IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK
DATED THIS 28TH DAY OF NOVEMBER, 2023
SUIT NO: NICN/ AK/65/2018
BETWEEN:
1. SHOLA OLADIMEJI
2. ALIU USMAN …………………… CLAIMANTS
3. ABRAHAM OLASUNKANMI
(Suing for themselves and on behalf of fifty three
other staff of Firmus Integrated Resources)
AND
1. DR.ABDULWAHAB AWA IBRAHIM
2. OLUWAFADEKEMI AJAO ………………………. DEFENDANTS
3. MR. MUDASIRU AKINTOLA
(Carrying on business under the name and style of
FIRMUS INTEGRATED RESOURCES)
4. OTUNBA BABATUNDE MORAKINYO
REPRESENTATION
Dayo Akinlaja SAN with Ayodele Olubodun for the claimants
A.S .Subair for the 1st defendant
Bisi Atolashe for the 3rd and 4th defendants
JUDGMENT
INTRODUCTION
1. The claimants took out a representative action vide a complaint on 7/2/2018. The 1st and 2nd defendants filed a memorandum of appearance and a notice of preliminary objection on 2/4/2019 and by a motion of 22/5/2019, filed their statement of defence. The claimant filed a counter affidavit to the preliminary objection on 8/4/2019. By a motion filed on 20/5/2029, the 3rd defendant obtained leave to file a notice of preliminary objection and a statement of defence. The statement of defence was filed on 27./5/2019.The claimant filed a joint reply to the statement of defence of the 1st, 2nd and 3rd defendants on 26/6/2019.
2. The 2nd defendant filed a separate statement of defence on 11/3/2021 and the claimant filed a reply thereto on 17/3/2021. The 1st defendant filed a separate statement of defence on 15/3/2021 and the claimant filed a reply thereto on 17/3/2021.
3. By a motion of 23/6/2022, one Otunba Babatunde Morakinyo sought and obtained leave to be joined as the 4th defendant. His memorandum of appearance and statement of defence were filed on 24/6/2022 and the claimant filed a reply thereto on 6/12/2022.
4. On the 12/10/2023, the name of the 2nd defendant was struck out.
CASE OF THE CLAIMANTS
5. The claimants’ sole witness, Aliu Usman, 2nd claimant, on the 2/12/2021, adopted his witness depositions of 7/12/2018 at pages 14- 24 of the courts file and his witness deposition of 26/6/2019 at pages 433 to 436 of the court’s file. These are the witness statement on oath accompanying the complaint and the witness deposition in support of the joint reply to the statement of defence of the 1st, 2nd and 3rd defendants. The claimants’ reply to the statement of defence of the 4th defendant filed on 5/12/2022 had no witness statement.
6. It is the case of the claimants that the claimants and the 53 others named in the attached table of salaries are staff of FIRMUS INTEGRATED RESOURCES, a business name registered under the corporate affairs commission. That sometimes in 2004, one infinity segments Ltd was appointed as revenue adviser to the Kwara State Government and we, the Claimants, were all employed by the Infinity Segments Ltd. as staff for that purpose. In 2009, the business relationship between the Kwara State government and Infinity Segments Ltd was terminated, and a new set of people trading under the name and style of primus Systems Enterprises com. int’l took up the business of revenue advice and collection to the Kwara State government.
7. The claimants were inherited by primus Systems Enterprises com. int’l who later changed its name to FIRMUS INTEGRATED RESOURCES and issued them appointment letters for a fixed term from 1/6/2014 to 31/12/2019.
8. That on the 6/1/2017, the 3rd defendant informed them to stay back at home pending the completion of an internal reorganization of the management team of the company. The defendants have since then failed to recall them or to pay their salaries in spite of a demand letter from their solicitor, and have not disengaged them.
9. The claimants computed their entitlements from 2015 to October 2018 as tabularized amounting to a total sum of N86,954,026.05
CASE OF THE DEFENDANTS
10. At the hearing, the 3rd defendant, Mr. Mudasiru Akintola testified for all the defendants. He adopted his witness depositions of 24/6/2022 at pages 691 to 696 of the courts file and his witness depositions of 24/6/2022 at pages 661 to 668 of the courts file.
11. It is his case for the 1st to 3rd defendants that he was the managing director of FIRMUS INTEGRATED RESOURCES. That he was a managing director as an employee, not as a promoter or co-founder. That the claimants and all other persons they represent were not staff or employees of FIRMUS INTEGRATED RESOURCES as at the time this suit was filed. That the establishment known as FIRMUS INTEGRATED RESOURCES had ceased to exist as at the time of filing this suit, it was removed from the register of the corporate affairs commission on 29/8/2018.
12. That the registration of FIRMUS INTEGRATED RESOURCES was only for the purpose of provision of services rendered to the Kwara State Government and it never carried out any other business till its name was removed from the register of the Corporate Affairs Commission.
13. Paragraph 6 of the claim as to employment for a fixed term from June 2014 to December 2019 is admitted only with respect to the 1st, 2nd and 3rd claimants. The employment of the claimants and all other persons employed by FIRMUS INTEGRATED RESOURCES were terminated upon frustration of the engagement for which they were employed.
14. That the Kwara State Government, through the ministry of finance terminated its contract with FIRMUS INTEGRATED RESOURCES through a letter dated 8/4/2016. The firm informed its staff of this development and also informed the staff that their disengagement will be deferred till December, 2016. In December, 2016, at a meeting, all the employees were informed of their disengagement and issued notice of termination individually but most of them refused to acknowledge receipt of the notice of disengagement issued to them.
15. Testifying as DW2 for the 4th defendant, the testimony Akintola Muda Simu is the same in all material as for the 1st -3rd defendants and shall not be repeated herein. This witness was also cross examined.
FINAL WRITTEN ADDRESSES OF THE PARTIES
16. In spite of presenting one witness, the 1st defendant filed a final written address on 6/1/2023, the 2nd defendant filed a final written address on 21/6/2023 and the 3rd and 4th defendants filed a final written address on 10/10/2023. The claimant filed a final written address on 13/4/2023.
17. I have read the final written addresses, each counsel argued in favour of his client’s case.
COURT’S DECISION
A.PRELIMINARY OBJECTION OF THE 1ST DEFENDANT
16. The 1st defendant counsel filed a preliminary objection on 2/4/2019 asking the court to strike out the suit for being incompetent and disclosing no reasonable cause of action.
17. The grounds are that the employees have separate causes of action which cannot be combined in one cause of action. That the claimants do not share a common injury and are not seeking the same relief. That the claimants have failed to disclose a reasonable cause of action against the defendants.
18. In support is an 8 paragraph affidavit and a 10 page written address in which counsel advanced arguments in support of the above grounds.
19. The claimants filed a counter affidavit on 8/4/2019.In a 19 paragraph counter affidavit, One A.S Oladimeji deposed to the contrary of the what the 1st defendant contends. Attached is a 9 page written address arguing the contrary of what the objector argued.
20. The claimants herein have the same cause of action against the defendants which arose the same date and indeed, it will amount to a waste of precious judicial time to file separate actions only to come and repeat the same story, as none of the claimants have a different story to tell and the claims are monetary and for the same period of and length of time/.
21. The guiding principles of representative action is that all the claimants must have a common interest and grievance in the suit and the relief sought beneficial to all of them. See DURBAR HOTEL PLC v. MR. ABELLA ITYOUGH & ORS (2010) LPELR-4064(CA) and NIGERIA NATIONAL INTEGRATED POWER PROJECT v. AKAANGEE HULA (2021) LPELR-54208(CA). The suit of the claimants meets all these requirements.
22. On reasonable cause of action, the case of the claimants is that they were employed, they were asked to stay at home for some time. They could not look for alternative employment since they have not been disengaged. They have not been disengaged, but have not been paid their salaries. This is sufficient and reasonable cause of action if proven..
24. The preliminary objection fails and is accordingly dismissed for want of merit.
B.MERITS OF THE CASE
25. I have read the processes and the final written addresses of counsels and I am of the view that the lone issue for determination is whether the claimants have proven their entitlement to any of the reliefs sought.
26. In a civil case, matters are proven on a preponderance of evidence. See CHUKWU CONSTRUCTION COMPANY LIMITED v. I.O. UWECHIA (1999) LPELR-5508(CA)
27. The first burden of proof of any particular fact in issue lies on he who asserts or alleges the positive, whether claimant or defendant. See section 136 of the evidence Act, 2011 and CHIEF ANTHONY UKA EKEOPARAH v. THE GOVERNOR OF LAGOS STATE & ORS (2019) LPELR-50716(CA)
28. In this case, the burden of proof of employment lies on the claimants and they have discharged it by exhibits SLK2 1-52, actually 51 in number because SLK2 8 is double. We accordingly have only 51 claimants on record and not 56 claimants.
29. The claimants have also shown that all the defendants are the promoters or owners of or doing business as FIRMUS INTEGRATED RESOURCES. The claimants have also shown that they were neither disengaged nor paid salaries from January 2017 till the filing of this suit. Having prima facie, established their case, the burden of proof now shifts to the defendants to disproof the claim.
33. In their defence, it is the case of the defendants that only the three named claimants are their staff but the defendants have no answer to the 51 letters of employment tendered in evidence as exhibits SLK2 1-52. The defendants have failed to rebut the fact of employment of these 51 claimants whose letter of employment by the defendants have been tendered and admitted in evidence.
34. Secondly, it is the case of the 1st -3rd defendants that PW3 is neither a promoter nor a co-founder of FIRMUS INTEGRATED RESOURCES. There is also no evidence before the court, (particularly in this case, it should have been either the certificate of registration of FIRMUS INTEGRATED RESOURCES with the Corporate Affairs Commission or the 3rd defendants letter of employment by FIRMUS INTEGRATED RESOURCES) to show that the 3rd defendant is only a staff and not a promoter or a co-founder of FIRMUS INTEGRATED RESOURCES. This line of defence also fails and I find that the 3rd defendant is a promoter or a co-founder of FIRMUS INTEGRATED RESOURCES.
35. Thirdly, it is the case of the defendants that the Kwara State Government, through its ministry of Finance, terminated its contract, for which purpose the claimants were employed, by a letter dated 8/4/2016. There is no evidence of the letter dated 8/4/2016 from the ministry of finance terminating the Kwara State Government contract with FIRMUS INTEGRATED RESOURCES. This line of defence also fails.
36. Fourthly, it is the case of the defendants that the claimants were issued letters of disengagement on 6/1/2017 but most of them refused to acknowledge receipt. This implies that a few acknowledged receipt. As a proof of such refusal, the defendants were expected to put in evidence the acknowledgement copies of the few who acknowledged receipt of the letters of disengagement. There is no evidence of the notice of disengagement as supposedly acknowledged by few since it was not all of them, but most of them, that refused to acknowledge receipt of the notice of disengagement issued to them. The acknowledgment copies are ordinarily to be in custody of the defendants and failure to produce same amount to withholding evidence and should be resolved against the defendants. See section 149(d) of the evidence Act, 2011.
37. The fifth point in the defence is that FIRMUS INTEGRATED RESOURCES had ceased to exist because it was deregistered on 29/8/2018. The proof of this ought to be the instrument or notice of deregistration. There is no such evidence of deregistration presented before the court. There is also no evidence before the court that FIRMUS INTEGRATED RESOURCES had ceased to exist or that it was removed from the register of the corporate affairs commission on 29/8/2018. Without these proofs, the defence of the defendants fails in its entirety and I so hold.
38. The claimants have established their claim against the defendants. What is left to be determined is the extent of the claimants’ entitlements. The claimants computed their entitlements from 2015 to October 2018 as tabularized amounting to a total sum of N86,954,026.05. There is nowhere in the statement of facts that the claimants averred that they were not paid for the period of 2015 and 2016, except as from January, 2017. The court can only grant what is pleaded and proven. The court can grant less but not more. See See Ajayi vs. Texaco Nig. Ltd. (1987) 3 NWLR (Pt.62) 577 at 593 and Archurhu vs. Delta Steel Co. Ltd. (1997) 3 NWLR (Pt.491) 82 at 92. Where it was held;
''The relief granted must be claimed in the pleadings and proved at the trial”
39. Similarly, The introduction of leave bonus,13 month salary, end of year package, productivity bonus and pensions contributions introduced in the table are not covered by pleadings. These claims are not proved and not grantable. See AMOSUN V. INEC (2010) LPELR-4943. CA; (2007) ALL FWLR (PT.391) PG. 1712 where the court of appeal per Garba JCA held as follows;
Without the need to waste much verbiage, I would state that the learned counsel for all the respondents are right in the submissions that a party cannot claim a relief/ reliefs in vacuo and that any relief claimed in a case must relate to , arise from or base on the facts set out in the pleadings of the party. The facts averred in the pleadings are the foundation from which any relief /reliefs in a case must be built and based otherwise the relief/reliefs would have no legs to stand in law. Specific reliefs cannot therefore be claimed without the relevant facts in the pleadings which ground them.
40. Being a fixed contract, I hold that the claimants are ordinarily entitled to their annual salaries as per their letters of employments, exhibits SLK2 1-52, from January 2017 to December, 2019. However, the claimants’ demand or prayer stops at October 2018 and the court cannot grant more than what is asked for. See Ajayi vs. Texaco Nig. Ltd. (1987) 3 NWLR (Pt.62) 577 at 593 and Archurhu vs. Delta Steel Co. Ltd. (1997) 3 NWLR (Pt.491) 82 at 92.
41. Accordingly, it is hereby declared that the claimants are entitled to their annual salaries as per their letters of employments, exhibits SLK2 1-52, from January 2017 to October, 2018, a period of 20 months.
42. We shall calculate this by dividing the annual income of each claimant by 12 to get the monthly salaries then multiply by 20 to get 20 months salaries. As earlier indicated, the letters of employment presented in evidence are only 51 in number as represented by exhibits SLK2 1-52, so there are only 51 claimants contrary to 56 claimants as suggested by the complaint which names three claimants as suing for and on behalf of 53 others.
43. The defendants are hereby ordered jointly to pay each of the following 51 claimants as follows;
1. Ishola Oladimeji O - N588,000/12 = N49,000 X 20 = N 980,000
2. Aliu Usman - N732,000/12 = N61,000 X 20 = N1,220,000
3. Olagunju Abraham O - N732,000/12 = N61,000 X 20 = N1,220,000
4. Windiran Shola - N393,600 /12 =N32,800 x 20 = N656,000
5. Bello Abimbola - N393,600 /12 =N32,800 x 20 = N656,000
6. Salau Saheed - N485,400/12 =N40,450 x 20 = N809,000
7. Saka Ayodeji Ismail -N485,400/12 = N40,450 x 20 = N809,000
8. Joseph Abolarin -N485,400/12 =N40,450 x 20 = N809,000
9. Ajibola Roseline B - N228,000/12 = N19,000 x 20 = N 380,000
10. Babalola Alex Olalekan -N348,200/12 = N29,000 X20 =N580,000
11. Oni Adebola - N228,000/12 = N19,000 x 20 = N 380,000
12. Saliu Akano -N343,200/12 = N28,600 x 20 =N572,000
13. Aderemi Moses -N343,200/12 = N28,600 x 20 = N572,000
14. Hameed A Rasheem -N343,200/12 = N28,600 x 20 = N572,000
15. Daramola Rotimi -N343,200/12 = N28,600 x 20 = N572,000
16. Lawal Ariyo Nurudeen - N393,600 /12 =N32,800 x20 = N656,000
17. Oba O Zainab - N393,600 /12 =N32,800 x20 = N656,000
18. Musa Fausat - N393,600 /12 =N32,800 x 20 = N656,000
19. Abolarin James - N393,600 /12 =N32,800 x 20 = N656,000
20. Tiamiyu Adulrasheed - N393,600 /12 =N32,800 x 20 = N656,000
21. Senibi Omowumi Ruth - N393,600 /12 =N32,800 x 20= N656,000
22. Hameed Aminat O - N393,600 /12 =N32,800 x20 = N656,000
23. Adeyemi Kayode - N393,600 /12 =N32,800 x20 = N656,000
24. Afo Ayan Victoria - N393,600 /12 =N32,800 x20 = N656,000
25. Ibitoye Saliman - N393,600 /12 =N32,800 x20 = N656,000
26. Olalere Mary Olusola -N458,400/12 = N38,200 X 20 = N764,000
27. Fahintola Thomas O -N458,400/12 = N38,200 X 20 = N764,000
28. Alabi Abdulkabir -N458,400/12 = N38,200 X 20 = N764,000
29. Omolara G.Kehinde -N458,400/12 = N38,200 X 20 = N764,000
30. Yusuf Kabir -N458,400/12 = N38,200 X 20 = N764,000
31. Abdulraheem Afusat -N458,400/12 = N38,200 X 20 = N764,000
32. Alabi Hadijat M -N458,400/12 = N38,200 X 20 = N764,000
33. Nicholas Jegede -N458,400/12 = N38,200 X 20= N764,000
34. Adeyemi Olusola -N458,400/12 = N38,200 X 20 = N764,000
35. Ayinla Idris A -N458,400/12 = N38,200 X 20 = N764,000
36. Akinyemi Agboola -N458,400/12 = N38,200 X 20 = N764,000
37. Oyinlola F Omolade -N458,400/12 = N38,200 X 20 = N764,000
38. Ibitoye Adenike B -N458,400/12 = N38,200 X 20 = N764,000
39. Adeoye Olabisi -N458,400/12 = N38,200 X 20 = N764,000
40. Omonaiye Kehinde -N458,400/12 = N38,200 X 20 = N764,000
41. Ogunlade Segun -N458,400/12 = N38,200 X 20 = N764,000
42. Sadiq Olanrewaju S -N458,400/12 = N38,200 X 20 = N764,000
43. Ogunjide B Olarewaju -N458,400/12 = N38,200 X 20= N764,000
44. Amuzat Taofiq -N458,400/12 = N38,200 X 20 = N764,000
45. Afolayan Victor -N732,000/12 = N61,000 X 20 = N1,220,000
46. Odewuyi Esther M -N588,000/12 = N49,000 X 20 = N 980,000
47. Yakubu Raheem - N588,000/12 = N49,000 X 20 = N 980,000
48. Garba Abdulkadir - N588,000/12 = N49,000 X 20 = N 980,000
49. Abolade Samuel - N458,400/12 = N38,200 X 20 = N764,000
50. Wale Oladebo - N588,000/12 = N49,000 X 20 = N 980,000
51. Tiamiyu A Lasis - N588,000/12 = N49,000 X 20 = N 980,000
44.. These sums are to be paid within 30 days of this judgment or the sums shall attract 10% interest per annum.
45.This is the judgment of the court and parties are to bear their respective costs.
46. Judgment is entered accordingly.
………………………………………………..
HONOURABLE JUSTICE K.D.DAMULAK
PRESIDING JUDGE