IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE
CALABAR JUDICIAL DIVISION
HOLDEN
AT CALABAR
BEFORE:
HONOURABLE MR. JUSTICE SANUSI KADO
29TH
DAY OF APRIL, 2025 SUIT
NO. NICN/CA/04/2022
BETWEEN
1.
2.
CHRISTOPHER
UGUGE NTAJI
AND
NKRAH
MARINE LIMITED ……………………………………. DEFENDANT
JUDGMENT
1. On the 19th
day of January, 2022, the claimants in this suit took out a general
form of complaint against the defendant. The complaint was accompanied by
statement of facts, witness statements on oath, list of witnesses, list of
documents to be relied on and photocopies of documents to be tendered in
evidence in proof of the case of the claimants. The claim of the claimants
against the defendant is for:-
i.
AN ORDER
directing the Defendant to compute, calculate and pay to the 1st Claimant
the sum of N44,720,000 being his outstanding salary arrears for 86 months.
ii.
AN ORDER
directing the Defendant to compute, calculate and
pay to the 2nd Claimant
the sum of 21,375,000 being his outstanding salaries for 75 months and
allowances for 7 years.
iii.
AN ORDER
directing the Defendant to pay to the 1st Claimant his monthly
salaries and all his entitlements in line with the terms and conditions of his service from January 2022 until he is
properly disengaged from the Defendant’s company.
iv.
AWARD of
general damages against the Defendant to the tune of N100,000,000 (One Hundred
Million Naira only) in favour of the Claimants jointly and severally
for breach of the terms of their contracts of service with the Defendant.
v.
AWARD of
Special Damages of N5,000,000 (Five Million Naira
only) against the Defendant in favour of the Claimants being
the cost of litigation.
2. Upon
being served with the originating process commencing this suit, the defendant
on the 4th day of December, 2023, filed its statement of
defence and the claimants’ on18th day of December, 2023, filed
reply.
3. The
claimants testified as CW1 and CW2, respectively, in proof of their respective
cases. While the defendant called one James Tomomewo, who testified as DW1 in
defence of the defendant. Three documents were tendered in evidence through
this witness in the course of cross examination. The three documents were
marked as exhibits DWA to DWC.
THE
CASE OF THE CLAIMANTS.
4. The
claimants were employed by the defendant at different times and assigned
different work schedules with conditions of service clearly stipulated in their
employment letters. The first claimant was assigned the function of the
Executive Director Administration with monthly salary of N520,000.00. While the 2nd
Claimant was assigned the role of chief accountant with monthly salary of
N250,000.00. See exhibits A and B. The claimants were also given job descriptions and
additional job descriptions, respectively, spelling out their area of operation
and designations. .
5. According to the claimants upon their
employment in 2008 and 2009, respectively, they were paid their monthly
salaries through their accounts with Polaris Bank Limited up to October, 2014.
However, the defendant suddenly stopped paying the claimants their monthly
salaries from November, 2014 to date. When the situation of the non-payment of the claimants’
salaries persisted, the 1st claimant tendered his resignation on the
8/2/2018. Upon receipt of 1st claimant’s letter of resignation, the defendant
through its managing director vide the letter dated 4/4/2018, wrote to the
claimant putting the letter of resignation on hold, pending when the management
of the defendant will meet on the subject matter. According to the 1st
claimant, no management decision on same was taken and/or communicated to him till
date.
6. The 2nd claimant on his part
tendered his letter of resignation of appointment on the 5/1/2021.
THE CASE OF THE DEFENDANT.
7. In its
defence the defendant denied that the claimants held employments in its
establishment on positions and job specifications claimed and that there is no
valid contract of employment placed before the court to enable the court
determined the rights of the parties. As the appointments letters tendered by
the claimants cannot qualify as valid letters of appointment. They are
incomplete, disjointed and not signed by the appropriate person responsible for
approving employment at the defendant’s office; they are not admissible in law.
8. According
to the defendant the claimants are relatives of the managing Director of the
defendant, Capt. Patrick Kekong and contracted for services independently, to
which they were fully paid.
9. The
defendant stated that she engages crews from time to time through the claimants
who were and are still working for a different entity called ‘KT OFFSHORES
LIMITED’, a crewing company, but sharing the same office
with the defendant.
10.
According to the defendant the 1st
claimant in his purported resignation letter of 8/2/2018, tendered his
resignation as Head, HR/Admin of the defendant, which is inconsistent with his
claimed position in his sworn witness statement on oath and claim.
11.
The defendant never owed salaries of its
legitimate employees from inception until the defendant’s business operations
suffered a serious glitch because of a
fire accident on one of its vessels, the Niger Delta King (NDK) which incident
occurred at Chevron’s Agbani Field on 22/9/2014. The said vessel is still under
repairs outside Nigeria. The fire incident put the defendant out of business as
she could not earn enough income to sustain its operations. The fire incident
extensively damaged the defendant’s business beyond defendant’s control and
contemplation. It suffered significant financial losses after the fire
incident. Thus, the event constitutes a force majeure, because of which the
defendant was forced to restructure and lay off most of its staff to cut down
on overheads. The defendant wrote to
notify staff of its difficult financial circumstances in a letter of 30/4/2015.
And advised that, if any staff is unwilling to continue in his employment owing
to the difficult financial circumstances, he may consider voluntarily leaving
as the defendant could not guarantee that wages or other payments would be paid
regularly until the vessel was fully repaired and resume its normal
operation again. The defendant further stated
that the claimants have exercised their right to voluntarily resign their
appointment on the dates shown in the letter of resignation tendered. They were
neither dismissed nor their appointment wrongfully terminated by the defendant
to warrant any damages or outstanding
wage payments claimed by the claimants.
12.
On letter of 4/4/2018 putting on hold claimant’s
resignation, the defendant stated that the 1st claimant is an
impostor holding out as director of the defendant and the letter did not
emanate from the defendant authorized officer to issue such a letter.
13.
On the letter of introduction to the bank, it
did not emanate from the defendant at worst, was initiated and written ultra vires under the power of the purported
signatory and not authorized by the board of the defendant. The defendant has
never given any undertaking or reference for personal loans to any of its
employees, directors, or independent contractors. Furthermore, the letter of
undertaking to the bank was a forgery, as its corporate name as at the date
quoted on the purported letter of reference (16/6/2014 was not ‘Nkra Investment
Limited’. If the claimant was indeed, an employee of the defendant and in the
so called position of an executive director, he ought to have known that as far
back as 8/3/2013, the name of the defendant had become ‘Nkra Marine Limited’ and
the letterhead on which the reference was written was not that of the defendant
in 2014.
14.
On professional fees of N5,000,000.00 (Five
Million Naira) the defendant avers that the claimants are men of no means and
cannot pay the sum of Five Million Naira as claimed, unable to service loan of
N3,000,000.00 (Three Million Naira).
15.
The defendants in the alternative pleads that
the action of the claimants is statute barred and the claimant’s right of
action is barred on facts and law relating to laches and acquiescence.
REPLY TO STATEMENT OF DEFENCE:
16.
In the reply the claimants maintained that they
were duly employed by the defendants as their letters of employment and job
description were signed by authorized officers of the defendant. They are
entitled to their claim.
17.
The 1st claimant admitted being
distant relation of the Managing director of the defendant. While the 2nd
claimant is not related to the Managing Director by consanguinity apart from
being an employee of the defendant. The 1st claimant admitted being
a nominal director of ‘KT Offshores Limited sharing office with the defendant.
While the 2nd defendant was neither a staff nor a director of ‘KT
Offshores limited).
18.
The 1st claimant stated that due to
reorganization of the defendant, in 2013, his status in the defendant was
changed from Executive Director Administration to Head, Human Resource and
Administration and placed on salary scale of N520,000.00 (Five hundred and
Twenty thousand Naira) only effective from May, 2014 till date. The
reorganization of the defendant was carried out between 2012 to 2013 after the
defendant company successfully procured and obtained a loan from Skye bank Plc
(now Prudent bank plc), for purchase of two offshore vessels (MV; Niger delta
Ki9ng and MV Queen of Calabar). Consequently, more directors and shareholders
were introduced due to their roles in the loan procurement, hence the removal
of the 1st claimant as director. The claimants stated that they were
placed on allowances before 2012 when the reorganization and purchase of the
vessels took place and consequently, the
reorganization and new salary structure, which was introduced with effect from
2014.
19.
The defendants maintained they were owed
salaries from 2015 while other senior staff were paid. Although one of the vessels
MV King of Niger Delta suffered a fire incident on the 22/9/2014, the defendant
was and is still doing very well in terms of its finances and operations since
2014 till date. As the second vessel has never suffered any incident and has
been operational to date. The repair of the vessel that was affected by fire
incident is being repaired in South Africa sponsored by Insurance firm that
insured the vessel. The fire incident
has not put out the defendant out of business. The incident never constitutes force
majeure; as the claimants were not working on board and were not affected by
any lay off by the defendant. The
claimants were never served any letter of difficulty.
20.
The claimants willingly tendered letters of
resignation as they were never neither dismissed nor their appointment
terminated by the defendant.
21.
On laches and acquiescence, the claimant stated
that their cause of action is not statute barred as the cause of action in
respect of claimant arose in 2018 while for the 2nd claimant in
2021. There was no delay in filing this action in 2021 as the defendant were
holding forth on assurances of managing director to clear all outstanding
salaries. No notice of redundancy was brought to the notice of the claimants by
the defendants.
THE SUBMISSION OF THE DEFENDANT:
22.
Eric Iferi, Esq; counsel for the defendant
adopted the defendant’s final written address franked by him as his argument in
this case. In the final written address adopted by counsel, three issues were
formulated for determination. They are:
1.
Whether on the facts pleaded and the evidence
adduced by both parties the claimants are entitled to any unpaid wages and
damages as claimed.
2.
Assuming but not conceding that the
claimant(sic) is entitled to any unpaid wages, is the claimant(sic) not
estopped from making further claim against the defendant upon failure to file
this claim within a treasonable time.
3.
Are the claimants entitled to any sum as unpaid
wages and award of damages against the defendants(sic) proper in the circumstances.
ARGUMENT:
23.
Issue 1: Whether on the facts pleaded and the
evidence adduced by both parties the claimants are entitled to any unpaid wages
and damages as claimed. In arguing this issue counsel submitted that a perusal
of processes and testimonies of the parties would show that there are numerous
and substantial disputes of facts in this case which may be resolved in favour
of the defendants. As by sections 131 and 132 of the Evidence Act and the cases
of Agbama v.Owa (20C4) 119 LP.CN 4298, Urneojiako Vs Ezenamuo (1990) 1 NWLR (Pt
126) 253, Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218, Oyeneyin vs
Akinkugbe (2010) 4 NWLR (Pt 1184) 265:
which all establish that the burden of proof lies on the Claimant to demonstrate
by credible evidence that he is entitled to the reliefs endorsed in his Writ of
Summons and statement of Facts. Thus, in the instant case, the burden of proof
of the Claims before the court rested squarely on the Claimants. Counsel asked whether the claimants have
discharged that burden. The answer given was no.
24.
It is submission of counsel that there is
conflict in the evidence of the claimants regarding their relationship with the
defendant, the claimant admitted at the hearing that they operated a company,
“KT OFFSHORE LIMITED’ (a crewing company), but shared the same office space
with the Defendant while claiming to be employees of the defendant at the same
time. According to counsel this evidence makes it most unlikely for the court
to conclude that the claimants were in two full time employments
simultaneously. This fact raises substantial doubt in the minds of any
reasonable person that the claimants were employed by the defendant under a
contract of service and not a contract for service relationships. The defendant proposes that there is no duty
of employment between the defendant and the claimants who at the material time,
operated and ran a full-time business with a company called “KT OFFSHORE
LIMITED”, which the defendant argues was
their primary employment.
25.
Counsel submitted on any contention over unpaid
wages regarding employment law, it is trite that the court would not award
judgment in circumstances where it can be shown that the case is characterized
by substantial and material disputes of fact and law, underscoring its complexity
and seriousness and the need for a thorough review.
26.
The counsel for the defendant has argued that
the defendant objected to the admissibility of exhibits CWA, CWB and CWC
tendered through DW1 during cross examination, at the stage of hearing. Because
the document sought to be tendered was not pleaded nor frontloaded. There is no
nexus between the depositions of DW1 and the document sought to be tendered.
The incompetence of exhibits DWA, DWB and DWC to be admitted and relied upon Is
clearly shown by law in the case of Olaniyan v Oyewole (2008) 5 NWLR (Pt.1o79)
114.
27.
Counsel further submitted that the defendant
also objects to the tendering and admissibility of Claimants’ exhibits A, B, C,
D, E, F, G, H, I, J, L, L, M, and N, relied upon by the claimants because the
documents tendered are secondary evidence, no foundation was laid as to the
whereabouts of the originals relying on sections 83, 88 and 89 of the Evidence
Act and this court should discountenance the value of the said documents stated
above in its determination. Counsel submitted that it is trite that when
Secondary evidence is sought to be tendered, a foundation must be laid by s. 89
either in the witness’s deposition or orally in court. See Ezenwa Onwuzuruike v. Damien Edoziem &
Ors. (2016) LPELR-26056(SC).
28.
It is submitted there is no records in the
custody of the defendant to show that plaintiff(sic) held employment for the
positions and job specifications claimed and that no valid employment contract
has been placed before the court to enable the court to determine the parties’
rights.
29.
Counsel submitted that from the witness
statement, oral evidence, and documents tendered, the claimants have failed to
prove by verifiable evidence that they were employed as Executive Directors and
Chief Accountants in the defendant company, respectively. Neither have they
adduce any evidence showing that they were used and performed duties in the
positions they now claim to.
30.
Counsel submitted that the appointment letters
tendered by the claimants cannot qualify
as valid letters of appointment and are inadmissible for offending the
provision of section 89 of the Evidence Act. Besides being incomplete,
disjointed and not signed by the appropriate person responsible for approving
employment at the defendant’s office, through the claimants, who were and are
still working for a different entity called ‘’KT Offshores Limited (a crewing
company) but sharing office space with the defendant.
31.
It is submitted that the facts and evidence
given in support of the claimants’ case are inconsistent. The defendant stated
that contrary to the alleged status shown in the appointment letter as
executive Director of the defendant, the 1st claimant in his
purported resignation letter of 8/2/2018, tendered resignation as Head, HR/Admin
of the defendant, which is inconsistent with his claimed position in his sworn
witness statement and claim.
32.
It is also submitted that the bank statements
tendered by the claimants are disjointed and does not cover a substantial
period of their purported employment
before the period complained of for unpaid wages to prove such regular
earnings consistent with their claim as employees for the said period.
33.
It is further submitted that the claimants have
exercised their rights to voluntarily resign their appointments on the dates
shown in the letter of resignation tendered. They were neither dismissed nor
their appointment wrongly terminated by the defendant to warrant any damages or
outstanding wage payments claimed by claimants.
34.
It is also submission of counsel that the
defendant in the alternative assuming but without conceding, the claimants were
presumed to be in a contract of employment with the defendant, that contract of
work had been rightly terminated by the employment terms. While not conceding
to the averments of the claimants, the
defendant state that in the purported agreement of employment dated 2/1/2008.
It was also an express term and condition of service of the defendant that the
board reserves the right to withdraw or terminate this appointment when it
deems necessary in the interest of the defendant.
35.
The defendant states further that it is evident
from the preceding paragraph, in particular governing employment of the
claimants and which rightly governs the instant contract of work of the
claimant, that the employer can terminate or withdraw the employment, if it
deems fit beneficial to the company.
36.
On letter of introduction to the bank, the
defendant stated that it did not emanate from it and worst it was initiated and
written ultra vires and that letterhead on which the reference was written was
not that of the defendant in 2014.
37.
In arguing the second issue for determination
counsel submitted that assuming but not conceding that the claimant is entitled
to any unpaid wages, is the claimant not estopped from making a further claim
against the defendant upon failure to file claim within a reasonable time,
counsel contended in the alternative that the claimants’ action is barred by
facts and law relating to laches and acquiescence. As there was lapse of
time and unreasonable delay by the
claimants in asserting their perceived rights. As the claimants were silent for
seven years and such conduct amounted to laches. The cause of action arose in 2014 when the
claimants’ employer allegedly stopped paying them their salaries. And there were
no communications between the claimants and the defendant until sometime in
2021, when their counsel wrote a letter dated 17/11/2021 to the defendant
demanding specific entitlement.
38.
According to counsel seven years is nothing
short of undue delay in prosecuting this case and seeking reliefs herein. In
Ephraim v Asuquo (1923) 4 NLR 98 @ 99, it was held a claim by plaintiff to
revoke a decree made in favour of the defendant two years after the decree had
been made was rejected on the ground that the plaintiff and his people were
guilty of laches for they had every opportunity of opposing the grant of which
opportunity they did not avail themselves. if the case on the hearing list.
They showed no anxiety to expedite the hearing and in the interval the
defendant had already administered the estate, which was ready for distribution
it would be inequitable if they were anxiously desirous of administering the
estate why did they wait a whole year to make the first move and why did they
wait another twelve months before getting the case on the hearing list. They
showed no anxiety to expedite the hearing and, in the interval, the defendant
had already administered the estate, which was ready for distribution. It would
be inequitable if the relief sought were to be granted.
39.
The consequence of undue delay was to make
defendant believe the other party was no longer interested in pursuing his
right and that the delay is long enough to occasion the loss of evidence,
witness and a fair chance for the defendant to defend over time from the date
the wrong was committed and that such delay caused unjust prejudice to the
defendant. See Agbeyebew v Ikomi (1953) 12 WACA 383 @ 386.
40.
Counsel urged the court to dismissed this case
for being caught by laches and acquiescence.
41.
On third issue for determination, counsel
submitted that the claimants are gold diggers. Their claim is misplaced. The
claimants do not deserve or merit the award of any damages because they did not
provide credible evidence to entitled them to damages. Akinfosile v Ijose
(1960) SCNLR 447; Akanmu v Adigun (1993) 7 NWLR (Pt.304) 218; Ajawon v Akanni
(1993) 9 NWLR (Pt.316) (pt.182) 200.
42.
In concluding his submission counsel urged the
court to dismiss the case of the claimant with cost as it has no merit.
THE SUBMISSION OF THE CLAIMANTS.
43.
Dr. Paul O. Ebiala, Esq; counsel for the
claimants in oral adumbration adopted the claimants’ final written address as
his argument. Counsel urged the court to grant the reliefs being sought by the
claimants.
44.
In the final written address four issues were
formulated for determination: They are:-
1.
Whether
the employment relationship between the claimants and the defendant is that of
service or for service?.
2.
Whether
the claimants’ suit is statute barred as contended by the defendant?.
3.
Whether
the documents tendered in evidence as exhibits by the claimants are not
admissible in the state they are?.
4.
Whether
the claimants have not proved their case before this Honourable court to
entitle them to the reliefs they seek?
ARGUMENT:
45.
Issue 1:
Whether the employment relationship between the claimants and the defendant is
that of service or for service. In arguing issue 1, counsel submitted that the
employment relationship between the Claimants and the Defendant is clearly
that of service, and not that for service as contended are distinct from each
other and have their corresponding implications. As the court of Appeal in
Coca-Cola Nig. Ltd v Akinsanya (2018) 18 NWLR (Pt.1386) 255, drew an
unambiguous distinction between the two types of employ where the court stated
as follows:-
46.
“To determine whether there exists a contract of
service or contract for service,
the following are guides:
47.
If payments are made by way of “wages” or “salaries”
this is indicative that the
contract is one of service, if it is a contract for service, the independent contractor gets his payment by way of “fees”. In a like manner, where
payment is by way of commission only or on the completion of the job, that indicates
that the contract is for service.
(b) Where
the employer supplies the tools and other capital equipment, there is a strong likelihood that the contract is that
of employment of service. But where the person engaged has to invest and
provide capital for the work to progress, that indicates that it is a contract
for service…
(f) Where an office accommodation and secretary are
provided by the employer, it is a contract of service/of employment.”
48.
According to counsel in the instant case, the claimants
have shown by credible evidence that upon their engagement by the Defendant via
their letters of appointment (Exhibits A and B) they were placed on monthly
salary of N520,000.00 and N250,000.00, respectively and were indeed paid the
said sums through their bank accounts with Polaris Bank Plc, from 2008 to 2014
for six unbroken years, before the defendant suddenly stopped paying them. See
exhibits G and H. This fact was not controverted by the Defendant in any way.
49.
Counsel contended that that contractual relationship
cannot, by any stretch of imagination, be said to be contracts for service as
the Defendant wants this Honourable Court to believe. What is more, it is on
record that the Defendant provided the support staff and accommodation from
where it carried on its business. In fact, the Defendant provided all the tools
and capital equipment with which the Claimants performed their functions for
it. Therefore, nothing could be far from the truth that the Claimants’
employments were of service, and not for service. In support of this contention
counsel relied on the case of SHENA SECURITY CO. LTD. V. AFROPAK NIG. LTD &
ANOR (2008) 4-5 SC 117 AT 128-129, (2008) 18 NWLR (PT 1118) 77 AT PP 94-95.
50.
Counsel urged the court to resolve this issue in
favour of the claimants.
51.
Issue 2: Whether
the claimants’ suit is statute barred as contended by the defendant.In arguing
this issue counsel submitted that the suit of the Claimants is not
statute barred. Counsel submitted that the starting point is to determine when
the cause of action arose between the claimants and the defendant, and when
this action was filed.
52.
It is submission of counsel that the cause of action
arose between the 1st claimant and the defendant on 8/3/2018, when
the claimant’s letter of resignation took effect. On the other hand, the cause
of action arose between the 2nd claimant and the defendant on the 5th
of February, 2021, when the 2nd claimant’s resignation letter
(Exhibit K) became effective. Counsel continued his submission that on the flip
side, this action was filed on the 19th day of January, 2022. This
means as between the 1st claimant and the defendant, there are 4
years in between when the cause of action arose and when the action was filed.
In the same vein, as between the 2nd claimant and the defendant,
there is only one year interval between when the cause of action arose and when
this suit was filed. The question then is: in law, within what time is an action
for the recovery of debt supposed to be brought? In the words of the Supreme
Court of Nigeria in the case of A-G, ADAMAWA STATE V. A-G, FEDERATION (2014) 14
NWLR (PT. 1428) P. 515 AT PP 554-555,
“By virtue of
section 7(1)(e) of the Limitation Act, Cap. 522, Laws of the Federation of Nigeria, 1990, an action shall not
be brought after the expiration of six
years from the date on which the cause of
action accrued, where the action is to recover a sum recoverable by virtue of
an enactment. Thus, by section 7(1) of the Act, the right to recover a debt is
extinguished at the expiration of six years from the date the cause of action
accrued, that is, the date on which the plaintiff could sue to recover the debt
if he so desired. At the expiration of six years from the date the right to
recover the debt is extinguished, notwithstanding the fact that the debt
remained unpaid..”
53.
Counsel contended that it is evident from the above
computation that the period between when the cause of action arose and when
this action was filed is not up to 6 years; indeed, the suit was filed within 4
years after the cause of action arose. The contention of the Defendant that the
suit of the claimant is statute-barred is incorrect and misleading and should
be discountenanced. The misconception of the defendant stems from the erroneous
assumption that the cause of action arose in 2014 when the Defendant stopped
paying the claimants their wages/salaries. When their salaries were stopped,
the claimants were patient with the defendant, hoping that the situation would
change; at that point they had not considered it ripe to maintain an action
against the defendant when they were still in the service of the defendant
until 2018 when the 1st claimant resolved to put in his resignation,
which was even put on hold by the defendant via a letter dated 4th
April, 2018 (Exhibit J). The 2nd claimant towed the same line in
2021. Effectively, therefore, the cause of action as between the 1st
claimant and the defendant arose in 2018 while that between the 2nd
claimant and the defendant arose in 2021.
54.
It is submission of counsel that all cases cited by
the defendant’s counsel are distinguishable. While the case at hand centres
around recovery of debt from the defendant, the cases cited by the defendant
dwelt extensively on land matters, to which the principles of latches and
acquiescence apply. There are different limitation periods for land matters and
debt recovery issues, respectively. In any case, it does not lie in the mouth
of the defendant to stipulate the period when the cause of action arose in this
case, this is deducible from the Writ of Summons and the Statement of Claim.
This is the stipulation of the Supreme Court in the case of MULIMA V. USMAN
(2014) 16 NWLR (PT. 1432) 161 at p. 199 when it held that, “In considering
whether an action to enforce a legal right is statute-barred, the court should
confine itself to the averments in the writ of summons and statement of claim
which allege the factual situation that gave rise to the cause of action…” See
also OMOTAYO V. N.R.C. (1992) 7 NWLR (PT. 254) 471; EGBE V. ADEFARASIN (NO. 2)
(1987) 1 NWLR (PT. 47) 1; U.B.N. PLC V. UMEODUAGU (2004) 13 NWLR (PT. 890) 352.
It is not in doubt that the claimants narrated in both their statement of claim
and written statement on oath, the factual situation (stoppage of their
salaries for a period of time, which culminated in tendering their
resignations) that led to their taking out a writ of summons against the
Defendant in 2022. It could have been unreasonable on their part to approach
the court immediately their salaries were stopped; they were considerate enough to wait for some time, but, when the
waiting was almost becoming endless, they put in their resignations and
requested that the Defendant’s management expedites action “to settle my
pay-off and outstanding remuneration…” (See paragraph 3 of Exhibit I). As it
were, it was in that 2018 that the battle line was drawn, necessitating their
approaching this Honourable Court in 2022 after formally demanding for the
settlement of their unpaid salaries through their Solicitors in 2021. The cause
of action in this matter arose in 2018, and not in 2014 as erroneously
contended by the Defendant.
55.
Counsel urged the court to resolve this issue in
favour of the claimants.
56.
Issue 3: Whether the documents tendered in
evidence as exhibits by the claimants are not admissible in the state/form they
are.
57.
Counsel
submitted that exhibits A, B, C, D, E, F, G, H, J and N, 10 in number as well
as exhibits I, K, L, M, DWA, DWB and DWC, 7 in number tendered and admitted in
evidence by this Honourable court are all admissible without more in the state
and/or form they were tendered. According to counsel exhibits A, B, C, D, E,
F, G, H, J and N are all original
copies while Exhibits I, K, L, M, DWA, DWB and DWC are either copies of the
original or certified true copies of the originals. Particularly, Exhibits I, K
and M are documents which original copies are with the defendant, and, as can be seen in the statement of claim, the
defendant was given notice to produce them at the hearing, which it failed to
do. On the other hand, Exhibits L is a letter sent to Polaris Bank Plc by the
defendant introducing the 1st claimant for a loan facility, the
original of which is with the addressee - Polaris Bank Plc. On their part,
Exhibits DWA, DWB and DWC are public documents, of which the law allows only
Certified True Copies to be tendered in evidence. See Section 89(e) of the
Evidence Act 2011.
58.
Counsel submitted that, it is an elementary principle
of law that admissibility of a documentary evidence in our judicial proceedings
is anchored on 3 main criteria, namely: (1) Is the document pleaded?; (2) Is
the document relevant to the inquiry before the court?; and (3) Is the document
admissible in Law? See CHEVRON (NIG) LTD V. DERIBIGBE (2012) 4 NWLR (PT. 1289)
1, pp 12-13; OKOYE V. OBIASO (2010) 8 NWLR (PT. 1195) 145; OKONJI V. NJOKANMA
(1999) 12 SCNJ 259.
59.
It is contended on behalf of the defendant that
exhibits DWA, DWB and DWC tendered through DW1 are not admissible as they were
not pleaded. Quite contrary to the ground of objection of the defendant to the
admissibility of the said exhibits, exhibit DWA, was clearly pleaded in
paragraph 7 of the Reply to the defendant’s statement of defence while Exhibits
DWB and DWC are pleaded in paragraph 21 of the Reply to the statement of
defence. Apart from their being pleaded, they are all relevant to the inquiry
before the court and are admissible in Law, thus meeting the 3 criteria for
their admissibility. On the other hand, the defendant’s objection to the
admissibility of Exhibits A, B, C, D, E, G, H, I, J, K, I, M and N is neither
here nor there. Documents tendered in their original form (as in the case of
Exhibits A, B, C, D, E, F, G, H, J and N
in this case), do not require laying of proper foundation as contemplated by
law; it is primary evidence of such documents that are admissible. See Section
86 of the Evidence Act 2011. In the same vein, a document which original is in
custody or possession of the person against whom it is sought to be proved, or
in custody or possession of a person legally bound to produce it and notice to
produce has been given him and he has not produced it (such as Exhibits I, K, L
and M in this case), secondary evidence of it is admissible. See Section 88(1)
of the Evidence Act 2011. Exhibits I, K and M are in custody or possession of
the Defendant, and it was duly given notice to produce their original at the
hearing, which it failed to do. Also, Exhibit L is in custody or possession of
Polaris Bank Plc. On their part, Exhibits DWA, DWB and DWC are public documents
within the meaning of Section 102 of the Evidence Act 2011, and only permit of
their admissibility by Certified True Copies, which is the form in which they
were tendered and admitted in this case.
60.
Counsel urged the court to discountenance the
contention of the defendant that these documents are inadmissible, and resolve
this issue in favour of the claimants.
61.
It is further submission of counsel for the Defendant
that “no records in its custody show that Plaintiff held employment in its
establishment for the positions and job specifications claimed and that no
valid employment contract has been placed before the court to enable the court
to determine the parties’ rights…” The defendant further contends that the
appointment letters tendered by the
claimants (exhibits A, B, C, D, E, F) are “incomplete,” “disjointed and not
signed by the appropriate person…”
62.
Counsel submitted this is not only laughable, it is misleading.
On what governs contract of employment, the Supreme Court of Nigeria succinctly
clarified in the case of SKYE BANK PLC V. ADEGUN (2024) 15 NWLR (PT. 1960) 1 AT
PP 42-43 that:
“The terms of
an employment relationship are generally contained in the service agreement,
letter of employment, employee handbook or any other document that may be
introduced from time to time during the subsistence of the employer/employee
relationship. Where parties have entered into agreement voluntarily and there
is nothing to show that such agreement was obtained by fraud, mistake,
deception or misrepresentation, they are bound by the terms of the agreement.
An employment contract is premised on an agreement between a person or body,
“employer” who seeks to retain the services of another, “employee” effectively
putting the employee under their payroll…”
63.
Counsel submitted that the Claimants’ appointment
letters (Exhibits A and B) clearly stipulate the terms of the contract of
service between the defendant and the claimants. At least, no fraud, mistake,
deception or misrepresentation is alleged by the Defendant in the formation of
that agreement voluntarily entered into by both parties. Apart from the
appointment letters stipulating the roles the Claimants were employed to perform
for the Defendant, their said appointments were duly confirmed via Exhibits C
and D. Not only that, they were issued with their respective Job Descriptions
(Exhibits E and F), outlining their boundaries. All of these were not
controverted by the Defendant with credible documents. There was no sample of
the complete letter of appointment tendered by the Defendant to contradict the
alleged “incomplete” ones tendered by the Claimants. What is more, DW1 under
cross-examination admitted that
Capt. Patrick Kekong is the Managing Director and Chief Executive Officer of
the Defendant in charge of the defendant’s Calabar Office where the claimants
worked. It is, therefore, misleading and insincere to say that Capt Patrick
Kekong who managed the Calabar office and signed all contractual documents on
behalf of the Defendant (his Principal) was not the appropriate authority to
have signed the appointment letters of the claimants on behalf of the
defendant. It is even curious that the said Capt. Patrick Kekong who was always
in court during the hearing of the case was not called as a witness to explain
his role in the Defendant’s company. It is a fundamental principle of law that,
he who does an act through another is deemed in law to do it himself. See the case of AYANKOYA V. OLUKOYA
(1996) 4 NWLR (PT. 440) 1 AT PP 17 where the
Supreme Court put it more pointedly that,
“If a person represents or permits it to be represented that
another person has authority to act on his behalf, he will be bound in the same
way as he would if that other had in fact authority to act…”
64.
Counsel
submitted that the defendant cannot, therefore, be heard to say that
the person held out as its Managing Director and Chief Executive Officer is not
the appropriate authority to issue and sign appointment letters for the
claimants. That, with respect, is a lame argument, and should be
discountenanced.
65.
Counsel finally on this, urged the court to resolve
this issue in favour of the Claimants.
66.
Issue 4: Whether
the claimants have not proved their case before this Honourable court to
entitle them to the reliefs they seek. It is submission of counsel that on the preponderance
of evidence, the claimants have proved their case before this Honourable Court
to be entitled to the reliefs they seek. To buttress the point being made
reference was made to the case of Atuyeye v. Ashamu (1987) 1 NWLR (PT. 49) 267:
“A civil case
is decided on the balance of probability, and in determining this, the trial
judge must weigh the evidence on one side against the evidence on the other
side and weigh them in an imaginary scale and find out which evidence outweighs
the other…”
67.
It is submission of counsel that in the case at hand
the claimants approached this Honourable Court, seeking, among others, the
recovery of their accumulated unpaid salaries from the Defendant their
employer. They first discharged the heavy burden on them by proving that they
were in an employment relationship with the Defendant by testifying orally to
that fact as well as putting in documentary evidence exhibits A, B, C, D, E, F,
to show that they were employed by the defendant. On its part, the defendant,
apart from mere denial, did not tender any document to prove otherwise.
68.
Furthermore, the claimants, besides their oral
evidence, showed by credible documentary evidence exhibits G and H, that they
were paid monthly salaries by the Defendant up to October 2014 for discharging
their duties creditably. This, too, was not rebutted or controverted by the
defendant either in the oral testimony of its sole witness or by tendering any
document to the contrary. In the same
vein, the Claimants proved before this Honourable Court see exhibits G and H
that their salaries from November 2014 to 2018 and 2021, respectively, remain
unpaid by the defendant despite repeated demands by themselves and their
Solicitors on their behalf see exhibit M. This was not denied by the defendant
by any concrete evidence.
69.
In another development, the defendant alleges fraud
against the claimants with respect to the Letter of Introduction issued on behalf
of the claimant by the defendant to Polaris Bank Plc for a loan facility to the
1st claimant without providing particulars of the alleged fraud. The
Defendant has a heavy burden here, which it did not
discharge. In the emphatic statement of the Supreme Court of Nigeria in the
case of AKPOTI V. I.N.E.C. (2022) 9 NWLR (PT.1836) 403 AT PP 425-426,
“Where a
plaintiff avers in his pleadings that a document is a forgery, he must plead
and provide particulars of forgery in his pleadings. Then at the trial, he must
proceed to establish that the document is a forgery and the standard required
is proof beyond reasonable doubt. In the instant case, the appellants did not
provide particulars of forgery and did not lead evidence in proof of forgery…”
70.
Counsel also submitted that the same Supreme Court in
the case of OBITUDE V. ONYESOM COMMERCIAL BANK LTD (2014) 9 NWLR (PT.1412) 352
AT 386 stated that,
“Fraud must be
specifically pleaded with particulars supplied and evidence led on same.
Moreover, since fraud is a crime, it must be proved beyond reasonable doubt. In
the instant case, the averments of the appellant were completely bereft of
necessary particulars and fell short of the important requirements…” See also,
GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1
SCNLR 117; AINA V. JINADU (1992) 4 NWLR (PT. 233) 91.
71.
According to counsel that is the fate of the
Defendant’s allegation of forgery against the Claimants in the instant case.
Therefore, the DW1’s averment that exhibit L was forged must be discountenanced
as there is nothing before this Honourable Court to show that it was forged.
72.
In the same vein, the claimants proved the payment
they made to their Solicitors as professional fees for prosecuting this case
for them by tendering a receipt they obtained from their said Solicitor in
respect of that payment. It has been held in a plethora of cases that, payment
of professional fee to a lawyer falls in the category of special damages, which
must be specifically pleaded and strictly proved. In the case of FBN LTD V.
OWIE (1997) 1NWLR (PT.484) 744 AT 756, for instance, the Court of Appeal held
that,
“A lawyer’s
professional fee is not something to be proved by mere ipse dixit. This is because everybody knows that
lawyers issue receipt for any money paid to them. Thus, an averment of payment of fees to a lawyer can only
be proved either by tendering the receipt of payment or by calling the lawyer
paid to testify as a witness in court…”
73.
True to type, the Claimants tendered exhibit N in
proof of the payment they made to their Solicitors. There is no contrary
evidence in rebuttal of that payment from the Defendant.
74.
On the whole, on the balance of probability, counsel
urged the court to weigh the evidence of the claimants on an imaginary scale
against the non-existent evidence of the defendant. The only conclusion that
the court would arrive at is that the former have proved their case against the
latter. Counsel urged the court to resolve this Issue in favour of the
Claimants, against the Defendant.
75.
In concluding his submission counsel urged the court
to hold there is exists employment relationship between the Claimant and the Defendant, and the
relationship is that of service and not for service as contended by the
Defendant. That all the documentary evidence tendered and admitted as exhibits
in this case are admissible in the form/state they are tendered without more.
That the case of the Claimants is not statute-barred as contended by the
Defendant, as the cause of action arose in 2018 while this action was filed in
2022. That the allegation of forgery made against the 1st Claimant
by the Defendant in respect of exhibit L is not proved by the Defendant and,
thus, should be discountenanced. That Capt. Patrick Kekong, the Defendant’s
MD/CEO, who signed the appointment letters of the Claimants is the appropriate
authority empowered to do so on behalf of the defendant. That evidence of the
professional fee paid by the Claimants to their Solicitors was duly given and
proved by them before this Honourable Court. That the Claimants, on the
preponderance of evidence, proved their case and are entitled to all the
reliefs they seek before this Honourable Court. Counsel urged the court to
grant all the reliefs sought by the claimants and discountenance the
contentions of the defendant.
COURT’S
DECISION:
76.
I have considered the processes filed in this suit by
the parties, the evidence lad, as well as the written and oral submissions of
counsel for the parties.
77.
The claimants’ claim against the defendant primarily
is for payment of arrears of salaries, payment of salaries and other
entitlements to the 1st claimant in line with the terms and
conditions of his service from January, 2022 until he is properly disengaged
from the defendant’s employment, general damages in the sum of N100,000,000.00
(one Hundred Million Naira) in favour of the claimants jointly and severally
for breach of the terms of their contract of service with the defendant and
special damages in the sum of N5,000,000.00 (Five Million Naira)
against the defendant as coast of litigation.
78.
Let me say here the claimants have filed reply to the
defendant’s statement. The reply being the second pleading of the claimants is
to be accompanied by witness statement on oath. However, the reply was only
accompanied by three documents which were admitted in evidence under cross
examination of DW1, as exhibits DWA, DWB and DWC.
79.
On 5/12/2022 when CW1 testified and on 19/3/2024, when
CW2 testified, they only adopted their witness statements on oath filed on
19/1/2022. This left the pleading in the reply to the statement of defence bare
without any evidence in proof. The net effect of failure by the claimants to give evidence to breathe
life into their reply to the statement of defence, is that they are deemed to
have abandoned the reply. The rationale behind this principle which is
supported by long line of authorities is that averments in
pleadings, which are unsupported by evidence, are unavailing to the pleader as
they go to no issue, and so must be discountenanced. See the case of ODUTOLA
VS. PAPERSACK NIG LTD [2006] 18 NWLR (PT. 1012) 470. The explanation is very
simple. An averment in a pleading is not evidence in itself and cannot be
substituted for evidence. Such an averment does not therefore amount to proof
unless it is admitted. See the cases of ADAKE AND ANOR VS. AKUN [2003] 14 NWLR
(PT.840) 311; (2003) LPELR - 72 (SC) 9, PARAGRAPH G); AJUWON VS. AKANNI &
ORS [1993] 9 NWLR (PT.316) 182, 200; MAGNUSSON VS. KOIKI & ORS [1993] 9
NWLR (PT.317) 287. It is trite principle of our law that pleadings are not
evidence. Where a party files his pleadings but does not give evidence in
support of the pleadings, as in the case of the claimants reply in this case, they
are deemed to have abandoned the reply, as pleadings cannot constitute evidence
and as in the instant case, the pleading of the claimants as per their reply cannot
constitute evidence in proof of the reply. As mere averments without proof of
facts pleaded does not constitute proof of such facts unless such facts are
admitted. See the cases of WOLUCHEM VS. GUDI (1981) 5 SC 291; BASHEER VS. SAME
(1992) 4 NWLR (PT. 236) 491; UWEGBA VS.A-G, BENDEL STATE (1986) 1 NWLR (PT. 16)
303; ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (PT. 146) 578 AT 590 and F.C.D.A. VS.
NAIBI (1990) 3 NWLR (PT. 138) 270 AT 281 (P.10, PARAS.C - G) Per Mohammed, JSC;
Manarat Global resources ltd v Polaris Bank ltd
80.
The failure to call evidence to support the
pleading as contained in the reply to the statement of defence means that the claimants
are not challenging the statement of defence and the evidence presented by the defendant
as per its pleading, is uncontroverted.
81.
The law is trite that the parties as well as the court
are bound by the reliefs put forward by the parties. The duty of the court is
to determine the case in line with the evidence and law applicable to the facts
before the court made available by the parties.
82.
The defendant on its part denied the claim of the
claimants and states that there is no records in its custody showing that the
claimants held employment in its establishment on the positions and job
specifications claimed by them. There is also no valid contract of employment
placed before the court to enable the court to determine the rights of the
parties. The appointments letters tendered cannot qualify as valid letters of
appointment. They are incomplete, disjointed and not signed by the appropriate
person responsible for approving employment at the defendant’s office. They are
also not admissible in law. The claimants are relatives of the Managing
Director contracted independently, to which they were fully paid.
83.
The defendant stated that it had never owed salaries
of its legitimate employees from inception until the defendant’s business
operation suffered a serious glitch because of a fire accident on one of its
vessels, Niger Delta King, which accident occurred on 22/9/2014. The fire incident
put the defendant out of business as she could not earn enough income to
sustain its operation.
84.
According to the defendant the claimants have
exercised their rights to voluntarily resign their appointments on the dates
shown in the letter of resignation tendered. They were neither dismissed nor
their appointment wrongfully terminated by the defendant to warrant damages or
outstanding wage payments claimed by the claimants.
85.
The letter of 4/4/2018 did not emanate from the
defendant’s authorised officer to issue such a letter. Likewise, the letter of
introduction to bank did not emanate from the defendant and it was initiated
and written ultra vires the powers of the purported signatory and not
authorised by the board. It does not and has never given any undertaking or
reference for personal loans to any of its employees, directors, or independent
contractors. The letter of reference was a forgery, as at the date of the
letter 16/6/2014, its name was not Nkra investment ltd. As the defendant’s name
has as at 8/3/2013, changed and has become Nkra Marine limited.
86.
The action of the claimants has been barred on facts
and law relating to laches and acquiescence. There was lapse of time and
unreasonable delay by claimants in asserting their rights. As the claimants
were silent for over seven years. This amount to defendant believing that
claimants are no longer interested in pursuing their alleged right.
87.
Before delving into consideration of the case of the
claimants, I shall first and foremost consider the defences of statue barred, laches
and acquiescence raised by the defendant in their defence and argued in their
final written address.
88.
The defendant has argued that the claimants’ claim is
barred caught by the equitable doctrine of laches and acquiescence, due to
unreasonable delay spanning for a period of more than 7 years before going to
court to assert their rights.
89.
The claimants in their response have argued that they
are not guilty of any delay in instituting this suit before the court to claim
their arrears of unpaid salaries and damages. They have also argued that the
cause of action in respect of the 1st claimant arose in 2018 when
the 1st claimant submitted his letter of resignation, as against the
erroneous misconception by the defendant the cause of action arose in
2014. From 2018 to 2022 when this matter
was instituted is a period of 4 years, which is less than 6 years required as
per section 7(1) (e) of the limitation Law Cap 522 Laws of the federation,
1990. The contention of the defendant that the claimants’ action is statute
barred is incorrect. Counsel also submitted that all cases relied by the
defendant are distinguishable as they are all on land matters not on employment.
There are different limitation laws for land matters and recovery of debt.
90.
From the submissions of counsel for the parties, the
issue on the claimants’ suit being barred, can be categorised into two; the
first deal with statute of limitation and the second deal with equitable
defence of laches and acquiescence.
91.
The law is settled that where a statute
prescribes the period within which an action must be commenced, legal
proceedings cannot be validly instituted after the expiration of the period. And
when an action is statute-barred, a claimant(s) who might otherwise have had a
cause of action loses the right to enforce it by judicial process because the
period of the time laid down by the limitation for institution of such an
action has elapsed. See Oba J. A. Aremo II VS. S. F. Adekanye & Ors. (2004)
LPELR-544(SC), Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at
20-21.
92.
I quite agree with counsel for the
claimant that in order to determine period of Limitation; the originating
process commencing the action is to be
examined i.e. the pleading of the claimant alleging when the wrong was
committed which gave the claimant a cause of action will be considered and by
comparing that date with that on which the originating process was filed. If
the time on the originating process is beyond the period allowed by the
Limitation Law, then action is statute-barred. See the following cases:- Omotayo
VS. Nigerian Railways Corporation (1992) 7 NWLR PART 254 PAGE 471. – Egbe V. Adefarasin
(1987) 1 NWLR (Pt.47) 120; Shell Petroleum Development Company Ltd VS F. B. FARAH (1995) 3 NWLR (Pt.382) 48. – Anigboro
V. Sea trucks Nig. Ltd (1995) 6 NWLR (Pt.399) 35; British airways Plc v
Akinyosoye (1995) 1 NWLR (Pt.374) 722; Woherem
VS. Emereuwa (SUPRA); Military Administrator v Military Administrator Ekiti Ors.
93.
However, in the case at hand the case
was heard on the merit, this means the court will not restrict consideration of
the issue of statute barred only on the originating process. In KARSHI & ORS V. GWAGWA & ORS (supra),
it was explained succinctly: "Where the objection that the suit is statute
barred is considered and determined after the conclusion of evidence by both
sides, then the Court cannot ignore the evidence before it and pretend it does not
exist and determine the objection only on the basis of the originating
processes. At that stage, all the processes and evidence before the Court must
be considered, especially where the objection is determined as part of or along
with the final judgment on the merit of the dispute in the case, as has
happened in this issue. This approach pursues the substantial justice of the
matter and reduces the incidence or unscrupulous litigants, who, knowing very
well that their claim is already statute barred, coin or phrase their case in
such a manner as to hide or misrepresent the fact that it is statute barred to
exploit the principle that only the originating process should be considered in
determining the issue of when the cause of action accrued and abuse the process
of Court sending it on a futile trial of a stale cause that it lacks
jurisdiction to try. See also Mark Bako Useni V. Alexander Machika Attah & Ors.
(2023) LPELR-59880(SC).
94.
On the date of accrual of cause of
action, the position of the law is that a cause of action accrues only when a
right to make a challenge in respect of the subject matter against another
arises. See Nduka V. Ogbonna (SUPRA). In computation of time for the purpose of
limitation, the Court will not reckon with the date the affected party becomes
aware. The Court will only reckon with the date the cause of action accrued.
The view above is supported by the decision in Eboigbe V. NNPC (1994) 5 NWLR
PART 347 PAGE 649 AT 664, where it was held among others that; "This
statute of Limitation as other statutes, begins to run from the moment a cause
of action accrues, not when it is discovered. It is therefore not an answer for
a party, as the Appellant in the instant case, to rely on his absence from
within the jurisdiction or absence of Court within jurisdiction to hear the
matter".
95.
In Aremo ii v Adekanye (2004)
LPELR-544(SC), it was stated thus:
"The
period of limitation begins to run from the date on which the cause of action
accrued. To determine whether an action is statute barred, all that is required
is for one to examine the writ of summons and the statement of claim alleging
when the wrong was committed which gave the plaintiff a cause of action and
comparing that date with the date on which the writ of summons was filed. If
the time on the writ is beyond the period allowed by the limitation law, then
the action is statute barred. See the case of Egbe v. Adefarasin (1987) 1 NWLR
(Pt.47) 1 at 20-21." Per EDOZIE ,JSC (P. 18, paras. B-D)
96.
In determining the date on which the cause of
action accrues for the purposes of limitation law in the context of unpaid
salaries, the cause of action in a claim for arrears of salary typically
accrues when the salary becomes due and payable but remains unpaid. In the case
of British Airways Plc v. Akinyosoye (1994) LPELR-14175(CA), the court
addressed the period of limitation in a claim for breach of contract, which is
relevant to claims for unpaid salaries. The court held that the limitation
period begins to run from the date the breach occurs, which, in the context of
unpaid salaries, would be the date the salary was due but not paid. Applying
this principle to the scenario in this case, the claimants’ salary was last
paid for October 2014. This means by November, 2014, when the next salary would
have been due Therefore, the cause of action for the unpaid salary for November
2014 would accrue at the end of November 2014. This also means the dates the
claimants resigned their employment is of no moment. Furthermore, the claim is based unpaid salary and not unpaid
allowances.
97.
There is no dispute that this action was
instituted on 18th January 2022. This means from November, 2014 when
the cause of action arose to the date of filing in court of this suit, this
suit was instituted seven years after the accrual of the cause of action. The
relevant limitation period for contractual claims, including claims for unpaid
salaries, is generally six years, as established in Abubakar v. Michelin Motor Services
Ltd. (2020) LPELR-50837(SC). Therefore, the claimants in this case would need
to file their claim within six years from the date of accrual of cause of
action. Therefore, looking at the pleadings of the parties
and evidence adduced to the effect that upon their employment in 2008 and 2009,
respectively, the claimants were paid their monthly salaries through their
accounts with Polaris bank limited up to October 2014. But the defendant
suddenly stopped paying them their salaries from November, 2014 till date. See
paragraphs 4 and 5 of the statement of facts.
98.
It is clear as the day light that the
claimants cause of action in this case arose in November, 2014, when the
defendant stopped paying them their salaries and not in 2018 and 2021, when
they respectively submitted their respective letters of resignation from the
defendant’s employment. This is because the there is no challenge to
resignation. The case of the claimants is built on non-payment of salaries and
not on resignation. Therefore, the date of accrual of cause of action is from
November, 2014 which the claimants asserted the claimants stopped paying them
their salaries.
99.
It is glaringly clear from November,
2014 to 18/6/2022 when this suit was instituted it is a period of about seven
years seven months from the date of accrual of cause of action in this case. Going
by section 7(1) (e) of the Limitation Law Laws of the Federation relied by the
claimant which provide six years for recovery of debt (salary) this suit is
caught by statute of limitation of action.
100.
However, to me the law relied by the
claimant to submit that their case is not caught by limitation law is not applicable to this case. The relevant
law applicable to this case is the Limitation of Cross river State which by
section 16 it provides six years within which an action for recovery of debt of
on contract can be instituted by an aggrieved party like the claimants. The claimants
having not commenced this action within six years from the date of accrual of
cause of action, this suit is caught by section 16 of the limitation law of
Cross River State. The effect of this finding is that the claimant cannot be
allowed to maintained this suit as it is presently constituted. It is statute
barred same must be dismissed.
101.
The second leg of the defendant’s objection
to this suit is on laches and acquiescence. The claimants are of the view that
the equitable defence is not available to the defendant in this case as
according to counsel there is no unreasonable delay and the cases relied by the
defendants are dealing with land matters.
102.
Let me say here that the doctrine of
laches and acquiescence are indeed applicable to contracts of employment,
depending on the specific circumstances of each case. Laches refers to an
unreasonable delay in pursuing a right or claim in a way that prejudices the
opposing party. Acquiescence on the other hand involves a situation where a
party implicitly consents to a situation by remaining silent or inactive,
thereby losing the right to assert a claim later.
103.
The doctrine of
laches and acquiescence is an equitable defence that operates to bar a person
who has slept over his right for a long time from asserting his said right
against an innocent party. It has its roots in the equitable maxims that delay
defeats equity and that equity aids the vigilant and not the indolent. It
discourages stale demands in the interest of peace and orderly society and is
thus rooted in public policy. See Ageh Vs Tortya (2003) 6 NWLR (Pt 816) 385,
Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1, Atuchukwu Vs Adindu
(2012)6 NWLR (Pt 1297) 534. A claimant who sleeps on his right, if any, for a
number of years without claiming same or taking steps to protect such interest
cannot in later years make claim to same. See Daniel-Kalio Vs Daniel-Kalio
(2005) 4 NWLR (Pt 915) 305, Awure Vs Iledu (2008) 12 NWLR (Pt 1098) 249.Laches
essentially consists of substantial lapse of time coupled with the existence of
circumstances which makes it inequitable to enforce a claim. See Taylor Vs
Kingsway Stores of Nigeria Ltd (1965) NMLR 103, Oduola Vs ICC (1978) 4 SC 59,
Agbara Vs Amara (1995) 7 NWLR (Pt 410) 712, Adebo Vs Omisola (2005) 2 NWLR (Pt
909) 149 . Speaking on the meaning of laches, Iguh, JSC in Kayode Vs Odutola
(2001) 11 NWLR (Pt.725) 659 at page 683 quoted with approval dictum from the
English case of Lindsay Petroleum Co Vs Hurd (1874) L.R.S.P.C. 221 thus: "
The doctrine of laches in Courts of equity is not an arbitrary or technical
doctrine. Where it would be practically unjust to give a remedy, either because
the party has, by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and neglect he has,
though perhaps not waiving that remedy, yet put the other in a situation in
which it would not be reasonable to place him if the remedy were afterwards to
be asserted, in either of these cases, lapse of time and delay are most
essential. But in every case, if an argument against relief, which otherwise
would be just is founded upon mere delay, that delay of course not amounting to
a bar by any Statute of Limitation, the validity of that defence must be tried
upon principles substantially equitable. Two circumstances, are always
important in such cases, are, the length of the delay and the nature of the
acts done during the interval, which might affect either party and cause a
balance of justice or injustice in taking the one course or the other, so far
as relates to the remedy. "The term acquiescence, on the other hand, is
properly used where a person having a right, and seeing another person about to
commit or in the course of committing an act infringing upon that right, stands
by in such a manner as really to induce the person committing the act, and who
might otherwise have abstained from it, to believe that he assents to its being
committed; a person so standing by cannot afterwards be heard to complain of
the act.
104.
Having regards to
the facts that resulted in filing of this suit by the claimants, I have no
doubt in my mind that the claimants are guilty
of unreasonable delay in bringing this action. They have also shown by
their conduct that they have waived their right to salaries, otherwise how
could one be working for over seven years without salaries and stood by and do
nothing to assert their right.
105.
By remaining silent and in active, the
claimants have found themselves in a situation where they implicitly consent to
the situation they found themselves in thereby losing the right to assert their
claim. They stood by and watched the defendant trampled upon their rights
without doing anything to assert their right. Exhibit M a letter dated
17//11/2021 is not capable of salvaging the inaction of the claimants in this
case, as it was a letter written in anticipation of this action.
106.
The claimants
action apart from being statute barred is also caught by the equitable doctrine
of laches and acquiescent. In the circumstance this suit having been found to
be statute barred, caught by doctrine of laches and acquiescence is not
properly before the case is hereby dismissed.
107.
Having this court
being court of first instance, it is incumbent upon me to proceed to determine
the merit of the claimants’ suit. This is because in case of an appeal, the
Court of Appeal, will have the benefit of having the views of the court on the
claim of the claimants.
108.
I shall start by
addressing the issue of admissibility of the documents tendered by the claimant
in the course of the trial. The counsel for the defendant has in the course of
the trial indicated that he is objecting to the admissibility of three
documents sought to be tendered in evidence by the claimants through DW1 during
cross examination, the documents were tentatively ad mitted and marked as exhibits
DWA, DWB and DWC. The court granted parties permission to canvass argument on admissibility of the
documents being objected to in their final written addresses.
109.
In his final
written address counsel for the defendant canvassed argument on his objection
to the admissibility of exhibits DWA, DWB and DWC, on the grounds that the
documents were not pleaded nor were they frontloaded. Counsel further argued
that there was no nexus between the depositions of DW1 and the documents sought
to be tendered. In support of his contention counsel relied on the case of
Olaniyan v Oyewole (2008) 5 NWLR (Pt.1097) 114.
110.
In addition, counsel
also objected to the admissibility of exhibits A, B, C, D, E, F, G, H, I, J, K,
L, M, and N, tendered in evidence by the claimants. According to counsel these
documents were said to be secondary evidence to which no foundation was laid as
to the whereabouts of the originals, while relying on sections 83, 88 and 89 of
the Evidence Act, counsel urged the court to discountenanced the value of the
said documents in its determination. Since no foundation was laid in witnesses’
deposition or orally in court. In support of this contention counsel relied on
the case of Ezenwa Onwuzuruike v Damian Edoziem & Ors (2016)
LPELR-26056(SC).
111.
In his response to
the objection on admissibility, counsel for the claimants submitted that
exhibits A, B, C, D, E, F, G, H, J, and N (10 in number) as well as exhibits I,
K, L, M, DWA, DWB AND DWC (7 in number) tendered and admitted are all admissible without more in the state
and/or forms they were tendered. The first 10 documents are all original
copies, while the other seven exhibits are either copies of originals or
certified true copies of the originals. Counsel further submitted that exhibits
I, K and M, are documents which original copies are with the defendant, and
notice to produce them was given to the defendant but failed to produce. While,
exhibit L is with Polaris bank plc. For exhibits DWA, DWB and DWC, counsel
argued that they are public documents, of which the law allows only certified
true copies to be tendered in evidence. In support of this argument counsel
placed reliance on section 89(e) of the Evidence Act.
112.
I have thoroughly
considered the objection of counsel for the defendant on the admissibility of
documents tendered by the claimants. I have equally considered the response of
counsel for the claimants on the objection.
113.
Let me start with
exhibit DWA, this a document emanating from corporate Affairs Commission. It is
a public document. It is trite for a public document to be admissible in law it
must be the original produce or certified true copy in line with section 104 of
the Evidence Act. A careful examination of exhibit DWA will clearly show that
it is a photocopy, not an original or a certified true copy. In the
circumstances it is not admissible in law, having been wrongly admitted in
evidence it is hereby expunged. See Onwuzuruike v. Edoziem (2016) 6 NWLR 215. For exhibits DWB and
DWC, they are ruling and judgment of courts of law, therefore, they are public
documents. I have perused the said documents, it is clear to me that they were
certified as true copies, in the circumstance they have fulfilled requirement
of admissibility. The objection to their admissibility of these exhibits is based
on misconception of law. The objection is hereby dismissed.
114.
On exhibits A, B, C, D, J, and N, these documents are all originals they
do not need laying of any foundation. They are relevant to the issues in
contention, they have also been pleaded by the claimants. Having fulfilled the
requirement of admissibility, they are not inadmissible as the counsel for the
defendant has argued. In the circumstances the objection of counsel for the
defendant has no basis, as it was based on grave misconception of law. The
objection is hereby rejected.
115.
The next set of exhibits to consider
their admissibility are exhibits E and F, these documents were addressed to the
1st claimant. This means they are documents in the custody of the 1st
claimant. For photocopies to be admissible the law requires the 1st
claimant to lay foundation as to whereabout of the originals and why the
originals could not be produced. I have combed the entire pleading of the
claimants and the 1st claimant’s witness statement on oath, I could not find where foundation was
laid as required by section 90 of the evidence Act. All that was stated is that
the said job description and additional job description are hereby pleaded. It
is trite law that where there is proof that the original of a document has been
lost and all possible search for it has been made, the condition precedent for
admission of the secondary evidence of that document under Section 90(l)(c)
would have been satisfied and the document may be admitted in evidence. See
Ukachukwu v. Uzodinma (2007) 9 NWLR (Pt. 1038) 167, Onochie v. Ikem (1989) 4
NWLR (Pt. 116) 458, in the case at hand the claimants failed to satisfy
the requirement for admissibility of exhibits E and F, these documents being
photocopies and foundation having not been laid, no probative value can be
attached to them, but they are admissible.
116.
Exhibit L is a letter addressed to the
Manger Skye Bank Plc it was on letter head of Nkra Investment ltd, signed by
the Managing Director and 2nd claimant. In the case at hand there is
no dispute between the claimants and the defendant as the letter was authored
not by the defendant in the circumstances it is not relevant to this case since
it did not emanate from the defendant. In the circumstances, it is hereby
discountenanced for the purpose of this judgment.
117.
For exhibits I and K, they are letters
of resignation submitted by the claimants to the defendant, the defendant has been put on notice to produce the originals
in its custody but failed, these exhibits are relevant and have fulfilled
conditions of admissibility, the claimants are entitled to tender secondary
evidence as they did. See section 89(1)(a) (i) and (ii) of the Evidence Act,
2011, as amended. Therefore, the objection of counsel for the defendant to
their admissibility failed same is hereby dismissed.
118.
I now turn to exhibits G and H, which
are bank statement of accounts of the claimants. Exhibit G, seems to be
electronically generated document as at the top left-hand corner the date and
time of generation was there as 11/18/2021, 1:39pm. The web-site address of the
document is at the bottom of each of the 10 pages. It is said to be report by
Mary Ohobu Orabi, Staff No. 09913, Calabar Branch. The report covered period of
16/11/2 to 18/11/2021. The document was not signed. Even though the report was
to be up to 18/11/2021, at the end of the report it ended 31/5/2018. This means
some entries are missing. For exhibit H, it is statement of account of the 2nd
claimant it covers period of 13/1/2013 to19/11/2021. But at the end of the statement,
it ended on 1/11/2021. This means some entries are missing like in exhibit G.
119.
Exhibits G and H, being statements of
accounts of the claimants with Polaris Bank Plc, are admissible in evidence if
they fulfilled the requirements of sections 89 and 90 of the Evidence Act,
2011. Section 89 provides: "89. Secondary evidence may be given of the
existence, condition and contents of a document when - (h) the document is an
entry in a banker's book. 90 (1) The secondary evidence admissible in respect
of the original document referred to in the several paragraphs of Section 89 is
as follows: (e) in paragraph (h), the copies cannot be received as evidence
unless it is first proved that- (i) the book in which the entries copies were
made was at the time of making one of the ordinary books of the bank, (ii) the
entry was made in the usual and ordinary course of business, (iii) the book is
in the control and custody of the bank, which proof may be given orally or by
affidavit by an officer of the bank, and (iv) The copy has been examined with the
original entry and is correct, which proof must be given by some person who has
examined the copy with the original entry, and may be given orally or by
affidavit." However, Section 90 creates an exception wherein it makes
certain documents admissible under certain conditions. With particular
reference to Section 89 (h) and 90(1) (e), copies of entries in banker's books
are admissible in evidence under certain conditions. The fulfillment of that
condition shall be by oral or affidavit evidence showing that the Exhibits are
extracts from a Banker's book, kept by the banker and that the figures copied
out had been compared with the original and found to be correct. In considering
the admissibility of entries in books of or statements of account, Sections 51,
84, 89 and 90 of the Evidence Act, 2011 are relevant. Section 51 of the Act
makes admissible entries in books of account or electronic records regularly
kept in the course of business admissible whenever they refer to a matter into
which the Court has to inquire. However, the same section provides that such
statements alone shall not be sufficient evidence to charge any person with
liability. Under Section 89 (h), secondary evidence of the existence, condition
or contents of an entry in a banker's book is also admissible. The
admissibility of such an entry is, however, subject to the fulfillment of the
conditions stipulated under Section 90(1) (e). Section 84 allows for the
admissibility of a statement contained in a document produced by a computer;
banking practices have nowadays embraced use of computers as statements of
accounts are now generated electronically by use of computers. I note the
exhibits under consideration seems to be electronically generated which made
them also admissible under section 84 of the evidence Act upon fulfilments of
the conditions contained therein in that section. It has been held that in an
attempt to satisfy the conditions stated in Section 90 (i)-(iv), the evidence
of such is not required to be a verbatim reproduction of the facts in the
section. It is sufficient that the provisions are substantially complied with.
In Yesufu V ACB (1976) LPELR-SC.542/1975; (1976) NSCC 202 at 206, the Supreme
Court, per Fatayi-Williams, JSC, held thus: "It is not the length of
evidence given in tendering a bank statement of account that matters but the
substance of the evidence given; nor is it compulsory that the precise words
set out in Section 97(2) (e) should be used by the witness or the judge taking
down his evidence. It is enough that substantially the requirements of the
section are observed." Section 97(2) (e) of the Evidence Act referred to
therein, is in pari materia with Section 90(1) (e) of the Evidence Act, 2011,
as amended. See also Kubor V Dickson (2012) LPELR-9817(SC); Yassin V Barclays
Bank DCO (2001) FWLR (Pt. 44) 21; & IBWA V Imano Nig. Ltd (1988) 3 NWLR
(Pt. 85) 633, Elias v FRN & Anor (2016) LPELR-40797(CA)
120.
Once there is substantial compliance
with the provisions of Section 90 (1) (e) of the Evidence Act Banking documents
are admissible in evidence. Furthermore, since exhibits G and H, being (Statement
of Accounts) are not inadmissible, they are admissible subject to certain
conditions earlier explained. In the case at hand there is no evidence that the
claimants have fulfilled the conditions stipulated for admissibility of
admission of bank statement of accounts or entry made therein.
121.
It is pertinent to note that counsel
for the defendant has also argued that exhibits G and H are incomplete
documents since they did not capture all the salaries the claimant stated they
had been paid by the defendant. The law
is settled that once a document is pleaded the whole document will become
relevant. Since the whole statement of accounts have not been tendered covering
the period pleaded from beginning of claimants’ employment to October, 2014,
the statement of accounts are incomplete. In the circumstance, though the
documents are admissible in law this court cannot accord exhibits G and H, any
evidential value, due to its incompleteness.
122.
Having dealt with admissibility of the
exhibits, I shall now consider the reliefs being sought by the claimants. I
start with reliefs i and ii which are seeking for order of court directing the
defendant to compute, calculate and pay to the claimants their outstanding
salary arrears. For the 1st claimant the sum of N44,720,000.00 for
86 months and for the 2nd claimant the sum of N21,375,000.00 for 75
months.
123.
An employee claiming of arrears of
salary is required to establish a clear legal basis for the claim, supported by
cogent, credible admissible evidence. The first task to be performed by the
claimants in order to prove their entitlement to salary is to establish their employment
relationship with the defendant against whom the claim is being made.
Therefore, the claimants in this case must demonstrate that there is a
contractual obligation for the defendant to pay them salary. This can be done
by proving the existence of contract of service, which specify the salary of
the employee. This is because the Labour Act as per section 15, mandates
employer to pay wages as agreed in the contract of employment. The claimants
are also required to provide by evidence that the salary was not paid. This can
be by pay slip, bank statement of account, or any correspondence from the
employer acknowledging the arrears of salary. In the case of NCS Board &
Ors v Ijachi (2024) LPELR-62285(CA), the court emphasized the importance of
documentary evidence in proving salary.
124.
Also, in the case of Selcon Tannery Ltd
v Abubakar & Ors (2013) LPELR-21412(CA), the court discussed entitlement of
employee to payment of salary and other entitlement, if on the facts proved
before the court, they establish entitlement and non-payment. It is settled law
that the remedies available to an employee whose contract of employment has
been breached are his salary and other legal entitlements due to him in the
course of the employment and nothing more. See Chukwumah V. Shell Petroleum Co.
Ltd (1993) 4 NWLR (Pt 285) 512, Cooperative Bank Plc V. Essien (2001) 4 NWLR
(Pt 704) 479, Ativic V. Kabelmetal (Nig) Ltd (2008) 10 NWLR (pt 1095) 209.
125.
As pointed out earlier the burden of proof is on the employees
(claimants) to prove entitlement to salary arrears. However, once a prima facie
case is made out or established, the burden will shift to the defendant to
justify non-payment, as seen in Balou v Federal College of Education, Obudu
& Anor. (2019) LPELR-47465(CA).
126.
What is clear from the decided authorities
respecting payment of salary to employee is that both the claimant and the
defendant has specific responsibility in the proof or disprove. The obligation
of the parties was well captured in the case of Honika Sawmill (Nig.)
Ltd. v. Hoff (1992) 4 NWLR (Pt. 238) 673 @ P.679, paras. C-D, where the court
stated thus:-
‘’As between an employer and an
employee, the onus is on the employee to prove that the employer employed him
on a stipulated salary and that he worked for the employer during the relevant
period. It is for the employer to prove not only that he paid the employee his
salary for work done by the employee in the relevant period but also how much
the salary that he paid to the employee was’’.
127.
In the case at hand the claimants have
tendered exhibits A, B, C, D, E, F, G,
H, and K, in proof of their employment with the defendant. But, the defendant
is alleging conflicting evidence regarding alleged claimants position with the
defendant. The defendant insisted that the claimants admitted at the hearing
that they operated a company called KT Offshores Limited, a crewing company
that shared same office space with the defendant while claiming to be employees
of the defendant at the same time. According to counsel for the defendant this
evidence makes it most unlikely for the court to conclude that the claimants
were in to full time employments simultaneously. Counsel also submitted this
raises substantial doubt in the minds of any reasonable person that the claimants
were employed by the defendant under a contract of service and not a contract
for service relationship. Counsel submitted there is no duty of employment
between the defendant and the claimants, who at the material time, operated and
ran a full-time business with a company called ‘KT Offshores Limited’’, which
is their employer. This submission was not made based on the correct evidence
before the court. There is nowhere the claimants stated that or accepted they
are operating a company called ‘KT OFFSHIORE LTD’. What is before the court is
that under cross examination the 1st claimant in answer to question
put to him by counsel for the defendant stated that he serves as a nominal director
of ‘KT OFFSHORE LTD’ as a nominal director which share premises with the
defendant. The company was doing crewing for other companies. The company does
not offer any services to the defendant. The 1st claimant maintained
that he was not offered services by KT OFFSHORE LTD.
128.
It is clear that counsel for the
defendant is attempting in his address to give evidence which is not allowed.
For counsel to rely on evidence he must plead the said evidence and adduced
evidence in proof of pleading. It is also to be noted that the 2nd
claimant was never asked any question on him being operating ‘KT OFFSHORE LTD
or being its employee. This means that it is only the 1st claimant
that admitted being nominal director of the defendant and not the 2nd
claimant who had no any dealing with ‘KT OFFSHORE LTD’.
129.
The defendant maintained that no records
in its custody show that plaintiff(sic) held employment in its establishment
for the positions and job specifications claimed and that no valid employment
contract has been placed before the court to enable the court to determine the
parties’ rights. The claimants have failed to prove that they were employed as
Executive Directors and Chief Accountants in the defendant, respectively.
Neither have they adduced any evidence showing that they were used and
performed such duties in the positions they now claim to. As the appointment
letters cannot qualify as valid letters of appointment and are inadmissible for
offending section 89 of the Evidence
Act. Besides being incomplete, disjointed, and not signed by the appropriate
person responsible for approving employment at the defendant’s office. The
defendant stated that the claimants are mere relatives of the Managing
Director, Capt. Patrick Kekong contracted for services independently, for which
they were fully paid.
130.
The defendant also submitted contrary to
the alleged status shown in the appointment letter as Executive Director of the
defendant, the 1st claimant, in his purported resignation letter of
8/2/2018, tendered resignation as Head, HR/Admin of the defendant, thus
inconsistent with his claimed position in his sworn witness statement and
claim.
131.
It is submitted that the statement of
accounts are disjointed and does not cover a substantial of the defendant period
their purported employment before the period complained of for unpaid wages to
prove such regular earnings consistent with their claim of the defendant’s
employees for the said period.
132.
It was also submitted that claimants
have exercised their rights to voluntarily resigned their employment on the
dates shown in their letters of resignation.
They were neither dismissed nor their appointment wrongly terminated by
the defendant to warrant any damages or outstanding wage payments claimed by
the claimants.
133.
As pointed out earlier in order to
resolve issue of entitlement to arrears of salaries being claimed by the
claimants, the issue of claimants being employees of the defendant or not must
be resolved.
134.
Let me say here that counsel for the
defendant has in his submission made sweeping generalized submission assuming
that the claim of claimants is one and the same thing. The claimants are very
clear that they were employed by the defendant at various times and on
different position. In the circumstances the claim of each of the claimants on
employment must be treated separately. The submission of counsel for the
defendant clearly alluded that the claimants are not in contract of service
with the defendant, but were in contract for service for having been engaged by
their relation the Managing Director of the defendant and they have fully been
paid. Under
the Nigerian Labour law, distinguishing between a 'contract of service' and a
'contract for service' is crucial as it determines the rights and obligations
of the parties involved, particularly in terms of employment benefits,
liabilities, and statutory protections.
135.
A 'contract of service' refers to an employment
relationship where an individual (the employee) agrees to work for an employer
under certain terms and conditions. This type of contract is characterized by a
master-servant relationship, where the employer has control over the work
performed by the employee, including how, when, and where the work is done.
Employees under a contract of service are entitled to various employment
benefits which are spelt out in the terms and conditions of service governing
the employment. See Shena Security Co. Ltd. V Afropak Nig. Ltd & Ors.
(2008) LPELR-3052(SC),
136.
Conversely, a 'contract for service' is an
agreement where an individual or a company (the contractor) is engaged to
perform a specific task or project for a client. The contractor operates as an
independent entity and is not subject to the same level of control by the
client as an employee would be by an employer. Independent contractor engaged
in contract for service are responsible is not entitled to employee benefits. As
an independent contractor has the autonomy to decide how to execute the work,
often using his/her own tools and methods.
137.
The distinction between these two types of
contracts has received the blessing of our courts. For instance, in 'SHENA
SECURITY CO. LTD v. AFROPAK (NIG) LTD & ORS' (2008) LPELR-3052(SC), the
Supreme Court has provided guidance on factors to be considered in determining
whether a contract is that of service or for service, the tests such as the
degree of control, payment of salary, allowances, ownership of tools, and the
opportunity for profit or loss as indicators of the type of contract. Also in
'BIOKPO v. NDLEA & ORS' (2021) LPELR-56250(CA), the court highlighted the
importance of control, integration, and mutuality of obligation in determining
the nature of the contract.
138.
In the case at hand, the claimants have tendered
exhibits A, B, C, D, E, F, G, H, K, DWB and DWC, as evidence establishing their
employment relationship with the defendant. The defendants on its part did not
tender any document in evidence in the course of trial, even though documents
were frontloaded by the defendant, but they were never tendered in evidence.
The reference made by counsel for the defendant to the frontloaded documents
which were never tendered in evidence must be discountenance for the simple
reason that section 128 of the Evidence Act, 2011, has made it clear that the
contents of a document must be proved by the document itself or secondary
evidence where admissible. This implies that for a document to be relied upon
by the court, it must be properly tendered and admitted as evidence. The act of
frontloading documents, which involves filing them along with pleadings, does
not automatically make them admissible unless they are formally tendered and
admitted during the trial. See the case of UNICAL & ORS v. EFFIONG &
ORS (2019) LPELR-47976(CA), where the court emphasized that it can only make
use of exhibits properly tendered before it. Similarly, in OBU & ANOR v.
OKIGWE & ORS (2018) LPELR-43938(CA), the court held that documents pleaded
but not tendered at trial cannot be relied upon for the determination of a
matter. The courts have consistently held that reliance on documents not
tendered as exhibits would be contrary to the principles of fair hearing and
the rules of evidence. In ISMA'IL v. STATE (2024) LPELR-62404(CA), the court
reiterated that reliance on documents not tendered as exhibits is
impermissible. In the case at hand the failure and refusal by the defendant to
formally tender the frontloaded documents in evidence during trial is fatal to
the utility of the document, they have no utilitarian value as the court will
turn a blind eye to the documents, as they cannot be used for the purpose of making
decision.
139.
The case of the defendant to the effect that
there is no record of claimants’ employment with it, has not been backed up by
any concrete evidence. The defendant’s need to go further to establish how the
defendant conduct recruitment and the sample of its contract agreement with
employees, the mere denial and saying that the letters of employment tendered
by the claimants are incomplete and disjointed cannot hold water. The defendant
has a duty to prove his assertion which it has failed to prove. It is also on
record that the Managing Director who signed exhibit A, C, E and F, was in
court representing the defendant in the course of the trial and he was never
called as witness to testify on the falsity or non-accuracy of the said letters
of employment confirmation of the 1st claimant. DW1 who testified on
behalf of the defendant was not shown to be in charge of employment or staff
matters in the defendant, he has also not established his source of information
on the issue of employment that he testified not to have existed. A party
calling a witness is expected to call a witness that has personal knowledge of
the facts on which he is to give evidence on. A witness that has not personally
participate in the transaction on which he has given evidence will render the
evidence not to be accorded any value. See: Kate Ent. Ltd. v. Daewoo
Nig. Ltd.(1985) 2 NWLR (Pt. 5) 116, Anyaebosi v. R.T. Briscoe Ltd. (1987) 3 NWLR (Pt. 59) 84 and lshola v. Societe Generale Bank (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405 at 424. In the case at hand the evidence of
DW1 will not be accorded much value since the appropriate official was even in
court but was not called as witness.
140.
The defendant had also made heavy weather on
claimants being in full employment of ‘KT Offshores Limited’ this has not been
supported by any concrete admissible evidence, though the 1st
claimant has admitted being director of the said ‘KT Offshores Limited’ in the
capacity as nominal director. For the 2nd defendant there is no iota
of evidence linking him with ‘KT Offshore Limited’. Therefore, the claim of the
defendant or suggestion to the court that claimants are employees of KT
OFFSHORE LTD or were engaged by the Managing Director independently and have
been fully paid has no support from the evidence before the court. The
defendant has woefully failed to establish that claimants are independent
contractor.
141.
The defendant has also not adduced evidence
showing that the claimants were engaged by the Managing Director of the
defendant as independent contractors and they were fully paid for services
rendered to the defendant, as no evidence of the full payment has been adduced
before the court by the defendant. This assertion is a positive assertion in
which the law requires the defendant who made the assertion to prove it, having
failed to prove the assertion, this defence has failed.
142.
Still on the assertion that the claimants were
in full employment of ‘KT Offshores Limited’ the defendant, need to also show
that the defendant has in its conditions of service prohibits its employees
from engaging on any business a part from maintaining their employment with the
defendant. In the context of Nigerian
law, the Companies and Allied Matters Act (CAMA) 2020, which governs corporate
affairs in Nigeria, does not explicitly prohibit a full-time employee from
being a director in another company. However, contract of service being a
binding agreement between parties may have clauses that barred employee from
being a director in another company whether nominal or otherwise. In the case
at hand the defendant has not shown by its conditions of service such a venture
is not allowed or there is a prohibition to that effect.
143.
Since there is nothing before me to show that
the defendant has restriction on its employee from being director in another
company, the defendant has woefully failed to prove that the 1st
claimant being a director in another company is against the defendant’s
conditions of service.
144.
It is also important to point out that the
article of Association of the defendant which would have prohibitions on
restrictions on directors to hold any position in any other company is not
properly before the court though frontloaded it has not been tendered in
evidence. I have looked at the Article of association in its present state it
is incomplete as page 13 is missing which should have brought out the
restrictions if any on a director of the defendant from being a director in
another company. Even if the Article of Association has been tendered in
evidence it would not have been of any assistance due to its incompleteness.
145.
Even though there is no any evidence of
prohibition of an employee of the defendant holding directorship in another
company, it will however, amount to conflict of interest for an employee of the
defendant to hold directorship in another
company more particularly when there is evidence that the company in which the
1st claimant is a director is engaged in business in which the
defendant has interest in i.e. crewing. In the case of 'MAINSTREET BANK
REGISTRARS LTD v. UKANDU', the court discussed the nature of directorships and
the potential conflicts that can arise when an individual holds multiple
directorships.
145.In
conclusion, while there is no outright prohibition under Nigerian law for a
full-time employee to be a director in another company, it is crucial and advisable
for individuals to seek approval from their primary employer and ensure that
their directorship in another company does not conflict with their duties or
create a conflict of interest. Failure to adhere to do so could lead to
disciplinary action being taken by the employer and the defendant has not taken
any disciplinary action against the 1st claimant for being a
director in another entity.
146.
In any event in determining existence of
contract of service or contract for service, it is the given facts that
determine the nature of the contract and not what the parties called the
relationship in the way they see it. In the case at hand, applying the principles
of law enunciated in the case of Shena Securities v Afropak ltd (supra), to the
facts of this case, it will be correct to state that the relationship that
existed between the 1st claimant and the defendant from 2008, when
he was engaged as executive director as per exhibit A, to 2013, is not that of
contract of service. The reason being that by his own admission prior to
reorganization of the defendant which culminated in change of name and removal
of 1st claimant as director of the defendant the 1st
claimant was being paid allowances. In law payment of allowances to an engaged
employee does not create contract of service between the claimant and the
defendant.
147.
However, from 2014 to the date of resignation,
the claimant was supposed to have contract of service with the defendant, this
is because as from the reorganization the claimant started earning salary which
has not been backed up by evidence, as exhibits G and H, have been found not
have any evidential value.
148.
For the 2nd defendant from 2009 when he was employed as
per exhibit B he is into contract of service with the defendant this is because
his letter of engagement clearly stated his position and stipulated the salary
on which he was engaged. See Honika Sawmill v Hoff (supra) and Shena Securities
v Afropak Ltd (supra).
149.
Now, coming to the claim for arrears of salary,
the claimant is claiming arrears of salary for 85 months from November, 2014 to
the date of filing this suit. There is evidence before me which is not disputed
that the 1st claimant resigned from the employment of the defendant
vide exhibit I, Letter dated 8/2/2018. This means from 2018 the claimant was no
longer an employee of the defendant. This was despite the fact that the
defendant has put the 1st claimant’s employment on hold as per
exhibit J. The law is trite once a letter of resignation has been received by
the defendant (Employer) it has become effective. In law, it is not open to
employer to reject a letter of resignation by an employee. Thus, the position
of the law is that notice of resignation
takes effect not from the date of the letter or from the date of any purported
acceptance but from the date on which the letter was received by the employer.
See WAEC v Oshienebo (2006) 12 NWLR (Pt.994) 258. Once a letter of resignation
is tendered by an employee, the employer has no option than accept same. While
there exists an inherent power in an employer or servant to resign from his
employment, there appears however, to be no discretion in an employer or master
to accept same. The kernel of this principle is that resignation is not
amenable or subject to rejection, it is automatic once letter of resignat6ion
is delivered to the employer. See Benson Onitiri (1960) NSCC 52 2 62; Adefemi v
Adegunde (2004) 15 NW:LR (Pt.895) 1(CA). The employer has no right to reject
such letter of resignation. To put the letter on hold will amount to violation
of the claimant’s right against forced labour. The Constitution and the Labour
Act as well as ILO convention have made forced labour unacceptable in law.
150.
This means the 1st claimant in this
case cannot claim arrears of salaries from November, 2014 to the date of filing
this suit. This means the claimant can only claim arrears of salary from
November, 2014 to the date of his resignation
i.e. 8/2/2018. The claimant can only claim arrears of salary for the
period he was validly in service prior to tendering of resignation. See Udegbunam
V FCDA (2003) 10 NWLR (Pt.829) 487 SC, Underwater Eng. Co. Ltd v Dubefon (1995)
6 NWLR (Pt.400) 156 SC,
151.
Having regard to the foregoing, analysis the
claimant is only entitled to claim arrears of salary for 39 Months which are
the months the defendant did not pay him from November, 2014 to 8/2/2018, when
he resigned his appointment. However, in the case at hand the claimant has not
been able establish his salary, this is because exhibit G tendered as proof of
salary has been found not to have any evidential value due to non-compliance
with provision of the evidence Act. Furthermore, the defendant has challenged
the claimant to prove all the salaries paid to him by the defendant as claimed,
since the defendant has denied the claimant being its employee. The 1st
claimant has woefully failed to prove regularity of payment of salary from the
defendant for the court to find in his favour. Exhibit G apart from
non-compliance with evidence Act did not reflect all the payment of salaries
the claimant stated he had received from the defendant. As pointed out earlier
the law is that reference to document is reference to the whole document since
the claimant has not tender his statement of account showing payments for the
period the statement is supposed to cover, the incomplete statement of account
exhibit G is of no assistance to the case of the 1st claimant.
152.
In his pleading and evidence, the 1st
claimant stated that he was last paid by the defendant in October, 2014. Consequently,
his claim is from November 2014 to date. However, a careful perusal of exhibit
G will show that the claimant was paid salary for January, 2015 on 20/2/2015, also
on 6/5/2015 claimant was paid another salary for February, 2015. I note also
that there is no entry in exhibit G of payment of claimant’s salary for July,
August, October 2014. These inconsistencies in the claim of payment of salary
by the 1st claimant has rendered proof of his salary suspect. It is
noted that claim for salary is a claim for special damages in which the law
requires the claimant to specifically plead it, particularized and strictly
prove by concrete admissible evidence. In the case at hand the 1st
claimant has woefully failed in his duty to strictly proved his claim for
arrears of salary. In the circumstance the claim is hereby refused and
dismissed.
153.
For the 2nd claimant he has vide
exhibits B, and D, established that he was employed by the defendant as Chief
accountant. The terms and conditions of service are attached to the letter of
employment exhibit B. in the letter of employment the claimant’s salary was
stated to be the sum of N90,000.00 per month. Vide exhibit D the 2nd
claimant’s employment was confirmed upon completion of 6 months’ probation.
According to 2nd claimant his salary progressed to the sum of
N250,000.00. Upon his employment he was paid salaries through his accounts with
Polaris bank up to Oct0ober, 2014, but, the defendant suddenly stopped paying
salaries from November, 2014 till date. The 2nd claimant tendered
his resignation letter on the 4/1/2021.
154.
An employee who has resigned his appointment is
entitled to claim arrears of unpaid salaries. The claimant vide this suit is
claiming 75 months arrears of salaries in the sum of N21,375,00. As pointed out earlier in a claim for salary
the claimant is duty bound to prove his employment with the defendant and the
salary on which he was appointed. As found out the claimant has proved his
employment. The only area of dispute is on salary, because the claimant has
asserted that his salary progressed up to N250,000.00. The defendant exhibit H,
was found not to have any evidential value, this means there is no documentary
evidence to prove claimant’s salary. With the denial by the defendant of paying
2nd claimant salary as alleged and challenging him to prove payment
of salary as alleged. Exhibit H is of no assistance due to lack of evidential
value. Assuming but not conceding that exhibit H has evidential value, it will
still not have assisted the case of the 2nd claimant due to
inconsistencies on his salary. it is to be noted that exhibit H did not capture
all the salaries said to have been paid by the defendant. I have earlier found
exhibit H not to have any evidential value due to non-compliance with evidence
Act. In addition, exhibit H, is incomplete document for not capturing all the
salaries said to have been paid. Furthermore, the claimant alleged he was paid
last by October, 2014 and his claim is from November, 2014. I note there is no
evidence claimant was ever paid October 2014 salary. There is also entries
showing claimant was paid January and February, 2015 salaries. The law is
settled claim for salary is a claim for special damages which the law requires
that it to be specifically pleaded, particularized and strictly proved, the
claimant having failed to strictly proved his salary he is not entitled to
claim for unpaid salaries.
155.
Relief iii is seeking for an order directing the
defendant to pay the 1st claimant his monthly salaries and all his
entitlement in line with the terms and conditions of his service from January,
2022 until he is properly disengaged from the defendant’s service. This claim
was based on clear misconception of law. The reason being that as from the
8/2/2018 when the 1st claimant tendered his letter of resignation,
he was no longer employee of the defendant. The letter putting his resignation
on hold notwithstanding. The claimant having tendered his letter of resignation
cannot claim any salary from January, 2022 till he was properly terminated as
there was no any live contract existing between the claimant and the defendant
as from 8/2/2018 when he resigned.
156.
The defendant has also stated that the claimant
has not rendered any service to it. For the claimant to be entitled to salary
he must prove that he had served the claimant for the period of claim having
not establish that this relief cannot be granted.
157.
Reliefs iv and v are ancillary claims dependent
on grants of the main reliefs I, ii and ii. These reliefs having failed the
ancillary relies on damages and cost of litigation must fail as well.
158.
From all I have been saying above the claimants
in this case have woefully failed to prove entitlement to any of the reliefs
sought. This case having been earlier been found to be statute barred and
caught by the doctrine of laches and acquiescence is hereby dismissed.
159.
Before dropping my pen, let me say here that this action is a
classical example of the saying ‘procrastination is thief of time’ the
devastating effect delay in taking decision to exercise the right which a party
possessed, is the loosing of such right. The claimant in this suit have by
their refusal to timeously bring an action, ended up in allowing their rightful
claim to become stale. This is sad as there is nothing the court could do to
assist the claimants due their own delays. The conduct of the claimants can
best be described by the equitable maxim which says; ‘‘delay defeat equity’’ or
that ‘’equity aids the vigilant and not the indolent.’’ The claimants in this
suit, slept over their right and acquiesced to dissipation of their right for a
great length of time. If claimants have been vigilant and diligent their story
would have been different. In view of the foregoing findings, I hereby hold
that the claimants’ suit was not instituted within the period allowed by the
law. The action is therefore statute barred and it has also been caught by the
doctrine of laches and acquiescence same is hereby accordingly dismissed.
160.
I make no order as to cost . parties to bear
their respective costs.
161.
Judgment is hereby entered accordingly.
162.
Sanusi Kado,
Judge.
REPRESENTATION.
Dr. Paul O. Ebiala, Esq; counsel for the
claimants
Defendant not represented on the day of judgment.