KATE E. PIUS -VS- MULTIPRO CONSUMER PRODUCT LIMITED and oths

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 18^th day of January, 2021 SUIT NO: NICN/PHC/81/2020

BETWEEN:

KATE E. PIUS---------------------------------------------CLAIMANT

AND

1. MULTIPRO CONSUMER PRODUCT LIMITED

2. MR. RISHABH MALANI------------------------------DEFENDANTS

Representations:

Ben Uzozie for the Claimant.

Sydney Amadi with E.E. Nyenke for the Defendant.

Judgment.

This suit was commenced by way of a General Form of Complaint filed on the 13^th of July, 2020 along with statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.

The complaint and other processes were amended on the 23^rd of June, 2021 and arising from the amended Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

(a) A DECLARATION that the oral dismissal of the claimant by the defendants is wrongful and is in breach of the principles of fair hearing and contrary to the claimant’s contract of employment and the Code of Business Conduct of the 1^st Defendant.

(b)A DECLARATION that the termination of employment of the claimant without the required one month notice or salary in lieu of notice is unlawful.

(c) A DECLARATION that the claimant is entitled to her Terminal benefits to the sum of Four Hundred and Twenty Thousand Naira (N420,000.00.) in line with the claimant’s condition of employment.

(d)A DECLARATION that the 2nd Defendant abused his office by wrongfully dismissing the claimant without her salary in lieu contrary to her contract of employment.

(e) A DECLARATION that the 1st defendant’s act of non-remittance of the 10 percent mandatory pension contribution to the claimant’s pension’s account since 2011 till date is fraudulent and contravenes the Reformed Pension Act 2014.

(f) AN ORDER of court directing the 1st Defendant to pay forthwith the sum of Four Hundred and Twenty Thousand Naira (N420,000.00.) to the claimant being the terminal benefit of the claimant having served the 1st defendant for 9 years according to the claimant’s condition of service.

(g)AN ORDER directing the 1^st defendant to pay the claimant the sum of N35,000.00 (Thirty-Five Thousand Naira) only being ONE month salary in lieu according to the claimant’s contract of employment and the 1^st defendant Code of Business Conduct.

(h)AN ORDER OF COURT directing the defendants to remit the sum of Three Hundred and Seventy-Eight Thousand Naira (378,000.00) to the claimant being the unremitted 10 percent of the mandatory contribution from the defendant for 9 years in line with the Reformed Pension Act 2004.

(i) THE SUM of TEN (10,000,000.00) Million Naira only being exemplary damages against the defendants for the wrongful dismissal of the claimant and the pains caused the claimant by the defendants.

(j) A DECLARATION that the destraining(sic) of the claimant’s properties worth N500,000.00 at the Areta Estate by the Defendants is unlawful

(k)AN ORDER of court directing the defendants to release the distrained(sic) properties of the claimant at Areta Estate.

(I) AN ORDER directing the Defendants to pay 10% interest monthly on the judgment sum till judgment sum is liquidated.

(m) ANY OTHER ORDER(S) that this Honourable Court may deem fit to make in the circumstance.

Reacting to the foregoing claims, the Defendants on the 3^rd of February, 2021 filed a conditional memorandum of appearance along with a statement of defence, list of witnesses and witness statement on oath. The Defendants on the 24^th of August 2021 then filed an amended copy of the statement of defence, list of witnesses, witness statement on oath and added a list of document and copies of the listed document.

Upon receiving the amended statement of defence, Claimant filed a reply on the 4^th of October, 2021.

Trial commenced on the 1^st of February, 2021 when the Claimant in opening her case was herself called as the sole witness as CW1 upon which she adopted her witness statement on oath marked as C1. Through the said CW1, three documents were tendered in evidence and admitted as Exhibits C2 – C4. Exhibit C2 was however admitted under protest.

Arising from the amended statement of fact and witness statements on oath, the case of the Claimant is that she was at all material times a staff of the 1^st Defendant until the 28^th day of May 2020 when she was orally sacked. Claimant added that she was not issued an appointment letter nor condition of service but merely an identity card and that her employment was confirmed orally by the 1^st Defendant who also stated that the claimant shall be entitled to terminal benefit after working for five years, which shall be her monthly salary multiplied by 12 months. Claimant further averred that her work description included laundry and dry cleaning, cooking, going to the market, running errands and cleaning the apartments of the Indian management staff of the 1^st defendant and she served the Defendants by performing the said duties for more than nine years without a query or warning whatsoever while she survived sexual harassments and withstood sexual intimidations for the said 9 years. Claimant averred that she worked from 7am to 8pm, Monday through Saturday without a leave or leave allowance and the sudden termination of her employment has caused her psychological trauma. Claimant posited that her condition of service provided that she will be entitled to a one month salary in lieu notice when the 1^st Defendant decides to lay her off but the Defendants breached the condition of service of the claimant by terminating her appointment without a Termination Letter, one month notice nor one month salary in lieu while they also neglected or refused to contribute the minimum stipulated 10 percent of the mandatory contribution of her salary under the reformed Pension Act 2014. Claimant also averred that after she made her complaints at the Immigration office, she was invited by the Nigerian Immigration where the 1^st defendant offered her N60,000.00 (Sixty Thousand Naira) as full compensation and her terminal benefits but she refused the offer as it was contrary to her work agreement with the 1^st defendant. She added that the 1^st Defendant restrained her from collecting her personal properties upon the termination of her employment and when she reported at the Immigration office, the 2^nd defendant got angry and threatened her.

Upon cross examination, CW1 posited that she did not sign any contract of employment with the Defendant as they refused to give her any while the Defendants also did not ask her to submit any credentials. CW1 added that she was employed at Areta Estate, Rivers State while she has no staff code salary payment nor ID Card. She maintained that her bank statement is proof that she is on the payroll of the Defendant and while the payment was done by Mr. Sekhar, the said Mr. Sekhar stays in Areta Estate. CW1 Stated that she has nothing in writing to prove that she previously works for the 1^st Defendant in Asaba while admitting that she is not a security staff contracted to the 1^st Defendant. CW1 further posited that she complained to the Legal Aid Council about being sexually harassed and that her properties were seized although she has no receipts for the properties but she was the only one living in the boys’ quarters (BQ).

Upon discharge of CW1, Claimant closed her case while the Defendant opened theirs by calling one witness in the person of Faustians Itakpe Ahmed as DW1 who adopted his witness statement on oath which was marked as D1. Through DW1, one document was tendered and admitted under protest as Exhibits D2.

Arising from the amended statement of defence and witness statement on oath, the case for the Defendants is that the claimant was never employed by the 1^st defendant in 2011 or at all while adding that the claimant was hired as a maid by the 2^nd defendant and both the claimant and the 2^nd defendant agreed that the claimant will clean the 2^nd defendant’s house at Areta Estate, Port Harcourt for a certain number of days each month and for a fee of N35,000. The defendant being an expatriate staff of the 1^st defendant works for only eleven months each year and is entitled to a one month leave which he usually spend outside the country and the claimant does not work for the 2^nd defendant during such monthly leave. The Defendants added that it was because the claimant claimed to live very far from the 2^nd defendant’s house that the 2^nd defendant allowed her to sleep in his boys-quarters and maintained that the card issued to the Claimant was merely as a pass at the Areta Estate where the 2^nd Defendant lives and the said gate pass does not make the Claimant a staff of the 1^st Defendant as the 1^st Defendant neither orally employed nor confirmed the employment of the Claimant. The Defendants averred further that the 2^nd Defendant does not carry cash about and did not use mobile money applications thus he left a standing instruction with his employers to authorize the deduction of N35,000 directly from his salary monthly to be paid to the claimant for the services she renders to him each month. The Defendant added that when the 2^nd defendant no longer wished that the claimant clean his house any more, he politely informed her so and asked her to leave the boys quarters of the 2^nd defendant which was fully furnished by the 2^nd defendant with chairs, bed, kitchen utensils, lockers and wall hanger. The Defendants averred that the claimant reported the 2^nd defendant at the Immigration office after attempting to blackmail the 2^nd defendant with a threat that if he does not pay her millions of Naira, she will use her ‘connection’ at the Immigration office to deport him back to his country but the 2^nd defendant did not give in to the cheap blackmail.

Upon cross examination, DW1 stated that he was representing the company and that he was not there when the 2^nd Defendant entered into agreement with the Claimant. DW1 also admitted that the 1^st Defendant has a company handbook while the 2^nd Defendant is a manager in the company and was being paid salary. DW1 posited further that the 1^st Defendant usually contracted services to service providers while the card given to the Claimant was issued as a gate-pass to allow her access to the estate. DW1 also admitted that Mr. Ladha Sekhar is the Accountant of the 1^st Defendant and that the Claimant has worked for over 8 years while also stating that he was present at the immigration office when the Claimant made a complaint against the 2^nd Defendant.

Upon the discharge of DW1, the Defendant closed their case and matter was adjourned for adoption of final addresses.

The Defendants on the 26^th of October, 2021 filed their final written address and arising therefrom, Counsel to the Defendant, Sydney Amadi Esq., formulated two issues for determination to wit:

(1) Whether the claimant failed to prove that the 1^st defendant employed her.

(2) Whether the relationship between the claimant and the defendant was one of master/servant which only entitled the claimant to a month salary for damages in the event of termination of employment.

In arguing issue one, counsel submitted that the Claimant failed to tender any contract of employment and upon cross examination, she admitted that she does not have any contract of employment. Counsel added that the Claimant failed to establish the allegation that there exists a code of business conduct and a condition of service of the 1^st defendant which entitled her to terminal benefits, mandatory pension contribution, N500,000 special damages for her personal property and interest on the sums.

Counsel argued further that the bank statement of the claimant only showed payment of N35,000 from a private/individual bank account of one Ladha Sekhar, an employee of the 1^st defendant and same in no way shows payment from the 1^st defendant as exhibit D2 shows her payments made by 1^st defendant for her staff’s salary is reflected. Counsel maintained that the onus of proof is on the Claimant to prove all assertions. He cited the case of Buhari vs. Obasanjo (2005) 7 SCNJ 1 at 47, OKOMU OIL PALM CO. LTD VS ISERHIENRHIEN (2001) LPELR-2471 (SC).

In arguing issue two, counsel submitted that from the pleadings and evidence before the court, it is without any doubt that the relationship between the 2^nd defendant and the claimant was one that was personal; to wit, a master/servant relationship wherein the 2^nd defendant agreed with the clamant that claimant will be paid a monthly salary of N35,000. He added that the nature of work or services rendered by the claimant to the 2nd defendant is laundry and dry cleaning, cooking; going to the market, running errands and cleaning the apartment of the 2^nd defendant.

Counsel also posited that the only damages the Claimant is entitled to is N35,000 being the salary agreed with the 2^nd Defendant. He cited the cases of IMPERIAL MEDICAL CENTRE & ANOR VS AHAMEFULE (2017) LPELR-42886 (CA); GBOBOH V BRITISH AIRWAYS PLC (2016) LPELR-40099 (CA) and OBANGE VS UNION BANK (2018) LPELR44702 (SC).

Counsel concluded by urging the court to dismiss the claims of the claimant against the 1^st defendant as the claimant failed in proving that the 1^st defendant employed her and to dismiss the claims of the claimant against the 2nd defendant save to hold that the claimant is entitled to her one month salary in lieu of notice against the said 2^nd defendant.

Reacting to the Defendants’ final address, the Claimant filed her final address on the 9^th of November 2021 and arising therefrom, counsel to the Claimant, B. Uzozie Esq. formulated a lone issue for determination to wit:

Whether having regards to the evidence before this Court, the Claimant has proved her case and is entitled to the relief sought.

In arguing the lone issue, Counsel submitted that the Claimant testified that she was employed by the 1st defendant, through the 2^nd defendant as the manager of the 1^st defendant while she also testified that the 1^st defendant has a staff handbook but that none was given to her. Counsel added that it was not controverted that the claimant submitted her passport photographs and filled forms for her employment which the 2^nd defendant issued her and the 2^nd defendant acted in his capacity as the manager of the 1^st defendant when he issued the claimant an ID card.

Counsel further posited that the Claimant tendered an identity card issued to her by the 1^st defendant bearing the photograph of the claimant and the name of the 1^st defendant duly signed by the authorized officer of the 1^st defendant and this is sufficient to show that the claimant was duly employed by the 1^st defendant.

Counsel further posited that the 1^st Defendant admitted having a handbook for staff but failed to produce same to disprove the claim of the Claimant with regards to terminal benefit as the claimant agreed with the 2^nd defendant during her employment. Counsel added that DW1 admitted that he was not aware of the terms and conditions of the contract agreed between the Claimant and 2^nd Defendant and further stated that he was not in court to speak for the 2^nd Defendant.

Counsel urged the court to take cognizance of Section 12(2) (b) of the National Industrial Court Act2006 in view of the burden of proof placed on the Claimant and the circumstances of this suit wherein the employment relationship between the Claimant and Defendants is largely undocumented.

Counsel cited section 7-20 of the LABOUR ACT, the case of SHENA SECURITY COMPANY LTD V AFROPAK (NIG) LTD & ORS (2008) LPELR – 3052 (SC) and AFRAB CHEM LTD V OWODUENYI (2014) LPELR – 23613 (CA) to contend that it will be against public policy to let the Claimant go without a salary in lieu of notice and a terminal benefit having spent part of her youth serving the 1^st defendant. Counsel urged the court to hold that the Claimant was a staff of the 1^st Defendant and is entitled to a terminal benefit as could be implied by the condition of service as agreed with the 2^nd defendant who acted for the 1^st defendant.

Counsel argued further that it is not controverted that the Claimant’s appointment was terminated without notice and as such, every reasonable man will know that there was no time given to the Claimant to remove her personal belongings.

With regard to claim for pension, Counsel argued that the 1^st Defendant is an organized private limited liability company and by the mandatory provision of the Reformed Pension Act 2014, it became unlawful for the 1^st defendant not to remit the statutory ten percent (10%) contribution to the pension account of the Claimant.

Counsel urged the court to hold that the 2^nddefendant, who did not testify or call any other witness to testify for him in this suit, employed the claimant while acting in the course of his employment, hence the liability of his employer arises in this case. Counsel cited the case of A.G FERRORO & CO. LTD VS NNAMANI (2006) ALL FWLR (PT 339)990 CA PG 994, RT 6 PARAGRAPH E.

Counsel concluded that the claimant has shown by her uncontroverted evidence that she was an employee of the 1^st defendant and urged the court to grant all the reliefs of the claimant in the interest of justice.

By way of reply on point of law filed on the 18^th of November, 2021, counsel to the Defendants posited that there is nothing in section 9 (2) of the Labour Regulations, 12 (2)(b) of the National Industrial Court Act 2006 nor in sections 7-20 of the Labour Act which supports the claim of the claimant as the claimant failed to show how those sections support her case.

With regards to the cases of UNION BANK OF NIGERIA PLC VS. SOARES (supra); SHENA SECURITY COY LTD VS. AFROPAK NIG. LTD & ORS. (supra) and AFRAB CHEM LTD VS. OWODUENYI (supra) cited by counsel to the Claimant, counsel to the Defendant contended that there is no shred of evidence proving that any contract of employment was entered into by the claimant and the 1^st defendant whether written or oral.

Counsel also argued with regards to the absence of 2^nd Defendant that the failure of the defence to tender evidence at a trial does not by itself discharge the plaintiff of the burden to prove his case and cited the case of Yakubu vs. M.W.T. Adamawa State (2006) 10 NWLR [Pt.989] 513 CA.

Counsel urged the court to discountenance the claims of the Claimant.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and the reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and reply on point of law, the sole issue for the determination of this suit is to wit:

Whether or not in view of the facts and evidence before this court, the Claimant is entitled to the reliefs sought.

Before resolving the lone issue, I must quickly address the status of Exhibits C2 and D2 which were both admitted under protest. With regards to Exhibit C2 which was tendered through CW1 and objected to by the learned Counsel to the Defendant, Sydney Amadi Esq, on the ground that there was non-compliance with section 84 of the Evidence Act, I find that the said Exhibit C2 is the Claimant’s Keystone Bank statement of account for the period from 1^st October 2019 to 24^th June 2020. Counsel to the Claimant responded to this objection to the effect that foundation had been laid hence the objection should be jettisoned.

In resolving the contention, I reckon that the provision of section 84 of the Evidence Act upon which counsel to the Defendant predicated his objection is with regards to the rules guiding the tendering of a computer generated evidence and upon a perusal of paragraph 12 of the statement of fact and paragraph 19 of the witness statement on oath marked as C1 before this court, it is abundantly clear that the Claimant stated the circumstances leading to the generation of Exhibit C2 which was issued to the Claimant by Keystone Bank.

The averments in the said paragraphs are clearly in compliance with the provisions of section 84 of the Evidence Act and same makes the contention by counsel to the Defendants baseless and unmeritorious. The objection is hereby overruled and the said Exhibit C2 is accordingly admitted in evidence.

With regards to Exhibit D2 which was tendered through DW1, counsel to the Claimant objected on the ground that the said exhibit D2 was made during the pendency of this suit while counsel to the Defendants responded that the said document is relevant and made in 2019 and not in 2021.

Bearing the foregoing contention in mind, I have taken a look at the said exhibit D2 to find that same is a payment notification bearing the date of 24^th December, 2019. This suit on the other hand was filed on the 13^th of July, 2020. This goes to show that the said payment notification was generated prior to the commencement of the instant suit rather than while the suit was pending.

Consequently, the objection of counsel to the Claimant with regards to the admissibility of Exhibit D2 is unmeritorious and same is accordingly discountenanced. Exhibit D2 is hereby admitted in evidence.

That said, I now turn to the sole issue formulated for determination which hinges on whether the Claimant is entitled to the reliefs sought against the Defendants based on the facts and evidence before the court. To consider the said issue, it is ideal to foremost mention that a party who seeks for the judgment of the court to be in his or her favour is burdened with the onus to prove that he or she is accordingly entitled to the said claims. In this regard, the Court in the case of Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233 at 264 paras. A - B (CA) held that:

“It is trite law that who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight. See A.G, Oyo State v. Fairlakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255”. Per Mshelia J.C.A.

The basis for the foregoing authority is as can be found in the provisions of section 131 (1) and (2) of the Evidence Act 2011 which provide thus:

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Upon a consideration that the Claimant seeks for declaratory reliefs, I find it apposite to add that declaratory reliefs are not granted as a matter of course. The court in this regard held in the case of DIAMOND BANK PLC. V. YAHAYA & ANOR. (2011) LPELR-4036(CA) that:

"The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187." Per ONYEMENAM J.C.A. (P. 27, paras. B-D).

That being the case with the burden of proof, it must also be reckoned that the standard upon which the burden of proof in civil cases must be discharged is upon a balance of probability or preponderance of evidence. The court in the case of UBN PLC. v. ONUORAH & ORS. (2007) LPELR-11845(CA) held to the effect that:

“The standard of proof in civil cases is on the preponderance of evidence. It is incumbent on a party who is claiming a relief against his opponent to prove what he asserts, for he has to provide good and credible evidence to discharge the burden of proof placed on him by law”. Per OMOLEYE, J.C.A (P. 29, paras. C-F)

The foregoing position of the law also finds its footing on the provision of section 134 of the Evidence Act 2011 which provides that:

The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.

Bearing the foregoing provisions and position of the law in mind, I reckon that the highlight of facts forming the basis upon which the Claimant predicated her claim is to the effect that she alleged that the Defendants employed her orally in 2011 without a contract of employment and condition of service to work in the residential apartment of the 2^nd Defendant and some other families to clean, cook, run errands and do laundry. She did so for 9 years before her employment was abruptly terminated on the 28^th of May, 2020 without being paid salary in lieu of notice, leave allowance, terminal benefit and contributory pension. She also alleged that the Defendants did not allow her take her personal belongings from the 2^nd Defendant’s premises.

It is in view of the foregoing that the Claimant seeks for a declaration that the termination of her employment is unlawful and that she is entitled to salary in lieu of notice, 10% pension contribution, terminal benefit, and exemplary damages.

Claimant tendered Exhibits C2 – C4 which were respectively her statement of account with Ecobank, a staff ID card and a letter written on her behalf by Legal Aid Council dated the 15/6/2020 and supposedly addressed to the Manager of the 1^st Defendant.

The Defendants on their part denied the fact that the Claimant was employed by the 1^st Defendant as she was employed by the 2^nd Defendant as a maid to clean his residence at Areta Estate, Port Harcourt at a fee of 35,000 although the 2^nd Defendant is himself an expatriate staff of the 1^st Defendant. The Defendant added that the 2^nd Defendant left a standing instruction for the Claimant’s salary to be deducted directly from source and then paid to the Claimant and that the gate pass issued to the Claimant was merely to access the gate of the Estate where the 2^nd Defendant resides. The Defendant admitted that the Claimant’s employment was terminated by the 2^nd Defendant when the 2^nd Defendant politely informed the Claimant that he no longer requires the service of the Claimant while asking her to leave the boys quarters.

The Defendant tendered in evidence only a notification of payment dated the 24^th of December, 2019.

It is in view of the foregoing that I must foremost state that the peculiarities of the instant case requires the finding of whether or not the 1^st Defendant is the employer of the Claimant. In addressing the said question, it is foremost ideal to state the meaning of an employer and employee as clearly provided in the statutes.

Foremost is the provision of Section 54 of the National Industrial Court Act which defines the word employee and employer thus:

"Employee" means a person employed by another under oral or written contract of employment whether on a continuous, part-time, temporary or casual basis and includes a domestic servant who is not a member of the family of the employer;

"Employer" means any individual or body corporate or unincorporated who has entered into a contract of employment to employ any other person as an employee or apprentice;

See the case of KEYSTONE BANK LTD v. OYEWALE (2014) LPELR-23612(CA)

The Labour Act also makes provision for the meaning of the word employer and worker as provided in section 91 thus:

"employer" means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer

"worker" means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include:

(a) any person employed otherwise than for the purposes of the employer's business; or

(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or

(d) representatives, agents and commercial travellers in so far as their work is carried out outside the permanent workplace of the employer's establishment; or

(e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adopted for sale in his own home or on other premises not under the control or management ot the person who gave out the article or the material; or

(f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply;

Arising from the foregoing definition of worker/employee, it is clear that an employee can include a domestic worker as in the instant case where the Claimant alleges that she carries out domestic works for the 2^nd Defendant though employed by the 1^st Defendant.

In view of the foregoing, I reckon that section 91 of the Labour Act also defines domestic servant thus:

"domestic servant" means any house, stable or garden servant employed in or in connection with the domestic services of any private dwelling house, and includes a servant employed as the driver of a privately owned or privately used motor car;

By the foregoing definition, it is settled that the Claimant whom both parties agreed to have worked in the house of the 2^nd Defendant in Areta Estate, Port Harcourt to carry out cleaning, cooking, laundry service and running errands, is a domestic servant and therefore qualified to be classified as an employee.

On the other hand, it is also clear that an employer can be either an individual or body corporate or unincorporated who has employed another person for manual or clerical work and it is in line with this definition that it is imperative to consider the circumstances of the case to ascertain whether the Claimant’s employer is the 2^nd Defendant or the 1^st Defendant which is an organization for which the 2^nd Defendant works. This is starting with the consideration of the fact that the Claimant herself averred that the 2^nd Defendant is the Indian Branch Manager of the 1^st Defendant.

In considering the facts and circumstances, I reckon that Claimant posited that she was not issued a letter of employment but she was issued an I.D. Card which was tendered as Exhibit C3. The Defendants posited that the said I.D. Card was merely as a gate pass for the Claimant so that security personal will not hinder her when entering the Estate where the 2^nd Defendant resides.

I have taken a look at the said I.D. Card to find that the only inscription that remains legible on the face of the I.D. card is the name of the Claimant “Kate” and the words “identity card”. On the back of the I.D. card however, the inscription remains legible and it reads:

“This is to certify that the person whose name and photograph appears overleaf is a security of Multi-pro”.

Relating the foregoing with the testimony of the Claimant before this court, I reckon that the Claimant stated clearly in one breathe that she was employed at Areta Estate, Rivers State and she does not have an I.D. Card while in another breathe she posited that she is not a security staff contracted to the 1^st Defendant.

The foregoing testimony therefore lends credence to the fact that while the Claimant was employed as a domestic staff, her employment was conducted at the premises of the 2^nd Defendant and her work was to be carried out at the premises of the 2^nd Defendant and the I.D. card presented as Exhibit C3 can rightly be said to be a mere gate-pass since the Claimant admitted she is not a security staff.

It must also be mentioned that this court is entitled to look at the records of the court for the purpose of detailed adjudication and in that wise, I reckon that the Claimant had no knowledge of the corporate name of the 1^st Defendant which she alleged to have employed her as the initial complaint filed before this court on the 13^th of July, 2020 reads the name of the 1^st Defendant to be “Multi-Pro Enterprise Limited”. In addition, Exhibit C4 which was the letter written by Legal Aid Council and purportedly addressed to the 1^st Defendant was addressed to “Multi Purpose Enterprise Limited”. This is in addition to the fact that the Claimant posited that the 1^st Defendant is not a registered company. All of these goes to show that the Claimant and her lawyers only got to know of the proper name of the 1^st Defendant when the Defendants entered conditional appearance with their proper name and asserted through their statement of defence that the company is registered although no evidence was adduced in that regard.

I must also point out that I have evaluated the statement of account tendered by the Claimant as exhibit C2 wherein the Claimant was credited with the payment of N35,000 on three occasions and N70,000 on another occasion by one Laddha Sekhar. The said exhibit I must state does not establish that the Claimant was employed by the 1^st Defendant as it rather indicates that the 1^st Defendant does not directly pay salaries to the Claimant. This finding is concretised by the fact that Exhibit D2 tendered by the Defendants shows clearly that the narration of the Payment notification for one Kelvin Samuel reads that the payer of the salary for the month of December, 2019 is Multipro Consumer Products Limited and not Laddha Sekhar. This is moreso as the Claimant admitted that the same Laddha Sekhar also stays in Areta Estate.

The foregoing clearly shows that despite the allegation by the Claimant that the 1^st Defendant employed her orally, the facts and circumstances as deducible from the evidence before the court does not support the assertion. Hence, this court finds and holds that the 1^st Defendant is not the employer of the Claimant. Rather, it is the 2^nd Defendant who employed the Claimant as a domestic servant.

It is upon the foregoing finding that the reliefs sought by the Claimant is to be considered but before addressing the reliefs, I find it apposite to consider the fact that the Claimant was not issued a letter of employment in the face of the position of the law which expects the Claimant to predicate her claims on a contract of employment.

The said general position of the law was clearly stated in the case of EFURIBE V. UGBAM & ORS. (2010) LPELR-4079(CA) where the court held that:

"Generally, the letter of employment must be resorted to in considering the rights and obligations of the parties. Where the plaintiff fails to plead and prove the fact of his employment in a contract of service, he will not be entitled to the declaration that his appointment subsists. MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506, 519." Per Abdul-Kadir, J.C.A. (P.33, Paras.B-C).

Notwithstanding the foregoing, the courts have also held that an employer who failed to issue an employee with letter of employment must be estopped from requiring the employee to predicate his case on a contract of employment. The court in the case of MOBIL PRODUCING NIG. UNLT & ANOR. v. UDO (2008) LPELR-8440(CA) held that:

"It is settled law that any employer who fails to give his employee a written statement of the terms and conditions of his employment about three months after the beginning of his employment is estopped from relying on the failure of the worker or his said employee to tender in evidence the said terms and conditions of his employment. See the case of Nwakhoba vs. Dumez (Nig) Ltd (2004) 3 NWLR Part 861 p. 461 where it was held that it would not be proper for the Respondent, the employer now, to contend that the Plaintiffs failed to produce in evidence the NJIC conditions of service under which they claimed, when, the evidence in Court established that it was the Defendant/Respondent who failed in its statutory obligation to provide any of the Plaintiffs workers with conditions of service as provided for in section 7 (1) of the Labour Act. It was stated that, the Defendant contravened the provisions of section 7 (1) of the Labour Act and as such shall not be permitted in law to profit from its own wrong doing per Oduyemi J.C.A at 484." PER ORJI-ABADUA, J.C.A. (Pp. 70-71, Paras. F-D).

Bearing the foregoing in mind, I reckon that the terms regulating the employment of the Claimant can only be implied and the reliefs sought by the Claimant can only be determined within the provision of Labour Act which makes provision for the requisite length of notice which an employee should be entitled to in case of termination of the employment.

It is in the light of the foregoing that I shall accordingly consider the reliefs sought by the Claimant.

Reliefs (a), (b) and (d) have similar background and I find it apposite to consider them in one breathe. The said reliefs reads thus:

(a) A DECLARATION that the oral dismissal of the claimant by the defendants is wrongful and is in a breach of the principles of fair hearing and contrary to the claimant’s contract of employment and the Code of Business Conduct of the 1^st Defendant”.

(b)A DECLARATION that the termination of employment of the claimant without the required one month notice or salary in lieu of notice is unlawful.

(d)A DECLARATION that the 2nd Defendant abused his office by wrongfully dismissing the claimant without her salary in lieu contrary to her contract of employment.

Upon a consideration of the foregoing reliefs, I must state that this court has found that there is no written contract of employment which stipulates the manner or mode by which the notice of termination is to be made and the length of notice. However, section 11 (1) and (3) of the Labour Act requires notice to be given for termination and where the notice is to be for more than one week, it is required to be in writing. For avoidance of doubt, the said section provides thus:

(1) Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

(3) Any notice for a period of one week or more shall be in writing.

The question that arises out of the following is whether the Claimant is entitled to a length of notice which exceeds one week and which therefore is required to be in writing. The answer to the said question is also made available by the same Labour Act which provides under section 11 (2) thus:

(2)The notice to be given for the purposes of subsection (1) of this section shall be-

a. one day, where the contract has continued for a period of three months or less;

b. one week, where the contract had continued for more than three months but less than two years;

c. two weeks, where the contract has continued for a period of two years but less than five years; and

d. one month, where the contract had continued for five years or more.

In the instant case, both parties are in accord that the Claimant worked as domestic staff for the 2^nd Defendant for over 8 years as admitted by DW1 during cross examination. Therefore, the length of notice to which the Claimant is entitled is one month having worked for more than five years as stipulated in section 11 (2) (d) of the Labour Act. The implication of the notice being for one month is that the said notice is statutorily required to be in writing.

Having established the length of notice the Claimant is entitled to and that same is required to be in writing, it is important to quickly mention that either party can waive the issuance of giving a notice by making payment in lieu of notice. In this regard, section 11 (6) provides thus:

Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice.

The court in the case of NEW NIGERIA BANK PLC. V. OWIE (2010) LPELR-4591(CA) also pronounced on the period the salary in lieu of notice ought to be paid when the court held that:

"In determining that relationship by three months salary in lieu of notice the Defendant is required to pay the terminal salary at the time of the determination of the relationship." Per OMOLEYE, J.C.A.(P. 18, paras. B-C).

In the instant case, the 2^nd Defendant did not provide the Claimant with any written document to indicate notice of termination nor offered payment in lieu of notice at the time of communicating that the service of the Claimant is no longer required.

Consequent upon the foregoing position of the law, the Claimant is entitled to the declarations sought to certain degrees. Accordingly, reliefs (a) is granted in that this court makes a Declaration that the oral termination of the Claimant’s employment by the 2^nd Defendant without notice is in contravention of the Labour Act and therefore unlawful.

Reliefs (b) on its part is granted as prayed to the effect that this court makes a declaration that the termination of employment of the claimant without the required one month notice or salary in lieu of notice is unlawful.

With regards to relief (d), I must state that this court found that the 2^nd Defendant is the employer of the Claimant and it is only in that capacity that his failure to issue the Claimant one month notice or pay salary in lieu that his action is declared to be an abuse of his position as an employer. Consequently, relief (d) is granted as prayed to the effect that this court makes a declaration that the 2^nd Defendant wrongfully dismissed the claimant without paying her salary in lieu of notice contrary to the provisions of the Labour Act.

Relief (c) is for “A DECLARATION that the claimant is entitled to her Terminal benefits to the sum of Four Hundred and Twenty Thousand Naira (N420,000.00.) in line with the claimant’s condition of employment”.

In considering the said relief, I must reiterate that there is no condition of employment placed before this court by the Claimant and the alleged oral undertaking made by the 1^st Defendant to prove that the Claimant is entitled to terminal benefit which shall be her monthly salary multiplied by 12 months, this assertion is not supported by any scintilla of evidence especially as this court has found that the Claimant was not employed by the 1^st Defendant. In addition, there is no provision in the Labour Act upon which the entitlement and purported computation of terminal benefit can be predicated and implied.

Consequently, there is no probable basis for the declaration sought in Relief (c),the relief sought must fail and same is accordingly refused.

Relief (e) is for “A DECLARATION that the 1^st defendant’s act of non-remittance of the 10 percent mandatory pension contribution to the claimant’s pension’s account since 2011 till date is fraudulent and contravenes the Reformed Pension Act 2014”.

In consideration of the said relief, I must foremost posit that the employer’s responsibility of pension contribution cannot be placed on the 1^st Defendant whom this court have found not to be the employer of the Claimant. However, with the 2^nd Defendant being found to be the employer, I must also state that I am not oblivious of the fact that the Pension Reform Act 2014 makes provision for the contributory pension scheme and it must be noted that being a contribution, an employee is expected to contribute certain minimum percentage of the salary while the employer also makes a certain minimum percentage and this is upon the employee providing the employer with his or her Retirement Savings Account (RSA) details with an identifiable Pension Fund Administrator into which the contributions are to be made. Section 11 (1) (3) and (4) are instructive in this respect and for avoidance of doubt, provides thus:

(1)Every employee shall maintain an account: (in this Act referred to as "retirement savings account") in his name with any pension fund administrator of his choice.

(3) The employee shall notify his employer of the pension fund administrator chosen and the identity of the retirement savings account opened under subsection (1) of this section.

(4) The employee shall not have access to his retirement savings account nor have any dealing with the custodian with respect to the retirement savings account except through the pension fund administrator.

Bearing the foregoing in mind, it is clear that the Claimant and the 2^nd Defendant has no specific agreement in relation to contribution of pension and having failed to state any fact relating to notifying the employer of her chosen Pension Fund Administrator nor the evidence of having one, it is abundantly clear that there is no basis for making the declaration sought in relief (e) and same is accordingly refused.

Reliefs (f) and (h) are incidental to the declarations sought in reliefs (c) and (e) in relation to terminal benefit and pension contribution which have been refused. The said reliefs reads thus:

Upon a finding that there is no basis for making the declarations sought in reliefs (c) and (e), the incidentals orders sought by the Claimant to direct the 1^st Defendant or more appropriately, the 2^nd Defendant to make the payment of the sums claimed in reliefs (f) and (h) cannot be justified and they are accordingly refused.

Relief (g) is for “AN ORDER directing the 1^st defendant to pay the claimant the sum of N35,000.00 (Thirty-Five Thousand Naira) only being ONE month salary in lieu according to the claimant’s contract of employment and the 1^st defendant Code of Business Conduct”.

Upon the finding that the Claimant having worked for more than five years is entitled to one month notice or salary in lieu of notice and the finding that the 2^nd Defendant as the employer of the Claimant failed to either give the Claimant one month notice nor pay salary in lieu of the notice, it is without any hesitation that relief (g) is granted to the effect that this court makes an order directing the 2^nd defendant to pay to the claimant the sum of N35,000.00 (Thirty-Five Thousand Naira) only being one month salary in lieu of notice in accordance with the provision of section 11 (2) (d) of the Labour Act with immediate effect.

Relief (i) is for “the SUM of TEN (10,000,000.00) Million Naira only being exemplary damages against the defendants for the wrongful dismissal of the claimant and the pains caused the claimant by the defendants”

Upon a consideration of the foregoing relief, it is imperative to have a clear understanding of what an exemplary damages is and this was clearly pronounced in the case of Obinwa v. C.O.P. (2007) 11 N.W.L.R. (Pt. 1045) 411 at 426-427, paras. G-C (CA) where the court held that:

"Exemplary damages will be awarded against a defendant in three instances. These are: (a) Where there is an express authorization by statute. (b) In the case of oppressive, arbitrary or unconstitutional action by the servants of the government. (c) Where the defendant's conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff. In order to succeed, a plaintiff must be able to prove any of the three conditions. He needs not prove all the three conditions to succeed. Once any of the three conditions is proved, a court of law will award exemplary damages. In the instant case, the action of the 1st-3rd respondents could not be tied to any of the above conditions to warrant the award of exemplary damages against them either jointly or individually. Ezeani v. Ejidike (1964) 1 ALL NLR 402; A.R.E.C. Ltd., v. Amaye (1986) 3 NWLR (Pt. 31) 653; Eliachin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Williams v. Daily Times (Nig.) Ltd. (1990) 1 NWLR (Pt. 124) 1; Iluono v. Chiekwe (1991) 2 NWLR (Pt. 173) 316 referred to.] (Summary of the decision of Owoade JCA).

Bearing the foregoing authority in mind, I have taken a review of the entire circumstances of the case and the argument of counsel to the Claimant and I find no moment at which the exemplary damages claimed is predicated on any of the three instances as stated in the above authority. That notwithstanding, I reckon that the claim for exemplary damages is intended to be for wrongful dismissal and pains caused the Claimant by the Defendants. In this regard, I must state that the Claimant failed to establish any pains caused by the Defendants but she was able to establish that the termination of her employment was wrongful in view of the fact that she was not paid salary in lieu of notice nor paid terminal benefit having worked for about 9 years.

Consequently, while the Claimant is not entitled to exemplary damages, I must posit that this court is by virtue of section 19 (d) of the National Industrial Court Act empowered to award compensation or damages where necessary. The said section for avoidance of doubt provides thus:

The Court may in all other cases and where necessary make any appropriate order, including:

(d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear;

Bearing in mind the finding that the 2^nd Defendant as the employer of the Claimant failed to give the Claimant either notice of termination nor salary in lieu of notice after working for 8 years, this court finds the termination of her employment wrongful and accordingly find the Claimant entitled to damages beyond the salary in lieu of notice. Accordingly, relief (i) is granted to the effect that this court makes an order directing the Defendant to pay to the Claimant the sum of N300,000.00 (Three hundred thousand naira only) being damages for wrongful termination of employment.

Reliefs (j) and (k) are reliefs relating to the fact alleged by the Claimant to the effect that the Defendants threw her out of her apartment in Areta Estate and seized her personal properties worth N500,000.00 including foam, hair dressing machine, kitchen utensil, lockers and wall hangers. The said reliefs reads thus:

(j) A DECLARATION that the distraining(sic) of the claimant’s properties worth N500,000.00 at the Areta Estate by the Defendants is unlawful

(k)AN ORDER of court directing the defendants to release the distrained properties of the claimant at Areta Estate.

Upon a consideration of the following reliefs, I must state the onus is on the Claimant to establish that her properties were seized by the Defendants particularly the 2^nd Defendant who is her employer. This is moreso as the 2^nd Defendant denies seizing any property belonging to the Claimant while positing that the boys quarters where the Claimant was accommodated was fully furnished by the 2^nd Defendant and upon the exit of the Claimant, the said boys quarters had been used as a store.

In view of the foregoing contention, there is no evidence with which to preponderate the assertion of either party as to whether or not the properties of the Claimant were indeed seized upon the termination of her employment. No evidence was placed before this court to show that the Claimant reported the alleged seizure of her personal properties to the police, neither was the police report obtained ar even the evidence of the police officer who conducted the investigation to convince the court that her properties were indeed seized by the Defendants. In other words, there is no basis upon which the declaratory relief and incidental order respectively sought in relief (j) and (k) can be granted due to dearth of evidence and they are accordingly refused.

Relief (I) is for “AN ORDER directing the Defendants to pay 10% interest monthly on the judgment sum till judgment sum is liquidated”.

There is no gainsaying that Order 47 Rule 7 of the Rules of this Court stipulates that the Court may at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.

Bearing the foregoing provision in mind, I reckon that this court had ordered the 2^nd Defendant to pay the sum of N35,000 as salary in lieu of notice with immediate effect while also awarding N300,000.00 as damages for wrongful termination, consequently, the Claimant is considered entitled to the discretion of the court in granting post judgment interest and in that light, relief (l) is granted to the extent that this court accordingly makes an Order directing the 2^nd Defendant to pay to the Claimant the monetary sums awarded under this judgment immediately, failure of which the said sums shall attract interest at the rate of 20% per annum.

In the final analysis, having addressed all the reliefs sought, it is resolved that the Claims of the Claimant is partly meritorious in the extent to which reliefs (a), (b), (d), (g), (i) and (l) have been granted. The rest of the reliefs sought lack merit for dearth of evidence and they are accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.