REPRESENTATION CHRIS ONUGBA for the claimant JOE NNADI ESO for the defendants J U D G E M E N T The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 17th February, 2014 against the defendants for the following reliefs: The sum of #1,076,206 being redundancy allowance, gratuity, meal subsidy, and one month basic salary in lieu of notice. The sum of #2 Million being general damages against the defendants. The sum of #300,000 being legal fees. An Order declaring that the claimant is still in the employment of the defendants. The Claimantâ€™s Case The Claimant was employed by the defendant in 2004 as a driver and remained in the employment until his appointment was terminated vide a release notice dated 29th September, 2005 and his terminal benefits were paid to him for one year and seven months he rendered his to the defendant. The Claimant was subsequently recalled and offered another letter of appointment vide letter dared 22nd November, 2006 under Grade Level DFJS 5 Step 3 and remained there until his appointment was allegedly terminated and/or dismissed vide letter dated 5th September, 2011 without his entitlements. Furthermore, that he was directed to handover the defendantâ€™s properties in his possession if any to his Head of Department and for him to collect his terminal benefits. But that upon compliance with the directives, his terminal benefits were never paid to him and he was never served with any documents entitling him to know how much benefit he was to collect. The Claimant stated that unsure of what the defendant was up to, he approached the Human Resources Manager demanding for the payment of his entitlements only to be told that he was not qualified for an entitlement having not served the defendant for the period of 10 years as required by the companyâ€™s rules and regulation. That he was then advised to apply for re-engagement to enable him attain the 10 years bench mark to qualify him for his benefits. All these he did but to no avail as they refused and/or neglected to re-engage him nor pay him for what he has worked for. The defendants filed their STATEMENT OF DEFENCE dated 18th March, 2015 and filed on 19th March, 2015. The Defendants case The defendant stated that the claimantâ€™s appointment was terminated properly and in full compliance with the law, the terms of employment as contained in the letter of offer of employment and in accordance with the termination of employment under common law. In that claimantâ€™s employment was effectively terminated on 30th September, 2011 as contained in the letter served on the claimant. And that, unfortunately for the claimant, what was due him was in a debit balance due to the housing and tax liability deductions made from his terminal entitlement. The defendants maintain that there was no bad faith in her carrying out her duties against the claimant in any way whatsoever. That the tax deductions were based on the directives from the Government of Cross River State Internal Revenue Service. Furthermore, that the deductions made on housing were for the months of October to December, 2011 which were already paid upfront to the claimant and since the claimant ceased being a staff of the defendant from 30th September, 2011, he was not entitled to the housing allowance any more. To the defendants the various staff whose appointment were terminated at different times all had different reasons why their appointments were terminated. That it is the defendant that decided based on prevailing conditions on when to declare redundancy and not based on the desire or feelings of the claimant and that during the termination of the claimantâ€™s appointment, redundancy was not contemplated as there were other factors which defendant considered in terminating appointments bordering more on indiscipline, gross insubordination and other acts or conduct which are antithetical to their employment with the defendant. The Defendants averred that the sale of majority equity shares of the defendant to Tiger Brand of South Africa only took place in October, 2012 so that the termination of claimantâ€™s appointment has no bearing with it. The Defendants stated that claimant is not entitled to any of the reliefs set out in paragraph 26 of the Statement of Facts, urging the Court to refuse them and that this suit be dismissed for being frivolous and lacking in merit. The claimant field their reply tagged â€˜CLAIMANTâ€™S REPLY TO THE DEFENADANTSâ€™ STATEMENT OF DEFENCEâ€™ dated 20th May, 2015 and filed on 21st May, 2015. The Claimant case in reply. The claimant averred that the termination of his appointment was not in accordance with the terms of his employment and that it was not stated anywhere in the letter of termination that he is entitled to one month salary in lieu of notice, rather, he was asked to hand over all companyâ€™s properties in his possession to the head of Department and thereafter collect his terminal benefits. That the alleged letter of 6th October, 2011 was never served or received by the claimant. The Claimant maintained that he approached the Human Resources/Admin Manager for the payment of his entitlements but was told he was not qualified for any entitlement having not served the company for a period of 10 years in line with company rules. Furthermore, that he was advised to appeal to the defendant for re-engagement to enable him attain 10 years on the company to enable him collect his benefits and other entitlements which he did but to no avail. The claimant averred that he is not indebted to the defendant as claimed, that taxes were deducted at source by the defendant under what is termed as PAYE (Pay As You Earn). The Claimant averred that he is entitled to severance allowance, gratuity package and redundancy benefits as enjoined by workers of his category whose appointment were terminated within the same period. Trial commenced on the 28th May 2015 with the claimant testifying as CW, he adopted his written statements on oath of 17th February 2014 and 21st May 2014 which were marked Exhibit C1 and C2 respectively, CW went on to tender 16 other exhibits. Under cross examination CW further testified that when he was disengaged from his first appointment with the defendants that lasted for a year and six months he was paid N318, 000.00 (Three Hundred and Eighteen Thousand Naira Only) as terminal benefits. He was then re engaged in 2006, his appointment confirmed and his salary duly reviewed up wards three times before he was disengaged in 2011 November. CW also testified that he was engaged and terminated by the Calabar Office on both occasions but that his Housing allowance was not paid upfront in January, and that he was a driver but that no vehicle was assigned to him but when he goes to work each day heâ€™d be given work to do. The claimant further testified that he ought to have been paid off as his employment was terminated. The defendants called one witness John Ali their Human Resource Manager, who testified as DW. Adopted his written statement on oath which was marked Exhibit D1 and proceeded to tender 5 other exhibits. Under cross examination DW testified that there was no specific time when the defendants declared a redundancy and the Exhibit C17 was addressed to specific persons in particular circumstances and that management did not terminate the claimant under redundancy. DW further testified that the claimants rent allowance was N22, 529 monthly and that the deduction of N22, 587 was based on the claimantâ€™s last salary review and that the deductions were made by Internal Revenue Service Cross River State. Trial ended on the 7th April 2016 and Parties were directed to file their Final written addresses in line with the rules of the court. At the expiration of 21 days for the defendant to file his final written address the Claimant brought a MOTION ON NOTICE filed on 29th September, 2016 and dated same day, supported by 7 paragraph affidavit or An Order setting down this suit for hearing on the claimantâ€™s written address, the defendant having failed and/or refused to filed his Written Address within the time allowed. With the order of this Court granting the application the claimant filed his FINAL WRITTEN ADDRESS dated and filed on 4th July, 2016. With the sole issue Whether or not the claimant has made out a case to fit in for redundancy payment of his entitlement against the defendant. Learned Counsel Chris Onugba Esq. submitted that the critical point of consideration in the definition of redundancy in Sec. 20 (3) of the Labour Act, Cap. LI, Laws of the Federation of Nigeria, 2004, is that the loss of employment of any employee as in the instant case, must be as a result of excess manpower. CHMEICAL AND NON-METALIC PRODUCTS SENIOR STAFF ASSOCIATION v. BENUE CEMENT COMPANY PLC. (2005) 2 NLLR (PT. 6) 446. He submitted that the claimantâ€™s circumstances fit into the above definition of redundancy and that the claimant in satisfying the condition and/or definition of redundancy aforesaid, has placed before this Honorable Court documentary evidence for the Court to use in assessing the just determination of his case. BAITACH v. SHADAFI (2012) NWLR (PT. 1317) 396 @ 415, per Nwodo, JCA; BABU v. STATE (1992) 2 NWLR (PT. 215) 1 @ 17, per Mukhtar, JCA (as he then was). It is counselâ€™s submission that where there is documentary evidence, demeanor of witnesses does not count. OLUJINLE v. ADEAGBO (1988) 2 NWLR (PT. 75) 238 @ 254, PARAS. A-C. He submitted that there is presumption of genuineness and regularity in favour of Exhibits D4, D5 and D6, they being certified public documents. CHUKWUMA v. ANYAKORA (2006) ALL FWLR (PT. 302) 121 @ 141, per Sanus, JCA. Counsel contended that Exhibit D2 is a letter written to the defendant to remit taxes it had already deducted from staff salaries to Government of Cross River State and was not directed at staff and did not state also that staff are indebted to the Government. That under PAYE, system, the power of tax authority to raise additional assessment does not apply to persons whose taxes are deducted at source since they are not expected to deliver statement of their income or make a statement of some sort to the tax authority. UKPONG v. COMIISSIONER OF FINANCE, AKWA IBOM STATE (1999) IN.R.L.R. P. 130. Furthermore, that claimant is not indebted to the defendant and to the Government of Cross River State Internal Revenue Service as alleged by the defendant as tax remittance is the duty of the employer whose duty is to deduct at source, employee taxes as in the instant case. LANTO v. WOWO (1999) 7 NWLR (PT. 610) 227 @ 229, per Muntaka-Coomassie, JCAHe submitted that it is trite that notice of tax assessment to employer is not meant to recover personal income tax of employee, rather, itâ€™s for remittance of tax already deducted from taxable employee salary and or entitlement. 7 UP BOTTLING CO. PLC. V. L.S.IR.B (2000) 3 NWLR (PT. 650). On 4th October and 3rd March 2017 the claimant adopted his final written address and additional address in this matter. The defendant failed to file any final address despite the series of adjournment granted for the defendants counsel to appear. The claimant filed the further address on the order of the Court on 25th January, 2017. The Courtâ€™s Judgement I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is as was formulated by the claimant whether the claimant has made out a case for redundancy. Before I address the issue in context it is necessary to determine the nature of the claimants employment. The Supreme Court in the case of LONGE Vs. FBN LTS  LPELR 1793 SC held that â€œâ€¦.there are three categories of employment Purely Master and Servant relationship Servants who hold their office at the pleasure of the employer Employment with statutory flavourâ€¦.â€ From the evidence before the court, the condition of service and the exhibit particularly Exhibit C7,C10-C10(37) I find that the nature of that employment relationship between the claimant and the defendant is one of employer/ employee commonly referred to as master servant relationship. Now to the merits of this suit. The position of the law as regard redundancy is as was stated in the case of OWENIWE & ANOR. v. UNION DICON SALT PLC (2014) 48 NLLR (PT. 159) 649 NIC @ 656 Where redundancy was defined as â€œan involuntary and permanent loss of employment caused by an excess of manpowerâ€. The law provides for a condition precedent for a company declaring redundancy to fulfill and comply with and that has not been fulfilled by the defendantâ€™s company in the instant case. Relying on Section 20 (3) of the Labour Act, Cap. L1, LFN, 2004. In the case of CHEMICAL AND NON METTALIC PRODUCTS SENIOR STAFF ASSOCIATION Vs> BENUE CEMENT COMPANY PLC  2 NLLR (Pt. 6) p446 this court held that â€œWhen an employer embarks on staff reduction or rationalization caused by an excess manpower it amounts to redundancy, the nomenclature used notwithstanding, section 20 of the Labour Act LFN 2004 does not require a formal declaration of redundancy before it can be terms as such. What makes the exercise redundancy is the number of workers affected and whether or not they constitute excess manpower......â€ Now the claimants reliefs are thus The sum of #1,076,206 being redundancy allowance, gratuity, meal subsidy, and one month basic salary in lieu of notice. The sum of #2 Million being general damages against the defendants. The sum of #300,000 being legal fees. An Order declaring that the claimant is still in the employment of the defendants. In relief 1 the claimant is seeking redundancy allowance etc while in relief 4 he seeks an order that he is still in the employment of the defendants. Redundancy and subsisting employment are mutually exclusive. In the unreported case of SUIT NO. NICN/LA/42/2014MR.RAPHAEL CHRISTIAN CHIDI Vs. DANZAS EXPRESS SERVICES (NIG) LIMITED delivered on the 4th December 2015this court held that by claimant for Redundancy...... payment, for instance, means that the claimant acknowledges and accepts the fact of the termination/dismissal of his employment; and ODINKENMERE V. BAKOLORI (NIG.) LTD  8 NWLR (PT. 411) 52 CA, held that the question of payment of unpaid salaries and allowances are only relevant in cases of termination of appointment or dismissal but not in the case of redundancy. The claimant case as regards redundancy is that his colleagues who also left the defendants employ around about the time the claimant was terminated were all declared redundant and paid their entitlements in redundancy. The defendants maintain that the claimants termination was different and that it is them, the defendant who determines who is redundant and he was never declared redundant. The position of the law is that a claimant is required to prove his case on the circumstances and facts and not by comparison of the case of others, that a claimant cannot rely on the case of his colleagues to found his claim except in areas where the claimant is making a case for unfair labour practice which is not the position in the instant case. Having said that the claimants grouse is that he was terminated by Exhibit C9 reproduced below DANGOTE FLOUR MILLS 5th September 2011 PIUS NKANU ENI No. 1 Old Odukpani Road Ikot Ansa Calabar Cross River State. Dear Mr. Eni, TERMINATION OF APPOINTMENT This is to inform you that you that your services as a Driver with the Company are no longer required, And in view, your appointment is hereby terminated effective 5th September 2011. Consequently, you are therefore required to hand over all the companyâ€™s property in your possession including your staff ID card to your Head of department and thereafter collect your terminal benefits (if any) on presentation of completed clearance form Please note that the your outstanding indebtedness (if any) to the company will be recovered from your entitlement in the event that your entitlements cannot completely defray such indebtedness, you will be required to take appropriate measures to settle the balance. We thank you for your service to the company and wish you the best in your future endeavours. Yours faithfully For DANGOTE Flour Mills Plc. (Signed) KUNLE ODELOLA The claimantâ€™s letter of appointment exhibit C7 only makes one mention of termination and that was in paragraph 5 under Probation where it states as follows â€œThe first six months of your employment are probationary period. During this period a minimum of two weeksâ€™ notice of termination of appointment or payment in lieu of notice maybe given by either party. Subject to your satisfactory performance and conduct you will be conformed at the expiration of the probationary period thereafter notice of termination by either party will be as contained in our Staff Handbookâ€ The Staff Handbook is not much help in this quest, Exhibit C 10- C10(37) the Staff Handbook, provides for termination on page 27 2nd paragraph under the subtitle Termination. and provides thus â€œA staffâ€™s appointment may be terminated due to serious misconduct and/or incompetence. Such termination shall be with appropriate notice or pay in lieu as stated in the terms of employmentâ€ I find that in the claimant employment the parties did not even reserve the common law principle of master and servant that either party can terminate with one monthâ€™s notice, the only provision subsisting for termination in this particular contract is where the claimant has committed serious misconduct or has been found incompetent. The defendant pleaded that the condtions of employment were also contained in their web site but failed to present the court with a printout of the extra conditions contained therein. The legal position is that â€œwhere the contract of Employment has been reduced to writing, the court and the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract. WESTERN DEV.CORP.Vs. ABIMBOLA  4NNSCC 172. NWAUBANI Vs. GOLDERN GUINEA BREWRIES PLC.  6 NWLR (Pt.400 ) Pg184 COLLEGE OF MEDICINE OF UNILAG Vs. ADEGBITE  5 SC 149 INTERNATIONAL DRILING CO. Vs. AJILILA  2 SC 115. Hence the defendants attempt to reach out to common law will not assist the defendants having reduced their terms and conditions to writing. I find. The claimant had stated in open court that he had never been issued a query and DW the witness called by the defendant when asked if the claimant had been issued a query or if he had ever appeared before a disciplinary committee, DW stated he did not know as he wasnâ€™t in the defendants employ at that time. This I find that, the claimants termination was indeed wrongful and was not done in accordance with Exhibits C7 and C9. As nowhere in their statement of defence did the defendant raise the contention that the claimants underwent any disciplinary action during his employment with them This is one of the two distinguishing facts between the instant case and Exhibit D3 the unreported case of NICN/CA/25/2012 FLORENCE NWOKOCHA Vs. DANGOTE FLOUR PLC. Delivered on the 2nd November 2012. In the latter case the defendants had presented the court with evidence of disciplinary action they had taken to ground their termination of Ms. Nwokocha and defeated her attempt to claim in redundancy. The claimant in support of his claim for redundancy sought to rely on Exhibits C16, being terms of settlement of 5 other workers of the defendants who had instituted actions in 2012 and in settlement had their terminations negotiated to redundancy and Exhibit C17-C17(9) being ten distinct letters spanning 2008- 2012 written to 10 different employees informing them that their services would no longer be required due to the â€˜current re-engineering and restructuring exerciseâ€™. Now the Learned Author Odabi Osaretin Kingsley in his book Case Law Annotation of Public Service Rules in NigeriaÂ© 2013 Evergreen Overseas Publication Benin City, at page 86 when treating the issue or re-organization and redundancy emphasized the need for employers to particularize the circumstances resulting in re-organization or redundancy and that the court compel the employer to produce proof of such circumstance warranting the termination of the employee. Also in STEPHEN IMUZEI AKHIOJEMI & ANOR V. ADMINISTRATIVE STAFF COLLEGE OF NIGERIA & ANOR (unreported) SUIT NO. NICN/LA/426/2012 the judgment of which was delivered on January 21, 2014, this Court held that in relying on the rule governing disengagement due to re organization the defendants must actually make out a case for the application of this rule in terms of the justification for disengaging the claimant from his employment. What all this means is that the defendants must prove redundancy or re organization to the court to justify their actions on the basis of reorganization, ESTHER OGBODU V. GLOBAL FLEET OIL & GAS LTD AND ANOR, SUIT NO. NICN/LA/32/2012 (unreported) the judgment of which was delivered on December 5, 2014, The law of reciprocity requires that the converse of a proposition is the same as the proposition which implies that if an employer (who is a defendant) is required to prove in court the fact and circumstances of redundancy or reorganization in order to benefit from the claim, the employee (who is a claimant) would be held up to the same standard and would be required to prove the fact of the redundancy. This is borne out by the pronouncement his Lordship in FLORENCE NWOKOCHA Vs. DANGOTE FLOUR PLC (Supra) that â€œThus in order to properly evoke the provisions of section 20 of the Labour Act for the purpose of getting payments on a round of redundancy the claimant must satisfy the court that it circumstances fits the definition of redundancy as so defined by the said provision...â€ his Lordship went on to say in addition that another criteria to prove redundancy would be where â€œ....... there were indeed so many staff in the same category that have been affected.....â€ in that case the claimant therein had only presented her letter of termination and Staff Handbook. In the instant case the claimant had placed before the court his letter of termination, letter of appointment, staff hand book, he had testified that he had never received any query or reprimand from the defendant and that he was a driver who would go to work each day and to whom no vehicle was assigned but once at work he would be given work to do, as well as Exhibit C17- C17(9) From these exhibits and evidence I find there is no justification for the termination of the claimant by the condition of service, the claimant had presented the court with evidence of the working environment wherein persons were being declared redundant from 2008-2012 from the Calabar office. Bearing in mind that Exhibit C16 was a judgement in consent where the 5 claimants who were negotiated into redundancy after being issued letters just like C9 by the defendant, and that D6 tendered through DW also exhibit redundancy letters of 16 workers (six more than the ones in Exhibit C17, I find that the claimant has satisfied the court of the prevailing environment of redundancy that pervaded the defendants as at the time of his termination. The defendants have argued that they that can decide whether or not to declare a redundancy but have failed to show the court the circumstance that warranted their not declaring the claimant redundant in the circumstances of his employment. I find that the claimant proved to the court that he is entitled to redundancy pay. Exhibit C10 places the redundancy pay thus; â€œWhen due to economic circumstance restructuring or other internal movement staff are declared redundant, then such staff shall be paid redundancy benefits in addition to their terminal benefits as follows. In service for less than one year â€“ One (1) month basic salary In service for more than one year â€“ Two (2) monthsâ€™ basic salary for each year.â€ The claimant had pleaded that as at the time he left the defendants his basic salary N30 114 per month as per Exhibit C18(1). The claimant from C7 worked from November 2006 until September 2011 a period 4years 10 months. I find that the claimant is entitled to 30, 114 X2 as two monthsâ€™ basic salary = 60, 228.00 x 4years =240, 912â€™ The claimant also claimed for gratuity, meal subsidy and one month salary in lieu of notice but did not show the court where he was entitled to gratuity, meal subsidy and I had already stated that the parties did not reserve the common law condition of one month notice to enable the court evoke it. These ingredients in this head of claim fail. The claimant in relief 2 is asking for general damages of N2million naira but did not show the court how he arrived at N2 million Naira, the law is clear as to what the claimant is entitled to as damages for wrongful termination it is the amount he would have earned had he worked for the period of notice of the agreed notice. Now in the instant case no period was contracted as a notice period. The law, generally is that in the absence of notice the court should evoke the test of reasonability and pronounce what it deemed reasonable notice and then award the claimant a salary in lieu of that period, however and more specifically; Section 19(d) of the National Industrial Court (NIC) 2006 provides that this â€œCourt may in all other cases and where necessary make any appropriate order, includingâ€¦an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hearâ€. So, if a claimant (employer or employee) makes out a case for it, this Court can award damages (including of course general damages). For instance see the case of MRS. FOLARIN OREKA MAIYA V. THE INCORPORATED TRUSTEES OF CLINTON HEALTH ACCESS INITIATIVE, NIGERIA & 2 ORS  27 NLLR (PT. 76) 110 NIC, In the case of SUIT NO: NICN/LA/472/2012MR. OJUTALAYO JOHN FOLAYAN MORLAP SHIPPING COMPANY LTD delivered on the 4th December 2015 this court in evoking Section 19d of NICA 2006 discountenanced and rejected the argument that a claim for general damages in an employment case is unknown to law, or practice and procedure. In conserving the claimants claim for damages I am also aware considering the conduct of the defendant whom if left a lone would have denied the claimant of any entitlements whatsoever after working for almost 5 years and deliberately and craftily deprived him of even the common law remedy of one month notice. Especially after paying N318, 600 after working for a year and six month then to send him home with nothing after 5 years is highly reprehensible and most arbitrary I find. In the case of UMTHMB V. DAWA  16 NWLR (PT. 739) 424 CA, the court of appeal held that every employer must be careful not to abdicate or abuse its powers. Employers are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. In the determination of the employment of employees, they must at all times allow themselves to be guided by the rule of natural justice. The law does not permit employers to act arbitrarily. From the foregoing I find and hold that the claimant is entitled to one yearâ€™s salary as damages 440, 732.04 With regards to relief 3, the position of the law as per GUINNESS NIGERIA PLC V. EMMANUEL NWOKE  LPELR-6845(CA) is that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party. For that reason relief 3 also fails and is struck out. Relief 4 as I had stated is not only inconsistent with the claimants main claim it is also not appropriate relief from a master / servant relationship and therefore fails and is consequently struck out. The claimant also complained about the deductions of N22, 587.00 which swallowed up his terminal benefits, looking at Exhibit D4 the document form the Cross River State Government indicating the outstanding liabilities of the defendant including those accruable under â€˜Pay as you earnedâ€™ PAYE I find that the deduction was properly made in the circumstances. For avoidance of doubt the claimantâ€™s case succeeds but only thus far The judgment of this court is as follows The defendant shall pay to the claimant the sum of N240, 912.00 being redundancy allowance. The defendant shall pay to the claimant the sum of N440, 730.04 being general damages for this suit. All sums to be paid within 30 days thereafter interest in the sum of 10% per annum shall attach. This is the courtâ€™s judgment and it is hereby entered accordingly. ......................................... Hon. Justice E. N. Agbakoba Judge.