IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

        BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATED: 4^TH OCTOBER, 2022                                          SUIT NO: NICN/LKJ/01/2020

BETWEEN

LAWAL YUNUSA GWAZANWA                    CLAIMANT/RESPONDENT                                       

AND

1.   GEREGU POWER PLC                                                  DEFENDANT/APPLICANT              

2.   BOOMTAC GOLD CONCEPT LTD                            DEFENDANT/RESPONDENT

REPERESENTATION

Irene Ominike For the Claimant

L.T Agige with him are T.S. Raheem for the 1^st Defendant.

Habib Oredola with him is Rahman Olalekan for the 2^nd Defendant

                                              JUDGMENT

1.      It is Claimant’s case vide his statement of material facts that he is an employee of the defendant and was later confirmed as a staff. He averred that after some changes and privatization of PHCN by the Federal Government, the defendant absolved him and offered him a six months contract of employment, which was renewed on the 5^th May 2014, he continued that on the 3^rd of November 2014, he was given another letter of employment by ADOY limited and was renewed on 28^th October 2016 by same Company. He averred further that in another development, he was given another letter of appointment by 2^nd defendant through the 1^st defendant and has been in service of the 1^st defendant for period of 17 years. He averred that he has also been making his contribution to the National Contributory pension scheme for a period of 17 years now. He contended that he was not giving any query or suspension neither did he face any panel to answer any allegation but the 2^nd defendant withheld the claimant’s salary since May 2019 till date, which is clearly a breach of the guideline of the defendant. He stressed that all efforts to get the defendant to solve the issue vide a complain letter was to no avail. As a result of this, he instructed his solicitors to take legal steps. It is against this backdrop that claimant vide a writ of summons dated 14^th January, 2020. The claimant vide an amended statement of facts amended on the 5^th July 2021 seeks the following reliefs against the defendants;

a.                  A DECLARATION that withholding the Claimant’s Salary from May 2019 till date without any just cause is Unlawful and a breach of the terms of their contract of employment

b.                  A DECLARATION that the Claimant is entitled to his salary for the period he worked for the Defendant

c.                  A DECLARATION that the continued withholding and or refusal of the Defendant to pay the Claimant his salary is a gross violation of the claimant’s right to enjoy his salary he has worked for.

d.                  AN ORDER compelling and directing the Defendants to pay arrears of salaries owed the Claimant as follows:

                                                                          i.      Full month salaries in the sum of N89,000. Eighty Nine Thousand per month from March 2019 until final determination of this case and hence this action

                                                                       ii.      The contribution the claimant contributed to the National Contributory Pension Scheme for a period of 17 years now. Which is the sum of N1,881,029.24. (One Million Eight Hundred and Eighty One Thousand Twenty Nine Naira Twenty Four Kobo only) as at the time of filing this action since the claimant can only get this contribution back through the 1^st and 2^nd Defendant.

e.                  AN ORDER prohibiting/restraining the Defendants from taking any further decisions or acting in any manner or doing anything whatsoever that may adversely affect or prejudice the Claimant.

f.                   The sums of 2,000, 000:00 (Two million Naira Only) as general damages for physiological trauma the Claimant went through against the 1^st defendant.

g.                  The sums 20,000,000:00 (Twenty Million Naira only) as general damages for physiological trauma the Claimant went through against the 2^nd defendant

h.                  Cost of this action.

i.                    Such further orders as this Honorable Court may deem fit to make in the circumstances.

2.      1^st defendant in its statement of defense wherein it denies each and every allegation of fact contained in claimant’s statement, it asserted that there is no contractual relationship whatsoever between the claimant and the 1^st defendant, it averred that the claimant was only an employee for a period of 2013 and ceased in 2014 and the contractual relationship elapsed at the expiration of six months and was renewed for another Six months but came to an end in November, 2014. It asserted that the claimant clearly admitted that he was an employee of ADOY Limited and the 2^nd defendant preceding this action and that its operations and business are distinct from the ADOY Limited and the 2^nd defendant. It continued that it is not a proper party to the contractual relationship that exist between the claimant and 2^nd defendant. It is the 1^st defendant’s contention that it is impossible that the claimant was in its employment for 17 years as it was not a legal entity for seventeen years. It is the further position of the 1^st defendant that its Company is not the Management, custodian or administrator of the National Contributory Pension Scheme, to which the claimant claimed he made contributions for seventeen years. It asserted that it is not privy to any contractual relationship between the claimant and the 2^nd defendant, it also asserted that it is not privy to any letters referred to by the claimant or otherwise. hence contending that there is no cause of action against it.

3.      2^nd defendant in its response vide its statement of defense asserted that they deny each and every allegation of fact contained in the claimant’s statement of claim, it continued to assert that the claimant was an employee of the 2^nd defendant who was deployed to the 1^st defendant as a fire protection officer and that the claimant was only engaged with the 2^nd defendant under the contract of employment for a term of one year. It asserted that the defendant does not have any relationship with any pension administration. It asserted that the claimant and one Simpa Shehu was seen vide a CCTV camera within the 1^st defendant complex making away with condensate, a natural gas product, and that consequent upon the discovery of the theft, a panel was constituted to investigate and afford all the persons involved to defend themselves. It  asserted that both the claimant and one Simpa Shehu attended the panel separately, whereof they were found guilty and concluded not to press charges but terminated their employment without payment in lieu of one month notice. He went on asserting that both the claimant and Simpa Shehu was assured that they will be paid their outstanding salaries and allowances upon the release of their identity card issued to them at the time of their employment, Simpa Shehu complied and was paid his salaries while the former, i.e. the claimant failed or refused to hand his over. It was stressed that the claimant neither wrote any letter to it as they were not aware of any such complaints, and that there is no basis in contract of employment between the claimant and the 2^nd defendant that entitles him to salaries from the month of May 2019 till date, therefore claimant is also not entitled to the reliefs sought for in this suit.

4.      The 2^nd defendant by way of a counterclaim alleged that the Claimant/defendant to counterclaim was seen vide a CCTV Camera making away with 750 liters of condensate, a natural gas plant within the 1^st defendant’s complex and that it was against the background of theft committed by the defendant to counterclaim and his admission of the allegations against him after he was confronted with the clip at the hearing of panel set up that his employment was terminated by the 2^nd defendant without payment of salary in lieu of notice. The counterclaimant states that the value of 750 liters of condensate stolen is N3,450,000.00 (Three Million, Four Hundred and Fifty Thousand Naira) and therefore it shall be contending at the trial that it is entitle to withhold the outstanding salaries of the defendant to counterclaimant and any other sum due to the defendant to counterclaim until he hands over the property of the company in his possession as well as the 750 liters of condensate stolen from the 1^st defendant. It is against this backdrop that the defendants counterclaimants claim against the claimant/defendant to counterclaim as follows;

a.        A Declaration that the employment of the Defendant to Counterclaim with the Counterclaimant has been terminated by the Notice of Termination of Contract dated 02 July 2019.

b.        A Declaration that the Defendant to Counterclaim is not entitled to his outstanding salaries of two (2) months of May and June 2019, or whichever sum he is entitled from the Counterclaimant upon the cessation of his employment on 01 July 2019, until he properly hands over and deliver all the properties given to him by virtue of his employment with the Counterclaimant particularly the Geregu Power Plc identity card he retains after the cessation of his employment.

c.        A Declaration that the Defendant to Counterclaim is indebted to the Counterclaimant in the sum of N3, 450, 000 (Three Million, Four Hundred and Fifty Thousand Naira Only) being the value of the 750 liters of condensate stolen by the Defendant to Counterclaim at the Geregu Power Plant Station, where he was posted by the Counterclaimant.

IN THE ALTERNATIVE TO RELIEF C

d.        A Declaration that the Defendant to Counterclaim is liable to return the 750 liters of condensate he carted away from the Geregu Power Plant Station, where he was posted by the Counterclaimant.

e.        A Declaration that the Counterclaimant is entitled to net off the outstanding salaries of two (2) months of May and June 2019, or whichever sum the Defendant to Counterclaim is entitled from the Counterclaimant upon the cessation of his employment on 01 July 2019 to defray the sum of N3, 450, 000 (Three Million, Four Hundred and Fifty Thousand Naira Only) being the value of the 750 liters of condensate stolen by the Defendant to Counterclaim at the Geregu Power Plant Station.

f.         An Order of this Honourable Court directing the Defendant to Counterclaim to properly hand over and deliver Geregu Power Plc identity card issued to him by virtue of his employment with the Counterclaimant.

g.        An Order of this Honourable Court directing the Defendant to Counterclaim to pay the sum of N3, 450, 000 (Three Million, Four Hundred and Fifty Thousand Naira Only) being the value of the 750 liters of condensate stolen by the Defendant to Counterclaim at the Geregu Power Plant Station, where he was posted by the Counterclaimant, or whichever sum is outstanding after the two months salaries (for the months of May and June 2019) is net off from the aforesaid value of the 750 liters of condensate stolen by the Defendant to Counterclaim.

IN THE ALTERNATIVE TO RELIEF F

h.        An Order of this Honourable Court directing the Defendant to Counterclaim to deliver the 750 liters of condensate he stole at the Geregu Power Plant Station, where he was posted by the Counterclaimant.

i.          The Cost of this action assessed at N500, 000.00 (Five Hundred Thousand Naira Only).

5.      Claimant reply to the 2^nd defendant’s statement of defence and defence to counterclaim, wherein he averred that it is a general policy applicable to the 2^nd defendant that its employee will contribute certain percentage and also an employer monthly basic salary to the National Contributory Pension Scheme, that the claimant is entitled to claim his contribution through the 2^nd defendant. Claimant continued that he did not commit any theft and was not shown any CCTV camera of him committing any theft neither was any panel set up nor was any query or suspension letters issued to him. He averred that he was not given any termination letter either, as he has continued working for the 2^nd defendant instead he was denied his entitlement. He stated that the complaint he made has to be made through the 1^st defendant and the 1^st defendant will inform the 2^nd defendant. He then averred that the 2^nd defendant held on to his entitlement with no just cause. He then averred that he is not indebted to the 2^nd defendant for the value of 750 liters of condensate or any amount and did not steal same, thereof, he puts the 2^nd defendant to the strictest prove of same.

6.      Also filed along with 1^st defendant’s statement of defense is a notice of preliminary objection which this Court has ruled would be taken together with the main suit. The said Notice of Preliminary Objection is praying the Court to strike out this suit for being grossly incompetent on the following grounds;

a.      The Claimant initiated this action by filing a Writ of Summons dated 6th January 2020 as well as a Statement of Claim at the registry of this Honourable Court. The originating processes filed by the Claimant are unknown and completely alien to the rules of this Honourable court.

b.      The prescribed mode of commencement of an action in this Honourable Court as stipulated by the Rules of this Honourable Court were contravened by the Claimant thereby rendering this action incompetent as presently constituted. The defect in the originating processes further tainted the Amended originating processes filed by the Claimant pursuant to the order of this Honourable court made on 01 July 2021.

c.      The purported amended originating processes and pleading filed by the Claimant did not also indicate that the processes were amended pursuant to the order of this Honourable court as prescribed by Order 26 Rule 8 of the Rules of this Honourable court.

d.      The entirety of the processes filed by the Claimant constitutes an embarrassment to the 1^st Defendant as it discloses no reasonable cause of action against the 1st Defendant. The Claimant by its Amended Writ of Summons filed on 12 July 2021 is seeking in the main:  A declaration that withholding the Claimant’s salary by the 2^nd Defendant from May 2019 till date without any just cause is unlawful and a breach of the terms of their contract of employment.

e.      There is no document frontloaded by the Claimant showing any contractual relationship in existence between the Claimant and the 1^st Defendant as at 2019 when the cause of action in this suit arose.

f.       A reasonable cause of action must set out the Claimant’s legal right and the Defendant’s allegedly ignored obligations stated in clear terms. The Claimant’s pleadings and frontloaded documents have not validly established any subsisting right of the Claimant which was infringed upon or breached by the 1st Defendant.

g.      The Claimant’s action as presently constituted cannot by any ingenuity be sustained against the 1^st Defendant as the 1^st Defendant is neither a proper party nor necessary party to this suit. This Honourable Court is empowered to strike out the name of the 1^st Defendant from this suit.

7.      Accompanying the Notice of the preliminary objection is a Sixteen (16) paragraph affidavit, filed in support is a written address where in Counsel for the 1^st Defendant submitted Two (2) issues for determination of this Court to wit;

       I.            Whether the Claimant’s action is incompetent as presently constituted and liable to be struck out by the Honourable Court

    II.            Whether the Claimant has disclosed a reasonable cause of action against the 1^st Defendant in this suit?

8.      Learned Counsel to the 1^st defendant submitted on Issue One, that it is a fundamental principal of Law that a Court cannot exercise its Jurisdiction where an action is not properly constituted and cited the case of Ogwuche v. Mbao [1994] 4 NWLR (Pt. 336) 75 At 85, thus, this action was not initiated by due process of Law and condition precedent. Learned counsel further argued that the mode of commencing of an action is spelt out in the rules of the Court Order 3 Rules 1(1) of the Rules of this Court and that the claimant General form of writ of summons dated 06 January, 2020 accompanied by a statement of claim at the registry of this Court is unknown and alien to the rules of this Court. Learned Counsel submitted that the failure of the Claimant to comply with the conditions stated in the rules goes to the root of this suit and renders this action incompetent and liable to be struck out. He cited the case of Agip (Nig) LTD & 8 Ors v.  Ezendu (2010) 1 Sc (pt 11) p. 98. Learned counsel continued that the application for joinder filed by the claimant seeking to join the 2^nd defendant and the Court granted same and directed that the claimant and the 1^st defendant effect consequential filing to effect the name of the 2^nd defendant. Learned counsel submitted that the Claimant again filed processes alien to the rules of the Court and titled same as Amended Writ of Summons and Statement of Claim, after the grant of order for Joinder. He submitted that the provision of the rules is not ambiguous and the procedure to be adopted is equally clear. He cited the case of Attorney General of Ondo State vs Attorney General of Ekiti State [2001] 17 NWLR (pt. 743) 707 at 756. He therefore submitted that non-compliance with the combined provisions of Order 3 Rule 1(1), Order 3 Rule 9 and under 26 Rule 8 of the rules renders this action incompetent and nullity. He cited the case of MV “Arabella v. N.A.I.C. [2008] 11 NWLR Pt. 1097, 182.

9.      Respecting issue two, learned counsel submitted that a reasonable cause of action is a cause of action which is sustainable when the allegation in the claimant’s pleading are considered. He cited the case of Nwawka v. Shell petroleum Development Company of Nigeria [2003] SCM 145; “For a Statement of Claim to disclose a reasonable cause of action, it must set out the legal right of the Plaintiff and the obligation of the Defendant. It must then go on to set out the constituting infraction of the Plaintiff’s legal right or the failure of the Defendant to fulfil his obligations in such a way that if there is no proper defence, the Plaintiff will succeed in the relief or remedy he seeks”. He continued that the Claimant’s claim as presently constituted does not disclose any reasonable cause of action against the 1^st defendant. Learned counsel submitted that the premised of the claimant’s case is on a purported breach of contract of employment in such instance the contract of employment ought to be placed before the Court, he cited the case of FMC Ido Ekiti v. Alabi (2012) 2 NWLR (pt. 1285) p. 411; where the Court of Appeal held as follows; “The contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof. The principle is that it is not for the employer who is a defendant to the action brought by the employee to prove any of these. See Amodu v. Amodu (1990) 5 NWLR (Pt.150) 356” From the cited case, learned counsel submitted by contending that the Claimant has neither proved the existence of any contractual relationship with the 1^st defendant and that claimant’s material allegations are contained in paragraph 11, 12, 13 and 14 and same bears no nexus whatsoever to the 1^st defendant, more so, no document frontloaded by the claimant which reasonably established any existing relationship between the claimant and the 1^st defendant. Therefore, from the absence of any contract or agreement between the claimant and 1^st defendant. Learned counsel urge your Lordship to hold that this suit is extremely embarrassing to the 1^st defendant and that the 1^st defendant is not a proper party to this action. He cited the case of M.S.C.O.S.A. v. Enemaku [2012] 11 NWLR (pt. 1312) p.583 at p.604 Owodunni v. Reg. Trustees of Celestial Church of Christ & 3 ors [2000] 6 SCNJ 399.

10. Claimant in reply to Notice of preliminary objection of the 1^st defendant raised a sole issue for determination-

“Has the applicant made out a case for the court to dismiss and or strike out the substantive suit pending before this Honourable Court?

11. Wherein learned counsel for the claimant submitted firstly that, by judicial notice of its records Section 122(m) of the Evidence Act 2011, the Court would see that the claim of the claimant/respondent affects the 1^st defendant/respondent, he then submitted that the contention of the applicant in paragraphs 4-16 is misconceived. Learned counsel submitted that the argument of the applicant that the claimant did not endorse his originating process that it was amended was misconceived, because the fact that the amendment was not reflected at the end of the writ of summons does not render the originating process incompetent as the amendment was a result of the order of the Court to join the 2^nd defendant in the substantial suit. Learned counsel submitted that issues raised by the applicant are mere technicalities, if there was ever an omission by the claimant/respondent. Learned counsel submitted that the Notice of Preliminary objection is not competent because there is no valid appearance by the 1^st defendant/applicant who filed memo of appearance out of time without leave of this Court for extension of time and payment of default fees. He also submitted that the 1^st defendant in filing the preliminary objection, the name of claimant respondent was wrongly spelt. Learned counsel therefore urged the Court to resolve the issue in favor of the claimant.

12. 1^st defendant filed its final written address on the 4^th of April 2022 and adopted same on the 28^th July 2022, wherein learned counsel for the 1^st defendant raised a sole issue for determination

a.       “Whether the present action is sustainable against the 1^st Defendant when no cause of action has been disclosed by the Claimant against the 1st Defendant”

13. It is the learned counsel for the 1^st defendant submission that from the entirety of the suit of the claimant, he has not been able to decipher any wrongful act of the 1^st defendant or any consequential damage to the claimant. Learned counsel submitted that cause of action in any suit ought to be disclosed or revealed in the pleadings and the Court is required to confine itself only to the averments in the writ and statement of claim in the assessment of whether a claimant has a reasonable cause of action. Learned counsel cited the case of Union Bank v. Ezikpe & anor [2017] LPELR-50052 (CA) and the case of Yusuf & Ors v. Akindipe & ors [2000] LPELR-3532 (SC). Learned counsel submitted that claimant’s claim are premised on the relationship between him and the 2^nd defendant, thus since the claimant have not alleged any misconduct or omission against the 1^st defendant which requires the determination of this Court in its pleadings, these however makes the case liable to be struck out. Learned counsel submitted the case of Gov of Oyo State & Ors v. Ajuwon & Ors [2020] LPELR– 50471 (CA) Learned counsel submitted that the grievance and basis of his action is founded on non-payment of salary, a careful consideration of the documentary evidence put forward by the claimant that while there was a contractual relationship between the claimant and the 2^nd defendant as at January, 2019, there was no sure relationship between the claimant and the 1^st defendant to sustain the action against the 1^st defendant. Learned counsel submit on the relief sought by claimant, that the core relief sought by the claimant in this action are against the 2^nd defendant and not the 1^st defendant apart from relief (c), (f) which are in fact ancillary relief, there is no principal reliefs sought against the 1^st defendant by the claimant. Learned counsel submitted that the Court is bound by the relief or reliefs sought and therefore cannot give a party what he did not claim and submitted the case of Eagle Super pack (Nig) LTD vs. ACB Plc (2006) 19 NWLR pt 1013) 20. Learned counsel went on to submit on propriety of reliefs sought in paragraph 1a (e), (f) and (h). He submitted that paragraph 1a(e) presupposes that the 1^st defendant has taken steps adverse to the claimant which requires intervention of the Court while the pleadings disclosed by the claimant, does not disclose or establish any decision which was taken by the 1^st defendant that may adversely affect or prejudice the claimant. Learned counsel stated that the Court cannot speculate or assume that a party is ordinary entitled to relief where there is void in the evidence before the Court. He cited the case of First bank v. Momoh [2020] LPELR-51517 (CA). Learned counsel continued that a para 1 a(f) of the amended statement of claim, the award of general damages is based on the discretion of the Court and having regards to material facts before the Court, the said discretion must be exercised judicially and judiciously. He cited in support the case of Dada & anor v. Adedipe [2018] LPELR-46376 (CA)

More so, he submitted that general damages are not granted out of statement but from the sound legal principles and legal evidence of probative value adduced for establishment of actionable wrong or injury. He cited the case of Abdulaziz & anor v. Ag Fed & Minister of Justice & ors [2013] LPELR-22128 (CA). Learned counsel submitted with respect to paragraph h of the amended statement of claim, whereby the claimant sought for cost of this action. Learned counsel posited that being an ancillary relief, cost of action presupposes that the claimant is successful in other claims against the 1^st defendant but in this instant suit there are no primary reliefs or successful claims made against the 1^st defendant. Learned counsel therefore urge your Lordship to resolve all the issues in its favour.

14. 2^nd defendant filed its final written address on the 4^th of April 2022 and adopted same on the 28^th July 2022, wherein learned counsel for the 2^nd defendant raised two issues for determination viz-

a.      Whether the Claimant is entitled to any of the reliefs sought against the 2^nd Defendant?

b.      Whether the 2^nd Defendant’s counterclaim succeeds in any part?

15. On issue one Learned counsel for the 2^nd defendant submitted that claimant in law has a burden of proving his three reliefs anchored on the fact that the 2^nd defendant breached the term of the employment by not paying the claimant salaries till date, as he who assert must prove. He cited the case of Akinbola v. Ministry For FCT & Anor [2018] LPELR-45848 (CA). He submitted that Exhibit L6’ being the bedrock of the relationship between the parties, the resolution of the issue before the Court rests on the construction and effect the Court gives. Learned counsel cited the case of Mohammed v. Nigerian Army Council [2021] 13 NWLR (Pt. 1793) 259 at 274 para E- G. Learned counsel submitted that the Court to discountenance pleadings on fact that predate the cause of action in this suit as the facts relating to the event that happened was prior to the commencement of Exhibit L6’ which also predates the relationship between the parties thus irrelevant to the dispute between the Court. Learned counsel cited the case of N.N.B Plc v. Imonikhe [2002] 5 NWLR (PT.760) 294 at 312-313 E-B. Learned counsel argued that Exhibit J is deemed to have been delivered in law on the date it is shown to have been posted which is 4^th July 2019 as seen from DHL waybill and that the 2^nd defendant does not have the burden of proving actual delivery. Learned counsel submitted the case of Benin Electricity Distribution Company Plc. V. Mr. Napoleon Esealuka [2013] LPELR-20159 (CA). Learned counsel submitted that claimant failed to prove that he was in the employment and render service to the 2^nd defendant under Exhibit L6 beyond June 2019, and the Law is settled that where a defective or inadequate notice of termination of employment is issued, the contract of employment is nevertheless terminated, the defect only gives rise to a cause of action for wrongful termination. He cited the case of Pet. Dev. Co (Nig) v. Ifeta [2001] 11 NWLR (pt. 724) 473 at 490 paras D_E. He continued that claimant failed to show that the salaries for the months of May and June 2019 were withheld by the 2^nd defendant without reasonable cause. He referred the Court to Section 131, 132 and 133 of the Evidence Act and cited the case of Orji v. Dorji Textile Mills (Nig) Ltd [2010] All FWLR (pt. 519) 999 at 1013-1014. Learned counsel posited that the claimant’s main claims are declaratory relief and must be satisfactorily proved. He cited in support the case of Umoh v. L.TGC [2001] 4 NWLR (Pt.703).

Learned counsel submitted on Relief C and D that the claimant, having failed with his claims cannot succeed with the ancillary reliefs in law. Learned counsel submitted that claimant’s employment not being a statutory flavored one, could only claim salaries of the unexpired period of fixed term if the Exhibit L6 is found wrongly terminated. Learned counsel cited the case of Hon. Chigozie & 147 Ors v. GOV. OF Abia State & 2 Ors. [2015] 6 ACELR 1 at 22. Nevertheless, learned counsel submitted that the claimant never claim for wrongful termination of his employment as their no pleadings on whether the claimant’s employment was wrongfully terminated. Claimant’s reliefs are for withholding of his salaries without just cause. Hence the Court is restricted in Law from granting a relief that is not sought by the Claimant. Learned counsel cited the case of C.G.G. v. Augustine & 2 Ors [2015] 6. ACELR 201 at 208. Learned counsel submitted on relief d that claimant’s statement revealed that the pension contribution which he sought to recover from the defendants were remitted by his various employers from 2013 till the claimant was employed by the 2^nd defendant, thus claimant’s claim is outside the contractual relationship between the parties in Exhibit L6”, more so claimant has failed to show that the contributions were made to the 2^nd defendant. Learned counsel’s position on relief e is that the claimant has failed to plead any decision or actions of the defendants that may potentially affect him to warrant the restraining order. Hence the Court should reject such invitation. It was submitted that if the Court holds that the 2^nd defendant is in breach of Exhibit L6” the damages which naturally flow from each breach are the claimant salaries for the months. Learned counsel cited the case of Ikemba v. Pyrammidt Company Nig. Ltd [2021] LPELR- 56145 (CA). Learned counsel submitted that the claimant’s reliefs G and H against the 2^nd defendant is in the realm of special damages which must be specifically pleaded. He cited the case of W.N.D.C v. ABIMBOLA [1996] 1 ALL NLR 156 at 160-161.

16. With regards to issue two. It is the submission of the 2^nd defendant that its counterclaim is supported by cogent evidence as the burden of proving rest on the 2^nd defendant. It cited the case of Ativie V. Kabelmetal (Nig) Ltd [2008] 10 NWLR (Pt. 1098) 399 at 414 and submitted that the 2^nd defendant is entitled to its relief A, even if the Court finds that the length of notice is inadequate, the claimant’s employment with the 2^nd defendant still stands terminated when sent to the claimant. It is the position of learned counsel that the 2^nd defendant is entitled to its reliefs A & B of failure of the claimant to properly handover and deliver the defendant’s property in its possession as necessary required to sustain the reliefs were adduced before the Court, the claimant in fact admitted that he never returned to his duties and had not therefore deliver the properties of the defendants in its possession. He cited the case of C.B.N v. Dinneh [2021] 15 NWLR (Pt. 1798) 91 at 121 Para D. Learned counsel argued on reliefs c and d of its counterclaim, that notwithstanding that the value of the condensate put forward was not contested by the claimant, it should however, rely on the strength of its case and not on the weakness of the defense of the claimant. Learned counsel submitted respecting relies d, e & h, that the claimant admitted by oral evidence that he disposed the condensate without authorization but pleaded that it pumped out the condensate with his boys for safety of the complex. Hence the burden of proving that the claimant pumped out 750 liters of condensate has been discharged by the 2^nd defendant. He cited the case of WAEC v. Oshionebo [2006] LPELR-7739. It is the submission of counsel on the last relief, that if the Court finds the counterclaim meritorious in part, that the 2^nd defendant is entitled to cost of the action.

17.  Claimant filed its final written address and adopted by his counsel on the 31^st of May 2022, wherein learned counsel for the claimant framed two issues for determination thus-

a.      Whether the Claimant is on the preponderance of evidence entitled to all the reliefs sought for before this Honorable Court or any other relief(s)?

b.      Whether the 2^nd Defendant has proved his Counterclaim before this Honorable Court? 

Learned counsel with regards to issue one, submitted that the objection of the 1^st defendant that their Exhibit L, L1, L, L3 and L10 are not pleaded is misconceived, as these exhibits were pleaded in their Paragraphs 5-12 of the claimant’s statement of claims and relevant to this case and admissible in Law. Learned counsel submitted that the 2^nd defendant admitted to not paying claimant’s outstanding salaries until he hands over the items of the defendants with his supervisor, he continued that he is not aware of the purported termination and was not served, thus why it was not contemplated. Learned counsel submitted that if the Court hold that the claimant has established relief in paragraph 19 (a-d) of the statement of claims, it will naturally follow that the claimant will be entitled to reliefs (f-h). he then went on by submitting that holding Exhibit L9 by the claimant without knowing the existence of Exhibit J will not justify withholding claimant’s salary by the 2^nd defendant and as such the defendants are merely trying to justify their wrong doings. He cited the case of Enekwe v. IMB [2007] AFWLR (PT.349) P. 1053 AT 1081 PARAS C-D. ISO vs. ENO [1999] 2 NWLR (PT 590) 204, which held that an admission of fact by a party against his interest is admissible in evidence and need no further proof. Learned counsel submitted that evidence of an adversary supporting his opponent is an admission against interest. He cited the case Kimdey v. GOV. Gongola State [1988] 5 SCNJ 281. It was argued that the documentary evidence before the Court speaks for itself, he cited the case of Eke Vs. FRN [2013] ALL FWLR (AT 702) 1748 at 1804, more so the defendant did not tender documents to defeat the claims of the claimant. Learned counsel submitted that on the claims for damages, damages are granted based on the event that flows from a wrongful act of the defendants. He however urged the Court to grant his reliefs as prayed.

18. He however, argued with respect to the 2^nd defendant counterclaim that it failed to prove his allegation of crime beyond reasonable doubt as required in a civil suit. He cited the case of Ikoku v. Enoch Oli [1962] ALL NLR 194 at pp. 199-200. Learned counsel contended that Exhibit J1 will not prove the alleged theft in the 2^nd defendant Counter Claim neither did the evidence of DW2, and that no evidence is before the Court to ascertain what actually happened and the Court cannot fill the gap for the 2^nd defendant, thus where doubt exist it must be resolved in favour of the claimant. He cited the case of Olayinka v. STATE [2007] NWLR (Pt. 1040) 561. Learned counsel submitted that the 2^nd defendant’s counterclaims is liable to be dismiss and should be dismissed.

19. I have perused the processes filed in this case together with all other documents and the submissions of all counsel. It is in my humble view that the three germane issues, the determination of which will meet the justice of this case are;

a)     Whether this Court is vested with jurisdiction to entertain this case and if this is answered in the affirmative;

b)     Whether claimant is entitled to the reliefs sought. And

c)      Whether the 2^nd defendant’s counterclaimant has proven its entitlement to same.

20. It is germane for me to address the notice of preliminary objection raised by the 1^st defendant at the outset before going into the merit of the case. The first grouse of the 1^st defendant is in respect of some documents tendered by the claimant, id est Exhibits L, L1, L2, and L3. According to learned 1^st defence counsel, these documents relating to claimant’s employment are not admissible because to him, they have no nexus to the facts in issue. Placing reliance on the case of Abo v. Aanyan, supra; he captured the decision of the appeal Court in that case wherein a document is said to be admissible if it is pleaded or facts relating to it are pleaded; the document should be relevant and finally, that the document should be admissible in law. Counsel concluded by stating that all the documents seeking to establish claimant’s employment history is irrelevant and thus the Court should hold that they are inadmissible. It is the further contention of learned defence counsel that Exhibit L10 being a computer-generated document has failed to comply with the provision of Section 84 of the Evidence. In his response the learned claimant’s counsel argued that the documents were pleaded at paragraphs 5-12 of his statement of facts; and that the documents seek to establish claimant’s relationship with the 1^st defendant and thus should be held to be admissible in evidence. The cardinal consideration in admissibility of document is relevancy. The law is long settled that relevancy is a precursor to admissibility. An irrelevant document is inadmissible in evidence. See Ogunleye v. Aina & Ors[2010] LPELR-4694CA; and Sections 1, 2, and of the Evidence Act 2011. Now, by Section 4 of the Evidence Act, and same given a judicial nod in the case of Agu & Anor v. Nwoye & Ors [2015] LPELR- 40676CA; whereby the Court held while quoting Section 4 of the Evidence Act, states that facts though not in issue which are connected to the facts in issue as to form part of the same transaction are relevant whether they occurred at the same time place or at different times and places. I have carefully perused Exhibits L, L1, L2 and L3; they are claimant’s letters of appointment, confirmation of appointment by PHCN, posting to Geregu Power Station, i. e. the 1^st defendant. Another letter of appointment when PHCN was unbundled as evinced on record by Adoy Ltd to work with the 1^st defendant between 2014 to April, 2015, another letter dated 5^th May, 2014 issued by the 1^st defendant to the claimant renewing his contract of appointment from 1^st may, 2014. Exhibit L3, is a promotion letter.  I have found facts relating to the claimant’s employment history at paragraphs 5, 6, 7, 8, 9, 10 and 11 of the claimant’s amended statement of claim. It is in the light of all the averments at those paragraphs of the claimant’s pleadings as well as the documents themselves which speak for themselves that I find and hold that Exhibits L, L1, L2, and L3 are relevant in evidence, they have nexus and connection to the claimant and the 1^st defendant and are thus admissible in evidence. The 1^st defendant’s argument that the documents are mere history of claimant’s employment which has no connection to the main issue before the Court and should thus be held to be inadmissible are misconceived, I say this in view of the fact that first, the 1^st defendant is contesting that it has no employment relationship with the claimant, secondly, a claim for payment of salaries cannot be sustained without evidence of employment relationship. At the same time, payment of salary cannot arise without a contract of employment relationship. Except if the 1^st defendant is asserting that monies paid to the claimant as salaries were merely paid to him on charitable ground or as a father Christmas. Or that the letter of employment contract it issued to the claimant on the 5^th of May, 2014 on its letter headed paper was conjured by the claimant. It is in consequence of all said ditto the content and tenor of those documents that I find and hold that Exhibits L, L1, L2 and L3 are all relevant to the facts in issue and are thus admissible in evidence. Accordingly, Exhibits L, L1, L2 and L3 stand admitted and still forms part of the record.

21. Now, respecting Exhibit L10, which constitutes claimant’s Pension registration Certificate from IBTC Pension. It equally shows the statement of his pension and his account as at 20^th April, 2021. Exhibit L10 on record if it has any relevancy in this case at all is to evince that the 1^st and 2^nd defendants have lived up to their statutory obligation to the claimant by remitting their pension contribution to the claimant’s PFA. That in my humble view is a plus to the defendants. The document according to the claimant was retrieved from his account domiciled with his PFA. Thus, pursuant to Section 12(2) (b) of the National Industrial Court Act 2006, that empowers this Court to depart from the provision of the Evidence Act in the interest of justice that, I so depart from the provision of Section 84 of the Evidence Act, and therefore, hold that Exhibit L10, being a relevant document is thus admissible and accordingly, stands admitted in evidence. It is from the foregoing that I hold that the 1^st defendant’s objection to these documents is unmeritorious and thus discountenanced.

22. The other arm of the 1^st defendant’s objection is that the originating processes filed by the claimant are unknown and completely alien to the rules of this Court and that the claimant’s case discloses no reasonable cause of action against the 1^st defendant. The claimant filed his counter affidavit to same wherein he averred that he worked in the 1^st defendant premises and uses its identity card at all material time before instituting this action as such his relationship with the 1^st defendant subsist and give rise to his cause of action against the 1^st defendant.

23. To the first objection of the 1^st defendant in its preliminary objection filed on the 6^th August, 2021, is that the originating processes filed by the claimant are unknown and completely alien to the rules of this Court. Grounds 1, 2, and 3 of the objection hinges on the processes filed by the claimant and to the 1^st defendant they fall short of the rules of this Court and are thus incompetent. Ditto the amendment made thereto. According to learned defence counsel, the title to the originating processes should be General Form of Complaint as stipulated by the 2017 rules of this Court and not “writ of summons” It is correct to say that by Order 3 of the rules of this Court, a Form of commencement of action in this Court may be one of 7 ways listed in rule 1 of Order 3. It may be by Complaint, Originating Summons, Originating Motions, Application for judicial Review, Notice of Appeal or Petition, Referral from the minister of labour and Productivity and by any other means that may be prescribed by the rules, Act or any law in force in Nigeria. It is evident on record that “writ of Summons’ is a form of commencement of action recognized by law in Nigeria. This is the title of the originating processes known at the High Court of FCT, States High Courts and Federal High Court. It is also the position of NIC Rules 2017 that the rules of any State High Court may be applicable to the rules of this Court, in other words since “writ of Summons and statement of claim” are known as originating processes in the High Court, they can be applicable and be recognized by this Court as a means of commencement of an action.  It is equally, clear by Order 5 Rule 1 of the same rules of this Court, which urges the Court to regard or treat a non-compliance with the rules as a mere irregularity. It provides thus- 5(1) “Failure to comply with any of these Rules may be treated as an irregularity and the Court may give any direction as it thinks fit. The rules of this Court is in sync with the type of cases that the Court handles, gives room for flexibility of its procedure. Hence Order 5 Rule 6(3) provides thus “In any proceeding before it, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it. It is obvious that the objection of the 1^st defendant herein is a procedural competence for initiating the suit, which falls within the precinct of the Court’s adjectival laws. It has been held as same is settled law that non-compliance with procedural requirements for initiating an action by itself, an irregularity in the exercise of jurisdiction should not be confused with total lack of jurisdiction. I must equally state that procedural jurisdiction may be waived. See the cases of Ostankino Shipping Co Ltd v. The Owners, The MT Bata 1 [2022]3NWLR (Pt 1817)367@391-392, Paras B-B; Bakari v. Ogundipe [2021]5NWLR (Pt 1768)1@41, Paras E-F. I find that the Writ of summons titled the originating process in this case is in general context also a means of commencement of an action by an aggrieved party. To yield to the argument of 1^st defendant is to push the Court backwards into the dark days of technical justice which the Court has since moved away from. See the cases of Aeronautical Engineering & Tech Services Limited v. Northwales Military Aviation Services Limited [2020]LPELR-52267(CA); and  Adamu v. State [2017]16NWLR (Pt 1592)393, Paras C-D. Therefore, I find the use of the words “writ of Summons and Statement of claim” as mere semantics and a procedural defect being equally a means of commencement of action as in General form of Complaint and Statement of Facts’ as they are being called in this Court. It should also be stated here that this Court as a Superior Court of record can exercise and have all the powers of a High Court. See Section 254(D)(1) of the 1999 Constitution as amended and Section 1(3)(b) of the National Industrial Court Act, 2006. It is therefore, without any equivocation that first, I depart from the strict rules of this Court in the overall interest of justice of this case and find that the use of the words “writ of summons and statement of claim” in the originating processes, ditto the amended statement of facts and find that they are mere procedural irregularities. and holds that the writ of summons, statement of claim and the amended statement of claim are competent as they are recognized as a means of commencing an action. They are thus competent. I thus find and so hold.

24.  Assuming that the none filing of a General form of Complaint is wrong as argued by the 1^st defendant and thus incompetent, in the recent Supreme Court case of Solumade v. Kuti [2022]1NWLR (Pt 1810)31@73-75, Paras E-G the apex Court per Agim JSC, while considering the yardstick for the validity of originating process held inter alia thus;

“…The writ of summons had already been signed, sealed and issued by the Registrar of the trial court on 5-10-1998 after the plaintiff’s application in form I (the writ) was presented in the registry of the trial court for filing and the filing fees assessed by the registrar paid. The writ of summons became a valid legal originating process once it was filed, signed, sealed and issued by the Registrar. Once the registrar of the trial court accepted the plaintiff’s application in Form I for the filing and issuance of a writ of summons, filed and issued it, in spite of any defects in the application (Form 1), a valid writ of summons comes into existence. The Registrar has the prerogative power to refuse to accept for filing a writ of summons because of omissions or other defects in the Form 1 in which the application is made. But once he or she accepts it for filing, files and issues same, the writ of summons becomes legally effective….”[Emphasis mine]

25. Following the decision of the apex Court in the above case, it is obvious that once a writ of summons has been accepted for filing by the Registrar notwithstanding any omissions or defects, appropriate filing fees paid and same was signed and issued by the Registrar, the writ becomes a valid legal document. In the instant case, although as stated supra the process was titled writ of summons and statement of claim presented for filing at the Registry of this Court, it is the prerogative of the Court Registrar to reject same due to the in appropriate title  but once it was accepted by him for filing despite the wrong title and same was assessed and the appropriate filing fees was paid as seen at page 36 of the record and which process was signed, dated, filed and issued by the Registrar of this Court on the 14^th of January, 2020, the Writ of Summons and Statement of Claim becomes a legally valid, competent and subsisting process in this case. I so find and hold.

26. Next, is the issue of whether or not this suit discloses a cause of action against the 1^st defendant. To the first defendant, the claimant’s case has not disclosed any cause of action against it and thus its name should be struck off this suit. It went on to state that there is no complaint against the 1^st defendant by the claimant in this case. The claimant on his own part argued that paragraphs 4-16 of the affidavit in support of the preliminary objection offends Section 115(2) of the Evidence Act, in that they are legal arguments and conclusions. That the issue that he has no cause of complaint against the 1^st defendant is an afterthought, that by paragraph 8 of his statement of claim and paragraph 10 of the 2^nd defendant’s statement of defence show that the claimant has a cause of action against the 1^st defendant. Now, Section 115(2) of the Evidence Act provides viz-“An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion” Is it true that paragraphs 4-16 of the affidavit in support of the 1^st defendant’s preliminary objection offends Section 115 of the Evidence Act? I have perused paragraphs 4-16 of the affidavit and I find it apparent that the deponent Aliyu Alhassan, went to town by arguing the case of the 1^st defendant, with titles like “Failure to comply with the extant rules of Court” ahead of paragraphs 4-8; “Absence of cause of action against the 1^st defendant” with legal arguments and conclusions. It is thus clear from the affidavit of Aliyu Alhassan that it offends Section 115(2) of the Evidence Act. Consequently, paragraphs 4-16 of the affidavit in support of the preliminary objection are hereby struck out. The effect of this is that the only paragraphs left are 1-3, which are introductory part of the affidavit and that makes the affidavit one without substance or facts and thus worthless. The same fate befalls the further affidavit filed by the 1^st defendant on the 28^th June, 2021. Now, it is a self-evident truth as same is rooted in law, that the law does not hang, as it were, in the air: facts are the fountain-head of the law. So, every proposition of law has a factual base. Therefore, where as in this case the facts upon which the 1^st defendant rests its objection is no more, then the whole basis of the objection must crumble. Having held that there is no substance in the affidavit, would it be right to hold that the preliminary objection is sustainable? I find that there is no facts linking the objection to the grounds raised in the preliminary objection, the consequence of this is that the objection has not foundation to stand on will thus collapse, as the law is long settled that you cannot place something on nothing and expect it to stand. U.A.C v. Macfoy [1962] 3 All E.R 1169. says so and concluded that it shall surely fall.   

27. Assuming but am not conceding to the fact that there is a competent affidavit before this Court, there is need to consider the second arm of the 1^st defendant’s objection, which is to the effect that the claimant has not disclosed any cause of action against the 1^st defendant. The claimant submitted that his case has established a cause of complaint against the 1^st defendant. It is germane for me to start by asking the question: what is a cause of action? I would be content in this respect to adopt the definition of the expression by Diplock, L.J. in an age long case of Letang v. Cooper (1965) 1 Q.B. 232, at p. 242 where he defined it as- "... simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person." Let me now come back home and consider the position of the Court Per Fatayi-Williams JSC (of Blessed Memory) in Savage vs. Uwechia (1972) 3 SC 214 at 221: where he reasoned that "A cause of action is defined in Stroud's Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements - the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage. See also the recent case of Alafin v. Okanla & Ors [2020] LPELR- 49742CA. Apparently, from the above definitions; the principal elements of this definitions are that it involves two persons one of whom has the right to a judgment against the other. The other element is that it is a factual situation. The factual situations could be revealed in the statement of claim. I have taken note of paragraphs 1, 2, 3, 10, and 11 of the claimant’s statement of claim which are facts linking the 1^st defendant to this suit. Those paragraphs evince that the 1^st defendant has a contractual relationship with the claimant as well as the 2^nd defendant. I would not want to go into the merit of this case at this preliminary stage, hence all that is obvious by the pleadings of the claimant is that he has a grievance against the 1^st defendant. It is therefore, in my respectful view that the claimant’s case has establish a cause of action against the 1^st defendant in this case. I so find and hold. 

28.  Now, to issue two, which is the merit of this case. It is the 1^st defendant’s position that it has no employment relationship with the claimant, in other words it does not know the claimant. It is therefore, germane to consider if there exist any relationship between the claimant and 1^st defendant. I find from paragraph 5 of the claimant’s statement of claim and exhibits herein attached to proof his relationship with the defendants, that the claimant was first appointed on 26^th August 2002 with Power Holding Company Nigeria, confirmed as a staff of the Company in a letter dated 13^th April 2012 with effect from 9^th September 2002 and on the 13^th October 2010, he was posted to Geregu Power Station, the 1^st defendant office, following the privatization of the power sector he was placed on a Six (6) month contract from November 2013 by the 1^st defendant and the contract was renewed afterwards up until November 2014 vide (Exhibit L2 & L4). I also find from the claimant’s statement of claim and Exhibits before the Court that subsequently, the claimant was hired to work on a renewable Six-month contract for the 1^st defendant through another Company called Adoy Limited vide a letter of contract dated November 3^rd, 2014 and 28^th October 2016, and he was also engaged through the 2^nd defendant to continue his engagement with the 1^st defendant for a 12 month contract vide a letter dated 14^th January, 2019. The 1^st defendant on the other hand, only admitted to being in a renewable Six (6) contract with the claimant from November 2013 to November 2014.

29. The 2^nd defendant admits its relationship with the claimant only to the extent that the claimant was issued a term of contract employment dated 14 January 2019 under a one (1) year contract from 1^st January 2019 to 31^st December 2019. It is obvious from the above admission and the exhibits on record that there is some sort of arrangement between the claimant and the defendants, this type of arrangement is recognized in labour jurisprudence as a tripartite arrangement i.e. a relationship where a person called labour contractor recruits personnel and deploys them to client company (end user) on a needs basis. By this arrangement, there is usually a contract of employment between the deployed employee(s) on the one hand and the labour contractor on the other hand. However, no such contractual relationship is intended to exist between the employees and the Company. The ILO calls this a disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to the dependent workers). This type of employment relationship is recognized by our labour Act; specifically, Section 91 of the Labour Act, CAP. L1, LFN 2004 defines who an employer is thus-“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 representatives of a deceased employer” The import of this is that an outsourced Company is recognized by law as an employer within the ambit of our labour jurisprudence.

30.  Now, in relation to this instant suit and from the exhibits put forward by the claimant to prove its case. The 1^st defendant has appeared in every contract between the claimant and Adoy Limited and between the claimant and the 2^nd defendant. DW1 on record equally stated on record that the 2^nd defendant outsourced staff to the 1^st defendant and that claimant is one of the staff. It is thus not in dispute that the 1^st defendant had a direct contractual agreement with the claimant sometimes from November 2013 to November 2014. The arrangement between the Adoy limited, 1^st defendant and the claimant same as the 2^nd defendant is one that is called a tripartite arrangement as stated supra. As enjoined by the ILO, the National Industrial Court is guided by the principle of the primacy of facts, in determination of the existence of an employment relationship i. e. in determining whether there is an employment relationship between different parties as in this instant, the Court is guided by the facts of what was actually agreed and performed by the parties and not by the name the parties gave to the contract. In the instant suit the 2^nd defendant contract of agreement with the claimant dated 14^th January 2019 explicitly stated thus-

“We refer to previous discussion with you on contract employment   with Boomtac Gold Concept limited. We are pleased to offer you a 12 month fixed term contract employment from the 1^st January, 2019 to 31^st December, 2019. During the period you will work with our Client Geregu Power plant (to be known as “The Company”) as a Fire Protection Officer. You will initially be located in Geregu. The Company may require you to be posted to any other location in the nearest future, but this will be done with adequate notice to you”

31.  It is clear from the above that what was agreed by the claimant in the contract between the 2^nd defendant and claimant is that the claimant will be working for the 1^st defendant as a fire protection officer. It is settled principle of law that where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by preponderance of evidence, not by admission in the pleadings of the defendant that he is entitled to same. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See oderah Inv. Co. Ltd v. Ecobank(Nig) PLC[2020] 10NWLR (PT. 1731) 65CA; Da’ape & anor v. Musa & Ors [2019] LPELR-48846CA; Okonjo v. Nwaukoni [2018] LPELR-44839CA. The claimant herein vide the exhibits placed before this Court has been able to prove to the Court that there exist a tripartite employment relationship amongst himself, the 1^st and 2^nd defendants. I so find and hold.

32. The claimant by his reliefs 1 and 2 is praying for his salary for a declaration that the withholding of his salary by the 2^nd defendant from May, 2019 till date without any just cause is unlawful and a breach of the terms of their contract, and a declaration that he is entitle to his salary for the period he worked for the defendants. Claimant submitted that he was neither giving any query or suspended nor faced any panel to answer any allegation, he also asserted that his contract with the 2^nd defendant was not terminated and that his salary was withheld by the 2^nd defendant without any just cause. The 1^st defendant urged the Court to dismiss reliefs 1 and 2 against it, because the claimant has failed to substantiate these claims against it. On its own part the 2^nd defendant contends that exhibit L6 being the bedrock of the relationship binding between them, should be interpreted by the Court. The defence went on to alleged that it terminated claimant’s employment vide exhibit J, which according to counsel was in compliance with clause 2.9 of exhibit L6. Noteworthy, is the fact that exhibit L6, is a contract of employment issued by the 2^nd defendant to the claimant engaging him to work with the 1^st defendant from the 1^st January, 2019 to December, 2019. It evinces that the claimant would work at the 1^st defendant’s employ on an annual salary of N1,141,494.08 and a 13^th month salary payable in November. The law is that where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of Court in such instance is to interpret the terms of contract of the parties and give effect to it. See the case of Omega Bank (Nig.) Plc v. O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547. The Court in interpreting the terms of the contract between the parties must give the words their plain, ordinary and natural meaning where the words used are clear and unambiguous.  It is plain on exhibit L6, that there exists an employment relationship amongst the trio held supra to be a tripartite employment relationship. DW2 on record admitted that the 2^nd defendant is owing claimant salary and that he was assured that he and his colleague will be paid their outstanding salaries and allowances upon they duly handing over their identity card issue to them. That the reason why claimant has not been paid is because he failed or refused to hand his identity card over. Also, he asserted that the claimant and one Simpa Shehu were seen vide a CCTV camera within the 1^st defendant complex making away with condensate, a natural gas product, and that consequent upon the discovery of the theft, a panel was constituted to investigate and afford all the persons involved to defend themselves. He went on that both the claimant and Simpa Shehu attended the panel separately, whereof they were found guilty and concluded not to press charges but terminate their employment without payment in lieu of one month and the letter of termination was dispatched to the claimant. It is obvious on record that the claimant is being owed salary from May 2019 as admitted by the 2^nd defendant and evinced on record. However, the contention of the 2^nd defendant for withholding his salary is because of the allegation of theft against him and one Simpa. Now, the law in employment and labour relations is that in a master/servant employment of this present, the master may fire the employee without any reason, but where the employer gives reason either expressly or as could be gleaned from their pleadings as in this instant suit, the 2^nd defendant would have to justify the reason. See the cases of Nwechi v. Union Bank [2018] LPELR- 47074CA; LHABUHMB v. Anyip[2013] 12 NWLR (PT. 1260)1 @ 19. Moreso, where an allegation of misconduct is committed in an employment, the first question to ask is, was the claimant heard and given a right of fair hearing. Where it is proved that a party was not accorded or given opportunity to defend himself before a tribunal, panel or Ad hoc committee, or quasi criminal panel the case would be rendered a nullity and will be vacated or set aside forthwith. See Nicholas Chukwu Jekwu Ukachukwu v. PDP & Ors [2014] 2 SCM 2002 AT 223 F-D. The 2^nd defendant who wants the Court to believe that the claimant committed a theft has the burden to proof beyond doubt, more so, as it is a criminal offence, he is required to specifically plead the particulars of offence and proof beyond reasonable doubt with credible and verifiable evidence that infact, claimant stole the condensate. See the cases of Taylek Drugs Co Ltd v. Onankpa [2018] LPELR-45882 (CA) 1(a) 35-36, Para D and; Bico Nig Ltd & Anor v. Electronic Connections Ltd [2016] LPELR- 41318 (CA) 1 (a) 22-23, Para F. It is of note that claimant was not given a query to answer to the allegation against him. The 2^nd defendant asserted that claimant and one Simpa were invited to a disciplinary committee to answer to the charges. I found no single evidence on record to prove that there was any committee investigation, let alone the alleged admission to the crime by the claimant. The 2^nd defendant did not produce any document to substantiate its claim. DW1 under cross examination answered thus:

            A. The proceeding of the investigation was in written form but I do not have it in Court”.

    Q; Did you serve a report or a query on the Claimant?

    A; We did not!

    Q. After the incident the claimant worked for the 1^st defendant for two months, before he went on leave.

    A. Yes!

33. It is plain from the above evidence of DW1 that no query was served on the claimant and the report of the alleged Panel was not equally produced in Court. They equally had opportunity to call the said Simpa to corroborate the testimony of DW1, but refused to call him and there was no reason for its failure. The 2^nd defendant equally tendered a CCTV recording purportedly as the evidence of theft. I find from watching the video that there were two people drawing something from one part of the premises to another. There was no evidence from watching the recording to prove that the claimant took it away from the premises of the 1^st defendant and sold it as alleged by the 2^nd defendant. DW2 was told about the incident, he does not know how the claimant or Simpa Shehu look, he stated also that they did not report the incident to the Police. He would not equally know the number of people involved in the incident. As stated earlier in this judgment, the allegation being a criminal one, has placed a heavy onus on the 2^nd defendant to prove the allegation of crime against him. There is equally no iota of evidence on record to evince that the case of theft was reported to the Police, investigation conducted and they made a finding that claimant committed a crime of theft of the condensate. The defendants could not explain to the Court why a criminal allegation of theft was not reported to the Police and the claimant was also allowed to stay in Office and work for the 1^st defendant for two more months after the incident of the alleged theft. It is my finding from all the foregoing evidence on record that the allegation of theft of the condensate is an afterthought. It is bare face-saving scheme and cooked up sham by the 2^nd defendant to withhold claimant’s salary owed. It is in consequence, that I discountenance the contention of the defendants as being frivolous and unfounded and that the 2^nd defendant failed to justify the reason for withholding claimant’s salary. I so hold.       

34. The 2^nd defendant also asserts in his pleadings that it terminated the contract of the claimant on the 4^th of July 2019 by dispatching a letter of termination Exhibit J to his address, the claimant on the other hand denied receipt of the purported termination letter. It is trite law that constructive knowledge of termination or dismissal does not suffice in the absence of letter of notification to that effect. The law equally frowns at unilateral termination of contract without the knowledge of the other party. Where there is no communication, the whole essence of the message is completely defeated. See the case of PHCN v. Offoelo [2012] LPELR- 19717 (SC)24-25, Para F.; Advanced Maritime transport (Nig) Ltd v. Ojugboli & Ors [2018] LPELR-46265-(CA); In the same vein, an employee cannot be deemed to have knowledge or notice of his/her disengagement or dismissal until he has been expressly notified. The correct view of the law is that an employment contract is brought to an end by a dismissal/termination letter sent by or on behalf of the employer to the employee at his or her last known address and delivered to that address and it comes to an end on the date of such delivery, regardless of whether or not the employee was there at the time or later on that day or did not see the letter. In essence the service of the letter at the last known address of the employee must be confirmed. See the English case of Gisda CYE v. Barrat [2010] LPELR-17827 (UKSC) P. 41. It is therefore right to say that the effective date of termination of the claimant’s contract will be determined by the exact date on which the letter was delivered to the claimant and not the date on which the letter was written. I indepthly examined the attached courier waybill attached to the purported letter of termination i. e. Exhibit J, and it is my finding that the letter was received by DHL, courier Service on the 4^th of July, 2019 from one Akindele Ojo of Geregu Power plant PLC, the 1^st defendant, addressed to the claimant to be delivered to his address at Tunga Maje Area Zuba, Abuja. First, it is noteworthy that the address for service did not specify the house number, or street name of the address for service. It is a notorious fact that to state an unspecify address without street name or house number, but only provided the Area address will make it very impossible for the courier service to locate the address, no wonder there is no indication on the waybill that the letter of termination was delivered at the address provided by the defendants. The defendants have therefore, failed to substantiate their claim that the letter of termination was delivered at the last known address of the claimant. By Gisda’s case supra, by merely sending the letter by mail without more does not absolve the defendants from proving that they did infact serve the letter or delivered the letter at the claimant’s last known address. It is in the light of this that I find it reasonable to believe the claimant’s assertion that he was never served with any letter of termination. Accordingly, I hold that claimant employment was not terminated by exhibit J.

35. Although I have found that the 2^nd defendant who gave reasons for termination of the Claimant’s employment did not justify its reasons before the Court. it is however, obvious from the actions and inactions of the defendants that they do no longer want the claimant in their employment and the relationship has gone sour. It is equally trite that the Court cannot force a willing employee on an unwilling employer, in view of the facts and circumstances of this case, the Court is of the view that the employment relationship amongst parties have been constructively terminated today. This means that the claimant’s contract is said to have come to an end today.

36. Next, Claimant in his reliefs a & b is claiming for his salary from May 2019 up on till date in the absence of a valid termination. It is not in dispute that the 2^nd defendant admits to owing the claimant his outstanding salary but only for May 2019 and June 2019. I have earlier found that the claimant’s contract with the 2^nd defendant is constructively terminated today. I therefore, find that claimant’s reliefs a and b succeed only to the extent that the withholding of the claimant’s May and June 2019 salary till date is wrongful and thus it is in my humble view that the claimant is entitled to payment of his salaries for the months of May and June, 2019. I find and so hold.

37. Claimant in his relief c is asking that the continued withholding or refusal of the 2^nd defendant to pay the claimant his salary is a gross violation of claimant to enjoy his salary he has worked for. It is the 2^nd defendant’s contention that it fails to pay the claimant his salary because he failed to submit the ID card of the 1^st defendant. The defendants failed to prove that they requested him to hand over his ID Card. The law by Section 15 of the Labor Act, provides that wages/salaries shall become due and payable at the end of each period for which the contract is expressed to subsist, i. e. Daily, Weekly or at such other period as may be agreed upon, provided that, where the period is more than one month, the wages/salaries shall become due and payable at intervals not exceeding one month. See Salihu Dele v. Ajaokuta Steel Company & Anor, Unreported Suit No NICN/LKJ/15/2019, judgment delivered on the 28^th October, 2021; and In Mr. Sule O Usman v. Union Bank of Nigeria PLC (Unreported) Suit No. NICN/LA/56/2012, Judgment delivered on 21^st May, 2014; it was held that employers’ action of non-payment of salary of the worker as and when due was contrary to Nigeria’s International obligation under the ILO Convention and the labor Act. Now, by virtue of Section 254 C (1) (f), (g), and (h) and subsection (2) of the 1999 Constitution as altered, this Court is empowered to apply International best practices in labour, employment and industrial relations, and the application or interpretation of international labour Standards. Thus, any act of an employer contrary to the provision of ILO Convention ditto international labour standards is to be held to be an unfair labour practice. It thus flows from the provisions of the ILO Convention, the Nigeria labour Act as well as the case law authority cited supra, that the 2^nd defendant’s action of withholding claimant’s earned salary for the months of May and June 2019 is a gross violation of claimant’s right to enjoy his salary. I so find and hold.  

38. Claimant by his relief d(i) is asking for an order compelling and directing the 2^nd defendant to pay his monthly salary from May 2019 until the determination of this suit. It has been found earlier that the claimant’s employment has been constructively terminated from today by the Court. Does that entitle the claimant to salaries from July till date. The answer to this question is in the negative. This is in view of the trite position of the law that an employee is only entitle to salary for work done and not entitle to salary for work not done. See CCB Nig Ltd v. Nwankwo [1993] 4 NWLR (Pt 286)159; Balogun v. Union Bank [2016] LPELR-41442(CA)1@21, Para D and; Olatubosun v. NISER [1988]3 NWLR (Pt 80)25 @55-56.  Thus, this Court does not have the jurisdiction to compel the 1^st defendant to pay the Claimant’s from May, 2019 till date. In view of the above, I find that reliefs d(1) fails.

39.  The claimant by his relief d(ii) is praying the Court to urge the defendants to ensure payment of his pension for 17 years. The claimant submitted that the 1^st defendant has been remitting part of his salary to the pension fund and showed cause by Exhibit L10. From the clear interpretation of the Exhibit L10, it is obvious that the claimant is not alleging that his pension was not remitted to his PFA, instead he is asking for the Court to compel the 1^st and 2^nd defendants to ensure the payment of his accrued pension to him. It is plain on exhibit L10, that the claimant has an RSA account with his PFA, Stanbic IBTC pensions. It is equally clear that he has access to the funds. The only role that the defendants can play is to write a letter to the PFA stating that claimant has determined his relationship with them and that he should be accorded any assistance in accessing his pension. I thus find that relief d(ii) succeeds only to the extent that the defendants should write a letter to the claimant to his PFA to accord him any support he may require to enable him access his pension.

40. The claimant by his relief e, is seeking for an injunction restraining the defendants from doing anything that may adversely affect the claimant. I find this relief unnecessary, in view of the reasoning of the Court at paragraph 38 of this judgment. Which is to the effect that claimant’s employment has been constructively terminated by the defendants. Hence, the claimant has no more relationship with the defendants. Consequent upon which I find no justification for the grant of relief e. Relief e is accordingly discountenanced.

41. Claimant in his relief f is praying for the sum of 2,000, 000.00 (Two million Naira Only) as general damages for physiological trauma the Claimant went through against the 1^st defendant. I find no evidence on record to evince that claimant went through any physiological trauma. There is no medical report or no evidence to substantiate this claim. Reliefs are not granted as a matter of course. An applicant as in this instance has the task of proving that infact, he went through a physiological trauma in view of none payment of his salary by the defendants. Consequent upon which relief ‘f’ is discountenanced.

42.  Claimant in his relief ‘g’ is praying for the sums of 20,000,000:00 (Twenty Million Naira only) as general damages for physiological trauma the Claimant went through against the 2^nd defendant. The issue of the alleged theft only came to the fore in the course of the trial of this case and so that wouldn’t have caused ant trauma to the claimant since 2019. It is in my humble view that claimant has failed to prove with credible evidence that he suffered any physiological trauma to warrant the award of any damages. Relief g thus fails.

43. Claimant in his relief ‘I’ seeks for cost of action. The law is settled that costs including cost of litigation is at the discretion of the court. The rules of this Court, particularly Order 55 empowers this Court to grant costs of action at its own discretion. It is also the Law of common place that a successful party is entitled to cost which he should not be denied except for good reasons. The claimant in this instant suit has succeeded in most part of his claim. I therefore do not find any reason why I should not exercise my discretion to award cost in his favour. I consequently award the sum of N100,000 as cost to the claimant.

44. Now, to issue three, the 2^nd defendant/counter claimant set up a claim against the claimant, the law is well established that a counter claim is a separate and independent action which is usually appended to the main or principal claim for convenience of determination. See the case of Faloyo v. Faloyo (2021) 3 NWLR (Pt. 1762) 114, the defendants/counter claimant is duty bound to prove its counter claim just like a normal action. The claimant is said to rely on the strength of his case and not on the weakness of the defendant’s case.

45. Counter claimant in relief ‘a’ is asking for a declaration that the employment of the Defendant to Counterclaim with the Counterclaimant has been terminated by the Notice of Termination of Contract dated 02 July 2019. I have held supra in this judgment that the letter of termination was never served on the claimant by the defendants. It is in view of this that I find that the 2^nd defendant’s counter claim a fails.

46. Counter claimant by its relief ‘b’ is asking for a declaration that the Defendant to Counterclaim is not entitled to his outstanding salaries of two (2) months of May and June 2019, or whichever sum he is entitled from the Counterclaimant upon the cessation of his employment on 01 July 2019, until he properly hands over and deliver all the properties given to him by virtue of his employment with the Counterclaimant particularly the Geregu Power Plc identity card he retains after the cessation of his employment. It has been held that claimant’s employment has been constructively terminated today. Therefore, I give an order to the claimant to surrender the 1^st defendant’s ID Card in his custody to the defendants. Relief b only succeeds to the extent that the claimant is to surrender the 1^st defendant’s ID card to it. I so Order.

47. The counterclaimant in relief ‘c’ is asking for a declaration that the Defendant to Counterclaim is indebted to the Counterclaimant in the sum of N3, 450, 000 (Three Million, Four Hundred and Fifty Thousand Naira Only) being the value of the 750 liters of condensate stolen by the Defendant to Counterclaim at the Geregu Power Plant Station, where he was posted by the Counterclaimant. As earlier held in this judgment, the burden of proof on the 2^nd defendant to prove beyond reasonable doubt its allegation of theft was not satisfied and thus not proved. The allegation made against the claimant is one that must be proved beyond reasonable doubt as held above. More so the 2^nd defendant/counterclaimant is here claiming that the worth of the condensate is N3,450,000 being the value of 750 liters of condensate. This is a special damage that needs to be specifically pleaded and proved. The 2^nd defendant/counterclaimant failed to proffer any evidence to substantiate his claim for the above sum. There is no invoice or receipt or any other evidence to prove that the value of the condensate is N3.450,000.00. It is in view of all stated in this judgment that I find that the 2^nd defendant failed woefully to prove its relief c. Accordingly, relief ‘c’ fails.

48. Counterclaimant in relief ‘d’ is alternatively, praying for a declaration that the Defendant to Counterclaim is liable to return the 750 liters of condensate he carted away from the Geregu Power Plant Station, where he was posted by the Counterclaimant. I have held that the 2^nd defendant failed to prove beyond reasonable doubt that the claimant stole its condensate. It is thus without equivocation that I find and hold that the 2^nd defendant’s relief d also fails for want of proof.

49. Counterclaimant in relief ‘e’ is praying for a declaration that the Counterclaimant is entitled to net off the outstanding salaries of two (2) months of May and June 2019, or whichever sum the Defendant to Counterclaim is entitled from the Counterclaimant upon the cessation of his employment on 01 July 2019 to defray the sum of N3, 450, 000 (Three Million, Four Hundred and Fifty Thousand Naira Only) being the value of the 750 liters of condensate stolen by the Defendant to Counterclaim at the Geregu Power Plant Station. This relief will suffer the same fate as the only penultimate reliefs. This is because there is no award of money for which the 2^nd defendant can net off as it puts it. The main relief having failed, the prayer of the defendant also must fail. Accordingly, relief ‘e’ of the counterclaim fails. 

50. Counterclaimant in relief ‘f’ is praying for an Order of this Honourable Court directing the Defendant to Counterclaim to properly hand over and deliver Geregu Power Plc identity card issued to him by virtue of his employment with the Counterclaimant. I have already granted this order hereinbefore at paragraph 46 of this judgment.  

51. Counterclaimant in reliefs ‘g’ and ‘h’ together for obvious reason, the counterclaimant is praying for an Order of this Court directing the Defendant to Counterclaim to pay the sum of N3, 450, 000 (Three Million, Four Hundred and Fifty Thousand Naira Only) being the value of the 750 liters of condensate stolen by the Defendant to Counterclaim at the Geregu Power Plant Station, or in the alternative to direct the Defendant to Counterclaim to deliver the 750 liters of condensate he stole at the Geregu Power Plant Station, where he was posted by the Counterclaimant. These allegations made, has been found from the above to be unsubstantiated. It thus goes without saying that these two reliefs must fail and they thus fail.

52. Counterclaimant in relief i’ is asking for the Court for Cost of this action assessed at N500, 000.00 (Five Hundred Thousand Naira Only). It is Law of common place that a successful party is entitled to cost which he should not be denied except for good reasons. See the case of Cappa and Dalberto (NIG) Plc v. NDIC [2021]9 NWLR (PT. 1780) 1(a), 14, paras G-H. It is obvious from reasoning of the Court respecting the counterclaims that the 2^nd defendant counterclaimant failed in its reliefs. The consequence of this is that the counterclaimant is not entitle to any cost. Consequently, relief ‘i’ fails.

53. In sum it is apparent from all the above that the claimant’s claims succeed in the most part and the 2^nd defendant’s counterclaims fail in its entirety. I therefore make these declarations and Orders;

1.      The claimant’s case as constituted is competent and there is a cause of action against the 1^st defendant.

2.      There exists a tripartite employment relationship amongst the parties in this suit.

3.      Claimant’s employment is constructively terminated today.

4.      The 2^nd defendant is to pay claimant his May and June, 2019 salary, which is the total sum of N178,000.00.

5.      Claimant is to surrender the 1^st defendant’s ID Card to it.

6.      The 2^nd defendant’s counterclaims fail in its entirety.

7.      Each of the defendants is to pay the cost of N100,000 to the claimant.

8.      This judgment is to be complied with by both defendants within 14 days failing which it is to attract a 10% simple interest per annum.

54.  Judgment is entered accordingly.

                                                                                  Hon. Justice O. O. Oyewumi

                                                                                          Presiding Judge