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JUDGMENT 1. The claimants commenced this action on 6th September 2012 against the defendants by a General Form of Complaint accompanied with a statement of facts dated 5th September 2012, list of witnesses, witness statement on oath of the claimants’ witnesses (Mr. Olalekan Kehinde and Mrs. Miriam Balogun) and copies of the documents to be relied on at the trial. As per the statement of facts, the claimants are claiming from the defendants the following reliefs: 1) An immediate upward adjustment of each of the claimants’ salaries from the salary of a call centre agent which is N1.6 million per annum to the salary of a quality assurance assessor which presently stands at N3.5 million per annum. 2) The payment of the sum of N5,066,666.66 (Five Million, Sixty-Six Thousand, Six Hundred and Sixty-Six Naira) only to each of the claimants, being the difference in salaries of each of the claimants from the month of January 2010 when their promotion to the position of quality assurance assessors became effective, to August 2012 when this suit was instituted. 3) Interest on the sum of N5,066,666.00 pro rata from the month of January 2010 to August 2012 at the current bank interest rate of 22 percent per annum to be paid to each of the claimants. 4) Payment to each of the claimants, the difference in the salaries of each of the claimants from the month of September 2012 till judgment is entered in this suit. 5) Payment to each of the claimants interest at the rate of 22% on any sum of money accruable to each of the claimants from the difference in each of their salaries from the month of September until whenever judgment is entered in this suit. 6) Payment of N1.1 million to each of the claimants being their bonuses for year 2010/2011. 7) Interest on the sum of N1.1 million at the rate of 22% per annum from 2010/2011 until judgment is entered in this suit. 8) Payment of airtime allowance of N216,000.00 (Two Hundred and Sixteen Thousand Naira) to each of the claimants, being unpaid airtime allowance from December 2011 to August, 2012. 9) Payment of the sum of N736,250.00 (Seven Hundred and Thirty-Six Thousand Two Hundred and Fifty Naira) only to IBTC Pension Fund, being the difference in the pension sum payable by the defendants on each of the claimants. 10) Payment of the sum of N600,000.00 (Six Hundred Thousand Naira) to each of the claimants, being the bonuses that were not paid to the claimants, but paid the other quality assurance assessors in the services of the defendant for the year 2011/2012. 11) Payment of the sum of N5,000,000.00 to each of the claimants as damages for breach of contract and their constitutional right and for subjecting the claimants to serious physical and psychological trauma. 12) Payment to each of the claimants, interest on the entire judgment debt at the rate of 22% per annum from the time judgment is entered in this suit until the entire judgment is liquidated. 2. In response to the suit, the 1st defendant entered formal appearance and then filed its statement of defence dated 11th February 2013 but filed on 12th February 2013. The 1st defendant’s statement of defence was filed, along with its list of witnesses, the witness statement on oath of its sole witness (Mr. Kingsley Anyiam), list of documents and copies of the documents to be relied on at the trial. The 1st defendant joined issues with the claimants on their allegations and claims. In reaction to this, the claimants filed a reply to the 1st defendant’s statement of defence dated 18th March 2013, which reply was filed along with copies of additional documents to be relied on at the trial and further witness statements of Mrs Miriam Balogun and Mr Olalekan Kehinde. 3. The 2nd defendant on its part filed on 6th February 2013 a statement of defence dated 5th February 2013. The 2nd defendant’s statement of defence was filed along with its list of witnesses, the witness statement on oath of its sole witness (Mr Bakare Adebayo), list of documents and copies of the documents to be relied on at the trial. The 2nd defendant also joined issues with the claimants on their allegations and claims. The 2nd defendant’s witness (Mr Bakare Adebayo) was later substituted with another, Mr Ayodeji Maku. Even this witness was later substituted with a third (Mr Olusola Aderanti) by the order of Court made on 1st March 2016. In reaction, the claimants filed a reply to the 2nd defendant’s statement of defence dated 18th March 2013 alongside copies of additional documents to be relied on at the trial and further witness statements of Mrs Miriam Balogun and Mr Olalekan Kehinde. 4. At the trial, the claimants testified on their own behalf with Mr Olalekan Kehinde testifying as CW1 and Mrs Miriam Balogun testifying as CW2. For the defendants, Mr Kingsley Ayiam , a Senior Manager, Litigation with the 1st defendant, testified as 1st defendant’s witness (1st DW); and Mr Olusola Aderanti, Business Coordinator, Human Resources with the 2nd defendant, testified as 2nd defendant’s witness (2nd DW). At the close of trial parties were asked to file and serve their respective written addresses starting with the defendants as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The 1st defendant’s final written address is dated 31st May 2015 but filed on 2nd June 2016, while the 2nd defendant’s is undated but filed on 7th June 2016. In reaction, the claimants on 4th July 2016 filed their final written address, which is undated. The defendants in reaction filed their respective reply on points of law. That of the 1st defendant is dated and filed on 22nd September 2016, while that of the 2nd defendant is dated and filed on 13th October 2016. 5. On 8th November 2016, the date slated for adoption of written addresses, counsel to the 1st defendant was not in Court. Counsel to the 1st defendant had filed two motions, one to regularize its final written address, and the other to amend its statement of defence as well as amend its final written address by substituting the final written address on record with a new one. Since both motions could not be moved given the absence of counsel to the 1st defendant, the two motions were accordingly struck out. All of this effectively left the Court with only the initial final written address to deem as adopted for purposes of this judgment. Before the delivery of this judgment, however, the counsel to the 1st defendant filed two other motions, the one praying the Court to review and revoke the orders the Court made at its sitting of 8th November 2016, and the other praying to amend the statement of defence, final written address and reply address. Both motions in considered rulings were dismissed paving the way for the delivery of this judgment. For purposes of this judgment, therefore, the Court deems as adopted the 1st defendant’s final written address dated 31st May 2015 but filed on 2nd June 2016 and the reply on points of law dated and filed on 22nd September 2016. 6. The case of the claimants is that they were employed as Call Centre Agents by the 1st defendant in 2005 and 2006 respectively in a permanent employee capacity and through an open announcement by then Manager of the outbound call centre, they were promoted to the post of Quality Assurance Assessors in 2009. That following their promotion, their subsequent salaries remained the same. In the course of their service in their new post, they made complaints over salaries and followed it up with formal letters. The 1st defendant never reviewed their salaries until December 2009 when a Mutual Separation Agreement (MSA) was purportedly executed to end the employment of the claimants. Subsequent to the purported execution of the MSA, the 2nd defendant (an outsourcing company for the 1st defendant) purportedly claimed to be the new employer of the claimants. The claimants remained in the same post and in the office of the 1st defendant until they were relieved of their services through a purported provision of the Fixed Term Employment Contract by the 2nd defendant. That as at the termination of their employment, the claimants’ salaries with other emoluments was never reviewed by the 1st defendant. 7. The 1st defendant’s case and hence defence is straight forward. That the claimants were never promoted to the post of a Quality Assessor until their contracts of employments were terminated vide a Mutual Separation Agreement dated 31st January 2010. 8. The case of the 2nd defendant on the other hand is that the claimants were employed as fixed term employees with the designation of Customer Support Associates by virtue of the Fixed Term Employment contract (“the contract”) dated 1st May 2012 entered into by both the 2nd defendant and the claimants respectively. The claimants’ contracts were then validly terminated on 31st December 2012 in accordance with the terms of the said contract. That the claimants were deployed to work on the 1st defendant’s location based on an agreement with the 1st defendant but they remained the 2nd defendant’s employees. That the 2nd defendant wrote the letter dated 1st May 2012 upon the instruction and on behalf of the 1st defendant, in view of the work history of the claimants with the 1st defendant. The letter was written to resolve the purported promotion of the claimants to the position of Quality Assurance Assessors and ensure a morale boost of the claimants, who now worked with the 2nd defendant. That the 2nd defendant is an independent contractor who manages Customer Service Call Centers for the 1st defendant and, therefore, not an outsourcing company or an agent of casualisation for the 1st defendant. That the contractual relationship between the claimants and the 2nd defendant began on 1st May 2012 and ended on 31st December 2012. The 2nd defendant went on that it offered to the claimants, the position of Customer Support Associate by the Fixed Term Employment Contract dated 1st May 2012 issued to the claimants respectively. That clause 3 of the contract provides that the 2nd defendant reserves the right to assign responsibilities and job description as well as allocate additional functions to the job description according to its needs and requirements prevailing at the time. That such re-designation of job function does not negate any portion of the contract including clause 4 on remuneration. On the termination of the claimants’ appointment, the 2nd defendant complied with clause 10 of the contract by giving them one month’s notice. Therefore, the 2nd defendant strictly complied with the terms and stipulation of the contract. 1ST DEFENDANT’S SUBMISSIONS 9. The 1st defendant framed two issues for the determination of the Court, namely: a) Whether the claimants have proved that they were promoted to the post of a Quality Assessor by the 1st defendant. b) Whether the claimants’ employment with the 1st defendant was terminated on the 31st January 2010. 10. In arguing these issues, the 1st defendant started with a preliminary issue. That the claimants’ case is that they were purportedly promoted to the post of a Quality Assessor vide an oral announcement. To the 1st defendant, it is trite law that the terms of a contract reduced into writing can only be varied by another contract also in writing, referring to AG Rivers State v. AG Akwa Ibom State [2011] All FWLR (Pt. 579) 1023 SC where the Supreme Court held thus: “The terms of a valid contract reduced into writing can only be varied by another agreement also in writing”. That in so far as the claimants were employed as call centre agents vide a written contract of employment, any promotion or change in their contract status must also be in writing. That in so far as the claimants has failed to place before this Court any document by the 1st defendant promoting them to the post of a Quality Assessor, they cannot succeed in this action, urging the Court to so hold. 11. Regarding issue a) i.e. whether the claimant were actually promoted to the post of Quality Assessor by the 1st defendant, the claimant had pleaded this fact in paragraphs 6 and 7 of the statement of claim. To the defendant, the starting point must be the evidence of the 1st claimant, Mr. Olalekan Kehinde (CW1). That under cross-examination CW1 stated thus: “Yes, I was promoted to the post of quality Assurance Assessor by the 1st defendant. Yes, Exhibit C4 is the letter of promotion. Yes, my promotion was also announced verbally as well as an email sent. See Exhibit C21”. That Exhibit C4 is a letter dated 1st May 2012 issued by Tech Mahindra Services and Telecom Solutions (the 2nd defendant herein). That the said letter states as follows: “However without any obligation but to recognise your role as Quality Associate from 1st January 2010 to 30th April 2012, the Management of Airtel Nigeria and Tech M Nigeria jointly agreed to compensate you for the period you performed the Quality Associate role while working through Bezaleel Consulting. To this end, a one-time payment of N315,848.00 will be paid along with your June salary”. That a document speaks for itself, citing Saidu v. Abubakar [2008] 12 NWLR (Pt. 1100) at 201. To the 1st defendant, Exhibit C4 is not a letter of promotion; it does not state that CW1 was promoted to the post of a Quality Assessor. Also that Exhibit C4 was issued by the 2nd defendant and not the 1st defendant; and so cannot be a letter of promotion, urging the Court to so hold. The 1st defendant went on that CW1 further stated thus: “Yes, my promotion was also announced verbally as well as an email sent”. To the 1st defendant, Exhibit C21 is the email dated 11th December 2009. The said email reads thus: Find in the list below, 5 Hausa speaking call centre agents with consistently high rating, that have been identified for temporary use for quality assessment”. The 1st defendant then submitted that that Exhibit C21 is a clear and positive proof of the fact that the claimants were not promoted to the post of a Quality Assessor. That Exhibit C21 is an internal email of the 1st defendant company and it shows that the claimants were identified for temporary use for quality assessment. That the email does not state that CW1 was promoted to the post of a Quality Assessor, urging the Court to so hold. 12. Regarding the evidence of Mariam Balogun (CW2), the 1st defendant submitted that under cross-examination, CW2 stated thus: “I worked as a call centre agent up to December 2009 when I was promoted to Quality Assurance Assessor. No I was not issued a letter of promotion”. That CW later changed her evidence and said: “Yes I was given a letter of promotion; it is the letter of recognition dated 1st May 2012”. To the 1st defendant, contradictions in evidence weakens the case of the party relying on the evidence, citing Ayinde v. Abiodun [1999] 8 NWLR (Pt 616) at 587. To the 1st defendant, in light of the foregoing contradiction in CW2’s evidence, the Court should discountenance the evidence given by CW2. 13. The 1st defendant also referred to Exhibit C10, which reads: “However without any obligation but to recognised your role as Quality Associate from 1st January 2010 to 30th April 2012, the Management of Airtel Nigeria and Tech M Nigeria jointly agreed to compensate you for the period you performed the Quality Associate role while working through Bezaleel Consulting. To this end, a one-time payment of 315,848.00 will be paid along with your June salary”. To the 1st defendant, it is manifestly clear that Exhibit C10 does not state that CW2 was promoted to the post of a Quality Assessor by the 1st defendant, urging the Court to so hold. That CW2 indeed stated that Exhibit C10 is a letter of recognition. The letter merely recognized that CW2 acted as a temporary Quality Assessor, and she was compensated for that purpose. That all Exhibit C21 shows is that the claimants were identified for temporary use as a Quality Assessor. That Exhibits C4 and C10 show that the claimants were compensated for acting in that capacity. The 1st defendant then submitted that this Court cannot rely on Exhibits C4 and C10 to hold that the claimants were promoted by the 1st defendant. In any event, that CW2 under cross-examination admitted that she did not receive any letter from the 1st defendant informing her that her salary has been increased. She stated thus: “No I was not given any letter of salary increment when I was promoted”. That this testimony is an admission of the fact that CW2 was not issued with a letter of salary increase. Consequently, that she is not entitled to the reliefs sought in the statement of claim, referring to Adeusi v. Adebayo [2012] 3 NWLR (Pt. 1288) 534, where the Supreme Court held that admission require no further proof. The 1st defendant continued that aside from the testimony of the claimants, which is unreliable as already shown, there is no single evidence before this Court showing that the claimants were promoted to the post of a Quality Assessor or their salaries increased by the 1st defendant; as such the claimants have not proved their case, referring to section 131(1) of the Evidence Act 2011. That the 1st defendant’s witness also confirmed that the 1st defendant did not promote the claimants to the post of a Quality Assessor, referring to paragraphs 3, 4 and 5 of the statement on oath of 1st DW. That 1st DW was not cross-examined on the aforesaid evidence by the claimants; as such the first part of the defence is proved that the 1st defendant did not promote the claimants to the post of a Quality Assessor, urging the Court to so hold. Citing Shell Petroleum & 5 ors v. E. A Nwaka [2001] 10 NWLR 64 (the Part was not supplied), the claimant concluded by submitting that in light of the fact that there is no evidence that the claimants were appointed to the post of a Quality Assessor, it will be invidious for the Court to declare that the claimants were appointed as Quality Assessors, urging the Court to strike out the claimants’ claims. 14. On issue b) i.e. whether the claimants’ employment with the 1st defendant was terminated on the 31st January 2010, the 1st defendant submitted that the claimants’ employment was terminated vide the Mutual Separation Agreement dated 31st January 2010, referring to paragraph 3 of 1st DW’s witness statement on oath. That under cross-examination CW1 stated thus: “No. there was no mutual separation agreement between me and the 1st defendant. I do not remember signing any. The N335,761.82 I was given at the point of separation was for performance bonus”. To the 1st defendant, it is obvious that CW1 is not a witness of truth. That he admitted that at the point of the separation the 1st defendant paid him a sum of N335,761.82 but claims the money received was his performance bonus. That Exhibit C6 is the Mutual Separation Agreement dated 31st January 2010; and it provides thus: 1. The parties have agreed to mutually determine the contract of employment which became effective on 7/03/2005 (the Contract of employment). The mutual separation shall take from 31st January 2010. 2. Zain shall pay the Staff the sum of N335,761.82 as accrued entitlement less all applicable taxes and deductions in line with Zain policy. Continuing, that CW2 under cross-examination stated thus: “I am not aware that my appointment with Airtel was terminated on 31st January 2010. I have seen Exhibit TM4 but I reiterate that my services were not terminated by Airtel. Yes, I confirm TM 4 and that I collected the compensation indicated therein”. 15. The 1st defendant then submitted that it is trite law that whenever a man of full age and understanding who can read and write signs a document which is put before him for signature, he cannot be heard to say that it is not his document. That by his conduct in signing it he has represented to all those whose hands it may come, that it is his document; and once they act upon it as being his document, he cannot (save for fraud) go back on it, referring to Awosile v. Sotunbo [1992] 5 NWLR (Pt. 243) 514. To the 1st defendant, CW1 and CW2 who are persons of full age, sense and knowledge having signed the Mutual Separation. Agreement, cannot deny that they do not know the contents of the Mutual separation Agreement. That CW1 admitted that he received the sum of N335,761.82 stated in the Mutual Separation Agreement; CW2 also confirmed that she received the compensation stated therein. The 1st defendant then referred to Agoma v. Guinness Nig Ltd [1995] 2 NWLR (Pt. 380) at 672 SC, which held that where an employee accepts or collects his entitlement which include salary in lieu of notice of termination of his termination of his appointment, he cannot be heard to complain later that his contract of employment was not validly and properly determined; and submitted that in so far as CW1 and CW2 have received their terminal entitlements, they have put an end to any contract, real or imagined that they may have with the 1st defendant. Consequently, they cannot maintain this action against the 1st defendant, urging the Court to so hold. The 1st defendant concluded by urging the Court to dismiss the claimants’ case. 2ND DEFENDANT’'S SUBMISSIONS 16. Like the 1st defendant, the 2nd defendant started with a preliminary issue i.e. whether the claimants can validly institute the suit and seek reliefs jointly against the defendants in the absence of a joint contract of employment. To the 2nd defendant, there is a mis-joinder of parties and cause of action in the instant case given that there is no joint contract of employment. That the separate contracts of employment of the claimants have different conditions of service and, therefore, have separate and different causes of action against the defendants. Also, that in paragraphs 2, 3 and 6 of the statement of claim, the claimants averred that the 1st claimant was employed in 2005 while the 2nd claimant was employed in 2006. It is the contention of the 2nd defendant that for the claimants to sue properly as co-claimants in this suit, they must have the same or common interest in the subject matter of the proceedings. That in employment and labour related matters, particularly master and servant relationship, where several persons are separately employed, under similar conditions of service, the contract of employment in respect of every one of them is personal to each of them. Therefore, in the event of breach, they do not have a collective right or common cause of action to sue together collectively, referring to CCB (Nig.) Ltd v. Rose [1998] 4 NWLR (Pt. 544) 37 at 50, Hyson (Nigeria) Limited v. Augustina N. Ijeoma & ors [2008] 11 NWLR (Pt. 1097) 1 and Nicholas Bossa & ors v. Julius Berger Plc (2005) 5 NWLR (Pt. 948) 409. That under cross-examination, the 2nd claimant admitted that her contract of employment was different to the 1st claimant’s and that her earnings were different from that of the 1st claimant. Furthermore, that CW2 also admitted before this Court that her contract is not tied to that of the 1st claimant. The 2nd defendant then submitted that this admission clearly establishes the fact that the claimants have different and separate contracts. That it is settled law that admitted facts require no further proof, citing Chief Raymond Ogolo & ors v. Chief Fubara & ors and Chief Minimah & ors [2003] 11 NWLR (Pt. 831) 231 at 265 - 266 and S. O. Ntuks & ors v. NPA [2007] 13 NWLR (Pt. 1051) 392 at 411 and 420. 17. The 2nd defendant went on that the 11th relief sought for by the claimants as contained in their statement of claim dated 5th September 2012 is “payment of the sum of N5,000,000.00 to each of the claimants as damages for breach of contract and their constitutional right and for subjecting the claimants to serious physical and psychological trauma”. That it is an established point of law that there is no joint tort, for the damage caused to each plaintiff could only be personal to him, referring to the locus classiccus case on mis-joinder of parties or causes of action, Amachree & ors v. Newington [1952] 14 WACA 97, where the court held that the suit was wrongly constituted and a non-suit was the proper order. To the 2nd defendant, the proper order to make in this circumstance would be a non-suit in accordance with the principle in Amachree & ors v. Newington (supra), having heard the matter to conclusion, citing also CCB (Nig.) Ltd v. Rose (supra). The 2nd defendant continued that the claimants did not adduce any evidence to support their claim that they suffered damages for the alleged breach of contract and their constitutional right and the alleged “serious physical and psychological trauma”. That it is an established principle of law that where, as in this case, the claimants fail to prove the fundamental basis of their case, the Court will give judgment against the claimants and will dismiss the case. That it is settled law that the burden of proof lies on the plaintiff who desires the Court to give judgment in its favour as to any legal right or liability in the case, referring to sections 131 and 132 of the Evidence Act 2011, Ajide v. Kelani [1985] 3 NWLR (Pt. 12) 248 - 265, Alechenu v. Oshoke [2002] 9 NWLR (Pt. 773) 521 at 534, Union Bank (Nigeria) Limited v. Ajagu [1990] NWLR (Pt. 126) 328 at 342 and Hilary Farms Ltd. v. MN “Mahtra” [2007] 14 NWLR (Pt. 1054) 210 at 236. The 2nd defendant then urged the Court to hold that the claimants’ case cannot succeed, as it amounts to misjoinder of cause of action for which an order of non-suit is appropriate. 18. The 2nd defendant then framed a sole issue for the determination of the Court i.e. whether the claimants by their pleadings and evidence have established any liability against the 2nd defendant to be entitled to the reliefs sought in their statement of claim; arguing that the claimants failed to establish any liability against the 2nd defendant. To the 2nd defendant, the contractual relationship between the claimants and the 2nd defendant is governed by the Fixed Term Employment Contract (“the contract”) dated 1st May 2012 issued to the claimants respectively (Exhibits C6/TM1 and C11/TM2), referring to paragraphs 3 and 4 of the 2nd defendant’s statement of defence wherein the 2nd defendant averred that the relationship between it and the claimants was regulated by the terms and conditions in the Fixed Term Employment Contract. That the contract took effect on 1st May 2012 and came to an end on 31st December 2012 with the valid termination of the said contract. That CW2 (the 2nd claimant), under cross-examination, admitted that she became an employee of the 2nd defendant in 2012. She also admitted that she had a contract of employment with the 2nd defendant i.e. the Fixed Term Contract of employment which took effect on 1st May 2012. The 2nd defendant went on that with regard to Exhibits C6/TM1 and C11/TM2 which were duly signed by CW1 and CW2 respectively, the responsibility of the Court is not to determine what the parties may have intended to do by executing the said exhibits but what the meaning of the words used is, urging the Court to hold that the claimants are bound by the provisions in the said exhibits and referring to Williams v. Williams [2014] 15 NWLR (Pt. 1430) 213 especially at 240 - 241 and Kings Planet Int’l v. CPWA Ltd [2014] 2 NWLR (Pt. 1392) 605 as well as Jadesinmi v. Egbe [2003] 10 NWLR (Pt. 827) 1. That CW1 and CW2 are not illiterates and are presumed to understand the documents they signed, citing Inyang v. Ebong [2002] 2 NWLR (Pt. 751) 284 at 329 and UBN v. Ozigi [1994] 3 NWLR (Pt. 333) 385 at 403 regarding the effect or implication of signing a document, which is that the defence of non est factum will not be not available. The 2nd defendant continued that under cross-examination, CW1 (the 1st claimant) admitted before this Court that prior to January 2012, there was no contractual relationship between him and the 2nd defendant. That he also confirmed to this Court that other than the Fixed Term Contract, tendered as Exhibit TM1, the 1st claimant did not enter into any other contract with the 2nd defendant. To the 2nd defendant, these admissions clearly establish the duration of the contractual relationship between the claimants and the 2nd defendant. That it is settled law that admitted facts require no further proof, urging the Court to rely on the following cases in holding that the claimants’ contractual relationship began on 1st May 2012: Chief Raymond Ogolo & ors v. Chief Fubara & ors and Chief Minimah & ors [2003] 11 NWLR (Pt. 831) 231 at 265 - 266 and S. O. Ntuks & ors v. NPA [2007] 13 NWLR (Part 1051) 392 at 411 and 420. 19. The 2nd defendant continued that the claimants’ action ought to be against the 1st defendant solely in view of the fact that the respective employment contracts between the 2nd defendant and the claimants commenced only on 1st May 2012. That the core of the claimants’ claim is their alleged promotion to the position of Quality Assurance Assessors in December 2009 by the 1st defendant; as such, it is clear that the 2nd defendant was mis-joined to this suit as the reliefs sought are against the 1st defendant alone. That it is also not in dispute that the claimants were employed to the position of Customer Support Associate by the 2nd defendant on 1st May 2012 and same has not been challenged by the claimants. The 2nd defendant then referred the Court to the testimony of the 1st claimant during cross-examination by the 1st defendant’s counsel wherein he confirmed that he was given a fixed term contract by the 2nd defendant and that he worked with the defendant for about a year. That the 1st claimant also confirmed to this Court during cross-examination by the 2nd defendant’s counsel that “prior to January 2012, there was no contractual relationship between him and the 2nd defendant”. Furthermore, that the 1st claimant testified that “other than the fixed term contract, he did not enter into any other form of contract with the 2nd defendant”. That the 2nd claimant also testified during cross-examination by the 2nd defendant’s counsel stating that: “I have a contract of employment with the 2nd defendant that is a fixed term contract of employment”; and “Yes, the fixed term contract took effect on 1st May 2012”. To the 2nd defendant, this piece of evidence was never denied by the claimants both in their pleadings and oral testimony in Court. Also, that the 1st and 2nd claimants were cross-examined by the 2nd defendant’s counsel on the above piece of evidence and same was not denied or contradicted; as such, it establishes the 2nd defendant’s position that the claimants were employed to the position of Customer Support Associate by the 2nd defendant on 1st May 2012 and same has not been challenged by the claimants. In other words, the above evidence remains uncontroverted and unchallenged and is deemed admitted. That the law is very clear that when evidence is led on a particular fact at trial and same has not been contradicted or denied the evidence is deemed admitted and the Court ought to rely and act on such evidence, citing Nwakonobi v. Udeorah [2013] 7 NWLR (Pt. 1354) 499 at 518, Okike v. LPOC [2005] 15 NWLR (Pt. 949) 471, Omoregbe v. Lawani [1980] 3 - 4 SC 108 and Ajao v. Ashiru [1973] 11 SC 23. 20. The 2nd defendant proceeded to address the claimants’ failure to prove the special damages claimed. To the 2nd defendant, the claimants are seeking for, amongst other reliefs, the payment of the sum of N5,000,000 to each of the claimants as damages for breach of contract and their constitutional right and for subjecting the claimants to serious physical and psychological trauma. That the 1st claimant (CW1) and the 2nd claimant (CW2) did not adduce any evidence to support their claim that the defendants subjected them to serious physical and psychological trauma while within their respective employ. Furthermore, that the claimants have not stated which of their various constitutional right was breached by the defendants. That it is an established principle of law that where, as in this case, the plaintiff fails to prove the fundamental basis of its case, the Court will give judgment against the plaintiff and will dismiss the case. That the burden of proof lies on the plaintiff who desires the Court to give judgment in his favour as to any legal right or liability in the case, referring to sections 131 and 132 of the Evidence Act 2011, Ajide v. Kelani [1985] 3 NWLR (Pt. 12) 248 - 265, Alechenu v. Oshoke [2002] 9 NWLR (Pt. 773) 521 at 534 and Union Bank (Nigeria) Limited v. Ajagu [990] NWLR (Pt. 126) 328 at 342. That the claimants failed to tender in evidence any medical report, police report and any report whatsoever that shows the alleged breach of constitutional right and trauma suffered by them. That the claimants have also failed to lay any foundation in their pleadings as it relates to this relief and have not led any evidence to support this relief. That by virtue of the provisions of section 149(d) of the Evidence Act Cap. 112 LFN 1990 (now section 167(d) of the Evidence Act, 2011), the presumption of law is that evidence which could be produced but was not produced would if it had been produced have been unfavourable to the person who withholds it, referring to Framo Nig. Ltd v. Daodu [1993] 3 NWLR (Pt. 281) 372 at 378, The People of Lagos State v. Umaru [2014] 7 NWLR (Pt. 1407) 584 at 616, Adegbo v. Ogbanje [2014] 10 NWLR (Pt. 1416) 541 at 557 and Ogwuru v. Cooperative Bank of Eastern (Nig.) Ltd [1994] 8 NWLR (Pt. 365) 685. To the 2nd defendant, the relief being sought by the claimants amounts to special damages and same has not been proved before this Court and evidence was not tendered to that effect. Furthermore, that the claimants’ case is fatally affected on this ground. That it is a fundamental principle of law that parties are bound by their pleadings, a principle which the Supreme Court restated in S. S. GMBH v. T. O. Industries Ltd [2010] 11 NWLR (Pt. 1206) 589 at 626 - 627. 21. The 2nd defendant further submitted that the damages claimed were not proved and are remote, unforeseeable, and if at all they exist, do not flow directly and immediately from the facts of this case, urging the Court to hold that alleged breach of constitutional right and trauma suffered by the claimants is not as a probable consequence of termination of employment, citing Ahmed v. CBN [2013] 2 NWLR (Pt. 1339) 524 at 546. On the onus placed on the claimants to prove entitlement to damages, the 2nd defendant referred to Ahmed v. CBN (supra) at pages 543 - 544, Acme Builders Ltd v. K.S. W.S. & anor [1999] 2 NWLR (Pt. 590) 288, Victoria Laundry (Winsor) Ltd v. Newman Industries & anor [1949] 2 KB 528 and RCC (Nig.) Ltd v. RPC Ltd [2005] 10 NWLR (Pt. 934) 615 SC at 637. The 2nd defendant then urged the Court to hold that the claimants did not only fail to prove that their constitutional right was breached and that they suffered serious physical and psychological trauma, but also completely failed to show how the trauma alleged to have been suffered was reasonably foreseeable or an outcome of the facts of the case. 22. On the effect of letter of recognition addressed to the claimants dated 1/05/2012 (Exhibit C4 and Exhibit C10), the 2nd defendant submitted that during trial, the claimants relied on Exhibits C4 and C10 which are letters issued by the 2nd defendant to the claimants respectively titled “Letter of recognition”. That the 1st and 2nd claimants, during cross-examination by the 1st defendant’s counsel testified that Exhibits C4 and C10 respectively were issued by the 2nd defendant. The 2nd defendant then referred the Court to the 2nd defendant’s witness statement paragraph 5, wherein it was stated that “...the 2nd Defendant based on agreement with the 1st Defendant and on behalf of the 1st defendant wrote separate but similar letters dated 1st May 2012 to the claimants”; and then urged the Court to give the said letter its literal interpretation, referring to Ogbunyiya & ors v. Okudo & ors [1979 - 1981] NSCC 77 at 85 and 86. That a corollary of the rule of interpretation of instrument expounded by the Supreme Court in Ogbunyiya’s case (supra) is that a person is entitled to rely on a literal interpretation of a document. That the 1st defendant has not denied or contradicted the testimony of the 2nd defendant’s witness on the said letters and a holistic examination of the relationship between the 1st and 2nd defendants during the times material to this suit will reveal that the said letters could only have been written upon the express instruction of the 1st defendant. That the law is very clear that when evidence is led on a particular fact at trial and same has not been contradicted or denied, the evidence is deemed admitted and the Court ought to rely and act on such evidence, citing Nwakonobi v. Udeorah [2013] 7 NWLR (Pt. 1354) 499 at 518, Okike v. LPDC [2005] 15 NWLR (Pt. 949) 471, Omoregbe v. Lawani [1980] 3 - 4 SC 108 and Ajao v. Ashiru [1973] 11 SC 23. The 2nd defendant then urged the Court to deem the evidence of the 2nd defendant on Exhibits C4 and C 10 as admitted and rely on same in coming to the determination of this suit. 23. On whether from the evidence before the Court, the claimants are entitled to any of the reliefs against the 2nd defendant, the 2nd defendant answered in the negative, citingB.E.G.H Ltd & 2 ors v. U.H.S & L Limited [2011] 7 NWLR (Pt. 1246) 247 at 285 and 292 and Ibadan L.G.P.C. Ltd v. Okunade [2005] 3 NWLR (Pt. 911) 45. That it is trite that a party who is seeking indulgence from the Court must place sufficient materials before the Court in order to assist the Court in doing justice to his case or claim. That the claimants have not shown any evidence of its contractual relationship prior to January 2012. To the 2nd defendant, with regards to the reliefs contained in the statement of facts dated 6th September 2012, since the claimants have not proved that the contract between them and the 2nd defendant (Exhibits C6 and C11) was prior to January 2012, they are not entitled to all the reliefs sought against the 2nd defendant, as they relate to their alleged promotion to the position of Quality Assurance Assessors in 2009 while in the employ of the 1st defendant. That the law is clear that the burden of proving alleged facts is on the party who makes the allegation, citing Njikonye v. MTN (Nig.) Communications Ltd [2008] FWLR (Pt. 413) 1343 at 1364 and section 131(1) and (2) of the Evidence Act. The 2nd defendant then submitted that the failure of the claimants to discharge the evidential burden on them to prove that the contract between the claimants and the 2nd defendant dates prior to January 2012 disqualifies them from seeking reliefs against the 2nd defendant. In other words, that the claimants have not made out a case to warrant the grant of reliefs sought against the 2nd defendant, as no wrong was alleged against the 2nd defendant. The 2nd defendant concluded by urging the Court to find that: Exhibits C6 and C11 confirms that the claimants’ contractual relationship with the 2nd defendant was with effect from 1st May 2012; there was no contractual relationship between the claimants and the 2nd defendant prior to 2012; Exhibits C4 and C10 were written in good faith and upon the instruction of the 1st defendant; and that the responsibility of the Court is to give the letter a literal interpretation, considering the circumstances under which it was written. CLAIMANTS’ SUBMISSIONS 24. The claimants started off with what they termed recent development with regard to the reliefs. That this suit was instituted in September 2012 when the claimants were still in the service of the defendants in the hope of remaining in employment until judgment is delivered. That following the institution of this suit, the claimants’ employments were terminated in December 2012. The claimants then went on to address the preliminary issue as to mis-joinder of parties raised by the 2nd defendant. To the claimants, the action that brought up this cause of action was inflicted on the claimants together and at the same time; and the claimants were the only ones singled out for the discriminatory policy of the defendants. That as employees in the same department, everything about their conditions of service is similar except the basic salaries. That more than one person may be joined in an action as plaintiff in whom a right of relief (arising out of the same transaction or via series of transactions) is alleged to exist whether jointly or severally, where if the claimants decide to bring separate actions, any common question of law or fact would arise, citing “Lagos (0.13 r1)”, Oduola v. Ogunjobi [1986] 2NWLR (Pt. 23) 508 at 509, Ogola v. Fubara [2003] 11 NWLR (Pt. 831) 231 and Ige v. Farinde [1994] 7 NWLR (Pt. 354) 42. Continuing, that in considering whether a case is appropriate for joint parties, the Court is enjoined to consider the following: the right or relief in the suit must be vested in the plaintiffs either jointly, severally or in the alternative; the right must arise out of the same transaction or series of transactions; and if separate actions had been brought, a common question of law or fact would arise in all such actions; referring to Ibigbami v. Military Governor of Ekiti State [2004] 4 NWLR (Pt. 863) 243. The claimants then submitted that the rule on joinder is to avoid multiplicity of action and avoid undue delay that may be occasioned by overloading the justice system with multiple suits. That joinder of parties is also used to avoid abuse of court process, citing Ogolo v. Fubara (supra). That a person may be joined in a suit either as a defendant or plaintiff; and joinder of parties is different from the earlier discussion on joint parties or defendant in the sense that joinder is necessary where in commencing proceedings there has been failure to join the particular person, whilst joint plaintiffs or defendants relates to a decision whether at the time of commencing an action whether to sue persons together in one suit. That they are interwoven and differ mainly in point of time. That the law as stated in the rules is that mis-joinder or non-joinder of parties shall not defeat any action and the judge may in such circumstances deal with the rights and interest and determine the issues and questions as it relates to the parties actually before it, citing Green v. Green [2001] 45 WRN 90 at 115. 25. The claimants then framed five issues for the determination of the Court, namely: 1) Whether the 1st defendant could justifiably pay the claimants lower salaries and emoluments compared to the schedule appropriate to their work post. 2) Whether considering the whole facts of the matter, the promotion of the claimants to the position of Quality Assurance Assessors is in dispute. 3) Whether the 1st defendant validly terminated the employment of the claimants. 4) Whether, considering the facts of the matter as a whole, the 1st defendant can successfully claim NOT to be the employer of the claimants after the execution of the purported Mutual Separation Agreement. 5) Whether, considering the facts of the matter, the 2nd defendant can validly claim to be the new employer of the claimant. 26. Regarding issue 1), the claimants first submitted that in paragraph 5 of the 1st defendant’s statement of defence, it was admitted that the claimants worked as Quality Assurance Associate albeit DRAFTED in to act temporarily in that capacity. That without dabbling yet into the issue of the promotion of the claimants, it is appropriate to highlight that as Quality Assurance Associate for 4 years, the claimants’ responsibilities increased with more work load. That they were required amongst other job description to supervise their former colleagues in the call centre department. That without needing to formalize their promotion, there was no justification to pay the claimants lower salaries and emolument than their fellows with the same workload. That this was the practice of the 1st defendant long before the purported outsourcing of the claimants to the 2nd defendant. That the 1st defendant could conveniently revert the claimants to the salaries of the call centre department anytime it feels convenient to return them to their former department; and this short-changing of the claimants in the guise of DRAFTING is totally unacceptable, it is discriminatory and unfair, referring to FOBTOB v. AFBTE and Sunseed Nigeria Limited reported in Digest of Judgments of National Industrial Court (1978 - 2006), Edited by Oluwole Kehinde Suit No: NIC/11/2002 at page 492, wherein this Court held that in labour law terrain, there is much concern for fairness, equity and social justice, and workers should be paid in accordance with the amount of efforts put in especially the pains and sacrifices made in the overall output of the company. Also referred to is Nigeria Railway Corporation v. Nigeria Union of Railwaymen (unreported) reported in Digest of Judgments of National Industrial Court (1978 - 2006), Edited by Oluwole Kehinde Suit No: NIC/3/91 at page 329. That non payment of salary as and when due is a violation of section 15 of the Labour Act Cap 198, LFN 1990; and employers must, therefore, endeavour to pay their workers their salaries as and when due in accordance with their terms of employment. That what is fair and equitable in regard to the terms of employment is for the claimants to be paid according to the salary schedule of the Quality Assurance work post; and this is necessary in the light of the fact that the claimants were full staff of the 1st defendant at all material time. That it is apt to note that the claimants were never deployed back to the call centre desk. 27. On issue 2) i.e. whether the promotion of the claimants to the position of Quality Assurance Assessors is in dispute, the claimants reiterated the position of the 1st defendant that they claimants were not promoted but were merely drafted to act temporarily as Quality Assurance Assessors, citing paragraph 5 of the statement of defence. To the claimants, following their elevation, their entire operations and activities moved higher in privileges and responsibilities. That in line with the company’s work schedules as contained the handbook (Exhibit C19): i. Quality Assurance Assessors worked Monday to Friday as against the usual weekly three days off work enjoyed by the call centre agents; ii. Quality Assurance Assessors worked as individuals unlike call centre agents who work in team; iii. The call centre agents work under supervision unlike Quality Assurance Assessors who are on the same level; iv. Quality Assurance Assessors monitor some of the company’s shops and outlets and evaluated them periodically; and v. Quality Assurance Assessors supervised the call centre agents (their previous work post) and based on their recommendation, the call centre agents could either be disciplined or appreciated. The claimants went on that there is no doubting the fact that the Quality Assurance Assessor post comes with both privileges and greater responsibilities; and based on the privileges enjoyed, it amounts to a demotion to force the claimants to resume back to call centre post. To the claimants, under cross-examination, the 1st defendant’s witness denied that the company has a practice of DEMOTING its staff. So the conclusion is strong that a staff is EITHER PROMOTED OR NOT PROMOTED; a staff cannot both be promoted and be demoted at the same time by salary and emolument. That prior to their resumption as Quality Assurance Assessors, the only communication averred in the claimants’ statement of fact and which was not denied was that there was an open announcement by the then Manager of the outbound call centre, one Nneka Obiora, of the promotion. That there was no subsequent communication whatsoever from the 1st defendant to the claimants of the purported DRAFTING of the claimants to the new post. That in the absence of any direct, positive statement to the contrary, the clear impression is that the claimants’ new post has been attained by promotion; more so because there is no precedence of DRAFTING in the history of the 1st defendant. That after being offered Exhibit C19 (the company’s handbook) the 1st defendant’s witness under cross-examination could not locate anywhere in the handbook where there was provision for DRAFTING of any staff for a temporal use. The claimants proceeded to submit that drafting is allied to the contract of service, which the 1st defendant ought always to refer to in taking decisions; and any decision taken outside its provision in ultra vires the 1st defendant, referring to Management of Brightstar Industries Limited v. Precision, Electrical and Related Equipment Workers’ Union reported in Digest of Judgments of National Industrial Court (1978 - 2006) Edited by Oluwole Kehinde Suit No: NIC/7/88 page 334. The claimant then urged the Court to hold that their promotion is without dispute. 28. The claimants continued that the responsibilities of the Quality Assurance Assessors are such that the position of the claimants have been greatly altered. That based on the action of the 1st defendant, the claimants have greatly altered their position; as such, the 1st defendant is estopped from going back on the elevation of the defendant. That the doctrine of estoppel is well enshrined in our jurisprudence, citing Oilserve Ltd v. Global Gas & Refining Ltd [2014] 9 NWLR (Pt. 1411) 200, and section 151 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990, which provides that when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing. Also referred to are: Balogun v. Labiran [1988] 3 NWLR (Pt. 80) 66, Anaeze v. Anyaso [1993] 5 NWLR (Pt. 291) 1, Awolaja v. Seatrade G.B.V [2002] 4 NWLR (Pt. 758) 520 and Unity Bank Plc v. Olatunji [2013] 15 NWLR (Pt. 1378) - the page is not supplied. That by the conduct of the 1st defendant in elevating the claimants from a lower work post to a higher one without any communication to the contrary, the former is estopped from retracting, citing A-G Nasarawa State v. A-G Plateau State [2012] 10 NWLR (Pt. 1309) 419. That the conclusive inference is that the 1st defendant cannot force the claimants to go back to the original state of things before their elevation, urging the Court to so hold. 29. The claimants went on to address what they termed as the substance of promotion as against the form. That in an internal memo from one Oluwagabmila O. Oyekanmi dated Friday December 11, 2009 admitted in evidence as Exhibit KA3, the 1st and 2nd claimants were identified as consistently scoring high rating and suitable for use in the Quality Assessment section. But in a rather show of mischief, a rather strange concept ‘TEMPORARY’ unknown to the contract of employment was imported to attempt to deny the claimants their due promotion. That Exhibit KA3 speaks for itself on the competence of the claimants for the elevated post of Quality Assessors. That after working for thirty months, the claimants were served with a purported letter of recognition by the 2nd defendant admitted as Exhibits C4 and C10. In the content of the letter, both the 1st and 2nd defendants jointly agreed to compensate the claimants for the period they worked as Quality Assurance Associate. In paragraph 9 of the 1st defendant’s statement of defence, the 1st defendant referred to the 2nd defendant as its outsourcing partner, thereby affirming an agency relationship between them. That from December 2009 until December 2013 the claimants worked as Quality Assurance Assessors, which makes it four uninterrupted years without REDRAFTING them back to their former position. To the claimants, these facts show clearly the mischief intended by the 1st defendant to rather use the claimants, to continue to enjoy their services yet denying them their due salaries and emoluments. That the defendants would rather RECOGNISE the claimants’ elevation and hand them compensation rather than give them their due pay. The claimants then called in aid the equitable doctrine: equity looks to the intent, rather than the form; and equity imputes an intention to fulfill an obligation, citing Ogbeide v. Osifo [2007] 3 NWLR (Pt. 1022) 423, Aboseldehyde Lab. Plc v. UMB Ltd [2013] 13 NWLR (Pt. 1370), 91 and BFI Group Corp v. BPE [2012] 18 NWLR (Pt. 1332) 209. That the Court is enjoined to provide a remedy where a legal right is established; and the Court should look into the substance of the action rather than the form, citing Manfag. (Nig) Ltd v. MIS.O.L Ltd [2007] 14 NWLR (Pt. 1053) 109. That the Court will not oblige a party to benefit from its own wrong or mischief. Accordingly, that the mischief of the defendants must not catch the Court by surprise. The substance of the promotion of the claimants is without dispute. That the defendants cannot mischievously and craftily deny them their due salaries and emoluments, urging the Court to so hold. 30. Issue 3) relates to whether the 1st defendant validly terminated the employment of the claimants. To the claimants, the 1st defendant in an attempt to terminate the employment of the claimants presented them with A MUTUAL SEPARATION AGREEMENT admitted as Exhibits KA1 and KA2 purportedly ending the employment of the claimants by mutual consent of all parties. The sums of N335,761.82 and N207,180.72 representing ACCRUED ENTITLEMENTS were paid to the 1st and 2nd claimants respectively. After executing the purported MUTUAL SEPARATION AGREEMENT, the claimants never stopped working in the office of the 1st defendant and in the same work post. The claimants then submitted that the terminology used by the 1st defendant is immaterial; the purport of the mutual separation was to terminate the employment of the claimants. That it was intended to bring to an end the employer-employee relationship that existed between the 1st defendant and the claimants. That the mutual separation terminology is another clever strategy of the 1st defendant to go outside the contract of service to terminate the employment of the defendants. That claimants continued that both in form and content, the purported Mutual Separation Agreement cannot validly operate to determine the employment of the claimants from the 1st defendant, citing SS Co. Ltd v. Aflopak (Nig) Ltd [2008] 18 NWLR (Pt. 1118) 77. That where the contract of service provides for a termination by either party giving a specified and pre agreed period of notice, there is no dispute over how the contract comes to an end when either party exercises his right to give notice of intention to bring the contractual relationship to an end, citing Texaco Nigeria Plc v. Kehinde [2002] FWLR (Pt. 94) 143 CA at l57 and Gateway Bank of Nig. Plc v Adebiyi Julius Abosede [2011] FWLR (Pt. 79) 1316 CA at l333 - 1334. That in line with page 376 of the Vmobile Manual Handbook admitted as Exhibit C19 under the heading COMPENSATION RELATED TO TERMINATION, the period of notice and amount for compensation for termination is clearly provided for. That procedural requirements stipulated for termination of employment must be followed; otherwise, the termination would be invalid, wrongful and in breach of contract. That contract of service is the bedrock on which case for wrongful termination must succeed or fail; and ineffectual or invalid termination is in effect no termination or dismissal at all, citing Kablemetal Nig. Ltd v. Gabriel Ativie [2001] FWLR (Pt. 66) 662 CA at 674 - 675. 31. The claimants went on to point out inconsistencies of the purported mutual separation agreement and arguing that it is manifestly and incurably defective. That the document was purportedly executed on 5 February 2010 whereas it was to take effect on 31 January 2010. That in the absence of any agreement to backdate the said MSA, it cannot be held to bind the claimants. Clause 2 of the purported Mutual Separation Agreement states that Zain shall pay the staff the sum of N335,761, N207,180.72 as ACCRUED ENTITLEMENT less all applicable taxes and deductions in line with Zain policy. That what was paid to the claimants was actually performance bonus but which the 1st defendant dubbed as payment in lieu of notice to terminate. That the facts speak for themselves. Clause 3 of the purported Mutual Separation Agreement states that the staff hereby confirms that he has no claims against Zain or entitlement that have not been settled by Zain before now. That as against clause 3, it was led in evidence and from correspondence between the claimants and the defendants (Exhibits C4 and C10), the parties were in negotiation to settle outstanding emoluments of the claimants. That this fundamental breach by the 1st defendant is an incurable vitiating element that throws out the document as a worthless piece of paper; it being trite that agreements are construed against the drafter. That both clauses 2 and 3 are contradictory; the 1st defendant in one breath agreeing to pay accrued entitlement to the claimants and by another forbidding the claimants from holding any claim against it that has not been settled. To the claimants, the entire purport of the Mutual Separation Agreement flies in the face of law and logic. That whereas the intention of the document was to bring to an end the employment of the claimants, the latter continue at all material time to work in the same work post in the office of the 1st defendant. The claimants then urged the Court to hold that their employment was not terminated by the purported Mutual Separation Agreement. 32. In terms of issue 4) i.e. whether the 1st defendant can successfully claim NOT to be the employer of the claimants after the execution of the purported Mutual Separation Agreement, the claimants contended that after the signing of the Mutual Separation Agreement, they did not change jobs; they remained in the same job post and the same office of the 1st defendant, the only difference, as averred by the claimants, being in the pay slips which now had the name of the 2nd defendant. That this fact was not challenged by the defendants. That the purported Voluntary Retirement Scheme admitted as Exhibit C20 which was released when the 2nd defendant (the purported new employer) was easing out the claimant put the total years of the 2nd claimant as 6 years, 7 months representing the exact number of years put in by the 2nd claimant. It is the argument of the claimants that contrary to paragraph 6 of the 1st defendant’s statement of defence, the claimants were never at anytime transferred to any new employer. That the new supposed employers were the ones who came at different times to interfere between the claimants and 1st defendant’s contract of employment. In any case, that the purported transfer cannot stand in the face of the law. That by virtue of section 10 of the Labour Act Cap L1 LFN 2004, the transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorised labour officer. Furthermore, that by Ogun State Hotel, Abeokuta, Ministry of Commerce, Abeokuta v. National Union of Hotels and Personal Services Workers reported in Digest of Judgments of National Industrial Court (1978 - 2006) edited by Oluwole Kehinde Suit No: NIC/10/89 page 290, there are two legs upon which a valid transfer could be ascertained. Firstly, the consent of the workers; and secondly the endorsement of the authorised labour officer on the contract of service. That the second leg of the law was not complied with, hence the purported transfer of the claimant is unlawful, null and void. In another breath, that both Bezaleel Consulting Group and Tech Mahindra Nigeria Limited (2nd defendant) were tools in the hands of the 1st defendant to perpetrate the latter’s grand plan of short-changing the claimants. The claimants never applied for any job from the 2nd defendant. The 2nd defendant just suddenly came up with a fixed term employment contract and coerced the claimants into signing. The claimants then urged the Court to critically examine Exhibit C20 wherein the total number of years of service of the 2nd claimant was properly calculated. That for reasons known only to the 2nd defendant, the Voluntary Retirement Scheme was not released to the 1st claimant. That the inescapable conclusion is that the claimants were at all material time the employee of one employer (the 1st defendant). 33. Issue 5) deals with whether the 2nd defendant can validly claim to be the new employer of the claimant. Here, the claimants adopted the facts and arguments relating to issues 3) and 4) to buttress the issue 5). 34. The claimants then proceeded to address the issue of its claim for damages. To the claimants, by GFK Investment Nig. Ltd v. NITEL Plc [2006] All FWLR (Pt. 299) 1402 at 1415 - 1417, the position of the Court is that, in view of the position that where breach of contract is proved, it is natural to presume injury which though not readily qualifiedly stated, is all the same recoverable. That the Court viewed as right the award of damages without tying the award to qualifications like special, general or exemplary. That this is the correct position of law for which this Court is bound to follow. That the highest Court laid it down in the above matter with the award of damages for injury caused to the plaintiff by the defendant’s breach of contract. That the breach of contract of employment by the defendants in the instant matter no doubt threw the claimants into a state of unnecessary apprehension and uncertainty which took a toll on their health. That this is reasonably foreseeable. In conclusion, the claimants prayed the Court to grant their prayers. 1ST DEFENDANT’S REPLY ON POINTS OF LAW 35. To the 1st defendant, in the face of the obvious defect of the claimants’ case, the claimants now allege that there are inconsistencies in the Mutual Separation Agreement. That the claimants’ mere assertions are untenable. That it is trite law that where a document is clear, the operative words in it are to be given their simple and ordinary grammatical meaning. A document duly pleaded and tendered once admitted is the best evidence of its content and, therefore, speaks for itself, referring to Saidu v. Abubakar [2008] 12 NWLR (Pt. 1100) 201 where the Court held thus: “When a document is admitted into evidence, it should be allowed to speak for itself. Every inscription on the document should attract the reasonable inference it deserves”. That the Mutual Separation Agreement is clear and unambiguous. For ease of reference, the agreement provides thus: 1) The parties have agreed to mutually determine the contract of employment which became effective on 01/03/2006. The Mutual separation shall take effect from the 31st January 2010. 2) Zain shall pay the Staff the sum of N335,761.82 as accrued entitlement less all applicable taxes and deductions in line with Zain policy. 3) The staff hereby confirms that she/he has no claims against Zain or entitlements that have not been settled by Zain before now. 4) The Staff hereby waives all rights and hereby releases and discharges Zain from all claims, demands and/or actions that may have arisen from the Contract of Employment in general… To the 1st defendant, the agreement clearly provides that the services of the claimants were terminated on 31st January 2010, urging the Court to so hold. Furthermore, that the agreement does not state that the claimants were transferred to the 2nd defendant or any party whatsoever, urging the Court to discountenance the claimants’ arguments. 36. That the claimants also alleged that communication between the claimants and the 1st defendant continued after the Mutual Separation Agreement, the claimants referring to Exhibits C4 and C10 as the purported communication. To the 1st defendant, it is manifestly clear that Exhibits C4 and C10 were not issued by the 1st defendant, urging the Court to so hold. That apart from the ipse dixie of the witnesses which is obviously unreliable there is no single evidence before this Court showing that the claimants were promoted to the post of a Quality Assessor, the work schedule of a Quality Assessor and the salaries and allowances due to Quality Assessors in the 1st defendant company. The 1st defendant then submitted that the claimants have not proved their case, and their claims ought to fail. That it is trite law that a party who asserts in its pleadings the existence of a particular fact is required to prove such fact by credible evidence. However, if such party fails to do so, his case will fail, citing section 131(1) of the Evidence Act 2011 and Dana Impex Limited v. Aderotoye [2006] 3 NWLR (Pt. 966) 78 CA at 83. That there is no evidence before this Court to prove that Quality Assessors in the employ of the 1st defendant are entitled to the reliefs in the claimants’ statement of claim, urging the Court to so hold. That the claimants are by this action urging the Court to declare that they were promoted to the post of a Quality Assessor and, therefore, entitled to the salary and benefits of the position. That the burden of proving that they were promoted to the post of Quality Assessors and are, therefore, entitled to the entitlements of Quality Assessors lies solely on the claimants who failed to discharge same, urging the Court to so hold. 2ND DEFENDANT’S REPLY ON POINTS OF LAW 37. On the 2nd defendant’s preliminary issue as to whether the claimants can validly institute the suit and seek reliefs jointly against the defendants in the absence of a joint contract of employment, the claimants had submitted that the actions that brought up this cause were inflicted on the claimants together and at the same time; the claimants were the only ones singled out for the discriminatory policy of the defendants; and as employees in the same department, everything about their conditions of service is similar except the basic salaries. The claimants further argued that more than one person may be joined as plaintiff in whom a right of relief is alleged to exist whether jointly or severally where, if the claimants decide to bring separate actions, any common question of law or fact would arise. In support of this argument, the claimants quoted “Order 13 rule 1”. To the 2nd defendant, the provisions of the Rules of the Court relied on by the claimants’ counsel in its submission was quoted out of context and it is, therefore, inapplicable. That Order 13 Rule 1 of the National Industrial Court Rules 2007 provides for the circumstances that could warrant an application for interim attachment of property. Furthermore, that Oduola v. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 at 509, Ogola v. Fabara [2003] 11 NWLR (Pt. 831) 231 and Ige v. Farinde [1994] 7 NWLR (Pt. 354) 42 cited and relied on by the claimants’ counsel are inapplicable and do not support the claimants’ case. That in Oduola v. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 at 509, the Court did not decide that co-claimants, who have separate contracts of employment, and whose action arose from the same incident, have collective rights to sue jointly; and that Ogolo’s case does not, in anyway, suggest that the claimants can jointly sue where they have separate rights and causes of action even though emanating from the same incident. It is accordingly the view of the 2nd defendant that in employment and labour related matters, the individual rights and causes of action emanate from each party’s contract of employment which is separate and personal. That as rightly held in Oduola v. Ogunjobi cited by the claimant, persons cannot be joined as plaintiffs who cannot sue in the same right, even if they have similar interests. The 2nd defendant then urged the Court to disregard the submissions mentioned above as proffered by the claimants and dismiss the claimants’ claims against the 2nd defendant in its entirety. In conclusion, the 2nd defendant urged the Court to dismiss the claimants’ claims against the 2nd defendant as the claimants’ case is solely in respect of the purported promotion by the 1st defendant while in its employ. COURT’S DECISION 38. I heard learned counsel and considered all the submissions made and processes filed in this case. Before addressing the merit of the case, a remark or two will not be out of place. The claimants had argued that based on the action of the 1st defendant, the claimants and altered their position; as such the 1st defendant was estopped from asserting that the claimants were not promoted. In support, the claimant cited and relied on section 151 of the Evidence Act Cap. 112 LFN 1990. Does counsel to the claimants not know that the Evidence Act of 1990 has been repealed and replaced by the Evidence Act of 2011? See section 257 of the Evidence Act 2011. Even in citing the 1990 Evidence Act, counsel to the claimants did not seem to appreciate the fact that there was a consolidation exercise that resulted in the LFN 2004. For counsel, therefore, not to know a simple fact such as the repeal of an Act, and as such still be citing and relying on a repealed law, is not just detestable but bad for advocacy and professionalism. 39. In paragraph 4.1 of the claimants’ final written address, in reacting to the 2nd defendant’s preliminary issue as to mis-joinder of parties, the counsel to the claimants had argued that more than one person may be joined in an action as plaintiffs in whom a right of relief is alleged to exist whether jointly or severally, citing “Lagos (o.13 r1)” as part authority. It is not clear if what the claimants’ counsel meant is Order 13 Rule 1 of the Lagos State High Court Rules. The 2nd defendant took it to mean Order 13 Rule 1 of the NIC Rules 2007 and then argued that it is a wrong authority as it is inapplicable, since the provision deals with the circumstances that could warrant an application for interim attachment of property. Even if the claimants’ counsel intended to rely on the Lagos High Court Rules, that cannot be since leave of this Court was not sought. A counsel cannot just cite and rely on a Rule of some other Court without leave. Rules of Court are meant for the Court that they are made for. This is elementary. Order 15 of the NIC Rules 2007, which permits this Court to adopt such procedure as will in its view do substantial justice to the parties where there is no provision in the Rules as to practice and procedure covering a matter or where the provisions are inadequate, is not a fair accompli and so does not envisage that parties can just cite and rely on the Rules of other courts and force same on this Court. Whatever the claimants meant by “Lagos (o.13 r1)”, is inapplicable to the instant suit. I so hold. 40. The 2nd defendant raised a preliminary issue i.e. that there is a mis-joinder of parties by the claimants in this suit. I do not have to spend much time on this issue. In terms of this Court, expedience is the watchword when it comes to adjudicating employment/labour disputes. The rule which requires that each employee files his/her separate suit even when their interest and the circumstances leading to their respective complaints coincide is no longer expedient. Since the range of the Ilorin 49 cases which culminated in cases such as Oloruntoba-Oju & ors v. Dopamu & ors [2008] LPELR-2595(SC); [2008] 7 NWLR (Pt. 1085) 1 SC; [2008] 34 NSCQR (Pt. I) 278 and Oloruntoba-Oju & ors v. Abdul-Raheem [2009] LPELR-2596(SC); [2009] 13 NWLR (Pt. 1157) 83 SC were decided, it has come to be accepted that for expedience, more than one employee can sue in same suit where the complaints and the circumstances that gave rise to the complaints coincide. I do not accordingly see any merit in the 2nd defendant’s argument as to mis-joinder of parties. The argument in that regard is, therefore, and hereby discountenanced. 41. In resolving the merit of this case, I must state that not much assistance can be had from the testimonies of the witnesses, testimonies that have inherent contradictions. CW1, for instance, under cross-examination, and after testifying that he cannot recollect whether he signed any fixed term contract with Bezaleel or not, was shown Exhibit TM5 (an offer of employment from Bezaleel Consulting Group to the 1st claimant and dated 25th January 2010), which has his name and signature. At first he said Exhibit TM5 is his. He later changed to say that he cannot recollect it as his. On being asked whether the signature on Exhibit TM5 is his, he answered that he cannot recollect because he had several signatures when he was with the 1st defendant. With this, the testimony of a witness such as CW1 cannot be reliable. CW1 proceeded, still under cross-examination, to testify that he does not know Exhibit KA1, the Mutual Separation Agreement (MSA) made on 31st January 2010, and that the signature on it is not his. He was categorical that he does not know the signature on Exhibit KA1. Now, the signature on Exhibits TM5 and KA1 are one and the same, and were appended on same date i.e. 5/02/2010. CW1 also went on to testify that he cannot recollect how long he collected pay-slips from Bezaleel. The same CW1 had earlier testified that there was no mutual separation agreement between him and the 1st defendant, and that he never appended his signature to such an agreement. In fact, that he cannot remember signing on. Yet in the next breath, he would testify that the N335,761.82 he was paid at the point of separation was for performance bonus. Exhibit KA1 is pretty clear in clause 2 that the N335,761.82 paid to CW1 was accrued entitlement less all applicable taxes and deductions. Conceptually, can taxes and deductions be made from performance bonus? Even if taxes can, certainly not other deductions. The long and short of it is that CW1 is not a witness of truth. The 2nd DW for most of his testimony under cross-examination did not seem to know much given that his answer to most of the questions asked was that he does not know and that all he testified on were facts from the records. I do not accordingly think that much can be derived from the testimony of a witness such as 2nd DW. 42. Given the pleadings and reliefs claimed by the claimants, the key issues before the Court are whether the claimants were actually promoted and then denied their due emoluments arising from such a promotion, for which the claimants are making the claims as per this suit; and who, between the 1st and 2nd defendants is the actual employer of the claimant so that if the question as to whether the claimants were promoted is answered in the affirmative the responsibility of paying the difference in salaries would fall on such employer. The claims for bonuses, airtime allowances and pension fund payments are all hinged on the fact that having been promoted but not paid the correct emoluments tied to the promotion, the claimants are entitled to the difference between what was actually paid to them and what ought to have been paid as a result of the promotion. So, I repeat, the key issue in all of this is whether the claimants were in fact promoted. Paragraphs 6 and 7 of the statement of facts have it that the claimants were promoted in 2009 to the post of Quality Assurance Assessor vide an open announcement by Nneka Obiora, the then manager of the outbound call center, Iganmu, Lagos. I read this to be oral promotion given that under cross-examination CW1 said that his promotion was announced verbally as well as an email sent, referring to Exhibit C21. In reaction, the 1st defendant submitted that promotion cannot be oral as the terms of a contract reduced into writing can only be varied by another contract also in writing, referring to AG Rivers State v. AG Akwa Ibom State [2011] All FWLR (Pt. 579) 1023 SC; and that in so far as the claimants were employed as call centre agents vide a written contract of employment, any promotion or change in their contract status must also be in writing. 43. The defence of the 1st defendant to all of this is that the claimants were never promoted up to the time their contracts of employments were terminated vide a Mutual Separation Agreement (MSA) dated 31st January 2010. To the 2nd defendant (an independent contractor - the 2nd defendant did not see itself as an outsourcing company or an agent of casualisation for the 1st defendant), on the other hand, the claimants were employed as fixed term employees by virtue of the Fixed Term Employment contract dated 1st May 2012 entered into by both the 2nd defendant and the claimants respectively, which contract was then validly terminated on 31st December 2012 in accordance with the terms of the said contract. In other words, the claimants remained employees of the 2nd defendant even when in fact they worked in the 1st defendant’s location. 44. The claimants were employed as call centre agents and confirmed as such by the 1st defendant. See Exhibits C1, C2 and C3. The claimants would later work for Bezaleel Consulting Group and Tech Mahindra (Nig.) Ltd, the 2nd defendant in this suit. When the claimants worked for Bezaleel and the 2nd defendant were they employees of Bezaleel and the 2nd defendant in each of such working experience, or they remained employees of the 1st defendant at all material times? To the 2nd defendant, it wrote the letter dated 1st May 2012 (Exhibits C4 and C10, both titled “Letter of Recognition”) upon the instruction and on behalf of the 1st defendant, in view of the work history of the claimants with the 1st defendant. The letter was written to resolve the purported promotion of the claimants to the position of Quality Assurance Assessors and ensure a morale boost of the claimants, who now worked with the 2nd defendant. The first paragraph of both Exhibits C4 and C10 read as follows: “This is to recognize your movement from Inbound Call Centre to the role of a Quality Associate while you were a contract employee working for us through Bezaleel Consulting (MSP) from January 2010 till 30th April 2012”. And in the second paragraph of same exhibits, it is provided thus: “…the management of Airtel Nigeria and Tech M Nigeria jointly agreed to compensate you for the period you performed the Quality Associate role while working through Bazaleel Consulting”. Why would the 2nd defendant write as such if it has no relationship with the 1st defendant? The argument of the 2nd defendant that it was instructed by the 1st defendant to write the said letters given the work history of the claimants with the 1st defendant is not convincing at all; neither is its argument that it is an independent contractor and not an outsourcing company or agent of casualisation for the 1st defendant. 45. The 1st defendant employed the claimants, confirmed them and even reviewed their salaries. It was in 2010 that the 1st defendant issued Exhibits TM3 and TM4 (respectively same as Exhibits KA1 and KA2), the MSAs made on 31st January 2010. These MSAs were almost immediately followed by the issue of Exhibits TM5 and TM6, letters dated 25th January 2010 of offer of employment to the claimants by Bezaleel. By 1st May 2012, Exhibits TM1 and TM2, fixed term employment contracts were issued by the 2nd defendant to the claimants. The same date, 1st May 2012, the 2nd defendant also issued letters of recognition (Exhibits TM7/C4 and TM8/C10) to the claimants. And by 31st December 2012, the claimants’ employment was then terminated by the 2nd defendant. See, for instance, Exhibit C17. On 28th May 2012, the claimants respectively wrote Exhibits C7 and C12 to the Director - Human Resource of the 2nd defendant intimating him that appending the claimants’ signatures on the fixed term contracts (dated 1st May 2012) is done for the sake of continuity of their employment contracts as they transition from Bezaleel Consulting to Tech Mahindra (Nig.) Ltd and is not meant in any way to prejudice the resolution of pending issues with both Airtel and Tech Mahindra regarding outstanding claims. I do not think the claimants here accepted that they were no longer staff of the 1st defendant, who in any event orchestrated all of this movement from one employer to another, all for its benefit. In Engineer Ignatius Ugwoke v. Aeromaritime (Nigeria) Limited unreported Suit No. NICN/LA/482/2013 the judgment of which was delivered on 30th November 2016, this Court accepted the fact of co-employer status as was also the case in Onumalobi v. NNPC and Warri Refining and Petrochemical Company [2004] 1 NLLR (Pt. 2) 304. This Court also proceeded to accept that the transfer or secondment of an employee by an employer to another employer does not necessarily imply that the transferring employer is no longer an employer of the employee. In the instant case, the sequence of events were orchestrated by the 1st defendant. Exhibits TM3/KA1 and TM4/KA2 were orchestrated by the 1st defendant for its sole benefit. They were not meant to bring to an end the employer-employee relationship between the 1st defendant and the claimants. The coincidence of exhibits between the 1st and the 2nd defendants in this suit merely show the 1st defendant as effectively the driving force in the so-called employer-employee relationship between the 2nd defendant and the claimants. This being the case, it is my holding that the claimants remained employees of the 1st defendant despite the interposition of Bezaleel and the 2nd defendant in that relationship. In this respect, the argument of the 1st defendant, when the claimants (referring to Exhibits C4 and C10) argued that communication between them and the 1st defendant continued after the Mutual Separation Agreement, that it is manifestly clear that Exhibits C4 and C10 were not issued by it, goes to no issue and so is discountenanced. I accordingly agree with the argument of the claimants that contrary to paragraph 6 of the 1st defendant’s statement of defence, they were never at anytime transferred to any new employer. 46. Having, therefore, held that the 1st defendant is the employer of the claimants, the key question remaining is whether the claimants were in fact promoted as to be entitled to the reliefs they claim. The claimants, like I indicated earlier, asserted that they were promoted by way of an open announcement. Under cross-examination, CW1 testified that his promotion was announced verbally with an email sent. To start with, promotion cannot be verbal or oral as the claimants seem to think. To support their position of having been promoted, the claimants relied on Exhibits KA3, C4 and C10. Exhibit KA3 is an email dated Friday December 11, 2009 from Oluwagbamila O. Oyekanmi to Jolayemi Balogun listing out “5 Hausa Speaking Call Center Agents, with consistently high rating, that have been identified for temporary use for Quality assessment”, who it was hoped would resume “with QA team by Monday, 14 December 2009”. The claimants are amongst this list of “5 Hausa Speaking Call Center Agents”. Exhibits C4 and C10 are respectively letters of recognition to the claimants. Both are dated 1st May 2012 and are similarly worded. Both exhibits recognize the role as Quality Associate of the claimants from 1st January 2010 to 30th April 2012, for which the defendants both agreed to compensate the claimants with a one-time payment of the respective sums of N315,848.00 and N340,362.00 to be paid along with the June salary. Can any of Exhibits KA3, C4 and C10 be said to be a promotion letter? The answer is NO. An email that identifies the claimants for temporary use for a position (Exhibit KA3) cannot be said to have promoted the claimants to that position; and a letter that recognizes the claimants in a role and on which a one-time compensation is to be given (Exhibits C4 and C10) cannot also be said to be a promotion letter. As it is, therefore, the claimants have not proved that they were promoted as to be entitled to all the monetary claims that they make in this suit. This being the case, reliefs 1) to 12) as claimed by the claimants have not been proved to the satisfaction of this Court. The claimants’ case must accordingly fail, and so is hereby dismissed. 47. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD