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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 2ND DECEMBER 2025                              SUIT NO: NICN/IB/16/2023

 

BETWEEN:

Mr. Musiliu Alaba Monsuru               -             -            -                  Claimant

 

AND

1        Sparkwest Steel Industries Limited

2.       Mr. Niyi Oyedele

          (Managing Director, C.E.O, Sparkwest Ind. Ltd) -       -           Defendants

REPRESENTATION

Rasheedat Akinrinde with R. Jigan and

Moyosore Adedokun for the Claimant

Chief C. N. Nwuke for the Defendants

 

 

JUDGMENT

1.     Introduction & Claims

1.       The Claimant approached this Court by his General Form of Complaint, statement of facts and other frontloaded processes on 26/1/2023. By his amended Statement of Facts dated 26/2/24 filed on 8/3/2024, the Claimant sought the following reliefs against the Defendants -

1                    A Declaration that discriminatory labour practice is an unfair labour practice, which is contrary to section 254C(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

2                    A Declaration that the calculated 13th month’s salary at the maximum rate provided in the Staff Handbook (the Conditions of Service) for some members of staff of the 1st Defendant for the years 2016-2019 & 2021 – 2022 and the denial of same to the Claimant is discriminatory and an unfair labour practice.

3                    An Order of this Honourable Court directing the Defendants to pay the Claimant the sum of =N=145,557.7 (One Hundred and Forty-Five Thousand, Five Hundred and Fifty-Seven Naira, Seven Kobo) being Claimant’s earned but unpaid 13th month’s salary for the years 2017, 2018, 2019 and 2021, for which the Claimant completed full years in service pursuant to Section 3.6 of the Staff Handbook.

4                    Any other order(s) which the Honourable Court may deem right to make in the circumstances of this case.

2.       The Defendants reacted by filing a Statement of Defence on 8/4/2024 along with witness deposition, list and copies of documents to be relied on at trial as well as list of witnesses.

2.     Case of the Claimant

3.       The Claimant opened his case on 5/2/2025 when he testified in chief as CW1. Witness adopted his witness depositions of 8/3/2024 and 7/6/2024 as his evidence in chief and tendered 14 documents as exhibits. The documents were admitted in evidence and marked as Exh. MAM1 to Exh. MAM14. Learned Counsel to the Defendants did not cross examine CW1.

3.     Case of the Defendants

4.       On 5/2/2025 when the Claimant closed his case, learned Counsel to the Defendants did not cross examine the witness for the Claimant. Counsel also informed the Court that he would rely on the case of the Claimant as laid out and would not call any evidence of its own.

4.     Final Written Addresses

5.       The final written address of the Claimant of 16 pages was dated 3/3/2025 and filed on 5/3/2025. In it learned Counsel set down a lone issue for determination thus -        

 

Whether having regard to the totality of the evidence on record before this Honourable Court, the Claimant has proved his case against the Defendants to be entitled to the reliefs sought.

 

6.       Arguing this lone issue, learned Counsel submitted that the Claimant carries the burden of proving his case by placing before the Court his terms and conditions of work and showing what the Defendants have done wrong citing Oloruntoba-Oju & Ors v. Abdul Raheem & Ors (2008) LPELR-2596(SC) & Sections 131 & 132, Evidence Act, 2011; that the reliefs sought by the Claimant are akin to claims in special damages which must be strictly proved citing Evang v. First Bank (2019) LPELR-49055(CA) & Obasuyi & Anor v. Business Ventures Ltd (200) LPELR-2155(SC). Counsel referred to section 3.6 of Exh. MAM3 which provides for a 13th month salary up to a maximum of one-month basic gross salary to the employee to be paid in December of each year and which is tied to performance. Learned Counsel submitted that the Claimant pleaded the facts relating to the fact that Claimant was not as expected; that Claimant’s entitlement for the years 2017 to 2019 and 2021 is the sum of =N=145,557.7 using Claimant’s monthly basic salary as calculated from Claimant’s annual basic salary as stated in Exh. MAM1 & Exh. MAM4 and that the Defendants did not deny their non-payment of the 13th month salary to the Claimant but claimed that unproven bad financial performance of the 1st Defendant was responsible for the non-payment of the 13th month salary. Learned Counsel further submitted that the 13th month salary is different from performance bonus which is covered by section 2.13 of Exh. MAM3 and that there is evidence that the 1st Defendant paid same 13th month salary to some other employees citing Exh. MAM6-Exh. MAM13. Counsel urged the Court to hold that refusal of the Defendants to him his 13th month salary is unjustifiable discriminatory and unfair labor practice and order the payment of same to the Claimant.

 

7.       On effect of failure of the Defendants to call evidence in support of their pleadings, learned Counsel submitted that the pleadings filed by the Defendants must be deemed abandoned and hence moribund and the Defendants must be deemed to have accepted all the pleadings and evidence led by the Claimant in proof of his case citing Fairline Pharmaceutical Industries Ltd & Anor. v. Trust Adjusters Nigeria Ltd (2012) LPELR- 20860(CA). Learned Counsel prayed the Court to so hold and grant all the reliefs sought by the Claimant.      

 

8.       The final written address of the Defendant was dated 28/5/2025 and filed on 29/5/2025. In it learned Counsel set down 2 issues for determination thus –

1.                 Whether the 2nd Defendant is a proper party to the action of the Claimant as presently constituted.

2.                 Whether by the terms of Claimant’s employment with the 1st Defendant he is entitled to the 13th Moth Salary every year of his service with the 1st Defendant.

9.       On the first issue, learned Counsel submitted that the only person who is to be directly or indirectly determined and affected by any decision in an action before any Court, needs to be made a party citing Lamido & Ors. v. PDP & Ors (2020) LPELR-55828(CA); that the guiding principles in the determination of who is a necessary party in a suit are laid down by the Supreme Court in Adeniran v. Olusokan (2019)8 NWLR (Pt. 1873) 98; that throughout the entire amended statement of facts as well as evidence led by the Claimant no iota of allegation is made against the 2nd Defendant beyond being the Managing Director of the 1st Defendant; that the 1st Defendant is an independent personality citing Salomon v. Salomon (1897)AC 22; that the 2nd Defendant as Managing Director is merely an agent of the 1st Defendant and that except where there is a personal claim against him he cannot be made an action against the 1st Defendant because a Director I never personally liable for the acts of the Company unless personal wrongdoing is established against him citing NDIC v. Oken Enterprises Ltd (2004)10 NWLR (Pt. 880) 107 & Onyekweli v. INEC (2009)6 NWLR (Pt. 1136) 13. Learned Counsel in as much the 2nd Defendant is an agent of a disclosed principal and there being no allegation and proof of any personal wrongdoing against him in this action, the 2nd Defendant is not a proper party to this action and that this Court lacks jurisdiction to make any findings against him. Counsel urged the Court to hold as such.

 

10.     With respect to the second issue, learned Counsel submitted that a contract of employment is a specie of contract to which the parties once they had entered are bound by its terms citing FBN v. Emenike & Ors (2022) LPELR-58536(CA) & NUHPSW v. Outsourcing Services Ltd (2023) LPELR-60683; that the terms and conditions, especially the emoluments of the Claimant were all set out in his letter of appointment – Exh. MAM1; that nowhere in the exhibit is it stated that the Claimant shall be entitled to a 13th month salary every year of his service with the 1st Defendant and that the law is trite that parties cannot read into the agreement what is not therein contained.

 

11.     Learned Counsel submitted that he conceded that Claimant was given Exh. MAM3 – Employee’s Handbook; that Claimant relied on Clause 3.6 of Exh. MAM3 which refers to a 13th month salary to found his relief but that a community reading of clause 12 of Exh. MAM1 and clause 3.6 of Exh. MAM3 will show that the parties never agreed that the payment of the 13th month salary will be automatic or compulsory every year; that such payment as expressly stated in Exh. MAM3 is tied to performance; that the performance is related to the performance of the 1st Defendant rather than that of the Claimant; that if the parties intended to make the payment dependent on the performance of the employee, the Staff Handbook would have stated as such expressly; that any attempt to interpret performance as synonymous to employee’s performance will be tantamount to reading into the document what is not therein contained or provided citing Intercontinental Bank v. Testwide (Nig.) Ltd & Anor (2020) LPELR-52493(CA); that the Claimant ought to have requested and obtained policy interpretation from the Human Resources Department of the 1st Defendant as he is entitled to do as per his contractual terms; that having failed to do so there is no basis to find in favor of the Claimant that he is entitled to the 13th month salary. Learned Counsel submitted further that Claimant failed to provide any evidence to substantiate his allegation of discriminatory practices against him by the 1st Defendant; that Claimant was paid all that were contained in his contract with the 1st Defendant; that Exh. MAM6 – Exh. MAM11 to prove that the 1st Defendant paid some other persons the 13th month salary have no evidential value citing Section83(1)(a & b), Evidence Act, 2011 as amended; that Claimant was neither the maker of the exhibits nor have personal knowledge of the statement contained in the exhibits and that the exhibits have no probative value citing Dunny v. A.G, Taraba State (2012)LPELR-15532(CA) and that the condition precedent to the payment of the 13th month salary to the Claimant does not exist. 12.        Learned Counsel prayed the Court to dismiss the case of the Claimant in its entirety.

5.     Decision

13.     I have carefully read and understood all the processes filed by the parties on either side. I listened attentively to the testimony of the sole witness of the Claimant and watched his demeanor. I patiently reviewed and evaluated all the exhibits tendered by the Claimant. I, in addition, heard the oral submissions of the learned Counsel for the parties at the stage of adopting their final written addresses. Having done all this, I set down these issues for the just determination of this suit as put forward by the Defendants as follows –

1.     Whether the 2nd Defendant is a proper party to this suit as constituted.

2.     Whether by the terms of the Claimant’s employment he is entitled to the 13th Month Salary every year of his service with the 1st Defendant

14.     Let me indicate from the outset of this Judgment that the Defendants in this case even though filed pleadings, they did not lead any evidence at trial. It is on record that the learned Counsel to the Defendants elected to and rested his case on the case of the Claimant. Implications of this step taken by the learned Counsel are far reaching. First it portends that the only evidence available to the Court is the case as presented by the Claimant. Secondly it shows that the Defendants are not disputing the case as put forward. The third implication and perhaps more far reaching is that the Defendants abandoned their pleadings and there is nothing from their side to controvert all the averments and evidence led by the Claimant. Again, as the Tsaminami JCA pointed out in Fairline Pharmaceutical Industries Ltd & Anor v. Trist Adjusters Nigeria Limited (2012). Pleadings without more are akin to a mere skeletal framework of a case. When evidence is led, it adds flesh and gives life to the skeletal case. As the Court of Appeal noted in Balaje v. Yaya & Ors (2015) LPELR-25630(CA) both are essential and one cannot exist with any meaningful result or benefit to a party without the other just as the flesh without the skeletal framework is of no use to the human body.

 

15.     The first issue for determination is whether the 2nd Defendant is a proper party to this suit as constituted. This issue was vigorously canvassed by the learned Counsel to the Defendants and Counsel had submitted that the 2nd Defendant is not a proper party to be in this action. It is on record and not controverted by either side that the 2nd Defendant is the Managing Director and Chief Executive Officer of the 1st Defendant. Now who is a proper party to a suit? A party is said to be a proper party to a suit, as the Supreme Court laid down in Adeniran v. Olusokan II (2019)8 NWLR (Pt. 1673) 98 when the presence of such a party is necessary for the effectual adjudication of the matter in dispute; the claim against the existing Defendants also affects the party sought to be joined and his interest is the same as or identical with that of the existing Defendants.

 

16.     Can it be said that the presence of the 2nd Defendant in this suit is imperative for the effectual and final determination of this case? I answer in the affirmative. 2nd Defendant is not just an ordinary person or staff or employee or agent of the 1st Defendant. 2nd Defendant is the Managing Director & Chief Executive Officer of the 1st Defendant. Of a truth 1st Defendant has a legal personality of its own as the old English case of Salomon v. Salomon (1897) AC 22 decided. The fact however remains that an artificial person as the 1st Defendant can only act via the instrumentality of humans who direct its affairs. In any event, an employee can only proceed against his employer in a situation such as this, where part of the allegation amounts to a breach of the terms and conditions of engagement. Within the context of labour jurisprudence in this country, the meaning of who is an employer is given an expansive and robust interpretation to include not just an agent, but also manager. In Mr. Omene Andy Robinson v. Mr. Nasarvali Dudekeh & Anor unreported Suit No. NICN/AB/03/2020 which Judgment was delivered on 9/4/2025, this Court was confronted with a similar situation as the instant case. The 1st Defendant in that case was both the Managing Director/Operations Manager. Efforts of Counsel to remove him from the suit were rebuffed by the Court. This is what the Court said in paragraphs 48 & 49 of the Judgment -

 

48.     ….. The determination as to who is an employer of labour has been statutorily settled by Labour Act, Cap. L1 Laws of the Federation of Nigeria, 2004. The Act in Section 91(1) states that -

 

"employer" means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer.

 

“49.   Without necessarily defining an employee the section simply defines - "worker" to mean any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include - (a) any person employed otherwise than for the purposes of the employer's business; or (b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or (c) members of the employer's family; or (d) representatives, agents and commercial travelers in so far as their work is carried out outside the permanent workplace of the employer's establishment; or (e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adopted for sale in his own home or on other premises not under the control or management of the person who gave out the article or the material”.

 

17.     The position of the 2nd Defendant as the Managing Director of the 1st Defendant makes his presence in this suit imperative. 2nd Defendant is the mind, the heart and the entire instrumentality by which the 1st Defendant breathes and operates. He is not just an agent of the 1st Defendant but indeed the employer of the Claimant. He is a proper party in this suit. His presence will enhance effectual determination in this case. Without much ado therefore, it suffices for this Court to hold that the first issue must and is here answered in the affirmative and is resolved in favor of the Claimant.

 

18.     The second issue for determination is whether by the terms of the Claimant’s employment he is entitled to the 13th Month Salary every year of his service with the 1st Defendant. The Claimant made a claim of entitlement to be paid 13th month salary for the years 2017, 2018, 2019 and 2021 which he alleged formed part of his terms and conditions of engagement. The relief sought by the Claimant amounts to an allegation of breach of contract by the Defendants. In an employment litigation of this nature where an employee alleges a breach of contract of employment, it is incumbent on him to exhibit his contract of employment and show to the Court which of the terms and conditions agreed on was breached by the Defendant. In proof of his claim, the Claimant tendered Exh. MAM1 being his Offer of Employment, Exh. MAM2 -Confirmation of Appointment & Exh. MAM3 – Defendant’s Employee Handbook. Clause 12 of Exh. MAM1 indicated that on assumption of duty a copy of Exh. MAM3 would be given to the Claimant. In Clause 3.6 with the heading 13th Month’s Salary, Exh. MAM3 states –

 

“A 13th month’s salary up to a maximum of one-month basic gross salary of the employee will be paid in December of each year and it will be tied to performance. This will be pro-rated for any Employee who has not completed a full year in the service of the company”.

 

19.     Both sides agreed that they are bound by Exh. MAM3. None of the parties also objected to the provision of Clause 3.6 of the said exhibit. The area of controversy and contention is as regards the interpretation to be accorded to the word performance in the first portion of the provision. While the Claimant argued that the performance in the provisions relates to the performance of the employee, the learned Counsel to the Defendant submitted that it is indeed the performance of the 1st Defendant that was contemplated by the Drafter of Exh. MAM3 and that the 1st Defendant performed poorly during the years under consideration by the Claimant and hence the said 13th month salary could not be paid. It is apparent from the argument from both sides that Clause 3.6 of Exh. MAM3 is capable of different interpretations.

 

19.     Exh. MAM3 was drafted by the Defendants. That exhibit was already in existence ever before the Claimant was employed by Exh. MAM1. I have no evidence before me to support any inclination that the Claimant had any input into the making or the contents of the said exhibit. Could it be said that the Defendants deliberately left the actual meaning attached to clause 3.6 of the exhibit hanging for a time when issue of this nature would arise? Why did the Defendants not make it clear as to whose performance whether the employee or the 1st Defendant’s is anticipated by the provision of clause 3.6 of Exh. MAM3? The ambiguity in the construction of Clause 3.6 of Exh. MAM3 was caused by the Defendants. I am reluctant to assume that it was indeed a deliberate act by the Defendants for a day and scenario as this. That is my finding. It is a trite law that the Court would not permit a party to profit or benefit from his own error or self-created confusion. It is also a trite position of the law that in interpreting contracts of employment, ambiguity must be resolved in favour of that which gives the employee an advantage. That was the crux of the decisions of the Hon the President of this Court in Adekunle Owulade v Nigerian Agip Oil Co Ltd Unreported Suit No: NICN/LA/41/2012 judgment delivered on 12/7/16 and Chiroma v. Forte Oil Plc Suit No: NICN/ABJ/165/2018 judgment delivered on 2/5/19. Faced with a similar situation Ogunwumiju, JSC cited both decisions with approval in New Nigeria Development Company Limited v. Daniel Igbagbe (2021) LPELR-56666(SC). I accordingly resolve the second issue in favor of the Claimant and hold that by the terms of the Claimant’s employment he is entitled to the 13th Month Salary every year of his service with the 1st Defendant.

 

20.     I should point out that the Claimant in seeking to prove his case had tendered Exh. MAM6-Exh. MAM12. These exhibits showed the payment of 13th month salary by the 1st Defendant to some of its employees. I note that these payments were made for the years for which the Claimant is also seeking payment of same to him. The Defendants did not offer any valid reason for this act which I find to be discriminatory. I find this practice by the Defendants to be discriminatory against the Claimant and amounts to a breach of the Constitution. Section 254C (1)(f), Constitution of the Federal Republic of Nigeria, 1999, as amended provides that – It provides thus –

“(1).   Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(f).     relating to or connected with unfair labour practice or international best practices in labour employment and industrial relation matters”.

 

21.     Any form of discrimination is frowned at by the global labour community. In this respect, the ILO Convention No. 111 on Discrimination (Employment and Occupation) Convention, 1958 is the primary international instrument dedicated to eliminating discrimination in the world of work. It fundamentally aimed at eliminating discrimination in employment and occupation. The Convention defines discrimination as any distinction, exclusion, or preference based on race, colour, sex, religion, political opinion, national extraction, or social origin that results in the impairment of equality of opportunity or treatment in employment or occupation. It obligates member states to formulate and implement a national policy that actively promotes equality in access to employment, vocational training, and working conditions. Convention 111 requires states to review existing laws, abolish discriminatory practices, and ensure effective remedies for victims of discrimination in both the public and private sectors. This Convention together with related ILO standards—such as Convention 100 on Equal Remuneration and Convention 156 on Workers with Family Responsibilities—forms a foundational framework for promoting fairness, inclusivity, and dignity in the workplace at the global level. Nigeria ratified this Convention as far back as 2002 and is thus obliged to ensure compliance with same by all stakeholders in labour and employment matters including the Defendants. Any form of discrimination at workplace is therefore a form of unfair labour practice which this Court is obliged to pronounce on by the Third Alteration Act, 2010. Accordingly, l declare the conduct of the Defendants toward the Claimant in this case as discriminatory and amounts to an unfair labour practice.

 

22.     Considering the outcome of this case along with the facts and evidence led by the Claimant, it is one case that ought not have gotten to this level. The Defendants had settled some of the major claims of the Claimant. Yet for the sum of =N=145,557.7 the parties went through the whole length of adjudication. Yet again the Defendants elected to not call any evidence. The monetary claim of the Claimant is for a sum certain. It amounts to a claim in special damages. The law requires that it be pleaded and strictly proved. I find sufficient averments in the pleadings filed by the Claimant to support a grant of the relief. Aside that, i also find that the Claimant strictly proved his entitlement to this relief. I find evidence of his salary; evidence of the fact that he was entitled to be paid 13th month salary; evidence of the fact that he was not paid even though some of his colleagues at work were paid during the years under consideration as well as evidence of the fact that the 1st Defendant had good performance in the years concerned to be able to afford payment of the sum to the Claimant.

 

23.     Accordingly, l resolve the two issues set for determination in favour of the Claimant. I hold that the Claimant is entitled to all the reliefs sought. I declare the Defendants discriminated against the Claimant in the non-payment of 13th month salary to the Claimant. I also declare that discriminatory labour practice is an unfair labour practice, which is contrary to section 254C(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. I declare that the calculated 13th month’s salary at the maximum rate provided in the Staff Handbook (the Conditions of Service) for some members of staff of the 1st Defendant for the years 2016-2019 & 2021 – 2022 and the denial of same to the Claimant is discriminatory and an unfair labour practice. The Defendants are here ordered and directed to pay the Claimant the sum of =N=145,557.7 (One Hundred and Forty-Five Thousand, Five Hundred and Fifty-Seven Naira, Seven Kobo) being Claimant’s earned but unpaid 13th month’s salary for the years 2017, 2018, 2019 and 2021, for which the Claimant completed full years in service pursuant to Section 3.6 of the Staff Handbook.

 

24.     Cost is said to follow event. This case was filed on 26/1/2023. Both time and resources have been expended in the prosecution of this case. Accordingly, the Defendants ae ordered and directed to pay to the Claimant the cost of this action assessed at =N=200,000.00 only.

6.     Conclusion

25.     Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant wholly succeeds as follows -

1.                 I declare that discriminatory labour practice is an unfair labour practice, which is contrary to section 254C(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

2.                 I declare that the calculated 13th month’s salary at the maximum rate provided in the Staff Handbook (the Conditions of Service) for some members of staff of the 1st Defendant for the years 2016-2019 & 2021 – 2022 and the denial of same to the Claimant is discriminatory and an unfair labour practice.

3.                 The Defendants are here ordered and directed to pay the Claimant the sum of =N=145,557.7 (One Hundred and Forty-Five Thousand, Five Hundred and Fifty-Seven Naira, Seven Kobo) being Claimant’s earned but unpaid 13th month’s salary for the years 2017, 2018, 2019 and 2021, for which the Claimant completed full years in service pursuant to Clause 3.6 of the Staff Handbook.

4.                 The Defendants ae ordered and directed to pay to the Claimant the cost of this action assessed at =N=200,000.00 only.

26.     All the terms of this Judgment except cost shall be complied with within 30 days from today and shall thereafter attract interest at the rate of 20% per annum until final liquidation.

 

27.     Judgment is entered accordingly.

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge