IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

22ND DAY OF OCTOBER, 2024                                SUIT NO:NICN/CA/29/2018

BETWEEN                                                                           

MR. VICTOR BASSEY EFFIONG ………………………………………………………………………. CLAIMANT

AND

CCECC NIGERIA LTD …………………………………………………………………………………… DEFENDANT

JUDGMENT

1.     Vide a general form of complaint dated 21/6/2018 and filed on the same date accompanied by statement of facts, witness statement on oath, list of witness, list of documents and photocopies of documents to be relied on at the trial, the claimant prays for:-

1.     The sum of Six Million, Five Hundred and Eighty Thousand naira (N6,580,000.00) only as a special damages. The particulars of the special damages are as follows:

a.      The sum of Two Million, Six Hundred and twenty Thousand Naira (N2,620,000.00) only being and representing the appropriate deduction from the salary of the Claimant from the period January 2014 and March, 2018.

b.     The sum of Three Million, One Hundred and twenty Thousand (N3,120,000.00) only being the total leave allowance at 10% Annual Basic Salary between the period of November, 2013 and December, 2017.

c.      The sum of Eight Hundred and Forty Thousand Naira (N840,000.00) only being the medical allowance between the period of 2014 and 2017.

2.     The sum of Fifty Million Naira (N50,000,000.00) only as general damages.

3.     The sum of Five Million naira (N5,000,000.00) only being the cost of presenting this actions.  

2.     Upon being served with the originating process commencing this suit, the defendant on 26/8/2019, filed statement of defence dated 22/8/2019. On 8/10/2019, the claimant filed a reply to the statement of defence accompanied with additional written statement on oath.

3.     On 10/2/2022, the claimant testified in proof of his claim as CW1. CW1 adopted his witness statement on oath as his evidence in this case. Eleven documents were tendered in evidence through CW1, they were admitted in evidence and marked as exhibits A-K. On 26/10/2022, the claimant at the end of his evidence in chief CW1 was cross examined by counsel for the defendant, thereafter he was discharged.

4.     Under cross examination CW1 testified to the effect that in 2013, he demanded for letter of employment and he was not told he was a casual staff. He repeated the demand but no answer. The ID card issued to the claimant was as safety manager and not consultant. He was given bio data to fill as employee. The original is with the defendant, but, he has a copy. The bio data form was given to him and he filed it and returned. He is a holder of BSC Human Anatomy with professional London NOBOSH. He is not an engineer, but exhibit H applied to him. The Chinese don’t have fixed salary. He brought the defendant to court when they stopped his salary and refused to give him employment letter. He served the defendant from November, 2013 to April, 2018. From his bank record the defendant stopped paying him salary in April, 2018. The defendant told him he was not a staff when he demanded for salary. His job description was safety manager. He asked for letter if he is being dismissed, but the defendant did not issue him with letter of dismissal. His last assignment was in March/April, 2018, as he was in Akwa-Ibom State then. He does not have any evidence of work. There is no signature of the defendant on exhibit H.

5.     The claimant under re-examination stated that when he requested for letter of employment the response was oral and not in writing.

6.     On 23/11/2023, the defendant called one Praise Chris Bassey, Human Resources Manager, Akwa-Ibom, who testified in defence of the defendant as DW1. DW1 adopted his witness statement on oath as his evidence in this case. No any document was tendered in evidence through DW1. On the 15/05/2024, DW1 was cross examined by the counsel for the claimant, thereafter, he was discharged.

7.     In his evidence under cross examination, DW1 stated that he has been in the service of the defendant for 8 years and above. He met the clamant before he left. The company first employed the claimant as casual at point of conversion he was issued letter of employment. As a casual staff one is not entitled to be issued letter of employment, but the company will have his bio data. He did not join the company when claimant was in the employment of the defendant. He has brief of every staff. He was briefed by immediate past Resource Manager. Mr. Solomon Bassey, was the former Resource Manager. He did not state in his witness statement on oath that former Resource Manager briefed him. On exhibit A claimant was Safety Manager of the defendant. The company was paying claimant salary every month. He was not aware defendant was blacklisted by Federal Government. The ID card is to access site, it does not say he was a staff. It is issued to casual and confirmed employee.

   THE CASE OF THE CLAIMANT.

8.     The crux of the claimant’s case is that he was employed by the defendant in November 15, 2013 as the health and safety manager, issued with official staff identity card  and posted to Eket-Etinan Road Project on a monthly salary of N250,000.00 (Two Hundred and Fifty Thousand Naira). However, the defendant deliberately refused to give the claimant his letter of employment despite several demands. In 2014, the claimant’s salary was reviewed upward to N350,000 (Three Hundred and Fifty Thousand Naira) only. The Claimant was refused his statutory entitlements such as leave and medical allowances as provided for in the National Joint Industrial Court Agreement on terms and conditions of service for all senior employees in the building and civil engineering industry in Nigeria.

9.     It is the case of the claimant that the Defendant without notice to the claimant reduced the salary of the claimant to One Hundred Thousand Naira (N100,000.00) only. After the several complaints of the Claimant, the Defendant without following due process of labour law terminated the Claimant’s employment by using the Military and Armed Policemen on security at the Defendant’s premises to send the claimant away from his workplace with a strong caution not to come near the premises again, if he so valued his life. The claimant is frustrated by the action of the Defendant which has in no means measure hindered and frustrated the claimant’s future, thus this case.

THE CASE OF THE DEFENDANT:

10.                       The case of the defendant is that the claimant was not an ex-employee of the defendant. The claimant was merely engaged as an external consultant, as a health and safety consultant and not health and safety manager. The staff identity card issued to the claimant was to identify him as one working with the defendant as a consultant and not as a permanent staff. The defendant admitted reviewing of claimant’s salary. The bio data was for purposes of identifying claimant as external consultant with the defendant. The claimant was not given letter of employment as the contract between the claimant and defendant was oral as an external consultant to the defendant in health and safety matters. And this was made known to claimant when in 2013 he demanded for letter of employment, it was made known to him he was not a permanent staff but a consultant, he accepted and continued working. When in 2017 claimant repeated his demand, the defendant repeated her earlier stand on the issue to the claimant. The defendant has not offended any known labour laws and is not a party to and not bound by agreement of service for all senior employees in the building and civil engineering industry of Nigeria.

11.                       It is the case of the defendant that at the end of the project the claimant left the defendant and stopped working for the defendant. The salaries of the claimant were paid to the accounts supplied by the claimant. The issue of rent was handled personally by the claimant as his private affairs the claimant was paid rent and subsidy while the contract lasted. The claimant was not entitled to privilege allowance of leave as he was not a permanent staff of the defendant. The droppings in the claimant’s salary as stated were done as a result of the subsequent poor performance of the claimant on his job. The claimant was not entitled to termination letter or terminal benefits because the claimant is not a permanent staff of the defendant.

       CLAIMANT’S REPLY TO STATEMENT OF DEFENCE

12.                       The claimant filed a reply to the defendant’s statement of defence, wherein the claimant maintained that he was a bona fide employee of the defendant, employed as health and safety manager and not as health and safety consultant. The bio data was not for purpose of identification as it speaks for itself. The defendant deliberately refused to issue letter of employment despite several demands and the issue was never settled. Even if claimant is a consultant which was denied he is entitled to letter of engagement. The National Joint Industrial   Council (NJIC) Agreement terms and conditions of service for senior staff in the building and construction industry in Nigeria is the regulation binding all the senior staff in the building and civil engineering industry in the country, which the defendant is aware of its operation. At no time issue of employment letter resolved. The claimant’s employment was terminated orally by Mr. Tony Shi, project manager of Eket Etinan Road Project, Akwa Ibom state with a further threat from military and armed policemen attached to on request for formal letter of termination.

       THE SUBMISSION OF THE DEFENDANT:

13.                       On 26/7/2024, when this matter came up before thecourt for adoption of final written addresses Danel Mbey, Esq; counsel for the defendant leading Daniel Ekong, Esq; in oral adumbration adopted the final written address of the defendant as his argument. Counsel urged the court to dismiss the claim of the claimant for lacking in merit. In the final written address counsel formulated a single issue for determination to wit:

‘‘Whether from the facts and surrounding circumstances of this case, the claimant has proved his case as required by law to be entitled to the reliefs sought’’.

14.                       In arguing the sole issue counsel submitted that the answer to the question is in the negative and the law requires he who assert to prove his assertion, as per sections 131 – 133 of the Evidence Act and the case of Bulet Int’l (Nig.) Ltd v  Olaniyi (2008) ALL FWLR (Pt.943) 505. Counsel further submitted in civil proceedings proof is based on balance of probability and preponderance of Evidence. On this submission he relied on the case of Oche v Christian (2003) ALL FWLR (Pt.147) 1128 @ 1133, Atiku Abubakar v INEC (2020) ALL FWLR (Pt.1052) 898 @ 921.

15.                       According to counsel the claimant has woefully failed to prove his case, as he has not met the requirement of proof. As the claim of the claimant that he was ex-employee of the defendant has been countered wherein the defendant stated that claimant is not ex-employee but a consultant on health and safety matters and not permanent staff of the defendant. paras 2.7 and 2.8 were distortions of facts

16.                       Counsel submitted referring to exhibit H that one is not bound by a document he was not a party to, exhibit H cannot be used against defendant and claimant cannot benefit on, to support his submission counsel relied on the case of Motech Investment Ltd & Anor. v Odemandighi (2020) LPELR-50394(CA), where the court of appeal held that:

The doctrine of privity of contract simply states that only parties to a contract can sue, be sued and be held liable in the event of a breach.’’

17.                       Counsel further relied on the decision of the Supreme Court in the case of UBA & Anor v Alhaji Babangida Jargaba (2007) LPELR-3319(SC); Ogundare & Snor. V Ogunlowo & Ors. (1997) LPELR-2326(SC).

18.                       Counsel also refers to exhibits A, B, C, D, E, and H and submitted that these documents did not in any way establish the reliefs of the claimant. As record abound showing that the claimant’s salaries were paid to the designated accounts as supplied by the claimant to the defendant. And whatever shortfalls that are there took care of taxes and other deductions as rent which the defendant once paid into the claimant’s landlord account as admitted by claimant.

19.                       Counsel making reference to various payments made into the claimant’s account, submitted that from the totality of payments coupled with the fact that claimant is expected to pay taxes to the relevant authorities and other deductions for other administrative expenses which claimant has refused to forward his pay advice to explain away such deductions and having admitted under cross examination that salaries are not expected to be same in every month, can it be justified/proven as shown in paragraph 30(d) that the defendant is owing the claimant N2,620,000.00 as deductions from his salaries certainly not and counsel urged the court to so hold.

20.                       It is also submission of counsel that having shown in evidence that claimant is not a permanent employee of the defendant and he is not entitled to benefit as expressed in exhibit H, as a permanent staff and the defendant not being a party to the said exhibit H, can the court award the reliefs of the claimant in paragraphs 17, 18 and 30(e - f) of the statement of facts.

21.                       Counsel while placing reliance on the case of Uche v Christian (supra), submitted that standard of proof is on balance of probabilities. The claimant can only succeed on strength of his case and not on weakness of the defendant’s case. In support of this submission reliance was placed on the case of Okhuarobo v kbe (2002) FWLR (Pt.116) 869 @ 873.

22.                       On the claim of the sum of N6,580,000 (Six Million Five Hundred and Eighty Thousand Naira) as special damages. Counsel submitted that special damages must be specially pleaded strictly proved and mathematically arrived at by the party claiming same. In support of this contention counsel relied on the case of Naridex Trust Limited v NICMB Ltd (2001) FWLR (Pt.49) 1546 @ 1552, Afuronye v Ikome (2015) ALL FWLR (Pt.811) 1233 @ 1247. Counsel continued his submission that special damages are not normally awarded on the slightest proof or unchallenged ipse dixit evidence or as a matter of cause like general damages. The claimant is required to prove special damages by adducing credible evidence most of the time by documents which show the actual loss he had suffered to enable him to establish his claim to the satisfaction of court that he is entitled to the reliefs under that head. Proof of special damages entails adducing credible evidence of particular losses, which are exactly known or capable of exact knowledge and accurate measurement before the trial court.  To support this contention counsel relied on the case of Ahuronye v Ikome (2019) ALL FWLR (Pt.1022) 404.

23.                       According to counsel the claimant has told this court that he is not the permanent staff of the defendant and has showed nothing to that effect that qualifies him to earn leave allowances and other benefits of a permanent staff of the defendant. The claimant has also told this court that the document tendered as exhibit H the content therein does not apply to him i.e. the claimant and the defendant.

24.                       On claim of the sum of N55,000,000.00 (Fifty Five Million Nara) general damages, counsel submitted that general damages are such that the law will presume to be direct, natural or probable consequence of the act complained of. In support of this submission counsel relied on the case of Jodi v Salami (2009) 27 WRN 24 @ 43. According to counsel in this case the claimant did not show any proof of what law presumes to be direct, natural or probable consequence of the acts complained off, that will warrant the court to award N50,000,000.00 (Fifty Million Naira).

25.                       In concluding his submission counsel urged the court to dismiss the claimant’s reliefs.

THE SUBMISSION OF THE CLAIMANT:

26.                       The counsel for the claimant Etim Inyang, Esq; who franked the claimant’s final written address adopted it as his argument in this case. In the final written address a single issue was submitted for determination, to wit:-

“Whether on the totality of the evidence and facts adduced by the Claimant, the Claimant is entitled to his claims as stated in this complaint filed on the 21st day of June, 2018”.

27.                       In arguing the sole issue counsel submitted that the Claimant has adduced sufficient, cogent credible and positive evidence as to entitle him to his claims, especially when the Defendant never controverts the facts and evidence.

28.                       Counsel argued that the rule on burden of proof is that the burden rests on the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue on the burden of adducing evidence, the burden of proof may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating, the burden of proof rest squarely on the party who would fail if no evidence at all or no more evidence, as the case may be, was given on either site. In other words, it again rests before evidence is taken by the Court of trial on the party who asserts the affirmative of the issue. To support this submission counsel relied on the cases of Amodu Vs. Amode (1990) 5 NWLR (pt.150) P 356, Fumuroti Vs Agbere (1991) 5 NWLR (pt. 189) P.1

29.                       According to counsel the Claimant in paragraph 3 of his statement on oath which he admitted as his evidence in chief stated that:

“I was employed in November 15, 2023 as the Health and Safety Manager and posted to Eket-Etinan Road Project of a monthly salary of N250,000.00 (Two Hundred and Fifty Thousand Naira)”.

30.                       The claimant tendered Exhibit A. In the said Exhibit A issued to the Claimant by the Defendant, the position of the Claimant was well endorsed “Safety Manager, Akwa Ibom Area Office”. Therefore, the position of the Claimant is not in dispute.

31.                       The Claimant also tendered Exhibit H, being the National Joint Industrial Council Agreement on terms and conditions of service for all senior employee in the building and civil engineering industry in Nigeria that both the Claimant and the Defendant are bonded by the terms and conditions in Exhibit H, as by the position of the Claimant as health and safety manager he was a senior staff in the employment of the Defendant.

32.                       Counsel submitted that the Defendant acted in bad faith and in disobedience to the exhibit H. He refused to issue the claimant with a valid letter of employment as required by the extant labour law, despite the written request by the claimant. See paragraphs 8, 9, 10, 11 and 12 of the CW1 Written Statement of Oath which is the claimant’s (CW1) evidence in Chief and exhibits E and F. Counsel submitted that the action of the defendant not to issue a letter of employment to the claimant was a deliberate act and unethical practice, this unethical practice of the defendant culminated into the information in exhibit K where the world bank blacklisted 6 Chinese companies, including the defendant currently operating in Nigeria over allege fraud and corruption.

33.                       It is submitted that the status of the claimant as an employee of the defendant is not in doubt. As the defendant was continually paying into the account of the claimant his monthly salary between the 25th and 28th days of every month during the claimant’s employment. To support this submission counsel placed reliance on exhibits I and J. And in paragraph 21 of the CW1 written statement on oath, he stated how the defendant continued to temper with his salary and he made complaints to the defendant.

34.                       Counsel submitted that by effect of exhibit H, the parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous. To support his contention counsel relied on the case of UBA Plc Vs Soares (2012) 11 NWLR p.550. On the Nature of Employment contract, the Court has this to say:

“An employment contract is an agreement or contract between employer and employee in which the terms and conditions of employment of the employee are provided. See Union Bank of Nig. Ltd. Vs Edit (1993) 4 NWLR (pt.287) 288 CA”.

35.                       The court further states that:

“An employee is a person in the service of an employer under any contract of hire, exercise or implied, oral or written, where the employer has the power or right to control and direct the employee in the National details on how the work is to be performed. On the other hand, an “employer” is one who employs the services of others one for whom employees work and who pays their wages or salaries. See Riverbend Country Club Vs Patterson Tex. C. V APP, 399 S.Q 2d382.

36.                       Counsel submitted that the Defendant in exhibit E, being letter to a reply to exhibit G tried in vain to be clever by half by stating that the claimant “has no identity card or letter of employment”. This is contrary to exhibit A. The said exhibit has claimant staff number and his picture, which has not been disputed or controverted. Also the defendant boldly stated in the said exhibit E that no letter of unemployment was issued to the claimant; the defendant only claimed that the claimant was external consultant, yet no material proof. If we may ask, as an external consultant was the claimant not entitled to letter of appointment?

37.                       Counsel refers to the evidence of the defendant’s only witness DW1, under cross examination where he made it very clear and undisputed that he was not in the employment of the defendant when the claimant was employed, but that he was briefed by the immediate past Human Resource Manager, one Mr. Solomon Bassey. And was further asked whether he stated the name of the Human Resource Manager in his written statement on oath as the one that informed of the facts he stated therein, he said “No”.

38.                       Counsel submitted that the defendant’s witness confirmed exhibits I and J and further states when asked whether the Defendant paid monthly salary to the claimant, he opined thus:

“Yes, the company paid the Claimant’s salary every month into his account”.

39.                       Counsel submitted that with the provision of section 115(3) of the Evidence Act (as amended) 2023 that:

“When a person deposes to his belief in any matter of fact and his belief is derived from any source other than his own personal knowledge, he shall set forth explicating the facts and circumstances forming the ground of his belief”.

40.                       Section 115(4):

“When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information”.

41.                       It is submission of counsel that DW1 in his written statement on oath which he adopted and relied as his evidence in chief before the court, fails flat of the provision of the cited sections, as in the case of Edu Vs Commission for Agriculture, Water Resources and Rural Development (2001) FWLR (pt 55) 433, the Court of Appeal held that the provision of section 115(3) (4) of the Evidence Act 2011 was mandatory, hence failure to comply with either of those sections was bound to lead the court to reject any relevant offending paragraphs of the affidavit. The Court states thus at page 41 of the said judgment.

“It is not disputed that the facts deposed to in the applicant’s supporting affidavit by Mr. Matthew Ekpo are not within his personal knowledge. To satisfy the requirement of sections 88 and 89 of the Evidence Act, he ought to have set forth in the further and better affidavit if the facts and circumstances forming the grounds of his belief, name of his informant and the time, place and circumstance of the information (please note, it was in the repeated Evidence Act, which is the equivalent of section 115 of Evidence Act 2011)”.

42.                       Counsel also refers to Codar Stationary Product Ltd Vs I.B.W.A Ltd (2004) FWLR (pr.25) 1710 at 1725 and the case of Maga Vs Samouris (2002) FWLR (pt.98) 819, where the Supreme Court held that a deponent who got information and belief must state the source of such information and belief. That such evidence ought not to be acted upon unless the facts deposed to are corroborated by someone who deposes to or speak of facts from his personal knowledge, failing which such information will be regarded as being irrelevant and weightless. In other words, that a third person must depose to facts from his personal knowledge to corroborate the deposition in question.

43.                       Counsel refers to evidence of DW1, under cross examination, where he told the court that he has been in the service of the Defendant for 8 years, according to counsel by simple mathematical calculations, DW1 was not in the service of the defendant in 2013 to be able to deposed to the facts stated in paragraph 3 and 5 of his written statements on oath dated 22/08/2019. It is submitted that the entire evidence of the defendant’s witness, DW1 is a hearsay evidence. Hearsay evidence or second-hand evidence of a witness is evidence of what he was told or what he heard from someone. Such evidence is inadmissibly to prove a fact. In support of this contention counsel relied on the case of Doma Vs I.N.E.C (2012) 13 NWLR (pt. 1317) 294.

44.                       Counsel further submitted that hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also in part of the veracity and competence of some other person. A piece of evidence is hearsay, if, it is evidence of the content of a statement made by a witness who is himself not call to testify. To support this submission reliance was placed on the cases of Ojo Vs Gharoro (2006) 10 NWLR (pt. 987), Maigoro Vs Bashir (2000) FWLR (pt.19) 553 Ratio 9 and Achora Vs AG Bendel (1990) 7 NWLR (pt 160) 92 Ratios 1, 2 & 3. It is hearsay and inadmissibly when the object of the evidence is to establish the truth of what is contained in the statement. Counsel urged the court to discountenance the entire evidence of the Defendant’s witness, DW1, same being hearsay and inadmissible based on the above cited judicial and statutory authorities.

45.                       Counsel continued his submission that assuming but not conceding that the court overruled the submission on admissibility of the evidence of DW1, which was by the adoption and reliance on his written statement on oath dated 22nd August, 2019, the claimant shall go ahead to argue the case on merit.

46.                       Counsel started by referring to paragraph 3 of his written statement on oath of DW1, where it was deposed thus:

“The Claimant is not an ex-employee of the Defendant. He was merely employed as an external consultant.

47.                       Counsel submitted during the examination of the DW1 he stated thus:

“As a casual, you only have a bio data you are not entitled to any letter of employment”.

48.                       Counsel argued that throughout the pleading of Defendant, no way did she plead that the claimant was a casual staff but she pleaded that the claimant was an external consultant. Also, in exhibit E, a letter from the defendant to the claimant’s solicitors, the claimant was described as “external consultant”. Counsel contended that no witness who has given an oath so materially inconsistent evidence is entitled to the honour of credibility. Such witness does not deserve to be treated as a faithful witness. In support of his submission counsel relied on the case of Ajose Vs FRN (2011) 6 NWLR (pt. 1244) 465 and Ezemba Vs Kelani (1985) 3 NWLR (pt.12) 248.

49.                       Counsel continued his submission that the defendant is economical with the truth and is only trying to bury the truth. The claimant was employed as a permanent staff as a safety manager and issued with an identity card, exhibit A, and his position clearly stated.

50.                       It is further submitted that the Defendant’s witness, DW1 as usual during cross examination manifested the Defendant’s character of deceit and lies by saying that the exhibit A was

“An access card to the site”.

51.                       He said

    “It was only for accessibility to the company’s site”.

52.                       Counsel submitted that exhibit A, the identity card, speaks for itself and clearly corroborate and support the case of the Claimant, that he was employed by the Defendant as a safety manager. Counsel submitted that in the interpretation of a document, oral or parole evidence will not be admissible among other things, to contradict or alter it, where the document is clear and unambiguous. To buttress his contention counsel relied on the case of Bunge Vs Governor of Rivers State (2006) 12 NWLR (pt.995) 573 at 617-617 and Owoeye Vs Oyinlola (2012) 15 NWLR (Pt.1322) 84.

53.                       Counsel submitted that, it is of note that the issue of exhibit A, defendant’s company identity card, being an access card was never part of the defendant’s pleadings, even when the claimant has pleaded same, as a document that was given to him at the point of employment. It is submitted that evidence of facts not pleaded should not be admitted as parties are bound by their pleadings. To support this contention counsel relied on the cases of Otukpo Vs John (2012) 7 NWLR (pt.1299) 357, W.A.B. Ltd Vs Savannah Ventures Ltd. (2002) 10 NWLR (pt.775) 401 and N.I.P.C Ltd Vs Thompson Organization Ltd (1969) 1 SCNLR P279.

54.                       It is also, the submission of counsel that claimant’s averment must be met by the defendant frontally and categorically. Once averments are not met directly, the defendant is taken to have admitted them. See Atuchukwu Vs Adindu (2012) 6 NWLR (pt 1297) 534 and Owosho Vs Dada (1984) 7 SC 149.  Counsel further argued that a general traverse is evasive and may be treated as placing no burden of proof on the claimant unless other paragraphs in the statement of defence contain a denial of the claimant averment. See Ogbeide Vs Osula (2004) 12 NWLR (pt.866) 86.

55.                       Counsel pointed out that the defendant in its final written address paragraph 2.8 has opined that the claimant has told this court under cross examination that he is not an engineer in the employ of the defendant and that exhibit “H” which is National Joint Industrial Council Agreement on terms and conditions of service for all senior employees in Nigeria doesn’t apply to him and that the defendant were not parties to the said document because they didn’t sign same and that he only came to court because the defendant told him his services were no longer needed. Also, the defendant at paragraph 2.16 of its final written address further alleged that

“The Claimant has told this court that he is not the permanent staff of the Defendant and has showed nothing to that effect that qualifies him to earn leave allowances and other benefits of a permanent staff of the Defendant”.

56.                       Counsel in response submitted that at no time both in the pleadings and in evidence before the Court did the claimant make such assertions. These assertions are rather in the pleadings of the defendant, which falls flat at the face of the credible evidence of the claimant. The claimant tendered exhibit A which clearly states that his position while with the defendant, also, exhibit D, states further corroborated his duties and function as a safety manager.  According to counsel exhibit A is not only meant for the engineers as the defendant wrongly stated. Exhibit H under Article 2 (A) shows that the terms in the said exhibit H apply to senior staff defined in section 3 (4) of the Trade Union Amendment Act 1978 and its only excludes management staff. Counsel submitted that the entire submission in the aforesaid paragraph 2.8, and 2.16 of the final written address of the Defendant are personal views of the counsel and didn’t arise from the pleadings and or evidence before this court. Counsel argued that a brilliant address is no substitute for evidence. Counsel’s submissions, no matter how brilliant and alluring, cannot take the place of legal proof. To support this contention reliance was placed on the cases of Ucha Vs Elechi (2013) 13 NWLR (p.330); Ishola Vs Ajiboye (1998) 1 NWLR (pt.532) 71 and Chukwujekwu Vs Olalere (1992) 2 NWLR (pt.221) 86. Also, the address of counsel cannot take the place of pleading by a party. Accordingly, any legal defence on behalf of a party should be raised in his pleading and not in the address of his Counsel.

57.                       Counsel continued his submission that the claimant has led in cogent evidence by exhibit A, identity card that he was a safety manager, and the said evidence was corroborated in exhibit B, the defendant’s workers bio data. In the said exhibit B, it is titled as CCECC Worker’s Bio-data, no way did it show that the Clamant was a casual or a contractor to the defendant. And it clearly stated the date of employment to 15/11/2013, fact which the claimant also pleaded in paragraph 2 of his statement of facts. And the claimant was posted to Eket-Etinan Road Project.  In exhibit B, the defendant bio data under the paragraph of “CCECC Employment History” the supervisor to the project was Henry Shao and the Claimant’s current position was well stated “HSE Manager” health and Safety. It is contention of counsel that the Defendant has not adduced any credible and cogent evidence before the court to contradict the evidence of the Claimant, both oral and documentary. The Defendant only states that the Claimant was orally engaged as an external consultant. Also, that the bio data was for the purpose of identifying the Claimant as an external consultant, see page 2 of the statement of defence. Yet, this is contrary to the contents of the said bio data form, exhibit B.

58.                       Finally, the Defendant has stated in paragraph 2 of her statement of defence that:

“The recommendation or award was not given to the Claimant as a dedicated permanent staff of the Defendant”

59.                       And also repeated same in paragraph 4 of the DW1 written statement on oath, but during cross examination, the DW1 said when asked on the award he stated that:

“I am not aware that the Claimant was given an outstanding award by the Defendant”.

60.                       It is submitted that the conflicting evidence of the defendant connotes positivity on the evidence of the claimant.

61.                       Counsel submitted that a relationship of master and servant is characterized by:

Contract of service which may be under seal, oral or inferred from the conduct of the parties.

Payment of wages or salaries. See Nigeria Airways Vs Gbajumo (1992) 5 NWLR (pt.244) 735 Ratio 8. Also where one party employs another to various positions in its establishment, pay him salary and allowance, these acts constitute sufficient facts from which a contract of employment can be inferred. See Nigeria Airways Vs Gbajumo (Supra) ratio 9.

62.                       In distinguishing between a contract of service and a contract for service, the Court over the years put forward a number of facts for determining whether or acts a particular relationship in that of employer/employee. These tests are:

a.      Control

b.     Organization and

c.      Multiple

63.                       See Francis Dola Vs Cecilia John (1973) NMLR 14. In essence, the control test implies the right to control. Thus the essential factor which separates the employee from independent contractor is control. See Gibb Vs United Steel Companies Ltd (1975) 1 NWLR 668.

64.                       It is submitted the law is that under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business, whereas under a contract for service, his work, although done for the business, is not integrated into it but it only accessory to it. See Steveson Jordan and Harrison Vs Macdonald and Evans (1972) ITLR 101.

65.                       Counsel submitted that the Claimant was in contract of service, thus issuing daily Safety Report activities as in exhibit D and was on monthly salaries. See Exhibit I and J and Exhibit A also supported that fact. It is contention of counsel that, if payments are made, by way of “wages” or “salaries” as in this case. See Exhibits I and J, this indicated that contract is one of service, it is a contract for service if independent contractor sets his payment by way of “fees”. In like manner, where the payment is by way of commission only on the completion of the job, that indicates that the contract is for service. This was not so in the claimant’s case.

66.                       It is submission of counsel that the claimant is in Court based on the power of Court for breach of contract of employment. The Courts in Oyedele Vs Ife UTC (1990) 6 NWLR (pt.155) 194 Ratio 5 CA held that:

“In an action for breach of contract of employment, all the court can do is to enquire into the procedure by means of which the servant was dismissed nor retired, for example, whether prescribed procedure, if any was followed and whether the servant has been paid his statutory or common law entitlements such as appropriate monthly salary in lieu of notice”.

67.                       It is submitted in the instant case, the defendant deliberately and willful refused to issue to the Claimant with a letter of employment in order to defraud and deny him of his entitlement. Also, the defendant did not pay the claimant his terminal benefit as required in exhibit H and no justifiable reason was given for the termination of his employment. See paragraphs 27 and 28 of the Written Statement on Oath of the claimant (his evidence in chief).

68.                       According to counsel, the defendant was involved in unfair labour practice, as the claimant was not given a letter of employment, also, no letter of termination of his employment was given. The defendant’s project manager, Mr. Tony Shi orally asked the claimant to stop coming to work, nor go near the premises and on the claimant request for letter of termination was followed with threat from the Military and Armed Policemen on security duty at the premises, with strong warning on the claimant not to come near the defendant’s premises, if he so valued his life. See paragraphs 24 and 25 of the claimant’s statement on oath which he admitted as his evidence in chief of CW1.

69.                       On type of damages that can be awarded for wrongful termination of employment or dismissal, counsel submitted that in a case of wrongful dismissal or termination of employment, there is no need to distinguish between special and general damages. In the instant case, see Ijebu-Ode Local Govt. Vs Adedeji Balogun & Co. Ltd (1991) 1 NWLR (pt. 166) 136. Also, the remedy open to an employee who felt aggrieved over his termination is always, an award of damages. See Patrick Zideh Vs Rivers State Civil Service Commission (2007) 29 NSCQR 701 at 728 par I.F. Ogbuagu, JSC.

70.                       On when dismissal or termination of an employee can be said to be unlawful, correct or wrong, the term of employment of the aggrieved employee must be examined to see whether the correct procedure was followed where there is departure from the prescribed procedure or a violation of the elementary rules of natural justice, then the dismissal or termination in unlawful. See Eze Vs Spring Bank Plc (2011) 48 NSCQR 125, par B. Rhodes Vivous JSC (emphasizes supplies). In the instant case, the defendant refused to issue the claimant with the letter of employment which is a flagrant violation of elementary rules of national justice.

71.                       It is submitted that civil cases are decided on preponderance of evidence and balance of probabilities, the court looks at the totality of the evidence which should be considered in order to determine which has weight and which has no weight at all. In deciding whether a certain set of facts given by the other party, the trial court, after a summary of all the facts, must put the two set of facts on an imaginary scale, weight one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it. See Wachukwu Vs Owunwanne (2011) 14 NWLR (pt. 1266) 1 at 36-37.

72.                       Counsel argued in the instant case, it seem, that the Defendant was not interested in defending this suit, as she presented no credible and strong facts to be put on the imaginary scale, therefore, it is only the facts of the claimant, which are credible and cogent that are on the imaginary scale.

73.                       In concluding his submission counsel urged the court to grant the claims of the claimant as the preponderance of evidence is in his favour.

                       COURT’S DECISION.

74.                       I have considered the processes fled by the parties, the evidence led at the trial as well as the written and oral submissions of counsel for the parties in support of their respective positions.

75.                       Having regard to the originating process commencing this suit, the statement of defence, the reply to the statement of defence, the evidence of the parties before the court as well as the final addresses of the parties, it is my view that the lone issue calling for resolution is:-

Whether from the evidence adduced before the court the claimant has proven his entitlement to any of the reliefs being sought before the court.

76.                       The reliefs being sought by the claimant is for payment of the sum of N6,580,000.00 (Six Million Five Hundred and Eighty Thousand Naira) as special damages made up of deductions from claimant’s salary, leave allowance at 10% Annual Basic Salary between the period of November, 2013 and December, 2017 and medical allowance between the period of 2014 and 2017. There is also claim of the sum of N50,000,000.00 (Fifty Million Naira), as general damages and the sum of N5,000,000.00 (Five Million naira) only being the cost of presenting this actions.

77.                       The law is trite that a claim is circumscribed by the reliefs claimed. Therefore, the claimant is required to adduce such evidence that will establish the claim before the court for the claimant to secure a favourable judgment. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt.1095) 399; [2008] 5 - 6 SC (Pt. II) 47), where the Supreme Court has this to say:-

‘‘A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.’’

78.                       In 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) page 35 paragraphs BE, Aba Aji, JCA (now JSC) held thus:

‘‘The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.’’

79.                       The claimant’s reliefs bordering on deductions from salary, Leave allowances, medical allowances and cost of litigation are special damages claim. While the relief on general damages is an ancillary claim dependent on grant of the main reliefs of special damages.  

80.                       By virtue of sections 131, 132 and 133 of the Evidence Act 2011, a party owes the legal duty and evidential burden of proving the assertions he makes. He who asserts must prove. In the instant case, the claimants who want the court to grant his reliefs owed the legal duty of proving the assertions he made on the basis of which he sought that judgment be given in his favour.

81.                       On the monetary claims of the claimant respecting deductions from salaries, leave allowances, medical allowances and cost of presenting this suit being claims for special damages, by law they must be specially and specifically pleaded, particularized and proved strictly. See 7UP Bottling Company (supra). Furthermore, in claim for entitlement the claimant is duty bound to establish his entitlement to what he is claiming and how he came by the quantum of the sums. It is also necessary to point out that proof of entitlement is often by reference to an instrument or document that grants it see Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, not the oral testimony of the claimant except if corroborated by some other credible evidence. In the case of Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA), the court specifically cautions against the reliance on an oral contract as proof of such entitlement.

82.                       The claimant is required to specifically plead the special damages claim and proved same strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 - 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).

83.                       The above principles of law on proof of special damages would serve as guide to the court in considering the special damages claim of the claimant.

84.                       From the pleadings and evidence put forward before the court the claimant hinged his case on his assertion that he was ex-employee of the defendant having been employed by the defendant as Health Safety Manager and posted to Eket Etinan Road Project on a monthly salary of the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira), but, the defendant deliberately refused to issue him with letter of employment despite several demands. The claimant’s salary was subsequently reviewed to the sum of N350,000.00 per month with effect from November, 2014. But, the defendant unilaterally reduced the salary without explanation. In proof of his assertion that he was ex-employee of the defendant, the claimant heavily relied on exhibits A, B, D, I and J.

85.                       The defendant has in its attempt to deny employing the claimant as its member of staff stated that the claimant is not an ex-employee of the defendant, as according to the defendant, the claimant was merely engaged as an external consultant on health and safety matters and not as health and safety manager. The defendant further stated that the staff identity card given to claimant was to identify him as one working with the defendant as consultant and not as a permanent staff. The bio data exhibit B, was also said to have been for purpose of identifying claimant as an external consultant with the defendant. Also in exhibit E, it was stated that the claimant is not a permanent staff of the defendant, but rather he worked as an external consultant on health and safety and environment matters. The defendant also stated that the claimant has no identity card or letter of employment as his work is not that of a permanent staff, but external consultant. The defendant denied claimant been employed or held any position with the defendant as health and safety manager. See paragraphs 1, 2 and 3, of the statement of defence and paragraphs 3, 4 and 5 of the witness statement on oath of the defendant.

86.                       It is clear to me from the pleadings and evidence of the parties that the main area of difference between the parties is on the status of the claimant. The claimant’s position is that he was ex-employee of the defendant, having served the defendant from November 2013 to April, 2018. While the defendant is of the view that, the claimant was not its ex-employee, but an external consultant. In the circumstances the task to be performed by the court is to ascertain whether the claimant was ex-employee of the defendant or a consultant as claimed by the defendant. As that will enable the court appropriately determine the special damages claims of the claimant.

87.                       It is to be noted that in contract of employment the relationship between a master and his servant or an employer and his employee is a contractual one and is governed by the terms and conditions of the contract between them. The employment relationship is ‘’the main vehicle through which workers gain access to the rights and benefits associated with employment in the area of labour law. Put in another way it is the contract of service that determine the nature and extent of employers’ rights and obligations towards their workers. See Ibama v S.P.D.C (2005) 17 NWLR (PT.954) 364 @ 379; Nigeria Gas Co. Ltd v Dudusola (2005) 18 NWLR (Pt.957) 292 @ 318. This means an employee is only entitled to make claims from his employer based on stipulations contained in the terms and conditions of the contract. See NWAUBANI V GOLDEN GUNEA BREWERIES PLC (1995) 6 NWLR (Pt.400) 184.

88.                       Now, globalization has brought about recognition of different forms of employment relationships that were not in the past recognized to be within the realm of labour law. Therefore, the ascertainment of existence or non-existence of contract of service is a function of facts. That is to say, it is the given facts of the case that guides the court in determining existence of contract of employment. This, is known in law as the principle of primacy of facts and not by the name or form given to it by the parties or both or either parties describe the relationship. The Apex court has in the case of Mobil Producing Nig. Unlimited V Okon Johnson & Ors (2018) LPELR-44359(SC), given recognition to doctrine of primacy of facts in determining nature of contract of employment between parties, the court stated thus:-

“Undoubtedly, the hood does not make a monk. The fact that the appellants were described as Spy Police Mobil Producing Nigeria and were adorned with Nigeria Police uniforms and other paraphernalia cannot make them Nigeria Policemen …the appellant intended to have the services of Supernumerary Police Officers but they decided to do it their own way (2018) LPELR-44359(SC).

89.                       What emerges from the above decision of the apex court is that due to the widening dimension of employment relationships, and both local and international legislations defining the “contract” and employment relationships, the issue of whether the relationship of employer and employee (servant) rather than another exists between any two persons so as to constitute a contract of employment is a question of both law and fact determinable from circumstances. It is not every person in employment that is an employee for legal purposes, and so it is not every contract or arrangement to provide service that creates the relationship of employer and employee (servant). In the contract of employment situation, that relationship arises only where such contract is provided to exist specifically or implied by statute or in any other case where, at common law, a contract of service rather than a contract for service can be diagnosed to exist.

90.                       The status of employment plays a vital role in determining the way and manner the employment relationship is created and sustained. In cases of contract with statutory flavor the law requires strict observance and adherence to the statutory provisions governing the employment or rules and regulations made pursuant to the provision of the statute. See Olaniyan V University of Lagos (supra) Idoniboye-Obu V  589 (2003) 2 NWLR (Pt.805), Bangboye V University of Ilorin & Ors. (1999) 6 S. C. (Pt.ii) 72, (1999) 10 NWLR (Pt.622) 290(1999) 6 S. C. (Pt.ii) 72, (1999) 10 NWLR (Pt.622) 290, Igwilo V CBN (supra).

91.                       For ordinary employment under the common law, the agreement of the parties which is the bedrock of the relationship plays prominent role in determining the extent of the contractual relationship. See Amodu V Amode (1990) 9-10 SC, 1 (1990) 5 NWLR (Pt.150) 356.

92.                       From the evidence as disclosed by the pleadings and witnesses statements on oaths, it can be gathered that the claimant claimed to be an ex-employee of the defendant; as he served the defendant as Health and Safety manager. The defendant on its part stated that the claimant was engaged as an external consultant and not as a permanent employee.

93.                       What is clear from the evidence before the court is that the claimant’s relationship with the defendant is not that which was made pursuant to any statute, this means the claimant’s relationship with the defendant is not one that has statutory flavor. There is also no any written agreement that defined the relationship between the claimant and the defendant. This means there is no statute or written agreement to which the relationship of the parties was governed.

94.                       However, our case law and section 91 of the Labour Act, has recognized that contract of employment can be made in writing, orally or by conduct of the parties. As pointed out earlier in this judgment, the claimants hinged their claim of being ex-employees of the defendant on exhibits A, B, I and J. while the defendant maintained that the claimant was not its employee, but served the defendant as an external consultant.

95.                       A careful perusal of exhibits A, B, I and J, heavily relied by the claimant will clearly show that the claimant was engaged by the defendant as Health and Safety Manager, this fact is manifestly evident as far exhibit A. This finding is corroborated by exhibit B employee data form filled by the claimant as required by the defendant at the point of his employment. Exhibits I and J, bank statement of accounts showing payment of salary to the claimant by the defendant further support the claim that the claimant was ex-employee of the defendant and not as consultant.

96.                       The defendant apart from ipse dexit of DW1 who was not even in the service of the defendant when the claimant was in service is not enough to displaced the inference derivable from exhibits A, B, I and J. The evidence of DW1 under cross examination could not be of any assistance to the case of the defendant, it rather damages the stands of the defendant on its claim that the claimant was engaged as a consultant, as DW1 stated that claimant was engaged as casual worker, thus why he was not entitled to be issued with letter of employment. The evidence of DW1 on the claimant being a casual worker does not have any evidential value as it is not part of the pleading of the defendant that claimant was a casual worker. The law is settled that facts and evidence not pleaded go to no issue; and because parties are bound by their pleadings, evidence received on un-pleaded facts must be expunged from the record. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248: A.-G. Anambra v. Onuselogu (1987) 4 NWLR (Pt.66)547 at 548 and 550. A party is not entitled to lead evidence in respect of matters not pleaded. He can therefore not depart from his pleadings and is confined to lead evidence in respect of matters pleaded. Any evidence which is not supported by the pleadings goes to no issue. See Ajoke v. Oba (1962) 1 All NLR 73; Ogamien v. Ogamien (1967) NMLR 245, N.I.P.C Ltd. v. Thompson Organisation Ltd. (1969) NMLR 99; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71.

97.                       Exhibits A, B, I and J, relied by the claimant clearly shows that claimant served the defendant as health and safety manager and not as an external consultant. This finding is supported by case law which recognized existence of contract of service even where there is no written agreement of the parties. As contract of service can be created where the facts disclose existence of such contract more particularly where there is evidence of payment of salary. In this case both the claimant and the defendant were at ad idem that claimant was being paid monthly salary by the defendant during the period the claimant served the defendant as health and safety manager. See exhibit I and J. The Supreme Court has recognized payment of salary as evidence of existence of contract of service like in the case at hand. See Shena Securities Co. Ltd v Afropak Nig. Ltd & Ors (2008) LPELR-3052(SC).

98.                       Given the facts and evidence before the court, I am satisfied that the claimant was an ex-employee of the defendant, as there was no evidence adduced by the defendant to show otherwise. The claimant never served as a consultant or as a casual worker.

99.                       Having resolve issue of status of employment of the claimant, I shall now turn to determine the claims of the claimant.

100.                  In relief 1(a) the claimant is claiming for payment of the sum of N2,620,000.00 (Two Million Six Hundred and Twenty thousand Naira) being deduction from claimant’s salary between the period January, 2014 to April, 2018. Paragraph 18 of the statement of facts and paragraph 19 of the claimant’s witness statement on oath contained the facts on deduction of claimant’s salary.

101.                  In relief 1(a) the claimant is claiming for payment of the sum of N2,620,000.00 (Two Million Six Hundred and Twenty thousand Naira) being deduction from claimant’s salary between the period January, 2014 to April, 2018. Paragraph 18 of the statement of facts and paragraph 19 of the claimant’s witness statement on oath contained the facts on deduction of claimant’s salary. For proper appreciation I hereby reproduce relevant pleadings of the claimant as contained in paragraphs 2, 4 and 18 of the claimant’s statement of facts on his salary and the alleged deductions made by the defendant. They are as follows:-

2. The claimant was employed in November 15, 2013 as the health and safety manager and posted to Eket Etinan Road project at a monthly salary of N250,000 (two hundred and fifty thousand naira). The Defendant deliberately refused to give the claimant his letter of employment despite several demands.

4. The monthly salary was reviewed to N350,000.00 (Three Hundred and Fifty Thousand Naira) as at November 2014 as a result of the Claimants industry and dedication to duty, The Defendant gave the Claimant award for dedicated leadership and employee of the year in 2014. The award is hereby pleaded.

18.  The charts for the various salary deduction (sic) are as states(sic) below:

a)    In 2014, the claimant was paid N250,000 instead of N350,000.

b)    In 2015, the claimant was paid N300,000 in the months of January, February, May, August, September instead of N350,000. While in the month of June the claimant was paid N200,000 instead of N350,000 and he was paid N250,000 in the month of July instead of N350,000.

c)     In 2016, the claimant was paid N200,000 in the months of June, July, August, and September instead of N350,000, in October, the claimant was paid N250,000 instead of N350,000 and N300,000 in November

d)   In 2017, the claimant was also irregularly paid a sum of N300,000 in the months of January, February, March, April, May, June, July and December instead of the N350,000. While in the months of September –October and November the claimant was paid N250,000 instead of N350,000. And the claimant was paid a sum of N182,000 in August instead of N350,000.

e)    In 2018, the claimant was paid a sum of N300,000 in January, N200,000 in February N100,000.00 in the month of March and finally paid a sum of N78,000 in the month of April instead of N350,000

102.                  The defendant in its paragraph 6 (b) of the statement of defence denied paragraph 18 of the statement of fact and went on to state that dropping/declines in the salary of the claimant was as a result of poor performance by the claimant of his job. Paragraph 6 a, b, c, and d of the statement of defence read:-  

6.  The Defendant deny paragraphs 17, 18, 19, 20, 21, 22 & 23 of the Statement of Facts and in answer state that:

                                                       I.            The Defendant is not a party or bound by the agreement of service for all Senior Employees in the Building and Civil Engineering Industry of Nigeria as such the Claimant is not entitled to claim the sums calculated in his claim as annual leave or any other allowances.

                                                    II.            Droppings/declines in the claimant’s salary as stated were done as a result of the subsequent poor performances in his job.

                                                 III.            Salaries are paid into Claimant’s account as supplied by the Claimant to the Defendant.

103.                  It is clear from paragraph 6 of the statement of defence that the denial of alleged deductions was vague as there is no evidence adduced to establish poor performance which led to purported reduction of claimant’s salary. In law employer is not entitled to unilaterally reduce his employee’s salary/wages. The employer owes duty to pay its employee agreed wages for services rendered. This is because consideration for work is wages and consideration for wages is work. In Mobil Producing (Nig.) Unltd & Anor v Udo (208) 3 WRN 53, Omokri, JCA (as he then was) stated that:

‘’it is well settled in the contract of employment that service and wages are the twin pillars upon which a contract rests.’’

104.                  The employer’s duty to pay agreed wages does not permit unilateral reduction in wages howsoever. This principle is in accord with good and international best practice in labour and covered by the ILO protection of wages convention No. 95 of 1949.

105.                  In the case at hand as can be seen from paragraph 6(b) the defendant gave reason of reduction in claimant’s salary to poor performance. This is unacceptable excuse as there is no evidence of poor performance adduced by the defendant. The reason of poor performance without evidence in support is of no help to the case of the defendant. The action of the defendant in deducting claimant’s salary is not justified it is against international best practice and against section 5(1) of the Labour Act.

106.                  Section 5(1), Labour Act, unequivocally provides that:

Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or to any payment to the employer by the worker, for or in respect of any fines:

Provided that, with the prior consent in writing of an authorized labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker’

107.                  Similarly, Article 8 of the Protection of Wages Convention, specifically Provides that

Deduction from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award. Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions may be made.

108.                  In the case of NURTW v Ogbodo (1998) 2 NWLR (Part 537) 189, this court stated the position of the law regarding deductions from salary to wit:

‘’The law treats the issue of salaries with such sacredness that except expressly permitted by law or the workers, no employer is permitted to make any deductions from a worker’s salary. So when a deduction is made from workers’ salary, it must be applied for the intended purpose’’.

109.                  See also the cases of Chemical and Non-Metallic Product senior Staffs Association v Benue Cement Company Plc (2005) 2 N.L.L.R. (Pt. 6) 446 @ 470 paras. C-D. Dolphine fisheries Limited v. Agricultural and Allied Workers Union of Nigeria (2008) 12 N.L.L.R. (Pt. 33) 427;

110.                  In the circumstance, the claimant is entitled to be paid what the defendant unilaterally deducted by the defendant from his salary as itemized in paragraph 18 of the statement of facts. This means claimant has proved relief 1(a), the said relief is hereby granted.

111.                  Counsel for the defendant has in an attempt to justify deductions made from claimant’s salary has argued that the deductions were meant for taxes and other deductions. This assertion amounts to counsel giving evidence in an address which the law frowns at. Address of counsel was meant to serve as guide and not an avenue for giving evidence that was omitted to be given in the course of the trial. Counsel is not competent to turn to witness giving evidence through the instrumentality of written address. Even if such facts are pleaded there was no concrete credible evidence adduced in support of the facts pleaded. As no iota of evidence of what amount was deducted as tax and other deductions.

112.                  On reliefs 1(b) and (c), the claimant is seeking for payment of unpaid leave allowance for the period he served the defendant and medical allowance also for the period he served the defendant. As pointed out earlier in this judgment for the claimant to succeed he must establish entitlement to these allowances, this is by pointing out the instrument that grant the entitlement to the allowances. In an attempt to prove entitlement to these allowances the claimant placed reliance on exhibit H, National Joint Industrial Council Agreement on terms and Conditions of Service For All Senior Employees in the Building and Civil Engineering Industry in Nigeria dated 14/1/2014.

113.                  The defendant on its part vehemently objected to the applicability of exhibit H to the claimant and said exhibit H is not binding on the defendant as it is not a party to the agreement. But, the claimant insisted that it is applicable as the defendant is aware of the agreement.

114.                  Exhibit H is a collective agreement, which was outcome of collective bargaining regarding wages and conditions of employment between employers or association of employers and workers or workers organization. That is to say it is an agreement resulting from negotiation in which the employees do not bargain individually, and on their own behalf, but, do bargain collectively through their representatives, that is, the trade union, on behalf of all members.

115.                  The insistence of the defendant on non-applicability of exhibit H to the case at hand seems to have been based on the fact that the defendant not being a signatory to exhibit H, it cannot be bound by it. This position overlooked the recent development in contemporary labour jurisprudence, more particularly with the radical changes introduced to labour jurisprudence with the advent of Third Alteration Act, which amended the Constitution and confer jurisdiction on this court on interpretation and application of collective agreements. This, means collective agreement are justiciable and enforceable by this court. See section 254(C) (1) (j) (i) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. See also PENGASSON v Schlumberger (2008) 11 NLLR (Pt.29) 164 @ 183 paras B-H.

116.                  Therefore, section 254(C) (1) (j) (i) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, has empowered this court to move away from the old common law general rule position that regards collective agreement as non-justiciable and devoid of legal sanction, binding in honour only, as it is a gentleman’s agreement. See Texaco v Kehinde ()t, Nwajagu v BAICO (2000) 14 NWLR (Pt.687) 356, Nigeria Arab Bank Ltd v Shuaibu ( despite the position of the old common law on collective agreement, an employee can still enforce provisions of collective agreement if he can establish that the provisions have been incorporated into his contract of service either expressly or impliedly.. see Union Ban of Nigeria v Emmanuel Aderewaju Soares (2012) 11 NWLR (Pt.1312) 550; ACB v Nwodika ( the recognition of doctrine of incorporation or adoption of collective agreement is an exception to the general common law rule regarding justifiability of collective agreement.

117.                  By virtue of the provisions of section of section 254C (1) (j) (i) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, this court has been fully equipped and empowered to deal with issue of interpretation and application of collective agreement> Therefore, this provision has made collective agreement justiciable. For an employee seeking to rely on or take advantage of the constitutional provision to ventilate his grievances on collective agreement, he must however, prove membership of the trade union party to the agreement.  In the case at hand the claimant has not provided any evidence of his membership of the trade union that is a party to exhibit H. This is because, a non-member cannot enforce to his benefit a collective agreement entered into by a trade union that he is not a member of; neither can he have it enforced against him. As there is no assumption of membership for senior staff. For senior staff the law is that the employee is not assumed to be a member of the trade union. He has to opt in, individually and in writing. See CAC v AUP|TRE (2004) 1 NLLR (Pt.1) NIC. The evidence of membership must be direct documentary evidence of membership as in Habu v NUT Taraba State (2005) 4 FWLR (Pt.283) 646, the court of appeal held that the deduction from salaries and wages as check-off dues of a worker and the remittance of same to trade union is an incidence of membership of the worker and not conclusive evidence of membership.

118.                  For the claimant to succeed he is duty bound to establish that exhibit H collective agreement is applicable to him, by establishing his membership of the trade union that is a party to exhibit H, as ipse dexit is not enough. The claimant must establish that he is a member of the union that negotiated the collective agreement exhibit H. The claimant’s claim that he is a senior officer is not enough to make exhibit H applicable to his case. It is to be noted that in law for a senior officer to belong or be a member of a union being senior officer must opt in there must be evidence that he opted to be member of the union there is no such evidence before me that he opted in. In view of the failure of the claimant to prove membership of the union that negotiated exhibit H, exhibit H is not applicable to the claimant; he cannot take benefit of the provisions contained therein. In the circumstances, reliefs 1 b and c, on leave and medical allowances fails same are hereby refused.

119.                  Relief 2 is for general damages of N50,000,000.00 the claimant having been granted his claim on deductions from salary, he has been fully compensated, to grant general damages will amount to double compensation.

120.                  Relief 3 is for payment of N1,000,000.00 cost of presenting litigation. The law is trite award of cost is at the discretion of the court.

121.                  From all I have been saying above the claimant has only succeeded in proving entitlement to deductions made by the defendant from his salary.

122.                  In view of the foregoing and for avoidance of doubt the order of the court is as follows:-

a.      The defendant is hereby ordered to pay the sum of N2,620,000.00 to the claimant being deductions from his salaries.

b.     I also assess cost of this action to be the sum of N500,000.00 the defendant is hereby ordered to pay to the claimant the sum of N500,00.00 as cost.

c.      All monetary awards must be paid within 30 days from the date of this judgment failing which the judgment sum shall attract 10% simple interest per annum.  

123.                  Judgment is hereby entered accordingly.

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Effiom Out Effiong, Esq; for the claimant, holding brief of Daniel Inyang, Esq;

Daniel Mbey, Esq; for the defendant.