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JUDGMENT 1. Introduction & Claims On 15/2/13, the Claimant approached this Court via his Form 1 and statement of facts and by an amended statement of facts dated 22/12/14, the Claimant claimed against the Defendants Jointly and severally as follows - 1. The sum of =N=9,172,619.04 which represents the shortfalls in the Claimant’s monthly salary payments as stated in paragraphs (i) to (v) below - i. The sum of =N=621,000.00 which represents the shortfall in his salary for 27 months between October, 2001 to December, 2003. ii. The sum of =N=1,140,000.00 which represents the shortfall in his salary for 24 months between January, 2004 to December 2006. iii. The sum of =N=558,876.00 which represents the shortfall in his salary for 12 months from January, 2008 to December, 2008. iv. The sum of =N=1,560,743.04 which represents the shortfall in his salary for 12 months from January, 2008 to December, 2008. v. The sum of =N=5,292,000.00 which represents the shortfall in his salary for 42 months between January, 2009 to June 2012. 2. The sum of =N=71,000.00 and 118 Pounds Sterling (or its Naira equivalent) expended by the Claimant for his ADT training and development programme. 3. The sum of =N=5,400,000.00 which represents Claimant’s retirement benefits. Upon service of the 1st Defendant’s 2nd amended Statement of Defence, the Claimant filed a Reply dated 23rd September, 2015. 2nd Defendant though served all processes as required did not enter an appearance or file any defence processes. 2. Case of the Claimant The Claimant opened his case on 21/11/16 when he testified in chief as CW1. CW1 adopted his witness deposition dated 10/2/15 as his evidence in chief. Witness also adopted his further witness statement on oath dated 23/9/15 as his further evidence in chief and tendered 18 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1 - Exh. C18. The Claimant’s case is that he was first employed by the 2nd Defendant to work as a Lift Operator on salary Grade Level 04 by a letter of appointment dated 10/10/01; that he was later absorbed into the employment and services of the 1st Defendant as a Lift Operator by the staff Identity Card No. 53734987 dated 28/12/04; that as further proof that the 1st Defendant absorbed him into its employment, the 1st Defendant shortlisted and enrolled him for the Chartered Institute of Logistics and Transport (CILT) training programme which trainings were in three stages namely: National Certificate in Transport (NCT), Diploma in Transport (DIP) and Advanced Diploma in Transport (ADT); that the CILT training was relevant to his job which explains the reason the 1st Defendant recommended and enrolled him for the trainings; that while the 1st Defendant paid the fees for the NCT and DIP programmes, the 1st Defendant refused to pay for the ADT programme contrary to paragraph 7.2 of the 1st Defendant’s Handbook. Claimant further stated that the discriminatory antics of the Defendants particularly the 1st Defendant against him ranging from disparity in the “Claimant’s salaries viz a viz the Claimant’s colleagues, to lack of promotion despite his qualifications, including the 1st Defendant’s refusal to sponsor him for the last stage of the CILT programme i.e the ADT programme; that his qualifications are Certificates of Registration for 2005 and December 2007; award of National Diploma in Accountancy dated 22/1/09 and enrollment into ICAN dated 29th July, 2009; that his employment was a permanent and pensionable one which entitled him to all the privileges, emoluments and benefits contained in the 1st Defendant’s Handbook; that upon the completion of his CILT programme, the 2nd Defendant congratulated him but referred him to the 1st Defendant for promotion; that he withdrew his services via letter dated 1/6/12 in which he notified the Defendants that he would be withdrawing his services effective 1/7/12; that he requested for the payment of his withdrawal benefits; that by a letter of reminder to the 1st Defendant dated 15/8/12he gave the historical background of his employment with the 1st and 2nd Defendants, complained of the injustice meted to him and further threatened to seek legal redress if he was not paid his withdrawal benefits and the money he expended for his ADT programme; that the 1st Defendant’s contention is that he was never in its employment and denied issuing the Claimant its Identity Card; that on the issue of sponsoring the Claimant for the CILT programmes, the 1st Defendant contended that same was done gratuitously; that on the relationship between the 1st and 2nd Defendants, all that the 1st Defendant said is that 2nd Defendant is a distinct incorporated entity from the 1st Defendant and that the 2nd Defendant was hitherto the Manager of Shippers’ Council, that prior to this position, the 1st Defendant had maintained in its previous statements of defence that the 2nd Defendant had been wound up since 2009; that the 1st Defendant is silent on the minutes of the meeting dated 18/6/01 in which the Management of the both 1st and 2nd Defendants clearly acknowledged the fact that the 2nd Defendant functions as a Department of the 1st Defendant and that 2nd Defendant is not independent of the 1st Defendant. Under cross examination, CW1 testified that he applied to 2nd defendant for up grading; that he was advised to apply to the 1st Defendant; that his Staff Handbook got lost; that it is not in his appointment letter to notify 1st Defendant on loss of his staff Handbook; that the 1st Defendant sent him on 5 year training course in Transport Management which last from 2002-2007; that the 1st Defendant undertook from Training Unit to cover the cost of the Course; that the Training Director held meeting with the staff concerned and gave undertaking regarding the cost of the Course; that the 1st Defendant issued him an Identity card and that he was issued a letter of employment by 1st Defendant. In re-examination, the witness testified that the 2nd Defendant did not have Director of Finance and that it was the 1st Defendant that had Director of Finance who controlled finances of both 1st & 2nd Defendants. 3. Case of the 1st Defendant On 17/5/17, the 1st Defendant opened its case. It called one Glory Ongedo as its DW1. DW1 adopted his witness deposition dated 10/8/15 as his evidence in chief and tendered 7 documents as exhibits. The documents were admitted and marked as Exh. D1 - Exh. D7 respectively. The case of the 1st Defendant is that the Claimant has never been in its employ, rather; that the Claimant was employed by the 2nd Defendant, a Company, separate and distinct from itself; that it did not issue an Identity card and a Staff Handbook to the Claimant but acknowledges that upon claimant’s application to the 1st Defendant short listing and gratuitously sponsoring the Claimant as a staff of the 2nd Defendant together with its own staff for a training which it paid for, save for the last lap which sponsorship was strictly limited to its staff; that there is no employment relationship between the Claimant and itself and the claimant is aware of this fact but has only commenced this suit to mislead the Court and impute liability on the 1st Defendant for personal gain. Under cross examination, DW1 testified that he signed Exh.C9 on behalf of the 2nd Defendant; that the 2nd Defendant was never his employer; that he could not confirm that the 2nd Defendant is a subsidiary of 1st Defendant; that both Defendants have same address at 4, Park Lane Apapa Lagos; that he was posted by 1st Defendant to work for 2nd Defendant; that 2nd Defendant did not request 1st Defendant to post him to it; that he has no letter posting him to the 2nd Defendant; that he does not know if the Identity Card tendered by Claimant is forged; that he does not know anything about the existence of 2nd Defendant; that Exhibits D2, D3 & D4 were addressed to 2nd Defendant and that he has possession of them. One Abosede Faji was called as DW2. Witness adopted her witness deposition dated 10/8/15 as her evidence in chief and tendered 3 documents as exhibits. The documents were admitted in evidence and marked as Exh. D8-Exh. D10. While being cross examined, the witness stated that she is not aware that the name of the Claimant was on the list of staff for training sent by the 1st Defendant; that it is not to her knowledge that 2nd Defendant function as a department of the 1st Defendant; that she does not know if the 2nd Defendant is a subsidiary of the 1st Defendant; that the Identity Card carried by the Claimant did not emanate from 1st Defendant and that she is not aware of the existence of 2nd Defendant. 4. Submissions of Counsel Upon conclusion of trial and pursuant a direction by the Court, learned Counsel to the Defendant filed a final written address on behalf of the 1st Defendant on 13/2/18. In it learned Counsel set down the following issues for the just determination of this case - 1. Whether upon the totality of the facts and evidence adduced before the court, the claimant can be construed to be in the employment of the 1st Defendant. & 2. Whether the claimant has discharged the burden of establishing his entitlement to the benefits claimed in (the 1st Defendant’s Staff Handbook). Counsel to the Claimant also filed his final written address on 8/6/18 and set down 3 issues for determination down as follows - 1. Whether in view of the totality of the evidence before the court, the Claimant has proved that the 2nd Defendant is an agent of and under the control of the 1st Defendant. 2.Whether in view of Exhibits C3 and Exhibit C6 (1 -6), the Claimant has proved that he was absorbed into the employment and services of the 1st Defendant. & 3. If the answer to two above is in the affirmative, whether the Claimant is entitled to the reliefs sought against the Defendants jointly and severally. I read all the addresses and have a clear understanding of them. I shall make adequate reference to them as may be required and appropriate in this Judgment. 5. Decision I read carefully and understood all the processes filed by learned Counsel on either side. I heard the oral testimonies of all the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral argument of Counsel on both sides. Having done all this, I have narrowed the issues for the just determination of this case down to the following - 1. Whether the Claimant was absorbed into the services of the 1st Defendant to have become a staff of the 1st Defendant. 2. Whether the Claimant has adduced sufficiently credible and cogent evidence in support of his case to be entitled to all or any of the reliefs sought. The argument consistently canvassed by the Claimant in this case is that he was employed by the 2nd Defendant who was a subsidiary of the 1st Defendant; that he was absorbed into the services of the 1st Defendant and that the 1st Defendant is liable to him jointly and severally respecting the reliefs sought. Certain facts of this case remain rather uncontradicted. It is for instant agreed and not in dispute that the 2nd Defendant though a limited liability company with separate legal being is a subsidiary of the 1st Defendant. See Exh. C1 & Exh. C2. Both exhibits aptly depict that relationship. Secondly, it is also an accepted fact that the Claimant was employed by the 2nd Defendant via Exh. C2 - Offer of Appointment dated 10/10/01 and that by Exh. C4 dated 1/6/12 and addressed to the 2nd Defendant, the Claimant withdrew his services from the 2nd Defendant. It is the argument of the Claimant that he was absorbed into the 1st Defendant. That fact of absorption is the basis of the reliefs he sought in this Court. The law is trite and well accepted that the burden is always on he who asserts to prove. See MTN Communication Limited v. Amadi (2012) LPELR-21276(CA). It is also settled that mere assertions or averments in pleadings not backed by evidence go to no issue. See Oshafunmi & Anor. v. Adepeju & Anor. (2014) LPELR-23073(CA). In proof of his case, the Claimant tendered a total of 18 exhibits. Now in proof of his case respecting the issue of absorption, the Claimant tendered and relied on Exh. C1- the Minutes of meeting held on 18/6/01 between the 2nd Defendant and the Deputy Director (Administration) of the 1st Defendant. That minutes was way before the Claimant joined the services of the 2nd Defendant. The sole purpose of the meeting leading to that minutes appeared apparent in the second paragraph of the exhibit in the observation of the DD (Admin)- '' ... that there was need to clarify issues regarding the SPL technicians who were employed by NSC and issued letters of employment of the Council. He noted that these staff were not presently in the NSC nominal roll or payroll as the burden of their salary was transferred to SPL''. I had earlier pointed out that this advise was ever before the Claimant joined the 2nd Defendant. I reviewed all the exhibits tendered. Some crucial questions come up for answers here. Was the Claimant employed by the 1st Defendant? Was the Claimant issued a letter of employment by the 1st Defendant? Was the Claimant employed as a Technician by the Council? It appears to me and I have no doubt with respect to same that the meeting of 18/6/01 leading to Exh. C1 was meant to address the plight and situation of Technicians employed by and issued letters of employment by the 1st Defendant. The only significant point of note in that exhibit is the advise by the General Manager of the 2nd Defendant that - '' ... all the technicians in SPL be absorbed by NSC whether employed by NSC directly or not. This will avoid contradictions in salary and make for uniformity in career development of all the technicians''. There is nothing in terms of evidence before me to support whether or not that advise for 1st Defendant to absorb all technicians working with the 2nd Defendant was ever taken. Again, there is no evidence before me pointing to the fact that the Claimant actually falls into the class of employees for whose benefit the meeting of 18/6/01 was held. My attention was also drawn to Exh. C3 - Staff Identity Card of the 1st Defendant allegedly issued to the Claimant. That exhibit was dated 28/12/04. Yet in Exh. C18 - an Application for Employment dated 8/5/08 written by the Claimant to the 1st Defendant, Claimant had stated in its second paragraph that - ''I am presently with Shippers Property Limited (SPL) as a Lift Operator, a subsidiary of The Nigerian Shippers Council. I will like to express my desire to work for The Nigerian Shippers Council so that I can have the opportunity of contributing to the council in line with the present knowledge in which I have acquired during the course of my CILT programme''. The first of diverse critical and crucial points which this exhibit has brought to the fore is the fact that as at 8/5/08 the Claimant was not a staff of the 1st Defendant. The second is that as at that date the Claimant has no doubt the fact that he was in the employment of the 2nd Defendant. I have carefully perused all the exhibits before me. There is no evidence before me to the effect that the 1st Defendant had positive disposition to the application for employment written to it by the Claimant. There is no letter of employment from the 1st Defendant to the Claimant exhibited. There is also no letter of absorption given to the Claimant exhibited. Absorbing the staff of a separate organisation into another can hardly be effected by conduct. It is an affirmative action that requires affirmative steps. From the facts available in and the whole circumstances of this case, I find and hold that the Claimant was not absorbed by the 1st Defendant into its services as claimed. The second issue for determination is whether the Claimant has adduced sufficiently credible and cogent evidence in support of his case to be entitled to all or any of the reliefs sought. The claims sought by the Claimant are majorly 3 as follows the sum of =N=9,172,619.04 which represents the shortfalls in his monthly salary payments; 2. the sum of =N=71,000.00 and 118 Pounds Sterling (or its Naira equivalent) expended by the Claimant for his ADT training and development programme and 3. the sum of =N=5,400,000.00 which represents Claimant’s retirement benefits. The basis of the Claimants reliefs is that he was absorbed by the 1st Defendant and that the Staff Handbook of the 1st Defendant is applicable to him. In paragraph 12 of the Claimant's witness deposition dated 10/2/15, Claimant had averred - ''That my salary history as stated in paragraph 10 above is contrary to Articles 4.1.3 and 4.1.4 of the Council's Handbook which provided for salary review and annual salary increment respectively''. See also paragraphs 20, 22, 25 & 27 of the said deposition. Again in paragraph 35 of his witness statement on oath, the Claimant testified that - '' ... by Article 11.3 of the Council's Handbook my withdrawal from my employment after ten (10) years of service amounts to retirement. The Defendants have refused to pay my retirement benefits''. The Handbook referred to here is not meant for the 2nd Defendant. I have found and held in this Judgment that both Defendants are separate and distinct from one and another. There is no evidence before me pointing to the fact that 1st Defendant controls the existence of the 2nd Defendant. I have no evidence before me to the effect that the 1st Defendant is the alter ego of the 2nd Defendant. It is thus obvious that the Claimant has placed his reliefs on a wrong and faulty premise. The Staff Handbook of the 1st Defendant cannot and has not successfully support the case of the Claimant. It is trite law which also accords with commonsense that you cannot put something on nothing and expect it to stay there. As the late Lord Denning of blessed memory say, it will collapse. This case is therefore destiny and bound to collapse. See Macfoy v. United Africa Co. Limited (1961) 3 WLR 1405 PC at 1409. See also the late Obaseki J.S.C in Akpene v. Barclays Bank of Nigeria Limited & Anor. (1977) LPELR-386(SC). I find and hold that from the available evidence before me and the entire circumstances of this case, the Claimant has failed to adduce sufficiently cogent and credible evidence in proof of his case to warrant a grant of all or any of the reliefs sought. Consequently, I resolve the second issue against the Claimant. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I find the case of the Claimant as lacking in merit. I refuse the claims made and dismiss same accordingly. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge