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.
|
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