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REPRESENTATION Ade Adedeji with Shola Afuwape for the Claimants. Azeez Sunmola with Gbenga Bode-Kehinde for the Defendant. JUDGMENT The Claimants instituted this case in a representative capacity and by their Complaint dated 16th September 2013 they sought the following reliefs: (a) A declaration that the purported termination of the Claimants employment by the Defendant via a letter dated 11th September, 2012 is wrongful, unlawful, illegal, null and void and of no effect whatsoever. (b) An order that the Defendant pay the Claimants the arrears of salary from June, 2012 to August 2012 as shown in paragraph 12 of the Claimant’s Statement of Facts. (c) An order that the Defendant pay the Claimants at least 1 (One) month/3 (three) months (as the case may be) salary in lieu of Notice which was never complied with the terms in the Offer of Appointment. (d) An order directing the Defendant to either produce the Tax Clearance Certificates of the Claimants in respect of Taxes deducted from their respective salaries or refund their money. (e) An order directing the Defendant to remit forthwith all pension contributions amounting to 15% of their monthly emoluments that are due and outstanding as agreed upon in the Offer of Appointment. (f) An order directing the Defendant to give account of Leave Allowance of 10% Basic Salary of the Claimants and their colleagues and pay same from the date of their respective employments till the 11th September, 2013. (g) An order directing the Defendant to monetize the leave that was agreed upon as contained in the Offer of Appointment but which was never given and pay same to the Claimants and their colleagues. (h) Cost of this action. (i) N100 Million Naira Damages for breach of contract in respect of both Contributory Pension Scheme Fund which was not remitted to the Pension Scheme and Taxes Deducted which were never paid to the Appropriate Authority by the Defendant. 30% interest on the judgment sum. The Claimants' Complaint was accompanied by all the requisite processes in compliance with the Rules of this Court. The Defendant responded as appropriate by filing its requisite processes on the 4th of October 2013. On the 7th of October, 2013, the defendant by a Motion on Notice moved the Court to strike out the Claimants suit on grounds inter alia of misjoinder of parties and cause of action. The application was heard on the 29th of October 2013 and in a considered Ruling this Court dismissed same as lacking in merit. The facts of this case appear simple and straight forward. Claimants alleged a wrongful termination of their employment by the Defendant. Their grouse against the Defendant was that they were not given any notice for the said termination. They also argued that their salaries for the months of June, July and August 2012 were outstanding and yet to be paid to them by the Defendant before the incident leading to the present suit. It was also the case for the Claimants that deductions from their salaries as pensions and taxes deductions that were supposed to be remitted to relevant government authorities and bodies by the Defendant were not so remitted. The hearing of this case commenced on the 16th of January 2013. Claimants called only one witness CW1 who adopted his witness statement on oath dated 16th September 2013, tendered 2 Exhibits - Exh. AGG1 and Exh. AGG2 and urged the Court to grant Claimants' prayers. Under cross examination, CW1stated that when he joined Air Nigeria Limited, the latter was paying his salaries; that all the Claimants authorised him to bring this action on their behalf; that all Claimants signed a letter of consent to that effect and that he was not aware that Air Nigeria was grounded by the Federal Government. According to the witness, his duty and those of his colleagues was to clean both the exterior and interior of Aircrafts for the comfort of the crews and passengers; that he carried on his duty beyond 10th May 2012 because performance of his duty did not depend on whether the Aircraft flew or not. Witness testified that the Defendant was not remitting the pension contribution to Stanbic IBTC Pension Managers because he wrote a letter to the said Stanbic IBTC Pension Managers. He stated further that he was not aware that the Defendant remitted his tax deductions to the Lagos State Inland Revenue Service; that he made enquiry and was informed by one Mr. Rilwan at the Defendant that the Defendant did not make any tax remittances to the Lagos State Inland Revenue Service. In response to a question, witness said that he was not aware that some of the Claimants were still in the employment of the Defendant. On the 6th of February 2014, the Defendant opened its case by calling 3 witnesses. DW1 adopted his witness deposition deposed to on the 7th of October 2013 and tendered Exh. DA1(1-40) and Exh. DA2 (1-21). The first are documents relating to remittances of Claimants' pension to Stambic IBTC while the second are documents relating to payment of tax to Lagos State Government. Under cross examination witness testified that he had been the Managing Director of the Defendant for about 10 years; that he paid for Exh. DA1 and DA2 as at when due; that he could not remember for how many months the payments on those exhibits were for. He stated further that there was no letter of resignation from any of the Claimants; that he did not have any document to show that any of the Claimants were derelict in their duty and that he did not have any document to show that the claimants abandoned their work but that they did not report for duty. DW2 stated that he was the Administrative Manager of the Defendant and then simply adopted his witness statement on oath dated 22/1/14 as his testimony and there was no cross examination. DW3 stated that he was a staff of the Defendant. Witness then adopted his deposition dated 22/1/14 as his evidence. Witness was not cross examined. On the 26th February 2014, learned Counsel adopted their final written addresses. In his final written address dated and filed 18th February 2014 learned counsel for the Defendant submitted 2 main issues for determination. They are as follows: 1. Whether this Honourable Court has jurisdiction to determine taxation issue or has jurisdiction to grant prayer (d) of the Claimants prayer 2. Whether from the available evidence before this Court, the Claimants have been able to proof (sic) their case and thus entitled to the reliefs sought in their statement of facts. On Issue 1, learned counsel submitted that jurisdiction is a threshold issue in all judicial proceedings and that before a Court can entertain any action pending before it, such a court must possess the requisite jurisdiction, citing Maduboku v. Nkemdiim (1962)2 SCNLR 234; Skenconsult v. Ukey (1981)1 SC 6 and Ohakim v. Agbaso (2010)19 NWLR (Pt. 1226) 172. Counsel submitted that this Court does not have jurisdiction into the issue of taxation at all as same is outside its jurisdiction conferred by section 254C(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Counsel thus urged the Court to decline jurisdiction and strike out paragraphs 20, 21, 22, 23(vi), 23(vii) and 27(e) of the Statement of Facts. On Issue 2, learned counsel submitted that the Claimants have failed to prove their case and as such could not be entitled to the reliefs sought. Counsel submitted that civil cases are decided on the preponderance of evidence citing Section 134 of the Evidence Act 2011; that the burden of proof is on the Claimant and where a claimant fails to prove his case then he loses same citing Bamikole v. Oladele (2011)1 NWLR (Pt. 1229) 483, N.R.W Industries Ltd v. Akingbulugbe (2011)11 NWLR (Pt. 1257) 131 at 146. Claimant submitted that Claimants failed to lead evidence in support of most of the averments in the Statement of Facts and that the law is trite that in such circumstance such averments are deemed abandoned citing FCDA v. Naibi (1990)2 NSCC vol. 21 page 292 at 300, Kaydee Ventures Ltd v. Min. FCT (2010)7 (Pt. 1192) 171 at 204. Learned Counsel thus urged the Court to deem paragraphs 12, 17, 18 and 19 of the Statement of Facts abandoned and to strike same out. Counsel further urged that paragraphs 5, 6, 7, 9, 11, 14, and 15 of the Statement of Facts as they relate to the other Claimants who failed to lead evidence for their respective case were abandoned. He also urged the Court to strike same out accordingly. Counsel further cited Sokwo v.Kpongho (2008) (Pt. 1086) 342 at 362. Counsel urged the court to dismiss the claimants suit in its entirety with substantial cost as same is frivolous, vexatious, gold-digging and an abuse of court process. Claimants' final written address was dated and filed 21st February 2013. In it, learned Counsel submitted 2 issues for determination as follows: 1. Whether the Claimants' appointments with the Defendant Company were unlawfully and wrongfully terminated or not. 2. Whether the Claimants have suffered damages in consequent thereof. On Issue 1, learned Counsel submitted that Exh. AGG1 constituted a binding contract of service between the Claimants and the Defendant and that there was no need to look elsewhere for terms and conditions of that contract safe Exh. AGG1 relying on Western Nigeria Development Corporation v. Abimbola (1966)4 NSCC 172 at 188. Counsel submitted that by neither giving a requisite notice nor paying in lieu of same the Defendant was in breach of its contract of service with the Claimants. Counsel urged the court to so hold, citing Iwuchukwu v. Nwizu (1994)7 NWLR (Pt. 357) 379, NEPA v. Olagunju (2005)3 NWLR (Pt. 913) 602.Counsel urged the Court to resolve this issue in favour of the Claimants. On issue 2, Counsel submitted that an act is wrongful if it involves the infringement of some rights citing Aidu Bello & Ors v. A.G Oyo State (1986)5 NWLR (Pt. 45) 828 at 853. Counsel further submitted that where the Court finds in favour of the Claimants that their appointments were wrongfully terminated, then the court also has a duty to award damages in favour of the Claimants and against the Defendant. Counsel referred to the case of Ezekwere v. Golden Guinea Brew. Ltd (2000)8 NWLR (Pt. 670) 648 at 656-657. In reaction to the submission of Defendant's counsel that DW2 & DW3 did not give authorisation to the Claimants to sue on their behalf, Counsel submitted that in a representative action as this the only legal burden cast upon a plaintiff is that of establishing the existence of a common interest and a common grievance and that such a plaintiff is not bound to obtain the consent of others whom he might claim to represent, relying on Melifonwu & Ors v. Egbuji & Ors (1982) NSCC 341 at 347. Learned Counsel for the claimants urged the court to resolve all the issues raised in favour of the claimants and grant all the prayers as contained in their complaint. Counsel to the defendant on the 26th of February 2014 filed a reply on points of law to the final written address of the claimants. It was the submission of learned Counsel that the argument of claimants to damages for wrongful dismissal could not stand in that that claim was not contained in the complaint of the claimants. Relying on the case of Amadi v. Chinda &Ors (2009)4-5 S.C (Pt. 11) 1at 17 counsel submitted that a Judge is bound by the claims of parties and must restrict himself within the ambit of the claims and not go outside the claims or reliefs sought. Counsel further noted that the authorities, Otuguor Ogamioba v. Chief D. O. Oghere & Ors (1961)1 All NLR 59 and Melifonwu & Ors. v. Egbuji & Ors. (1982) NSCC 341, cited by counsel in relation to capacity to sue in a representative capacity are inapplicable because, according to Counsel, 'the said authorities cited are land matters that permit family, community or town to commence a representative action since the parties have a joint cause of action altogether'. It was the argument of the learned Counsel that such authorities are not applicable to labour cases brought by employees against employers for wrongful termination or dismissal as individual contract in case of breach of contract by either party is regarded to have separate cause of action. Counsel thus urged the Court to discountenance the authorities cited. I have read and reviewed all the processes filed in this case - all the pleadings, the exhibits and the written addresses of Counsel on either side. I have in addition patiently listened to the oral submissions of counsel in Court. Having done so, i have come to narrow down the issues for determination in this case to be mainly 2 as follows: 1). Whether the jurisdiction of this Court extends to matters relating to Taxes and Pensions with respect to labour and employment? 2). Whether the Claimants are entitled to the reliefs sought. On issue 1, the jurisdiction of the court is as contained in section 7 of the National Industrial Court Act, 2006. However that jurisdiction has been expanded by section 254C(1), Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act 2010. Indeed, section 254C(1) states that - ''Notwithstanding the provision of Section 251, 252, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters - (a). relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith'. (Emphasis laid)''. The word 'incidental' was simply explained by 7th Edition Oxford Advanced Learner's Dictionary International Student's Edition at page 754 as 'happening in connection with'. I take it that the word 'connected' needs no further interpretation other than what it means. It is apparent from the above provisions that any matter incidental thereto or connected therewith those items stated in the above paragraph is within the jurisdictional competence of this Court. Thus when an employee raises issue as to whether or not his employer pays the amount deducted from his salaries as tax to the appropriate government agency, this court is the appropriate court clothed with power to examine and determine same. In much the same vein where an employee contends that pension deductions from his salary were not remitted to his Pension Funds Administrator, the National Industrial Court of Nigeria is the appropriate judicial forum to determine such issues. Without much ado, such issues are necessarily incidental thereto and connected therewith issues of labour, employment e.t.c as contained in paragraph(a) of section 254C(1) of the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010. I so find and hold. On issue 2, the law is trite that a party must prove his claim before the court in order to be entitled to the relief sought. That burden of proof is discharged on balance of probabilities in all civil proceedings; see Section 134 of the Evidence Act, 2011 and see also Hamza v. Kure (2010)10 NWLR (Pt. 1203) 630. It is also the law that a court of law will neither grant a relief not sought nor one not proved. Now, there are 141 Claimants in this case. Seven of the Claimants brought this action in a representative capacity. By Order 4 Rule 2 of the National Industrial Court Rules 2007, Claimants are allowed to so institute subject to a proviso that they indicate that they are suing in a representative capacity. I should quickly add at this point that the argument of learned Counsel for the Defendant that the principles of law enunciated in the cases of Otuguor Ogamioba v. Chief D. O. Oghere & Ors (1961)1 All NLR 59 and Melifonwu & Ors. v. Egbuji & Ors. (1982) NSCC 341 are inapplicable to labour cases is not sustainable. Those are authorities of the apex court and there is nothing in those decisions that limited the application of the principles laid down therein. Until there is a holding to the contrary by the apex court i hold that the principles of law laid down in them are applicable to this case notwithstanding that it is a labour related case. Now what is the evidence led in proof of the claims of the Claimants? The lone witness called by the Claimants is the first Claimant. CW1 while testifying on the 16th of January 2014 tendered 2 Exhibits Exh. AGG1 and Exh. AGG2. The former was his letter of offer of appointment dated 12/9/10 while the latter was a letter dated 11/9/12 titled Cessation of Employment. Witness had already adopted his witness statement on oath made on 16/9/13. The content of Exh. AGG1 is clear and explicit. It is the Offer of Employment letter from the Defendant to the witness. It indicated, among other things, the remuneration of the witness; that witness would be on probation for the first six months to enable Defendant assess his character and competence for the position; that while on probation either party may terminate the appointment with 7 days' notice or payment in lieu of notice and that after confirmation of appointment, the notice period is 30 days or payment in lieu. Now was this Claimant given the requisite notice or any payment in lieu? Exh. AGG 2 is a letter titled Cessation of Employment and dated 11th September 2012. Paragraph 2 of that letter stated thus: 'Pending the fruition of our efforts however, we regret our inability to continue to keep you in our employment from the date of this letter'. It is thus obvious that by Exh. AGG2, the employment of this Claimant was effectively terminated on 11/9/12 without the notice of 30 days being given nor a payment in lieu made and i so find and hold. Secondly, in relation to a claim for payment of outstanding salaries for the months of June, July and August 2012, the Defendant in its Statement of Defence filed on the 7th October 2013 in paragraph 3(iv) denied owing any of the Claimants any arrears of salary. Again, a recourse to Exh. AGG2 is of importance here. In its paragraph 3, Exh. AGG2 stated thus: 'As soon as we are through with Air Nigeria Development Limited over your outstanding entitlements from June, 2012 to end August 2012, we shall duly credit your Account with all entitlement due to you and inform you'. The above is no doubt an acknowledgement of the outstanding entitlement of the Claimant by the Defendant. Did the Defendant credit the Account of this Claimant with the said outstanding entitlement for the period June - August 2012 and did it inform this Claimant accordingly? Defendant did not place any evidence before the court that that was done. Rather it was a simple outright denial of any indebtedness of arrears of salary. The available evidence on this point is too glaring to warrant acceptance of the assertion of the Defendant. I find and hold from the evidence available to me in this case that the Defendant is indebted to this Claimant for the outstanding salary for the months of June, July and August 2012. On the Claimant's application for an order of court directing the Defendant to produce their Tax Clearance Certificates in respect of taxes deducted from their salaries or refund the money, Defendant tendered Exh. DA2 (1-21). It is the evidence of tax remittances to the Lagos State Government State Inland Revenue. In his oral testimony, DW1 stated that he paid for Exh. DA2 (1-21) as at when due. Exh. DA2 (1-21) showed tax remittances for January - May 2012 only. The names of the 1st and 4th Claimants appeared as Nos. 83 & 123 respectively for the month of January; Nos. 81 & 121 for February; nos. 81 & 121 for March; nos. 81 & 122 for April and nos. 81 & 121 for the month of May 2012. There is no evidence of tax remittances for 2010, 2011 and none for from June to September 2012. Claimants have prayed the court for an order directing the Defendant to produce their Tax Clearance Certificates in respect of the taxes deducted from their salaries or refund the money. There is no evidence before me that the Defendant has custody of the Tax Clearance Certificates of the Claimants. Can this Court order the Defendant to refund the money deducted as taxes for which there is no evidence of remittances as appropriate? Every citizen in a gainful employment has a civic duty to pay tax on his salary. Once tax is thus deducted from salary it ceases to be money belonging to the payer. The taxes deducted but not remitted as appropriate is meant for the government as revenue. It cannot therefore be said to belong to the Claimant. Rather than order a refund of the money deducted as tax but not remitted, it is ordered that the Defendant shall pay the amount deducted from the salaries of the 1st and 4th Claimants as taxes during the stated period and which was not remitted as appropriate to the Lagos State Government State Inland Revenue. On an order of court directing the Defendant to remit forthwith all pension contributions amounting to 15% of the Claimants monthly emoluments that are due and outstanding as agreed upon in the Offer of Appointment, Exh. DA1 showed of payments made by the Defendant to IBTC Pensions Managers in respect of the pensions of the Claimants. That document showed evidence of payment made from April 2011 up to May 2012. I found no evidence of payment made in respect of the 1st Claimant from September 2010 to March 2011. Again the name of the 1st Claimant is not on the list of those employees for whom remittances of pensions were made from May-September 2012. I find, hold and order that the Defendant shall remit to the 1st Claimant's Pension Fund Administrator forthwith all pensions contributions amounting to 15% of the 1st Claimant's monthly emoluments that are due and outstanding as agreed upon in Exh. AGG1. In relation to the Claimants prayer for an order of court directing the Defendant to give account of their Leave Allowance of 10% Basic Salary and to pay same, i find Exh. AGG1 of relevance here. Defendant did not place any evidence before me to rebut the assertion by the 1st Claimant that he was never paid the said Leave Allowance. I therefore find, hold and direct that the Defendant shall pay to the 1st Claimant 10% of his Basic Salary as leave allowance for the year 12/9/10 - 11/9/11 and the year 12/9/11 - 11/9/12. The Claimants have also sought the order of court directing the Defendant to monetise the leave allowance that was agreed upon as contained in the Offer of Appointment but which was never given and pay same to the Claimants. I have examined Exh. AGG1. While the exhibit made provision that 'fourteen (14) days with Leave Allowance of 10% of Basic Salary shall be taken at any time convenient to the Company in line with business exigencies after twelve (12) months continuous service', there is nothing in that document suggesting agreement by parties to monetise same. The law is trite that a court will not read into an agreement what the parties did not insert in same. Therefore to direct the Defendant to monetise the leave will tantamount to writing a contract for the parties. That is essentially outside the power of the court to do. That order will thus not be made. See Western Nigeria Development Corporation v. Abimbola (1966)4 NSCC 172 at 188. The Claimants in this case instituted this case in a representative capacity. Even though there are 141 Claimants in all only the 1st Claimant testified for the Claimants. The 4th Claimant who was listed on the list of witnesses to be called was not called to testify eventually. A counsel is entitled to conduct his case in a way and manner best suited to achieve the interest of justice on behalf of his client. However, it appears that the method adopted by learned Counsel for the Claimants in this case is not the proper one. While in a suit brought in a representative capacity as the instant case, all the Claimants need not be called to testify, it is important that documents relating to each of the Claimants be exhibited before the Court. That could be done by any of the witnesses since the suit is brought in representative capacity. The rationale is trite as in the instant case where all the Claimants might not have been employed the same day and their employment terminated same day. Besides, their salaries and other emoluments may differ, again as in the instant case. All these are likely to be apparent on the Offer of Appointment letters issued to them. I find and hold that the 1st Claimant led evidence in proof of his case. Now, the 4th Claimant, Williams Paul Jatau, was listed as a witness in this case. He filed his witness deposition dated 16th September 2013. His Offer of Appointment letter dated 8th November 2010 and the letter of Cessation of Employment dated 11th September 2012 were frontloaded. Of what use or assistance could these documents be for the justice of this case? The 4th Claimant did not testify at trial. The documents were neither tendered nor admitted at trial. The essence of frontloading system is such that every party is expected to bring forward every piece of documentary evidence he intends to rely on at trial. Every frontloaded document forms part of the file or record of a court and may be an item of reference by the Court where the overriding interest of justice demands. The law is trite that a court be it a trial or an appellate court is entitled to look at the contents of its file or records and refer to it in considering and determining the matter before it, see Ndayako & 6 Ors v. Dantor & 6 Ors (2004)13 NWLR (Pt. 887) 187; (2004)5 SCNJ 152 at 177 per Edozie JSC. See also Agbareh & Anor. v. Dr. Anthony Mimra (2008) LPELR 235 (SC). The essence of the position of the law is to ensure that interest of justice is met in all cases. Therefore, having examined the file in this case, i find and hold that to ignore the letter of offer of appointment and letter of cessation of employment of the 4th Claimant will amount to injustice in this case. Letter of Offer of Appointment of the 4th Claimant is the same in content as Exh. AGG1 except in 2 main respects. While Exh. AGG1 was dated 12/9/10, 4th Claimant's letter of Offer of Appointment was dated 8/11/10. Secondly, while the total monthly remuneration of the 1st Claimant as stated on Exh. AGG1 was =N=32, 890.00 that of the 4th Claimant was =N=27,890.00 as per his letter of offer of appointment. Again, the letters of Cessation of Employment of both the 1st and the 4th Claimants were dated 11/9/12 and the content is the same. I therefore hold that the findings of this court in this case with respect to the 1st Claimant are applicable to the 4th Claimant as well. There is no evidence before me to make a finding in favour of the other Claimants. No evidence was led in support of their claims. There is also no document frontloaded to which this Court could refer for assistance. Consequently, paragraphs 5, 6, 7, 9, 10, 11, 14 and 15 of the Statement of Facts as they relate to the Claimants except the 1st and 4th Claimants are here struck out evidence not having been led in proof of same. Failure of the other Claimants except 1st and 4th to lead evidence in proof of their claims has fatally damaged same, see Kaydee Ventures Ltd v. Ministry of F.C.T (2010)7 NWLR (Pt. 1192) 171. The claims of the 1st and 4th Claimants succeed in part while those of the other claimants fail and are dismissed accordingly. For the avoidance of doubt, it is ordered as follows: a. That the termination of employment of the 1st and 4th Claimants was wrongful the requisite one month notice not having been given. b. That the Defendant shall pay to each of the 1st and 4th Claimants arrears of salary for the months of June, July and August 2012 as shown in paragraph 12 of the Claimants Statement of Facts; c. Defendant shall pay to each of the 1st and 4th Claimants one month salary in lieu of notice as contained in paragraph 6 of the Offer of Appointment of each of the claimants; d. Defendant shall remit to the appropriate government agency - Lagos State Government State Inland Revenue the amount deducted from the1st and 4th Claimants salaries as taxes during the stated period and which amount was not remitted as appropriate. e. Defendant shall remit forthwith to the 1st and 4th Claimants chosen Pension Funds Administrators all pension contributions amounting to 15% of the 1st and 4th Claimants monthly emoluments that are due and outstanding (for September 2010 to March 2011 and May-September 2012) as agreed upon in the Offer of Appointment letter of the 1st and 4th Claimants. f. Defendant shall pay to the 1st and 4th Claimants 10% of their Basic Salary as leave allowance as contained in their offer of employment letter for the year 12/9/10 - 11/9/11 and the year 12/9/11 - 11/9/12. g. Prayer for an order of court directing Defendant to monetise the leave that was agreed upon as contained in the offer of appointment of the 1st and 4th Claimants fail. h. Cost of this case is put at Fifty Thousand Naira only payable, within 30 days of this judgment, by the Defendant to the 1st and 4th Claimants. Judgment is entered accordingly. -------------------------------- Hon. Justice J. D. Peters Presiding Judge