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JUDGMENT 1. Introduction & Claims The Claimant commenced this action for alleged unlawful termination of employment against the Defendants by a General Form of Complaint and other accompanying processes dated the 30/1/15. In it the Claimant sought the following reliefs - 1. A declaration that the termination of the Claimant employment by the Defendant was wrongful, unlawful and amounts to unfair labour practice. 2. The sum of =N=1,129,797.00 (One Million and One Hundred and Twenty- Nine Thousand, Seven Hundred and Ninety-Seven Naira, Eleven Kobo) being the Claimant’s entitlements upon cessation of employment of 31st December, 2013. 3. The sum of =N=10,000,000.00 (Ten Million Naira) as general and exemplary damages for wrongful, unlawful, unconstitutional and unsavoury labour practices by the Defendants. 4. Costs. The Defendants reacted by entering an appearance and equally filed a statement of defence on 30/3/16 together with all requisite processes as directed by the Rules of Court. 2. Case of the Claimant The Claimant opened his case on 25/10/16 and testified as CW1. Claimant adopted his witness deposition dated 30/1/15 as his evidence in chief. Claimant also adopted his additional witness statement made on 11/5/16 as his additional evidence and tendered 11 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C11. The case of the Claimant as revealed from his evidence in chief is that by a letter dated 9/7/07, the 1st Defendant employed him as its Internal Auditor; that he was later promoted to the position of Credit Controller shortly after; that in the course of discharging his assigned duties, the 2nd Defendant had formed a habit of pouring invectives and verbal attacks on him on some listed dates and had also exhibited hostile, discriminatory and degrading treatment thereby leading to his loss of self-esteem and personal dignity; that by a letter dated 19/12/13 the 1st Defendant summarily terminated his employment notwithstanding persevering the indignities meted out on his person by the 2nd Defendant for the entire period of six and a half year of his employment; that he later found out from the 1st Defendant’s Human Resources Manager that his employment had been singled out for termination at the behest of the 2nd Defendant; that the 1st Defendant did not only fail to conform to the procedure for declaration of redundancy as legally required, in the hospitality industry, a disengaged staff is entitled to a full month emolument for each and every year of service/employment as compulsory payment for redundancy allowance; that upon termination of his employment, he was entitled to the total sum of =N=1,129,797.11 (One Million, One Hundred and Twenty-Nine Thousand, Seven Hundred and Ninety-seven Naira, Eleven Kobo) comprising of - i. =N=153,368.78 One month’s salary in lieu of termination; ii.=N=56,215.65 Service Charge for December, 2013; and, iii. =N=920,212.68 being redundancy allowance calculated at six months’ full salary as compulsory payment (for the six and half years of employment) and that after his disengagement and in spite of all efforts and demand, the 1st Defendant refused to pay his legitimate entitlement and severance payment. Under cross examination, witness stated that Defendant’s staff were over 80 while he was with the Defendant; that he does not know how many people are currently working with Defendant; that his salary was paid throughout 2013; that he worked under a superior; that commendation letter was given to him after cessation of his employment; that he sometimes keep Diary; that he could not recollect what happened on January 13, 2013 as well as in February 2013; that he does not have any case in any other Court against Defendant except the present case; that many people were present when 2nd Defendant was abusing him; that he has never worked in any Ministry before; that he was not part of financiers of Defendant and that he has never qualified as a Medical Doctor before; that he does not know the Doctor that attended to the former Credit Controller. Claimant also called one Taofiq Sijuade who testified as CW2. The witness was called on subpoena to simply tender documents. The witness introduced himself as Benefit Officer with IBTC Pension Managers. The witness tendered 3 documents which were admitted in evidence and marked as Exh. IBTC1 - Exh. IBTC3 respectively. 3. Case of the Defendant The Defendants opened their case on 7/6/17 and called one Fred Ozoagu as their DW1. The witness adopted his witness deposition dated 30/3/16 as his evidence in chief and tendered one document. The document which was admitted without objection was marked as Exh. D1. The case of the Defendants is that the Claimant is a former employee of Protea Hotels; that the Claimant has never been employed in any capacity by any of the Defendants; that the Defendants have no obligation, contractual or otherwise, to pay any entitlement/severance to the Claimant at all; that even though it is common place that the 1st Defendant owns a franchise with respect to Protea Hotel, Victoria Island, the Defendants were not responsible for the operations thereof or engagement of staffs and payment or termination; that when served with the Court processes in this suit, the Defendants conducted enquiries at Protea Hotels, Victoria Island, which revealed that the Claimant’s employment was lawfully determined and the hotel neither has a pending liability nor indebted at all to the Claimant; that whilst in the employ of Protea Hotels Victoria Island, the Claimant applied for and was granted a loan of =N=350,000 which loan, at the time of the Claimant’s disengagement and even at the date hereof, is yet to be liquidated fully; that though the 2nd Defendant is the Chairman of the 1st Defendant, investigations carried out revealed that the Claimant’s employer - Protea Hotel, Victoria Island is a structured organization with chain of command and line of reporting; that at the time of his employment with Protea Hotel, Victoria Island, the Claimant reported directly to his Head of Department who in turn reported to the General Manager; that the Defendants were not privy to or responsible for the Claimant’s re-assignment to any position at all by his employer; that inquiries carried out at the Claimant’s erstwhile employer – Protea Hotels, Victoria Island, indicated that the Claimant was indeed the credit controller with designated assignments whilst in its employment and that the 1st Defendant has never employed or had any Credit Controller in the employment; that that the 2nd Defendant did not on any occasion deploy any form of verbal abuse on the Claimant at any time howsoever; that the 2nd Defendants were not in a position to terminate the Claimant’s employment; neither the 1st Defendant’s Human Resources Manager, nor of its staff informed the Claimant that his employment was terminated at the behest of the 2nd Defendant, nor had any discussion with the Claimant regarding the circumstances surrounding the termination of his employment with his employer. The Defendants further averred that they were not the employers of the Claimant and, therefore, none is liable to the Claimant under any provision of the labour laws or practices in Nigeria. Under cross examination, the witness stated that he joined 1st Defendant in 2011; that he has been Managing Director, Finance since 2011; that his role revolves around finance of the Company; that he worked with Protea Hotel before joining 1st Defendant; that he resigned before joining 1st Defendant; that he worked with the Claimant; that the Directors of 1st Defendant are 2 Alhaji Tajudeen Owoyemi and Ahmed Tajudeen; that he has not seen the Chairman in the past 6 months; that on 18/2/17 there was an award event in which he attended with the Chairman. 4. Submissions of learned Counsel Learned Counsel to the Defendants filed a final written address on 7/7/17 and set down the following 2 issues for determination - 1. Whether, having regard to the circumstances of this case, particularly the evidence adduced by the Claimant, the Defendants can be adjudged as the employer of the Claimant and liable for the reliefs sought in Paragraph 18 of the Statement of Fact, and 2. Where the Defendants are held to be employers of the Claimant, whether the Claimant has produced sufficient evidence to make the Defendants liable for the Claimant’s claims. Arguing these issues, Counsel submitted that the Claimant has the burden of proof placed on him in order to be entitled to the reliefs he sought; that the evidence led only pointed to the existence of employer/employee relationship between the Claimant and Protea Hotels, Victoria Island referring to Exh. C1; that in an action for a declaration of unlawful termination of employment, the Claimant must exhibit his contract and prove the terms and conditions of his appointment citing Nitel v. Oshodin (1999)8 NWLR (Pt. 616) 528 at 541 and that the Claimant failed to adduce evidence that he was employed by the 1st Defendant citing FCDA v. Naibi (1990)2 NSCC Vol. 21, 292 at 300. Counsel referred to Exh. C2 and prayed the Court to hold that the employment of the Claimant was terminated by his employer and not the 1st Defendant. It was the argument of Counsel that payment of salaries and allowances is not and cannot be a yardstick for determining employment relationship citing Anike v. SPDCN (2012)28 NNLR (Pt. 81) 350 and that same principle is applicable to remission of pension deductions to pension fund administrator. Counsel submitted the Claimant has failed to prove his case and urged the Court to dismiss same. Learned Counsel to the Claimant filed a final written address of 34 pages on 30/10/17. In it Counsel set down the following issues for determination - 1. Whether the termination of the Claimant’s employment with the 1st Defendant on the ground of re-structuring and mergers of certain job responsibilities constitutes a declaration of redundancy by the Defendants. 2. If the answer to (a) above is in the affirmative, whether the Defendants followed the laid down procedure for the declaration of redundancy before summarily terminating the Claimant’s employment. 3. Whether the 2nd Defendant’s constant verbal assaults on the Claimant in the course of his employment with the Defendants violate his constitutional right to dignity of human person and international labour standards. Arguing these issues, learned Counsel submitted that it is no longer acceptable for an employer to terminate a contract of employment without stating the reason for same citing Ebere Onyekachi Alloysius v. Diamond bank Plc (2015)58 NLLR 92 and that the reason given by the Defendant in the letter of termination amounts to declaration of redundancy. Counsel prayed the Court to so hold. Respecting issue 2, learned Counsel submitted that if issue is answered in the affirmative, the Court should hold that the procedure adopted by the Defendant for the declaration of redundancy was not a proper one for failure to comply with the provision of the Labour Act, Section 20. Learned Counsel submitted further that the various verbal abuses rained on the Claimant by the 2nd Defendant constitutes unfair labour practice, fall short of international best practices in labour and employment matter and a violation of the constitutional right of the Claimant citing Godwin Okosi Omoudu v. Prof. Aize Obayan & Anor. Unreported Suit No: NICN/AB/03/2012 and prayed the Court to so hold and enter Judgment in favor of the Claimant. The Defendants' reply address was filed on 27/11/17. I also read same with understanding. 5. Decision I read the contents of the file of this case carefully and with understanding. I listened attentively to the testimonies of the witnesses called at trial and watched their demeanor. In addition, I heard the oral argument as canvassed by the learned Counsel to the parties and carefully evaluated all the exhibits tendered and admitted at trial. Having done all this, I narrow the issues for the just determination of this case to the following - 1. Whether from the evidence led in this case, the Defendants are the employers of the Claimant. 2. Whether the Claimant has proved his case to be entitled to the reliefs sought. The case of the Claimant against the Defendants in brief is that he was employed by the 1st Defendant; that he suffered abuses in the hands of the 2nd Defendant; the Defendant subsequently terminated his employment alleging restructuring of the 1st Defendant; that the reason given by the Defendant for termination amounts to redundancy and that the Defendants did not follow the statutory provision relating to declaration of redundancy. Claimant alleged that the termination was thus wrongful. Hence he approached this Court for redress. It was the argument of the Defendants that they were not in any way the employer of the Claimant. In order therefore for the Claimant to be entitled to his reliefs or any of them it is imperative that he first establish the existence of employee/employer relationship between him and the Defendants. For a proof of employment relationship is critical to the grant of any post employment rights and reliefs. It is important to bear in mind that except where there is express admission of facts, the burden is always on he who asserts to prove. Thus, it is for the Claimant to adduce cogent, credible and admissible evidence in support of his case. In proof of his case, the Claimant tendered his letter of offer of employment - Exh. C1, letter of disengagement - Exh. C2, his pay slip for the month of December 2013 - Exh. C3, Exh. C4 - Letter to the Managing Director of Protea Hotels Victoria Island, Exh. C5 - Access Bank Statement of Account the Claimant, Exh. C6-Stambic IBTC Statement of Account of the Claimant, Exh. C7 -Pension statement of account & Exh. C8-Letter of Recommendation (To Whom It May Concern). The offer of appointment dated 9/7/07 (Exh. C1) & Letter of Disengagement dated 19/12/13 both clearly showed that the Claimant was employed by Protea Hotel, Victoria Island. Exh. C3 is evidence of the employer of the Claimant - Protea Hotel, Victoria Island, paying the salary of its employee. In a letter dated 12/5/14 written on behalf of the Claimant to the Managing Director, Protea Hotel, Victoria Island, the learned Counsel to the Claimant had written thus in the first paragraph - ''We are acting for Mr. Taiwo Benedict Sobulo former employee of your Hotel (emphasis added) and hereinafter referred to as our client''. Again I refer to Exh. C8 a letter written by the General Manager of Protea Hotel Victoria Island on 23/1/14. It was a letter of recommendation. In its first paragraph, Charmaine Kassis as General Manager had written thus - ''This is to recommend Mr. Taiwo Sobulo who was under our employment (Emphasis added) between July 2007 and December 2013''. I note that indeed, Protea Hotel Victoria Island was not shy to accept that it was the employer of the Claimant. For, in Exh. C11, a letter written by M. A. Banire & Associates, Solicitors, Advocates & Notary Public on behalf of Protea Hotel, the Law Firm had stated, in the second paragraph thus, ''Our client has forwarded your captioned letter to us for response. Having read the said letter and upon discussing the matter raised therein with our client, we find it pertinent to inform you that our client's position remains that your client's employment with it was properly determined''. (Emphasis added). The business card of the Claimant which was tendered as Exh. C11 simply described him as Cost Controller of Protea Hotel Victoria Island. From the review of these exhibits thus far, there is a unanimity among them that there is no evidence that any of the 2 Defendants here was his employer. Rather the evidence convincingly showed that his employer was Protea Hotel, Victoria Island. Learned Counsel to the Claimant however drew my attention to the fact that on Exh. C2, Exh. C3 & Exh. C4, Protea Hotel Victoria Island was described as being operated by the 1st Defendant. It was also the submission of Counsel that on Exh. C5 & Exh. C6, 1st Defendant was paying the salary of the Claimant and that the 1st Defendant was seen described as the Employer of the Claimant. With great deference from the learned Counsel I find it difficult to accept the line of submission. I have clear and unambiguous evidence before me in the letter of offer of employment (Exh. C1), letter of disengagement (Exh. C2), the pay slip (Exh. C3) and indeed the letter of Counsel to Protea Hotel Victoria Island affirming the readiness of the Hotel to accept responsibility for engaging and disengaging the Claimant. Well, of a truth, the 1st Defendant might be the operator of Protea Hotel Victoria Island. Does that singular fact remove the Protea Hotel Victoria Island's ability to take responsibility for its contractual actions or inactions? Why was the Hotel not sued or at least joined as a party in this suit? Was the Protea Hotel Victoria Island under some form of disability, legal or social, at the time of instituting this action which prevented it from being sued for its acts? I have no answers to these and other nagging questions. It is trite that a learned Counsel has the right to conduct his case as he deems fit. and proper. See Tsamani JCA in Amefule & Anor. Nmecha & Ors. (2013) LPELR-20632 (CA). However, perhaps this case could have come out differently if at least Protea Hotel, Victoria Island had been sued or joined as a party in this case. The Hotel is certainly a proper party who ought to be joined. The bottom line of my finding is that the evidence led by the Claimant failed to prove that the Defendants or any of them was the employer of the Claimant. I resolve this issue in favor of the Defendants and against the Claimant. The second issue for determination is whether the Claimant has proved his case to be entitled to the reliefs sought. The resolution of issue 1 has made any consideration of the second issue a rather mute one. I have found and held that the Defendants sued in this case were not and are not the employer of the Claimant. That singular finding removed them from any form of liability to the Claimant. The fact remains that the Court cannot and will not make a party to bear a liability that is not its. I hold that the Claimant has failed to prove his reliefs in this case against the Defendants. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment I dismiss the case of the Claimant in its entirety. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge