IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDING AT ABUJA

4TH FEBRUARY 2025                                         SUIT NO: NICN/ABJ/123/2021

BETWEEN:

1.    

Suing for themselves and on behalf of all Julius Berger (Nig) Plc workers felt threatened by the content of the Circular dated June, 28 1999 which was signed by no identifiable person but headed Julius Berger Nigeria PLC and titled Circular to Julius Berger Nigeria PLC Sites within Abuja.

 
OKWARA AGWU

2.     INNOCENT OBINNA              

3.     CHARLES ONUMARA                                                                    CLAIMANTS

4.     OPARAOCHA LUIZ GARBA

5.     OBIAKOR EDWIN       

6.     EKEH SPEAR

 

AND

JULIUS BERGER NIGERIA PLC                                                                        DEFENDANT

REPRESENTATION:

Sepiribo Cromwell Peters Esq. for Claimants

Bimbo Atilola for the Defendant

JUDGMENT

INTRODUCTION AND CLAIMS

[1] This suit was commenced vide a general form of compliant dated and filed 12th October 2021. Sequel to an Order of Court, made 16th January 2024, the Claimants amended their Statement of Facts. The gamut of the Claimants’ case is that they were junior workers in the employ of the Defendant at its Abuja office and were employed without being issued any employment letter and that being workers on the junior staff cadre, their employment is regulated by the Labour Act. Consequently, the Defendant can only terminate their employment by a written letter of termination or by declaring their post redundant and communicating same in writing.

[2] In 1999, a dispute arose between the Defendant and junior staff at the Abuja office premised on the allegation that the Defendant was exploiting them by paying them less than their entitlements whilst always stating that it was computer error. The workers’ union chairman, comrade Emmanuel Ezike, attempted to resolve the issue, but unidentified fellows protested on 16th June 1999, against the Defendant and some of the Claimants based on the belief that some of the Claimants were conniving to exploit the junior workers and burned down the union office. The Defendant arrested and detained the union leaders including Comrade Emmanuel Ezike.

[3] A circular dated 28th June 1999 was released stating that payments would end on June 15 1999 and those not declared redundant would resume work on July 5th 1999. Consequent upon the imprecise content of the circular, workers appointed the named Claimants to file a lawsuit to ensure the Defendant does not declare any worker redundant unlawfully. To the Claimants, the Defendant cannot declare any Claimant redundant without following certain procedures. These include informing the trade union or workers’ representative about anticipated redundancy, applying the ‘last in, first out’ principle and negotiating redundancy payments. However, the Defendant failed to fulfil these requirements. Thus, the Claimant strongly believes that the Defendant failed to effect any lawful redundancy of their offices and by implication, the Defendant has not lawfully determined their employment.

[4] To the Claimant, the Labour Act regulates determination of employment and provides to the effect that they must be issued a letter discontinuing their employment before it can be said to be valid, a condition which the Defendant yet again failed to comply with. Hence, the Claimants averred that they are entitled to redundancy payments and benefits when their employment is properly, validly and lawfully declared redundant. That giving that the Labour Act regulates the procedure of declaring redundancy, other documents cannot override the Labour Act.

In addition, the Defendant was accused of forcefully evicting the Claimants from their official accommodation, Berger Camp in Kubwa, Abuja, without legal notice or Court Order.

[5] It is predicated upon these facts that the Claimant commenced this suit and is seeking the following reliefs:

          i.            A DECLARATION that the circular dated 28th June, 1999, which bears the name of Julius Berger Nigeria Plc. which was signed by no identifiable person but headed Julius Berger Nigeria Plc and titled Circular to Julius Berger Nigeria Plc sites within Abuja is ineffective, invalid and incompetent for want of a valid signature and want of the name of any of the Claimants as being declared redundant, thus the Defendant is not entitled in law to rely on the said circular as the instrument with which the Defendant declared the Claimants’ posts or offices in the employment of the Defendant, redundant.”

       ii.            A DECLARATION that the failure of the Defendant to inform each of the Claimants that his or her post in the Defendant had been declared redundant, and that consequently, such Claimants’ employment in the Defendant have ceased on a specific named date (effective date of the redundancy) constitute the continuance of the employment of the Claimants in the Defendant until when the Defendant informs each and every one of the Claimants that his or her post in the employment of the Defendant had been declared redundant from the effective date mentioned in the instrument conveying the notice of redundancy causing the discontinuance of the employment of the Claimant/Claimants.

     iii.            A DECLARATION that the failure of the Defendant to inform each and every one of the Claimants that he/she had been declared redundant and the effective date his/her employment with the Defendant ceases is a violation of International Labour Conventions and international best practices relating to declaration of redundancy, and therefore any purported declaration of redundancy against the Claimants by the Defendant without communicating to each and every one of the Claimants that he/she had been declared redundant and the effective date his/her employment with the Defendant ceases, is null and void and of no effect.”

     iv.            A DECLARATION that the Defendant is in law bound to follow the provisions of the Labour Act, International Labour Conventions and International best practices in declaring the posts and/or offices of the Claimants in the Defendant’s employment redundant, ipso facto, the Defendant cannot validly and lawfully declare the posts and/or offices of the Claimants redundant without fulfilling the requirements of the provisions of the Labour Act which statutorily prescribed the procedures to be followed in declaring redundancy in Nigeria, International Labour Conventions and International best practices.

       v.            A DECLARATION that the Claimants are still in the service of the Defendant and are therefore entitled to all the rights, privileges, including salaries and allowances as employees until the Defendant validly declare them redundant and/or determine their employment with the Defendant as per the provisions of the Labour Act.

     vi.            A DECLARATION that the Claimants are entitled to redundancy payments and/or benefits upon the lawful and valid declaration of redundancy of the Claimant’s employment.

  vii.            An order of perpetual injunction restraining the Defendants from declaring the Claimants redundant or in any way discontinuing the employment of the Claimants with the Defendant without complying with the provision of the Labour Act, International Labour Conventions and International best practices.

viii.            An order of this Honourable Court compelling the Defendant to compute and pay the Claimants all their (Claimants) accrued salaries, allowances or any entitlement including but not limited to any redundancy payment and/or benefits that the Claimants are entitled to, at the current and prevailing rate obtainable in the Defendant, of such accrued salaries, allowances or any entitlement including but not limited to any redundancy payment and/or benefits so as to mitigate the effect of inflation against the Claimants’ such accrued salaries, allowances or any  entitlement including but not limited to any redundancy payment and/or benefits that the Claimants are entitled to.

     ix.            Ten per cent (10%) post judgment interest on the Judgment Sums till when the judgment sums have been finally and fully liquidated.

        x.            A DECLARATION that the Defendant is not entitled in law to forcefully evict the Claimants from their (Claimants) residential accommodation by a self-help method and without an order of Court.

     xi.            An Order of perpetual injunction restraining the Defendant, its agents, privies howsoever described from forcefully evicting the Claimants out of the Claimants’ residential accommodation lying and situate at Berger Camp in Kubwa, Abuja.

   xii.            Cost.

 

 

DEFENDANT’S STATEMENT OF DEFENCE

[6] The Defendant filed its extant further amended statement of defence and Counter claim dated 21st February 2024, but filed 26th February 2024. The Defendant averred that the Claimants are no longer its employees and that it is a law-abiding corporate organisation, hence it never exploited any of its workers. The Defendant explains that due to limited projects in 1999, management was forced to reduce its manpower, leading to the termination of over 8,000 junior workers, including the Claimants. The Claimants were particularly affected as their contracts were tied to the company’s projects in Abuja and Minna.

[7] The Defendant claims that in reaction to the news of proposed mass redundancy and alleged wage differentials among its employees, the Claimants staged violent protests at the company’s Abuja office, leading to arson, destruction and looting and normalcy only returned after intervention of the police, thereby allowing workers to resume work.

[8] That the management of the Defendant resumed negotiations with the Claimants’ workers union, the National Union of Civil Engineering, Construction, Furniture and Wood Workers, to discuss the proposed redundancy. A meeting was held on June 21, 1999, where parties agreed to suspend the redundancy exercise until the issue of Abuja office vandalism was resolved. The negotiations were fruitful, and parties agreed to compute terminal benefits/redundancy pay in accordance with the National Joint Industrial Council Agreement (NJIC). It stated that the original copy of the NJIC is missing and that it only has in its possession the photocopy.

[9] The Defendant explained the situation to the workers union, computed terminal benefits/redundancy pay and issued a circular to inform its workers of redundancy. The Defendant also held a town hall meeting with its workers on 28th June 1999, following a successful meeting with the workers union. The following day, the workers union issued a letter directing workers to collect redundancy pay or salaries.  Due to the large number of employees affected and the sensitivity of the period after the arson and vandalism of its Abuja office, the Defendant issued a collective notice of redundancy terminations in full consultation with the workers union.

[10] It is the claim of the Defendant that the workers union facilitated redundancy terminations, collective notices and terminal benefits/redundancy pay determinations. The procedure of payment of terminal benefits/redundancy pay involved employees reporting to designated locations to collect payment and signing a work report as an affirmation. The Defendant also claims that as of 1999, employees were paid in cash at project sites, a customary practice in Nigeria’s civil engineering, building and construction industry and that all the employees including the named Claimants herein affected by the redundancy accepted the terminal/redundancy pay save for one Mr Ezike Emmanuel.

[11] Aggrieved by the redundancy, the Claimants and others filed a suit (FCT/HC/CV/423/99 between Okwara Agwu & 5 Ors. v. Julius Berger Nigeria Plc) which was litigated up to the supreme Court which held to the effect that Courts cannot compel employers to retain employees they don’t need but can only order payment of employees’ entitlement based on their contract of employment.

[12] The Defendant states that it has two categories of staff; the senior and the junior staff and that while the senior staff is given a formal letter upon employment, the junior staff are issued individual employment notice/form which embodies all the contract of employment which are in consonance with the terms and condition of service between it and its workers and has not breached any provision of the labour Act.

[13] It is the case of the Defendant that the Claimants were employed individually under separate terms and conditions, as per National Joint Industrial Council Agreement on Terms and conditions of service for junior employees in the building and civil engineering industry in Nigeria and that most of the junior workers affected were engaged on project basis only and that all their legitimate entitlements are contained in their respective employment form.

[14] The Claimants’ employment was terminated due to redundancy and termination notices were issued via a circular dated 26th June 1999. The Defendant claims that the over 8000 workers affected by the redundancy termination did not give their consent to this suit as many were re-engaged when the company’s fortunes improved and some of these staff have even proceeded to retirement and their benefits paid. The Defendant claims that the Claimant’s insistence to remain employees despite the termination and after collecting their terminal benefit is akin to forcing themselves on an unwilling employer. That the Claimants having collected their terminal/redundancy benefits have accepted the fact of redundancy termination and are estopped from complaining about it.

[15] The Defendant further averred that the Claimants and their ex colleagues have been unlawfully occupying properties owned by the Defendant, including Julius Berger Staff Quarters and Life Camp Gwarimpa despite stoppage of the employment relationship with the Defendant for over two decades. Hence, they have not been forcefully ejected as claimed. To the Defendant, this suit is malafide and aims to allow the Claimants and their ex-colleagues to continue living in the property.

[16] In form of a preliminary objection it was stated that the Claimants have no consent from their ex colleagues to commence this suit, the subject matter involves individual contracts with varied terms, thus the reliefs sought are not applicable to most of the Claimants, the suit is statute barred, no cause of action against the Defendant having collected terminal benefits/redundancy payment. Thus, this suit is malafide and in gross abuse of Court process. Defendant urged Court to dismiss suit with substantial cost.

COUNTER CLAIM

[17] Concomitant with the statement of defence, the Defendant/Counter Claimant, reprised averments in statement of defence and further stated that the Defendants to Counter claim have no right to continue to occupy Counter Claimants’ properties and official quarters after cessation of the employment which has left the property dissipated. It estimated the mesne profit payable by the Defendants to Counter claim and seeks the following reliefs:

        i.            A declaration that the Defendants to the Counter claim had ceased to be employees of the Counter Claimant since year 1999.

     ii.            A declaration that the licence of an employee to live in the official quarters provided by its employers’ cease upon termination of employment relationship.

   iii.            An order of Court directing the Defendants to the Counter claim to immediately vacate the property of the Counter Claimant situate at Julius Berger Staff, Quarters Kubwa Camp, Abuja, FCT and Julius Berger Camp, Life Camp Gwarimpa, Abuja, FCT, and which properties were only provided for the use and occupation of the Defendants to Counter claim as staff quarters while in the service of the Counter Claimant.

   iv.            Mesne profit against each of the Claimants as per paragraph 4 of the Counter claim.

CLAIMANT’S REPLY

[18] The Claimant filed an amended Reply to statement of defence on 11th March, 2024. The Claimants maintained that the Defendant did not declare redundancy due to lack of ongoing projects and that there is no document indicating termination of Claimants’ appointments due to completed projects. They also claim that the duration of their employment with the Defendant was not tied to the duration of any specific project, and the Defendant is lying about the existence of redundancy.

[19] It was averred that the Claimants were not involved in any riots and that the Defendant is speculating that they were involved. They also claim that the Defendant’s Abuja office was not re-opened after the protest of 16th June 1999, and that the Claimants were asked not to resume work until the case against the Defendant has been decided.

[20] It was also claimed that the Defendant never met the Julius Berger Junior Staff Workers Union, neither did it inform the union of any anticipated redundancy. The Defendant also failed to discuss or agree with the Claimants’ union on the unavailability of projects resulting from redundancy; if there was an agreement, there would have been a document stating the extent and reason of the proposed redundancy. Thus, the Defendant’s claim that the union was involved in redundancy payment is false, especially as there are no documents in proof of payment.

[21] The Claimant stated that the Defendant’s exhibit D5 is unrelated to the Claimants’ employment, as it is signed by unidentifiable individuals and does not refer to a redundancy declaration in Abuja. They also claim that the purported National Joint Industrial Council Agreement made on 1st July 1999, is not a collective agreement incorporated into the Claimants’ employment. Also that the Defendant pasted a circular on Notice Boards at the Abuja Head office and project sites, which formally informed employees of redundancies and invited payment for terminal benefits/redundancy pay.

[22] They also claim that Comrade Samuel Adeoye, who is not a member of Julius Berger Junior Staff Workers Union, could not have represented the junior workers of the Defendant in Abuja and never held any office. That Comrade Samuel Adeoye did not address any Claimants about redundancy, as the Defendant’s circular was not signed by any identifiable person and did not mention any person as declared redundant. The Claimants averred that there was no town hall meeting with Adeoye, and that if there was a meeting between a union and the Defendant, a written agreement would have been produced. The Claimants also claimed that the Defendant misled the Court by claiming that Adeoye held a town hall meeting with workers on 28th June 1999, to inform them about the redundancy.

[23] It was further averred that the Nigeria Labour Congress is not their representative in a dispute over redundancy and payment of benefits. They claim that the letter issued by the Nigerian Labour Congress was only stating what it heard and that no Claimants were informed of their redundancy status. They also claim that the Defendant cannot issue a collective notice of redundancy without a name or signature, and that the workers union cannot approve such a circular as it is a criminal act to do so.

[24] Claimants stated that Agidigbo Celestine and his class are not part of the Claimants and that the Defendant is hiring people to mislead the Court.  In addition, that Agidibgo Celestine cannot give evidence that he wrote any letter of discontinuance and served on the Claimants.

[25] It was alleged that the Defendant used phrases like “affected employees” and “all employees affected by the” to confuse the Court, but never disclosed the names of the employees affected by the purported redundancy. They claim that the Defendant expected the Claimants to speculate about the impact on the redundancy, but had not communicated to them that their employment had ceased due to redundancy. The Claimants also allege that the Defendant carried lies and manipulated evidence, such as changing its statement on oath to mention Luiz Garba, whose where about is unknown. That the Defendant has been consistent in telling lies to mislead the Court including claim of issuing separate dismissal/termination notices for each declared redundant individual, which the Defendant abandoned upon Claimant’s demand for acknowledgment copies to show proof of service. Thus, the Defendant shifted its stance to claim that it issued collective notice of redundancy via circular.

[26] The Claimants also claim that they were never paid any dismissal/termination benefit as they were never dismissed or terminated; the work report which did not state that there were payment receipts never showed that any of the Claimant signed them. There is also no name of the person who received the work report

[27] That the issue before the Court is not the breach of terms of employment contained in any document but on the Defendant’s power to declare redundancy without complying with statutory laws guiding the declaration of redundancy in Nigeria, which binds the Defendant.

[28] The Claimant also claims that the Defendant never issued any general circular dated 28th June 1999 on payment of dismissal/termination benefit to any of the Claimants, and they were never paid any benefit. They also claim that the Defendant did not re-engage or reinstate the Claimants, and that Obiako Edwin and Luiz Garba Omar are still part of the Claimants and the issue of their inclusion was decided by the High Court of Federal Capital Territory. In addition, they also claim that the Defendant has no locus to challenge the Claimants for suing in a representative capacity and that the Claimants have not raised objections against the present representation.

[29] The Claimants also aver that the Defendant knows the practice of terminating employment and paying all entitlements before serving notice to quit. They also claim that the issue of whether Defendant is entitled to the premises that the Claimants are occupying has been determined by a district Court and also the Court of Appeal. Nonetheless, this matter started de novo therefore, this Court can only determine this suit based on facts and evidence adduced before it.

[30] By a letter dated 2nd July 1999, the Claimant averred they requested that any money paid to them by the Defendant be considered their June salaries.

Regarding the Counter claim, Claimant alleged that the Counter Claimant is not entitled to mesne profit.

COMMENCEMENT OF HEARING

[31] It may be worthy of note that parties in this suit had previously attempted to litigate this matter in suit no: FCT/HC/CV/423/99. The trial judge delivered an interlocutory decision and both parties being unsatisfied with the decision of the trial judge filed separate appeal at the Court of Appeal with Appeal nos. CA/K/250/2003 and CA/K/260/2003, for which judgment was delivered on 9th May 2011. This matter was further appealed to the Supreme Court vide Appeal no: SC.197/2011 and judgment was delivered on 17th May 2019. The consequence of the judgment of the Supreme Court was for a retrial of the suit as ordered by the Court of Appeal.

[32] Now because by virtue of section 254 (c) of the 1999 Constitution as amended, this Court has the exclusive jurisdiction to entertain employment matters, this present suit was filed on 12th October, 2021. Thus it is de novo before this Court.

[33] Trial commenced on 17th October 2022, when the Claimant called one Gbangala Sunday as CW1 who withdrew previously filed witness statement on oath of 12th October 2021 and adopted that which were filed on 15th June 2022 and 14th June, 2022.  He tendered 4 documents marked and admitted as exhibits PWA-PWD. Under cross examination, he admitted that they fill forms at point of employment and that his employment subsists despite the fact that the last time he was at work was in 1999 when he was denied entrance. CW1 stated that during his employment, he was never issued the work report and that he is not aware of any NJIC agreement. CW1 claimed that the terms of condition of employment of the Defendant does not apply to them, that the name of his union is Workers union and that each site has independent workers’ union and their employment is guided by Labour Act.

[34] CW1 testified that the redundancy declared by the Defendant is ineffective, the Defendant having failed to communicate same to the Claimants. He stated that he is unaware that some of the workers were re-absorbed. in addition, that he did not receive benefit, neither is there proof that his ex-colleagues did.

The Claimant testified to the effect that since 1999 and till date, he has been resident at the staff quarters of the Defendant.

[35] CW2, in the person of Edwin Obiakor was examined on 8th December 2022. He withdrew his witness statement on oath dated and filed 14th June 2022 and adopted one filed on 8th December 2022. He also tendered a copy of his driver license which was admitted and marked as exhibit PW2A.

[36] Under cross examination, he said that this suit was commenced upon agreement of parties concerned. That he was not issued with an engagement form in 1990 when he was employed. That the redundancy was not formally declared, hence he is unaware of the amount of workers affected and is also not aware of reabsorption of some of the affected employees.

[37] CW2 said that he is not aware of National Union of Civil Engineering, Construction, Furniture and Wood Workers (NUCECFWW) and that he was never in possession or occupation of the Defendant’s staff quarters. He also claimed not to be conversant with the document referred to as the work report.

[38] CW2’s testimony was stopped halfway when Defendant’s Counsel sought for adjournment and the Court subsequently granted a couple more adjournments for possible report of settlement upon application of Counsel. Due to clear evidence that settlement had failed, the matter proceeded with parties on both sides obtaining leave to amend their respective pleadings. Consequently, on 12th March 2024, Claimant recalled CW1, who adopted statement on oath filed 11th March 2024 and tendered 7 documents marked and admitted as exhibits C1-C7. With regard to exhibit C2, he stated that the correct date is 9th August 1992 and not 9th August 1993 as seen on the document,

Under cross examination, CW1 stated that upon collection of salary, they signed with names appended on their payslips.

[39] The Defendant opened its case on 12th March 2024, called Oxborne Mark David Samuel as DW1, who adopted witness statement on oath of 26th February 2024. He laid the foundation that all documents are photocopies (secondary evidence) as the originals are missing. DW1 tendered 21 documents marked and admitted as exhibits D1-D12, D13A-D, D14, D15A-B, and D16.

[40] Under cross examination, he testified to the effect that he was employed in 1991 and was declared redundant same year. That he has no letter of appointment or ID card. Also stated that exhibit 15 A, B & C do not state that terms of employment is regulated by NJIC. DW1 admitted that Late Comrade Ejike was chairman of Abuja union. With reference to exhibit D7, he confirmed that the document does not exhibit name of attendees of meeting but only signature and that exhibit D7 paragraph 1 (payment of terminal benefit/redundancy payment) was approved.

DW1 stated that he did not give the Claimants authority to sue as he was reabsorbed by the Defendant. Likewise, some other parties formally dissociated themselves from this suit.

He admitted that he stated that letters were written to each individual about redundancy in 2011 and 2001 but that it was general notice that was given in 1999.

[41] DW2, one Aigbekan Osarie adopted Witness Statement on Oath of 14th May 2024, tendered two (2) documents admitted and marked as exhibits D17 and D18. Under cross examination he stated that valuation was made in April 2024 after visiting some of the properties.

The Defendant also subpoenaed a witness in the person of Omokhodion Friday Akhere who tendered two (2) additional ex-employees bundles of work report, marked and admitted as exhibits D19-D20. Defendant closed case on 30th May 2024.

[42] On 5th November, 2024, date slated for adoption of final written addresses, the Defendant adopted his final written address and reply on point of law filed 26th June 2024 and 22nd July 2024 respectively. The Claimant adopted their final written address filed 17th July 2024.

DEFENDANTS’ SUBMISSION

[43] The Defendant is arguing that exhibit C3 is not admissible in law as it is a Court process and a certified true copy is required. The Defendant aims to expunge the exhibit from the records. He cited SECTION 102(A) (III) OF THE EVIDENCE ACT, 2011. BAKO V. BRITISH COUNCIL (NIG.) & ANOR (2022) PELR-58127 (CA).

[44] The following issues have been raised on behalf of the Defendant:

1.     Whether the various bundles of work reports (Exhibits D13A, D13B, D13C, D13D and D18) are not conclusive proof of receipt of terminal benefits/Redundancy pay by the Claimants and those they purport to represent in this suit.

2.     Whether the Claimants who have collected their payment in lieu (notice pay), and redundancy pay can turn around to allege wrongful termination of employment.

3.     Whether the Claimants have proved their case to be entitled to the reliefs sought.

4.     Whether the Claimants’ suit can be proved in a representative capacity.

5.     Whether the Counter Claimant has proved the Counterclaim.

LEGAL ARGUMENT

ISSUE ONE

“Whether the various bundles of work reports (Exhibits D13A, D13B, D13C, D13D and D18) are not conclusive proof of receipt of terminal benefits/Redundancy pay by the Claimants and those they purport to represent in this suit.”

[45] It was submitted that work reports are used as proof of payments and receipt of terminal benefits/redundancy pay by the Claimants and those they purport to represent. The Defendant requires employees to sign a work report upon receiving payment, including terminal benefits, notice pay, salaries, wages, overtime pay and leave pay. Exhibit 13A contains four work reports signed by the Claimants, including bundles of work reports signed by ex-employees they purport to represent in this suit.

The first work report shows that the 1st Claimant received redundancy and notice pay, the second report reveals that the 3rd Claimant received redundancy and notice pay, the 3rd report reveals that the 4th Claimant received redundancy and notice pay.

[46] The 4th Claimant wrote a letter dated 7th July 1999 (exhibit D12) he acknowledged receipt of redundancy pay. Yet the Claimants herein claim that Luis Garba is late and might have died over 10 years ago. Counsel submitted that proof beyond reasonable doubt is required where there is allegation of falsification and forgery. He cited APC & ANOR V. OBASEKI & ORS (2021) LPELR-55004(SC). Furthermore, the Claimants did not call the 1st, 3rd, 4th and 5th Claimants to deny or contradict their signatures in exhibit D13A, which is fatal to their case. Reference was made to SECTION 101 OF THE EVIDENCE ACT, ALAKE V. THE STATE (1992) NWLR (PT. 265).

[47] It is the submission of learned Counsel to Defendant that the Claimants failed to present their specimen signatures in exhibits D13A, D13B, D13C and D13D, all tendered by the DW1 in open Court. They also did not call a signature identification expert, thereby, violating section 68(1) of the Evidence Act. That the Claimants’ signatures are authentic and sufficient proof of terminal benefits/redundancy pay collection.

ISSUE 2

“Whether the Claimants who have collected their payment in lieu (notice pay), and redundancy pay can turn around to allege wrongful termination of employment.”

[48] Learned Counsel to the Defendant submitted that the bundles of work reports signed by the Claimants and their representatives in this suit are sufficient proof of collection of their notice pay and redundancy pay. That the law states that an employee who collects payment in lieu of notice or terminal benefits/redundancy pay waives right of legal action, making the redundancy termination mutual and valid. He cited TOYINBO V. UBN PLC (2022) LPELR-58596 (SC), MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) LPELR-1912 (SC) amongst others.

ISSUE 3

“Whether the Claimants have proved their case to be entitled to the reliefs sought.”

[49] To the Defendant’s Counsel, the Claimants have failed to prove their case by adducing cogent and credible evidence. He cited SECTION 131 (1) OF THE EVIDENCE ACT 2011, JIKANTORO & ORS V. DANTORO 7 ORD (2004) 5 SC (PT. 11) 1 @ 5. Further to this, Counsel stated that Claimant’s relief 1 is for a declaratory order that the circular dated 28th June 1999, which declared the Claimants’ posts or offices redundant is ineffective, invalid and incompetent. Nonetheless, the circular is a collective notice of redundancy issued by the Defendant upon agreement with the workers union, which officially notified affected employees of the termination. The circular also outlines the payment schedule. The affected employees, including the Claimants, acted on the circular and reported for the collection of their terminal benefits/redundancy pay. They signed for the payment as shown in exhibits D13A, D13B, D13C and D13D. Thus, the Claimants and their ex-colleagues cannot allege that the circular is ineffective as they are estopped in law from doing so.  Counsel cited AG. RIVERS C. AG AKWA IBOM STATE & ANOR (2011) 11 LPELR-633 (SC) to the effect that a party cannot rely on the contents of a document and question its legality simultaneously. Counsel argued that the Claimants’ reliefs are misconceived for several reasons outlined as follows:

i.                    The circular is a collective notice of redundancy issued by the Defendant, which procedure was agreed upon by the workers’ union.

ii.                   The Claimants acted on the circular and went ahead to collect their terminal benefits/redundancy pay.

iii.                Section 20(1) (a) of the Labour Act does not prohibit collective notice of redundancy.

iv.               A contract of employment may be created in writing, orally or even by conduct of the parties. Equally, the law is also trite that employment relationship may be terminated orally or by conduct of the parties as well. He cited IFETA V. S.P.D.C. NIG. LTD (2006) LPELR-1436 (SC).

v.                 The Claimants’ reliance on international best practice in support of relief (iii) is equally futile because what amounts to international best practice in labour and employment law is a question of fact which must be proved with credible evidence which the Claimants have failed to furnish. He cited SECTION 7(6) OF THE NATIONAL INDUSTRIAL COURT ACT 2006, OAK PENSIONS LTD & ORS V. OLAYINKA (2017) LPELR-43207 (CA).

vi.               The termination of master/servant employment relationship cannot be declared inoperative, ineffectual, unlawful or void in the manner sought by the Claimants. At best, it may be declared wrongful. Thus, the termination in this present case is effective. He cited ADEGBOYE V. UBA (2022) LPELR- 58778 (CA).

[50] Regarding relief IV it was submitted that the Defendant followed provisions of section 20 Labour Act in carrying out the redundancy exercise. That there was consultation with the relevant trade unions being the National Union of Civil Engineering, Construction, Furniture and Wood Workers. Counsel referred to exhibit D5 (agreement between union and management dated 21/6/1999) and exhibit D9 (letter of appeal by NLC) and that the affected workers were paid their redundancy pay. 

[51] Regarding relief V, it was submitted that redundancy was valid and same took effect since 28th June 1999 when the notice of redundancy was communicated to the Claimants via exhibit d7. That the employment is that of a master/servant, thus reinstatement is not feasible even where the Court holds that the redundancy termination was wrongful as the appropriate remedy in such situation would be an award of damages. Counsel placed reliance on ADIBUAH V. MOBIL (NIG) PLC (2015) LPELR-40987 (CA). In furtherance of this, Counsel canvassed that Courts do not award salaries for work not done, especially where the employment has no statutory flavour. DANGOTE CEMENT PLC V. AGER & ANOR (2024) LPELR-61800 (SC). More so, an employee challenging his termination is expected in law to mitigate his damage by seeking alternative employment or means of livelihood. He cited S.O. ILODIBIA V. NIGERIA CEMENT COMPANY LTD (1997) 7 NWLR (PT. 512) 174.

[52] In addition, Defendant’s Counsel submitted that CW1 gave his age under cross examination as 65, whereas it’s a notorious fact which the Court must give judicial notice that the retirement age in private sectors in Nigeria is 60 years. Counsel also submitted that the Claimants have demonstrated that they and their ex-colleagues have been paid the redundancy pay due to them and signed for it. The only remedy in unlikely event of a finding of wrongful termination is the award of damages.

[53] Counsel argued that the Claimants also seek an order of perpetual injunction restraining the Defendant from declaring the Claimants redundant or discontinuing their employment without complying with the provisions of the Labour Act, International Labour Conventions and International best practices. However, this relief must fail for three reasons:

a.      The Claimants have been paid their redundancy pay

b.     The Claimants did not give evidence of their purported accrued salaries, allowances, benefits or entitlements which they claim

c.      Claims for arrears of salaries, allowances, entitlements and benefits are special in nature which must be particularized in pleadings and strictly proved. That the Claimants failed to state the sums they claim as accrued salaries, allowances, etc. and they cannot send the Court on a voyage of discovery to fish out what sums they claim neither can the Court speculate.

[54] Regarding Claimant’s relief ix for 10% post judgment interest on the judgment sums until fully liquidated. However, the claim fails due to the Claimants’ lack of entitlement to any judgment sum and failure to specifically plead the claim for interest. It was also submitted that reliefs x and xi are purely academic and that the Defendant has no intentions of forcefully evicting, hence the reason why it has filed a Counter claim for an order of possession.

 

 ISSUE 4

“Whether the Claimants’ suit can be proved in a representative capacity. “

 

[55] It was submitted that although the Claimant filed this suit in representative capacity, the reliefs sought cannot be satisfactorily proved in that capacity. That employment claims are individual claims, and the Claimants must provide evidence of salaries, terminal benefits and redundancy pay collectively. The Claimants do not know those they represent and the Defendant exhibited list of employees affected by 1999 redundancy but later reabsorbed into the Defendant’s employment. That this is not an employment claim, and the Court cannot make orders in favour of persons the Claimants do not know themselves or their witness does not know. That in fact, some of the employees affected by the redundancy were reabsorbed into the service of the Defendant.

ISSUE 5

“Whether the Counter Claimant has proved the Counterclaim.”

[56] The Counter Claimant has argued that the Defendants to the Counter claim are in possession of Defendant’s official quarters and not paying rents and that the Defendants to the Counter claim have admitted to being in possession of the quarters. Counsel submitted that the law states that an employee who occupies their employer’s official quarters is a licensee and their license expires upon termination of employment. Thus, the Counter Claimant is entitled to recover possession of the quarters and mesne profit from the Defendants to the Counter claim for the wrongful occupation of the properties from 1999 to date without paying any rents. Also that the Counter Claimant has also been magnanimous in its request of mesne profit.

CLAIMANT’S SUBMISSION

[57] The Claimants’ Counsel submitted that the Defendant, in defence, called two witnesses and subpoenaed Omokhodion Friday Akhere to produce documents that were never linked to any evidence and that the said documents were never showed to the Claimants or their Counsel. In addition, he stated that witness was not cross-examined. In the same vein Claimants’ Counsel submitted that no witness spoke to exhibit D20 - the certificate of compliance.

[58] On preliminary issues raised by the Defendant, it was submitted that exhibit C3 is a document that the Court is mandated to take judicial notice of by virtue of section 122 (1) m of the Evidence Act. Counsel argued that exhibit C3 is before the Court, making the issue of secondary evidence irrelevant.

[59] Claimant’s Counsel attempted to differentiate between termination of employment and declaration of redundancy. That while termination allows parties to determine the contract at any time by giving prescribed period of notice, redundancy occurs when a worker’s service is no longer needed by an employer due to no fault of his and is an involuntary and permanent loss of employment caused by excess man-power. He cited OVIVIE & ORS V. DELTA STEEL CO. LTD (2023) 14 NWLR (PT. 1904) 203.

That the perception that the Claimants are seeking reinstatement and arrears of salaries and allowances may be misleading the Court to base its decision on the non-existent termination of employment. The Defendant also mixed up redundancy payment with damages for termination and terminal benefits. He submitted that redundancy payments are statutory and must be prescribed by the minister or negotiated between the employer and employees. The Supreme Court recently highlighted this position in OVIVIE & ORS V. DELTA STEEL CO, LTD (Supra)

[60] It was submitted that the Defendant failed to follow legal principles applicable to cases involving employment rights by failing to inform the Claimants that their employment had been determined therefore rendering the termination invalid. He cited UKOHA & ANOR V. OSILAMA (2016) LPELR 6 (CA) amongst others. Relying on DANGOTE CEMENT PLC V. AGOR & ANOR (2024) LPELR-61800 (SC) Counsel submitted that until an employer informs an employee that his employment had been determined, the employment still subsists.

The Claimant’s Counsel raised 3 issues for determination of this suit, to wit:

1.     Whether the Claimant can prove their claims by a representative action

2.     Whether the Claimants from the totality of their evidence before the Court and the applicable law are entitled to the reliefs they claimed before the Court

3.     Whether the Defendant proved its Counter claim to be entitled to judgment on its Counter claim before the Court.

LEGAL ARGUMENT

ISSUE 1

“Whether the Claimant can prove their claims by a representative action”

[61] The Claimants submitted that the reliefs sought in this case are for the benefits of every one of the Claimants. That the Claimants’ pleadings and evidence show that the reliefs sought are for the protection of each Claimant’s employment as a result of the blanket unsigned circular declaring redundancy without mentioning name of the affected workers. That this present case is seeking judicial protection against any planned illegal declaration of redundancy against all Claimants. He referred to CBN V. ADEDEJI (2022) 13 NWLR (PT) 1847) 361.

[62] Counsel also stated that exhibit D16 which the Defendant referred to as list of reinstated workers is unnamed and unsigned and therefore lacks probative value. He cited GARUBA V. KWARA STATE INVESTMENT COMPANY LTD (2005) 5 NWLR (PT. 917) 160 @ 176 PARAS C-E.

[63] The Claimants’ Counsel relying on ELF PET (NIG) LTD V. UMAH (2018) 10 NWLR (PT. 1628) 428 submitted that the proper mode to challenge a representative action is by a notice of preliminary objection and that where leave of Court to file a representative action has not been set aside, it remains sacrosanct.

ISSUE 2

“Whether the Claimants from the totality of their evidence before the Court and the applicable law are entitled to the reliefs they claimed before the Court”

[64] It is Claimants’ Counsel’s submission that the Claimants adduced evidence to prove that they were in the employment of the Defendant and that they were notified of their job being declared redundant. In addition, that the fact that the Defendant Counter claimed that the Claimants are illegally holding over its property is proof of employment relationship.

[65] It was submitted that the law in Nigeria is that if an employer fails to issue a statement outlining the terms of employment, the evidence of the Claimants shall be accepted. He cited MOBIL PRODUCING NIG. UNLT & ANOR V. UDO (2008) (PP 67-72, PARAS A-D). Thus, it was submitted that the Court is bound by the evidence of the Claimants which states that the Labour Act governs the employment of the Claimants. He cited OVIVIE & ORS V. DELTA STEEL CO. LTD (supra) @ 226-227 PARAS E-G. Furthermore, that the Claimants are junior workers which by virtue of Section 91 of Labour Act are covered by the provisions of Labour Act.

[66] Counsel argued that this case revolves around the invalidity of exhibit C1 or D7 and the lack of proof that payments were made to the Claimants. To learned Counsel, the Claimants are employees of the Defendant and entitled to accrued entitlements from June 1999. They challenged the exhibits, citing the Defendant’s Abuja office closure and the fact that they were instructed not to resume until the suit was determined. That no notice discontinuing employment was given to the Claimants, indicating that the employment of the Claimant was determined.

Whereas, the Claimant provided evidence that the letter dated 28th June 1999, bearing the name of Julius Berger Nigeria Plc was signed by an unidentifiable person and that the Defendant failed to controvert this fact as even the Defendant’s witness DW1 admitted that the circular was signed by an unidentifiable person. That this defect has rendered exhibit C1 or D7 of no probative value. He cited ASHAKA V. NWACHUKWU (2024) LPELR-61786 (SC)

[67] The Counsel asserted that it is the case of the Claimant that the Defendant failed to provide any notice of employment discontinuance as evidenced by the Defendant’s failure to tender any document or information about the redundancy. That the Defendant’s practice of consulting with the workers union and publishing the names of workers declared redundant and effecting redundancy pay was established. However, the Defendant failed to issue letters to each Claimant regarding their being declared redundant. Counsel submitted that the Defendant’s failure to serve notice on the Claimants raises a question of legality of the situation and that Courts have held personal notice to employees that their employment has been determined is a condition precedent to discontinuance of employment, of which absence of such notice means that the employment is still subsisting. He cited UKOHA & ANOR V. OSILAMA (SUPRA), MOBIL PRODUCING NIG. UNLTD & ANOR V. UDO (2008) LPELT-8440 (CA) amongst others.

[68] Learned Counsel to the Claimant submitted that the Defendant is not entitled to declare redundancy without first informing the workers union of anticipated redundancy and the extent of proposed redundancy. That it is against labour act and international labour organisation conventions and international best practices for any redundancy to be declared without fulfilling the conditions mentioned in paragraph 4(t) to (y) in CW1 witness statement on oath.

[69] Counsel submitted that Defendant’s defence is an admission that it has the duty to follow the statutory procedure prescribed in section 20 of the Labour Act for a valid declaration of redundancy. That although the Defendant claims to have consulted with NUCECFWW, the purported Claimants’ union, the Claimants denied this fact and also denied Samuel Adeoye as their chairman, yet the Defendant failed to call said person in support of its case. This is also despite the fact that the Defendant witness under cross examination admitted that one Late Emmanuel Ejike was recognised as the chairman of the workers union, Abuja site.

In furtherance of his submission, Counsel submitted that exhibit D5 clearly showed that meeting was held with and signed by unnamed persons. It was also submitted that exhibit D8 was not tendered through the purported author and that it contained conflicting dates that cast doubt as to whether there was meeting held on 28th June 1999 regarding the issue of redundancy. Thus, it is the conclusion of learned Counsel to the Claimant that the Defendant did not inform any union of any redundancy and did not declare any of the Claimants redundant.

[70] On alleged payment with work report, Claimants’ Counsel argued that the Defendant’s Counsel raised the issue of work report and presented evidence that none of the parties raised in their pleadings and thus of no probative value as Counsel’s address cannot take place of evidence. He cited OGUNSANYA V. STATE (2011) 12 NWLR (PT. 1261) 40 @ 437 PARAS F-G.

[71] That the Defendant also raised the issue of estoppel claiming that the Claimants acted on exhibit C1 or D7 and collected their terminal benefits or redundancy pay, thus the Claimants are estopped from challenging the declaration of redundancy. Claimant’s Counsel vehemently argued that it was the Defendant’s responsibility to prove that the Claimants signed exhibit D13 acknowledging the purported payment of terminal benefit/ redundancy pay.

[72] Counsel also called the attention of Court to the fact that the Defendant claimed to have prepared the redundancy pay in accordance with article 10 (exhibit D6) before issuing exhibit D7 (declaration of redundancy), however, exhibit D6 with its article 10 was not in existence when the alleged computation was made. This also applies to exhibit D13 and D7. In furtherance of this submission, Counsel submitted that the Defendant failed to cross examine the Claimants on claim that there ought to have been produced a signed payment register if the Claimants were paid in cash and that the Defendant did not compute any redundancy payments at all. Hence this failure amounts to admission. He cited SIMON V. STATE (2017) 8 NWLR (PT. 1566) 119 143 PARAS C-D.

[73] In addition, a more damaging evidence against exhibit D13 series came from the Defendant itself, through DW1 who under cross examination denied knowing the people that signed said exhibit and stated that there was no name of any official of the Defendant that signed the documents. That exhibit D13 did not state that any payment was made to any person or any person received any money, thus considered speculation and unreliable. He cited ARCHIBONG V. ITA (2004) 2 NWLR (PT. 858) 590 @ 625 PARAS A.

[74] To Claimant’s Counsel, the failure of the Defendant to also call ex-employees to give evidence to the effect that they were paid any redundancy pay is fatal to the case of the Defendant. He cited OBIJEKWU & ORS V. EZEASOIBE & ORS (2023) LPELR-61347 (CA)

Claimant’s Counsel also submitted that exhibit C4 proved that the Claimants never took any payment from the Defendant such as terminal benefits or redundancy pay, a fact which the Defendant has been unable to refute. To the Claimants’ Counsel, exhibit D12 does not suggest that the 4th Claimant collected redundancy pay, as the Defendant failed to prove that exhibit D12 was authored by the 4th Claimant or that it was received by the Defendant or its Counsel, thereby making exhibit D12 a documentary hearsay. He cited OMEGA BANK NIG. LTD V. O.B.C. LTD (2005) 8 NWLR (PT. 928) 547 @ 582 PARAS B-E.

[75] Regarding the commencement date of payment, the Claimant’s Counsel submitted that the Court should note that the Claimants are entitled to their salaries and allowances which have accrued from June 1999 until they are informed of the discontinuance of their employment and that Court ought to take notice of the inflationary rights in this regard. Also, that the Claimants are entitled to their residential accommodation and their rights and privileges as employees of the Defendant until the Defendant dispenses with their employment

ISSUE 3

Whether the Defendant proved its Counter claim to be entitled to judgment on its Counter claim before the Court.

[76] Relying on AMADI V. AMADI (2018) LPELR 46269 (CA), Claimant’s Counsel submitted that Claimant must prove their case as a Claimant before obtaining judgment on the Counter claim. Counsel submitted that the Counter Claimant has not proved its entitlement to judgment and that NWANNA V. FCDA is inapplicable. That the Counter Claimant has not produced a single letter to show that any of the Claimants was informed that their employment had been discontinued and no letter served on them to vacate the premises because their employment had been discontinued.

That the evidence of DW2, which did not state the mesne profit and the valuation report, was also speculative and unreliable to make a judgment in favour of the Counter Claimant. In essence the Counter claim should be dismissed.

REPLY ON POINTS OF LAW

[77] The Defendant’s Counsel rehashed arguments proffered in his final written address and further submitted that redundancy is a type of termination of employment, defined by section 20(3) of the Labour Act as involuntary loss of employment due to excess manpower. It occurs when an employer is compelled to terminate employment due to excess manpower. That the only peculiarity of redundancy is the cause of the loss, the statutory procedure prescribed by Labour Act and the obligation to pay redundancy pay. Nonetheless, all other principles of termination of employment apply to redundancy pay and notice pay. That the redundancy notice was pasted conspicuously on notice boards of the Defendant’s office ensuring that all Claimants were adequately notified.

[78] Defendant’s Counsel submitted that the NJIC agreement upon which the Defendant accordingly paid the Claimants their redundancy pay is an industry base collective agreement which was executed between the construction and civil engineering employers’ association and national union of civil engineering construction furniture & wood workers (employees’ union) and has a binding force even over the Defendant. It was further submitted that the NJIC agreement being industry based collective agreement are often executed by the National officers of the relevant trade unions not individual member company’s local union executives. That, this is the reason why it wasn’t signed by the chairman of the Defendant local branch union, rather it was signed by the national chairmen of the workers union in the person of Samuel Adeoye.

[79] Defendant’s Counsel submitted that Exhibit D16 is not a letter or correspondence from the Defendant, but a list of employees compiled by the Defendant. The Defendant challenges the Claimants’ decision to file the suit in a representative capacity, as they do not claim equal salaries.

It was submitted that the employment notices/forms issued to employees, such as D15A, D15B, and D15C, are not job application letters written by job applicants, and the argument that they are job application letters is ridiculous.

Counsel argued that the Work Reports were signed after the redundancy

Circular, and that the names of the employees who collected their redundancy pay were authentic

[80] Defendant’s Counsel also has the following to say:

·        That it is ridiculous to expect that DW1 will know the names of all employees of the Defendant

·        The valuation reports, which include addresses of properties and rental value tables, are also criticized for being misconceived.

·        Most of the judicial authorities cited by the Claimants do not support their case, as most deal with suspension of employees without pay. The instant case is not a case of suspension, but a redundancy termination of employment and the Court has rightly held that an employee on suspension is still deemed to be in employment and entitled to arrears of salaries. The case of MOBIL PRODUCING NIG UNLT V UDO (2008) ALL FWLR (PT. 4820); DANGOTE CEMENT PLC V. AGER & ANOR (2024) 10 NWLR (PT. 1945), AND ADVANCED MARITIME TRANSPORT (NIG) LTD V. OJUGBOLI & ORS (2018) LPELR 46265 (CA), all deal with suspension, and the Supreme Court has rightly held that an employee on suspension is deemed to be in employment and entitled to arrears of salaries. However, it differs from the instant case, which was a redundancy termination, and was based on trade unions.

·        The redundancy notice and subsequent collection of pay ended the employment benefits.

·        damages for wrongful redundancy termination, not arrears of salaries

·        That this suit was filed in 2021, not 1999 and the 4th Claimant (Luiz Garba) died over 10 years ago, but they included his name in a fresh suit filed in 2021, and CW1 provided evidence that he had the authority to represent them.

On the whole, the Defendant’s Counsel urged Court to dismiss this suit.

DECISION

[81] I have carefully considered the entirety of the processes filed in this action, evidence led in support and submissions of learned Counsel to both sides and after giving this case an in-depth consideration, I find that the issues raised by the Claimant’s Counsel in his final written address are apt to the just determination of this suit and are hereby adopted as follows:

1.     Whether the Claimant can prove their claims by a representative action

2.     Whether the Claimants have proved their claims to be entitled to reliefs sought.

3.     Whether the Counter Claimant/Defendant proved its Counter claim to be entitled to reliefs sought in therein.

ISSUE 1

Whether the Claimant can prove their claims by a representative action

[82] The issue as to whether the Claimants can sue in representative capacity is one that touches on jurisdiction, now it is trite that jurisdiction in any case is a very fundamental issue and as such it should be determined at the earliest stage of the proceedings. This is because, if a Court has no jurisdiction to hear and determine the case as constituted, its proceedings on that case remain a nullity ab initio, no matter how well conducted and decided. See the cases of ANYANWU V. OGUNEWE [2014] 8 NWLR (PT. 1410) SC 437 AT 476 PARAGRAPHS G-H AND UBA PLC. V. J.M & CO. (NIG.) LTD. [2016] 5 NWLR (PT. 1504) 171 @ 180 PARA. A. It is for this reason that I find that the Defendant ought to have raised this issue at the earliest point rather than delaying to the stage of judgment.

[83] Be that as it may, it is the contention of the Defendant that the Claimants cannot sue in representative capacity for their ex-colleagues who were affected by the declaration of redundancy exercise dated 28th June 1999. One of the reasons for this position is that some of the affected ex-colleagues were reabsorbed into the service of the Defendant and that each Claimant’s contract of employment is distinct. To support this position, it led evidence to show that one DW1 was reabsorbed into its service after declaration of redundancy. The Claimant on their part contended that the declaration affected them all and that both the parties whose names are expressly mentioned on the face of the complaint and the ex-colleagues have common interests.

[84] Without over flogging this issue, I am of the firm view that the Defendant lacks the locus standi to challenge the representative capacity of the Claimants as it has vehemently done in this suit.  I place reliance on SPDC NIGERIA LTD. V. EDAMKUE & ORS. [2009] LPELR-3048(SC): [2009] 14 NWLR (PT. 1160) 1 SC; where the Supreme Court held that:

 “it is only a member of that group, family or Community, who can dispute, intervene or challenge, the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a Defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing Defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the Defendant adversely. ---”.

[85] I am also minded to state that Order 13 Rule 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 provides to the effect that parties with common interest may be represented by a person(s) who may sue on behalf of all persons interested.  See also BUSARI V. OSENI (1992) 4 NWLR (PT. 237) 557 REFERRED TO IN BAMISILE V. OSASUYI 2007) 10 NWLR (PT. 1042) 225 @ (P. 274, PARAS. E-G; 276, PARA. H) where it was held that a representative action is appropriate where;

a)   “those represented have a common interest and a common grievance; and

b)   the relief sought is, in its nature, beneficial to all those whom the plaintiff is representing. In other words, the persons who are to be represented and the persons representing them must have the same interest, common interest or common grievance. “

[86] In this present suit, the parties named herein are suing on their behalf and on behalf of their ex-colleagues who were all affected by the purported redundancy declaration of the Defendant and it is evident that the reliefs sought is one that would benefit all parties where judgment is in their favour. I observed that the Defendant argued that some of the parties have been reabsorbed but I find that this reason is not sufficient to hinder this suit to be determined in a representative capacity. At best, it is common sense that the findings in this judgment would only affect those who remained affected by the declaration of redundancy. Besides, an unnamed party who is uncomfortable with his representation by the named parties has the option of taking necessary steps to set aside his representation by the procedures put in place by the law for that purpose. See ATANDA V. OLANREWAJU (1988) 4 NWLR (PT. 89) 394 referred to in AYEKU V. AYEKU (2024) 6 NWLR (PT. 1934) 369 @ 414 PARAS B-E.  It is for this reason that I find the Defendant’s submission on the Claimant’s authority to sue in a representative capacity bereft of merit and hereby discountenanced, I so hold.

ISSUE 2

Whether the Claimants have proved their claims to be entitled to reliefs sought.

[87] It is trite law that in all civil cases, the burden of proof resides on the party asserting and who would fail if no evidence at all were given on either side. See SECTIONS 131 AND 132 OF THE EVIDENCE ACT, 2011. AKINBADE V BABATUNDE (2018) 7 NWLR (PT. 1618) 366, ADEGOKE V ADIBI (1992) 5 NWLR (PT. 242) 410 AT 423. The standard of proof in all civil proceedings is on the balance of probability. See FOLARIN V AGUSTO (2023) LPELR-59945 (SC) (PP. 28 - 30 PARAS F - A).  The law is equally settled that a Claimant who seeks a declaration that the termination of his appointment was wrongful has the onus to place before the Court the terms and conditions of his employment and further demonstrate with concrete and credible evidence;

a)    That he is an employee of the Defendant;

b)     The terms and conditions of his employment; and

c)     The way and manner and by whom he can be removed. In other words, he must prove how the terms of the agreement have been breached. It is not in principle for the employer who is a Defendant to an action brought by the employee to prove any of these. See UBN PLC V TOYINBO (2008) LPELR-5056(CA), KATTO V CBN (1999) 6 NWLR (PT. 607) 390 (P. 405, PARAS. B-C).

[88] The Claimants herein have brought this action that their purported declaration of redundancy by the Defendant vide a circular dated 28th June 1999 is invalid and incompetent since the Defendant defied the provisions of section 20 of the Labour Act with respect to redundancy. The Claimants have asserted that the Labour Act is the law regulating their employment relationship with the Defendant as they were junior staff and that they had no terms and conditions of service. This fact is not disputed by the Defendant and is therefore deemed admitted. Now, the Labour Act by virtue of section 91 is applicable to categories of employment relationship between employers and persons whose contract is for manual labour, clerical work or contract to execute any work or labour which I find that the Claimants herein belonged to. Therefore, I agree with the Claimants that the Labour Act regulates their employment.

[89] Redundancy procedures in Nigeria are governed by the following:

a)    The Nigerian Labour Act.

b)    The decisions of the Courts i.e. case laws.

c)     The employment contracts of the affected employees/employment handbook.

d)   The provisions of any collective bargaining agreement between an employer and the representatives of a trade union.

e)    Applicable international best practices.

See OVIVIE & ORS V. DELTA STEEL CO. LTD (2023) 14 NWLR (PT. 1904) 203.

[90] Accordingly, reliance shall be placed on section 20 of the Labour Act which stipulates the procedure for redundancy thus:

Section 20 (I) In the event of redundancy:

a)    The employer shall inform the trade union or workers' representative concerned of the reasons for and the extent of the anticipated redundancy;

b)    The principle of "last in, first out" shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and

c)      The employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section.

[91] The procedure for redundancy under Articles 13 and 14 of the ILO Convention No. 158 is that when the employer contemplates terminations for reasons of an economic, technological, structural, or similar nature, the employer shall:

a)     provide the workers’ representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;

b)    give, in accordance with national law and practice, the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.

In other words, the obligation of an employer under the Convention includes information, consultation, and notification.

[92] In OVIVIE & ORS V. DELTA STEEL CO. LTD (supra) it was held that “Redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer. It is therefore not a voluntary retirement, nor is it a dismissal from service. It is also not a voluntary or forced resignation, nor is it a termination of appointment. Rather, it is a unique procedure whereby the employee is quietly and lawfully relieved of his appointment. As such, the conditions applicable to redundancy are quite distinct from those applicable to retirement or other modes of relieving an employee from active service, such as termination, compulsory resignation or dismissal.” See also SECTION 20(3) OF THE LABOUR ACT, DIBUAH V MOBIL OIL (NIG) PLC (2015) LPELR-40987(CA), GERAWA OIL MILLS LTD V. BABURA (2018) LPELR- 44720(CA)1 @ 19-20; PARA A, UNION BANK V. SALAUDEEN (2017) LPELR-43415(CA) 1@36-37, PARAS E-C. E; PEUGEOT AUTOMOBILE (NIG.) LTD.V. OLE & ORS (1997) LPELR-6331 (CA) 1 @ 14-15, PARAS F-C, (1997) 11.

[93] The major contention of the Claimants against the declared redundancy is that the Defendant failed to adhere to procedure stipulated in section 20 of the Labour Act to inform the trade union or workers representative of impending redundancy and subsequently negotiate the redundancy payment for the affected workers and that said failure renders the declaration of redundancy null and consequently, their employment with the Defendant subsists.

[94] The Defendant on its part has contended that it complied with the provision as it resumed negotiations with the Claimants’ trade union, the National Union of Civil Engineering, Construction, Furniture and Wood Workers, to discuss the proposed redundancy. That a meeting was held on June 21, 1999, where parties agreed to suspend the redundancy exercise until the issue of Abuja office vandalism was resolved. That the negotiations were fruitful, and parties agreed to compute terminal benefits/redundancy pay in accordance with the National Joint Industrial Council Agreement (NJIC). Furthermore, that it followed the National Joint Industrial Council (NJIC) (exhibit D6) agreement before declaring redundancy.

[95] It should be noted that it is only trade union or worker’s representative that are entitled to be informed of the reasons for and extent of the anticipated redundancy when redundancy is anticipated. See EVANS BROS (NIG.) PUB. LTD. V. FALAIYE (2003) 13 NWLR (PT. 838) PG. 564 AT 587-588, PARAS H-E (CA). This suggests that an employer has the option of engaging in dialogue with trade union or worker’s representative and the Defendant herein has stated that it met with National Union of Civil Engineering, Construction, Furniture and Wood Workers (NUCECFWW) before deciding on modalities for the redundancy declaration. I have carefully combed the evidence adduced in this suit and I find that the Defendant has not convinced the Court in proving its engagement with the trade union. There is no evidence of correspondence between the Defendant and the trade union save for exhibit D5 (letter dated 21st June 1999 titled union/management agreement) and two letters of sympathy from the union to the Defendant dated 18th June 1999 and 22nd June 1999 admitted and marked as exhibits D3 and D4 respectively. It is equally worthy of note that d4 is unsigned and exhibit D5 although signed, bears no name against the signatures. The law is trite that an unsigned document is worthless and bereft of probative value. See AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT. 1253) 458. It is also the law that a signature without a name is invalid and incurably bad and of no legal consequence whatsoever. See MAMMAN V. BWACHA (2017) 1 NWLR (PT. 1547) 425 @483 PARAS F-G’ where it was held that:

 “In law, a signature of a person is simply put a written name on that document made by that person in his name and signifies an authentication of that document that such a named person holds himself out as bound responsible for the contents of such document. It is the signature signed over the name of the person that identifies such a document as the act of the person whose name is subscribed, without which such a document is not only suspect but can hardly pass for the act of such unnamed person. It is simply useless and worthless”

The foregoing finding also applies to exhibit D7 (notice of redundancy) which was signed by an unidentified person. I so hold.

[96] The implication therefore is that exhibits D4 and D5 are worthless and cannot be accorded any probative value. Hence, there is no evidence whatsoever that the Defendant complied with section 20 (1) (a) of the Labour Act. The Defendant having failed to discharge the burden of proof placed on it to prove its assertion that it complied with the Act, leaves the Claimant’s averment uncontroverted. It is on the totality of all the foregoing, that I am of the considered view that the Defendant failed to fulfil the conditions set out under Section 20(1) (a) of the Labour Act.

[97] The effect of the above holding, is that the redundancy declaration of 28th June 1999 shall be deemed invalid and therefore to the effect that it is without, efficacy, weight or cogency and has no legal consequence. See H.D.P. V. OBI (2012) 1 NWLR (PT. 1282) 464. When the law stipulates a procedure or a method for the doing of an act, it is only that mode and not any other that must be complied with. See MAGAJI V NIGERIAN ARMY (2008) LPELR-1814 (SC), GUSAU V LAWAL & ORS (2023) LPELR-60152(SC). Equally, it is in the interest of the employer to strictly adhere to the provision of the law and international best practices (where applicable) when dealing with redundancy. See OVIVIE & ORS V. DELTA STEEL CO. LTD (supra)

[98] From the foregoing, it is my view that the redundancy carried out by the Defendant via circular date 28th June 1999 is invalid and of no effect. This however does not in any way change the fact that the intention of the Defendant was to sever the employment relationship that existed between it and the Claimants. Thus, it will be superfluous for this Court to hold that the employment of the Claimants subsisted due to the invalidity of the redundancy as per Claimants’ relief ii. To my mind, the failure of the redundancy automatically transformed the intended redundancy to termination of employment. I so hold. This finding of the Court is fortified upon the rationale that a Court cannot impose an employee on an unwilling employer. See OFORISHE V. NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PT. 1602) 35 @ 61 PARA. A-C.

[99] Having said that, I find it necessary to reiterate that the Labour Act governs the employment relationship of parties herein and section 11 provides period of notice for termination to wit:

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

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

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

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

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

d.     one month, where the contract had continued for five years or more. (3) Any notice for a period of one week or more shall be in writing.

[100] It is however a glaring fact that the parties did not lead any evidence in this regard, understandably so because the Defendant who was not contemplating termination of employment could not have thought it needful to give notice of termination in accordance with section 11 of Labour Act. Nonetheless, it is my finding that the Claimants were not given required notice as stipulated in section 11 of the Labour Act and consequently the termination of the Claimants’ employment was wrongful. I so hold.

[101] It is the law that where wrongful termination has been established, the Claimant shall be entitled to damages. It is now pertinent to determine the quantum of damages to which the Claimants may be entitled to and at this juncture, I find the decision of the Supreme Court in SKYE BANK V. ADEGUN [2024] 15 NWLR (PT. 1960) 1 @ 29-30 PARAS G-D apt where J.S.C. AGIM held that:

“Where a contract of employment is brought to an end by the employer contrary to the terms agreed therein, the quantum of damages awardable therefore cannot be based on the remuneration of the employee during the period of notice prescribed in the agreement for either party to terminate the agreement. The employer cannot enjoy the benefit he would have enjoyed if the contract had been brought to an end in accordance with the contract. Having brought the contract to an end in breach of the contract, the damages payable by it cannot be restricted to only one-month salary in lieu notice, which is what it would have been liable to pay if it had terminated the employment as prescribed in the contract. To limit the damages payable by the employer to one-month salary in lieu of notice in this case, would amount to enabling it to benefit from its wrongful act in breach of the contract. It is an inveterate rule of equity of great antiquity that equity will operate to prevent a party from benefiting from his or her wrongful act. It would be oppressive and unjust to the employee to award him or her damages on a basis prescribed in the contract of employment for termination of his employment in breach of that contract. Having brought his employment to an end outside the terms of the contract the employer cannot restrict the quantum of damages awardable to the employee to the terms prescribed in the contract. The quantum of damages awardable to the employee in such a situation should be in accordance with the general law on contract on award of damages for breach of contract, which would involve a consideration of the consequential loss that has arisen or would arise from the breach of the contract of employment having regard to the monthly wage, current age of the employee and the due date of retirement.”

[102] Be that as it may, on propriety of Court granting reliefs not sought, it is a long-crystallised principle of law that a Court must not grant a relief that was not claimed by any of the parties. See YAKUBU V. MIN., HOUSING & ENVIRONMENT, BAUCHI STATE (2021) 12 NWLR (PT. 1791) 465; ENEMCHUKWU V. OKOYE (2017) 6 NWLR (PT. 1560) 37; KADZI INTL LTD. V. KANO TANNERY CO. LTD. (2004) 4 NWLR (PT. 864) 545 (P. 567, PARAS. B-F) and OJEME V. MOMODU II (1995) 6 NWLR (PT. 403) 583. It is rather unfortunate that the claims as set out in the statement of facts of the Claimants is self-limiting as the Claimants have failed to claim for damages for wrongful termination. Consequently, the hand of this Court is tied from granting any damages in this case, which in my firm opinion would have done substantial justice in this case.

[103] I have seen that the Claimants as per relief viii are seeking for a declaration that “the Defendant is not entitled in law to forcefully evict the Claimants from their (Claimants) residential accommodation by a self-help method and without an order of Court.” I have observed that the Claimants are speaking from both sides of their mouth. On the one part they stated in their pleadings that the Defendant forcefully evicted them from its quarters and then on the other part, they sought declaration that the Defendant cannot forcefully eject them without Court order and a consequent injunction restraining the Defendant from doing so. On the part of the Defendant, it was averred that the Claimants have been unlawfully occupying properties owned by it despite stoppage of the employment relationship with the Defendant for over two decades. Hence, they have not been forcefully ejected as claimed.

[104] From the totality of evidence before me, it is clear that the Claimants are still in occupation of the Defendant’s premises. Also vivid is the fact that the Claimants gained occupation of these premises upon the commencement of their employment relationship with the Defendant. Generally, where one is permitted to occupy a house by virtue of one’s employment, one is a licensee because the owner has not given up possession for a definite period of years. It is well settled law that a licensee cannot maintain an action in trespass against his landlord. There is no right for an employee to stay in a particular house belonging to the employer when such employment has ceased to exist; the right of accommodation vanishes at the termination of the contract of service notwithstanding any pending Court action for wrongful termination of the said contract. In this present case, the Claimants have not adduced any evidence to indicate that they had any title to the property aside the license to occupy by virtue of the employment relationship that existed. It is thus my view that the Claimants were in grave error for continuing to occupy the premises of the Defendant beyond cessation of the employment. See F.C.D.A V. NWANNA (1998) 4 NWLR (PT. 544) 73, CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 51. However, I am minced to state that forceful eviction is unlawful in Nigeria, hence, the Claimants can only be evicted by a Court order after service of requisite notice. This relief is therefore resolved against the Claimants. I so hold.

ISSUE 3

Whether the Counter Claimant/Defendant proved its Counter claim to be entitled to reliefs sought therein.

[105] It is settled law that a Counter claim is a Defendant’s claim in opposition to or as a set off against the Claimant’s claim. It is a distinct action by a Defendant against a Claimant, which is separate and independent from the main claim. Therefore, a Counter-claim subsists even where the main claim is discontinued, withdrawn, dismissed, or struck out. See ABERUAGBA V. OYEKAN (2020) 2 NWLR (PT. 1707) 165, JEJE V. ENTERPRISE BANK LTD. (2015) LPELR 24829.

Just as expected in a main claim, a Counter Claimant owns the onus to prove his case by leading cogent and credible evidence in support of his case. equally, it is trite that declaratory reliefs are not granted as a matter of course but subject to good reason and premised on arguments and evidence. Thus, a party seeking for same must rely on the strength of his case and not the weakness of the opposing party’s case. See ONOVO V. MBA (2014) 14 NWLR 9PT.1427) P. 391, DUMEZ (NIG) LTD V. NWOKHOBIA (2008) 18 NWLR (PT.1119) P.361.

[106] This Counterclaim is unambiguous as the Counter Claimant is simply seeking that the Claimants having unlawfully occupied its premises even after cessation of the employment should be made to vacate the premises and to pay mesne profit for all the years of unlawful occupation.

[107] As earlier posited, the Claimants gained right to occupy the premises of the Defendant and no more by virtue of the fact that they were employees of the Defendant. This makes the Claimants licensees and not tenants of the said premises. Thus, it suffices to say that upon the extinction of the Claimants’ employment, whether lawful or not in 1999, the Claimants lost the right to continue occupation of the Defendant’s premises. See F.C.D.A V. NWANNA (1998) 4 NWLR (PT. 544) 73, CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 51 which I find to be apt to this present case.

[108] The Defendant has now gone a step further to request that the Claimants pay mesne profits for the years of occupation after the determination of their employment by the Defendant. In support of this claim, the Counter Claimant tendered exhibit D17 “retrospective rental valuation on property known and addressed as Berger camp, situate at plot 13 (formerly plot 2052), cadastral zone E05, Gado Nasko Road, off Murtala Mohammed express, Kubwa district, Abuja, exhibit D18 “retrospective rental valuation on property (30 units of single rooms) situated within Julius Berger Camp along J.T. Useni way Gwarimpa 1, life camp Abuja.

[109] With respect to Counter Claim for mesne profits, I have noted the facts pleaded with regards thereto and the evidence of the evaluation report tendered by the Counter Claimant to substantiate their claim for mesne profit. However, it is my observation that the Counter Claimant did not specifically identify the houses as against the particular Claimant that occupied it. I am minded to state that this is necessary as there is evidence that not all the Claimants herein actually occupied the Defendant’s staff quarters. This is evident in the testimony of CW2 who stated that he never occupied the Defendant’s premises; a testimony that was not controverted. Thus, I find this evaluation to be quite vague for the purpose of awarding mesne profit to the Defendant.

[110] Also, although the Defendant has not expressly categorised exhibits D16 and D17 as expert opinion, I am of the view that it is; seeing that the valuer in his presupposed capacity as a valuer formed this rental valuation. The position of law is that for an expert opinion to be admissible, it is required that the expert must be called as a witness, he must give his qualifications and experience before he begins to give his evidence at all. Thus, opinion of an expert would not be used where the expert has not established his qualifications and experience before the Court. See WAMBAI V. KANO N.A. (1965) NWLR 15 where it was held that:

“It is for the judge to decide whether or not a person is sufficiently skilled to give expert evidence. The correct test of the relevance of the witness opinion as that of an expert is whether he is specifically skilled in the particular field in question where the evidence of opinion of an expert is relevant, he may be called as a witness and must first of all state his qualification and satisfy the Court that he is an expert on the subject in which he is to give his opinion. He must also state clearly the reasons for his opinion. “

See also OGIALE V. SHELL PET. DEV. CO. (NIG,) LTD. (1997) 1 NWLR (PT. 480) 148, A.N.P.P. V. USMAN (2008) 12 NWLR (PT. 1100) 1.

[111] In this present suit, the valuer did not fulfil the foregoing requirements, it is for this reason that I find it very unsafe to lean in favour of the claim for mesne profit. Hence this relief is refused for want of sufficient evidence.

In totality, this suit is hereby determined as follows:

CLAIMANTS’ CASE

Reliefs i, iii, iv, x and xi succeeds,

Reliefs ii, v, vi, vii, viii, ix and xii fails

It is hereby declared and/or ordered that:

1.     The document dated 28th June 1999 having been signed by an unidentifiable person is invalid and incompetent to be relied upon as an instrument of redundancy.

2.     The Defendant is in law bound to follow the provisions of the Labour Act, International Labour Conventions and International best practices in declaring the posts and/or offices of the Claimants in the Defendant’s employment redundant and cannot do so without adhering to the prescribed procedures.

3.      The Defendant, its agents, privies howsoever described are restrained from forcefully evicting the Claimants out of the Claimants’ residential accommodation lying and situate at Berger Camp in Kubwa, Abuja without a Court order.

COUNTER CLAIM

Reliefs i, ii and iii succeeds

Relief iv fails

It is hereby declared and/or ordered that:

1.      The Claimants/ Defendants to Counter claim ceased to be employees of the Defendant in 1999.

2.     The license of an employee to live in the official quarters provided by its employers cease upon termination of employment relationship.

3.     The Claimants/Defendants to Counterclaim are ordered to vacate the property of the Defendant/Counter Claimant situate at Julius Berger Staff, Quarters Kubwa Camp, Abuja, FCT and Julius Berger Camp, Life Camp Gwarimpa, Abuja, FCT, within seven (7) days from date of this judgment.

Parties are to bear their respective costs

Judgment is hereby entered accordingly.

 

_______________________

Hon. Justice R.B. Haastrup

Judge