. C4; and 5. Bill of Fees from Claimant's Solicitors - Exh. C5. Claimants claims are about four groups and in alternative. The first is for an order that the defendant do pay to the claimant the earned wages of the Claimant for the period 1st – 14th of September, 2011 and 10th – 13th of October 2011 at the rate of =N=900 per day. The basis of this claim is predicated on the existence of master/servant relationship between the parties. None of the exhibits tendered by the Claimant showed the existence of such a relationship between the parties. Thus a grant of this relief becomes not only difficult but also impossible. However, even if averments in pleadings attest to the existence of such a relationship, to the extent that such averments are not supported by evidence they cannot form a basis for a finding in favour of the Claimant. The law is trite that averments in pleadings are not and do not tantamount to evidence. See Unilorin Teaching Hospital v. Abegude (2013) LPELR-CA/IL/63/2011, Momoh v. Umoru (2011)15 NWLR (Pt. 1270) & UBN Plc v. Ajabule (2011)18 NWLR (Pt. 1278) 152. In any event, by Exh. C1, the Claimant was an employee of the Lagos Oriental Hotel effective from 18/1/11. There is no evidence before me to show that that employment was at any time terminated and the Claimant employed re-employed by the Defendant. On the claim for terminal benefits as claimed by the Claimant, there is no evidence led relating to the terms and conditions of alleged employment by the Defendant before the Court and neither is there any evidence of termination. To be able to successfully claim terminal benefits, it is incumbent on the Claimant to avail the Court with the terms and conditions of his employment upon which the Court will make a finding. A claim for a month's salary in lieu of notice of termination is devoid of proof. No letter of termination was exhibited by the Claimant, this is aside from my earlier finding that there is neither letter of employment nor contract of employment exhibited. From the evidence led by the Claimant, there is available evidence of employment of the Claimant by the Lagos Oriental Hotel - Exh. C1. The Defendant and the Lagos Oriental Hotel Limited are no doubt different and distinct entities with different management. The allegation that the Defendant interfered with the contract of employment of the Claimant is not substantiated by credible evidence. Hence a claim for the sum of =N=15, 000,000.00 as exemplary/ or special damages is not grantable and accordingly refused and dismissed. Another alternative claim of the Claimant is Judgment in the sum of Thirty-eight Thousand Naira Only (=N=38,000.00) per month from January, 2011 until year 2040 when the Claimant will reach the retirement age of 60 years, being minimum wages Claimant would have earned from his contract of employment with Lagos Oriental Hotel but for Defendant’s unlawful interference with said contract. Not only is this particular claim ridiculous but also laughable. There is evidence adduced to the effect that as at 18/1/11, the Claimant had taken up an employment with Lagos Oriental Hotel as a Welder. I find no evidence led to the effect that that appointment was terminated by the Lagos Oriental Hotel. Claimant is claiming salary from 2011 to 2040 when he would have reached the retirement age of 6o years. The basis for this claim is certainly misconceived. The relationship between the parties, if at all, and which I did not find is that of master/servant. Even if that had been so found, either party to such a relationship is entitled to bring same to an end upon giving of requisite notice. In employment relationship, there is free entrance and free exit. The Court will not foist a willing employee on an unwilling employer. See Adebayo Sunday Joseph & Ors v. Kwara State Polytechnic & Ors. (2013) LPELR-21398. In any event, the law is trite that the Court will not make an order for salary to be paid for services not rendered. Therefore to grant this prayer sought will amount to rewarding the Claimant for services he never rendered. Besides, there is no assurance that the Claimant would remain in the employment of the Defendant at all till 2040. After all by Exh. C1, Claimant already took up an employment with the Lagos Oriental Hotel. Cost will ordinarily be awarded by the Court in favour of a successful party. Thus far, none of the reliefs sought by the Claimant succeeds. Not having succeeded in any of his claims, there is no basis for a claim for cost of this action to be granted. The whole of the claims of the Claimant, having failed for lack of proof, is dismissed accordingly. The Defendant also made counter claim for the sum of Twenty-Seven Thousand, One Hundred and Twenty-Six Thousand Naira, Eight kobo (=N=27,126.08) only being the total amount the Defendant illegally collected on diverse dates between January and September, 2011 as salary while in its employment until he absconded after accepting similar employment from Lagos Oriental Hotel; cost of this action and the sum of One Million, Five Hundred Thousand Naira (=N=1,500,000.00) only due and payable to the Defendant/Counter-Claimant’s Counsel as legal fees. The law is trite that a counter claim is akin to a fresh suit of its own. See Potter Dabup v. Haruna Bako Kolo (1993) LPELR-905 (SC), (1993) NWLR (Pt. 317) 254. A counterclaim is explained as a legal procedure which allows the Defendant to maintain an action against the Plaintiff as if it is a separate suit. It is an independent action and does not form part of the original action. A Counterclaimant must with equal force establish it on the strength of evidence in support of the pleadings upon which it was brought. It can only succeed on its strength and not on the weakness of any defence against it, See Christiana Utsu v. Iorna Uju (2011) LPELR-3980 (CA). Therefore, the Defendant/Counter claimant has the burden of proving his counter claim by adducing credible and admissible evidence in order to be entitled to a grant by the Court. In proof of its counterclaim, the Defendant tendered 4 exhibits. While Exh. D1 is was the application for employment filed by the Claimant at Oriental Hotel, Exh. D2, D3 and D4 schedule of staff of the Defendant and of payments made to them. Indeed, by Exh. D2 the sum of =N=27,126.08 was alleged paid to the Claimant while Exh. D3 & D4 showed how much of the total sum was paid at different times. I perused and evaluated all the exhibits tendered by the Defendant/Counterclaimant. I note that those exhibits were not evidence of payments of respective amounts to the Bank accounts of the Claimant. I also note that there is no evidence of receipt of the said sum by the Claimant on any of the exhibits tendered. The exhibits tendered were prepared and signed by officers of the Defendant whose name and designation were not reflected. Ordinarily, there ought to be evidence that a worker paid his wages actually receives same. A signature of the receiving worker against the sum stated against his name would have been sufficient. I find that the evidence put forward in proof of the counter claim of the Defendant is neither cogent nor credible to support a grant of the counter claim. I therefore dismiss same accordingly. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, all the claims of the Claimant are refused and accordingly dismissed for lack of proof by credible, cogent and admissible evidence. The counter claims of the Defendant/Counter Claimant are also dismissed for lack of proof. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge