NWANDIMA OGBOSO V DELI FOOD NIGERIA LIMITED

NWANDIMA OGBOSO V DELI FOOD NIGERIA LIMITED


IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
ON THE 16TH DAY OF APRIL, 2011


SUIT NO. NIC/LA/06/2009

CITATION: NIC (2011) 4 LLER 1

CORAM:
Hon. Justice F. I. Kola-Olalere – Presiding Judge
Hon. Justice O. A. Obaseki-Osaghae – Judge
Hon. Justice J. T. Agbadu-Fishim – Judge


BETWEEN

1. MISS NWANDIMA OGBOSO
2 EJIMA ONYEAJA
3. ROSEMARY IMO

(CLAIMANTS)

AND

1. DELI FOOD NIGERIA LIMITED
2. CREST CONSULT LIMITED

RESPONDENTS


REPRESENTATION
Mrs. J. Ogbedeleto, for the claimants

Mr. Solomon Mbadiwe, for the respondents

JUDGEMENT

The claimants took up a complaint against the respondents. The claimants’ case is that they were employees of the 1st respondents as factory workers. They averred that the 1st and 2nd claimants were employed in August 2001, while the 3rd claimant was employed in May 2003. That the 1st respondent is an Indian Limited Liability Company, operating in Nigeria whose main business is production of delicious foods and biscuits, while according to the claimants the 2nd respondent is a Limited Liability Company whose business remains mysterious.

The claimants stated that on 16th April, 2008 they were served with termination of appointment letters after which they were harassed out of the premises without their due entitlements paid to them. The claimants further averred that instead of their full entitlements, they were only given a megre sum of money as follows: the 1st claimant was paid the sum of N 19,000, the 2nd claimant was paid N20,220 while the 3rd claimant was paid N14,000 only. That despite several visits by Mrs. J. Ogbedeleto, their counsel, to the respondents’ office, nothing positive came out of it as a result of which this action was instituted.

The claimants therefore prayed the court for the following reliefs:-

a. A declaration that the contract of employment is illegal and against public policy and amount to casualisation and slavery.

b. A declaration that the partnership of the 1st and 2nd respondent contravenes the provisions of the Labour Act Cap. LI Laws of the Federation of Nigeria, 2004 section 2 l(l)(a)-(b).

c. An order that the 1st respondent should employ and maintain their staff direct and stop using contract employment, as it amounts to underdevelopment of Nigeria a place they make their wealth and impoverishment of their workers.

d. An order that redundancy benefit should be paid according to the said section

e. An order that the final benefits as calculated herein be paid and even more for the claimants has been cheated enough,

f. The cost of this suit with solicitors’ fee at the tune of N1million.

In defence to the action, the respondents averred that pursuant to the agreement between the parties, the claimants became employed by the 2nd respondent on 30/6/2004 and seconded to the 1st respondent as their primary place of assignment. That the claimants’ employment was governed by the 2nd respondents’ letters of appointment dated 30/6/2004 and the 2nd respondents’ Staff Handbook/Rules and Regulations. That at all material time, the claimants remained under the control and supervision of the 2nd respondent who was also responsible for their salaries and welfare. That the appointments of the said claimants were terminated on 16/4/2008 and each of them was paid their full terminal benefits as well as one month salary in lieu of notice in accordance with the claimants’ letters of employment and the 2nd respondent’s Staff Handbook/Rules and regulations and that none of the claimants was entitled to payment of gratuity as each has worked for less than five (5) years which is a prerequisite for gratuity as stipulated under the 2nd respondent’s Handbook/Rules and Regulations: whereof the respondents denied the claims in their entirety. Parties then agreed to argue this case on record by filing written addresses.

In the claimants’ written address, which was dated 7th July 2009 and filed on the 8th July, 2009, the claimants submitted that they started to work by 2001 but were never given any employment letter, until 2004. That from the wordings of the letter, which provides thus: “further to our evaluation of your performance as contract staff, we are pleased to inform you of your appointment as staff…”, the claimants then posed the question which is “How long did the contract last?” To the claimants, this court should hold that the claimants have put up to eight years of rigorous and meritorious work in the factory of the 1st respondent. The claimants then urged the court to consider the principles in Okeabor v. Police Council [20031 5 SC 11 at pp. 19-21 or [2003] 12 NWLR (Pt. 780) (the page was not provided by counsel) where according to the claimants, the court held that “even when a party did not lay any evidence, the court has to weigh the evidence of the opposing party to determine whether it is consistent and believable”.

The claimants further argued that the word “contract staff has not been defined, and neither are its terms made known to this court, instead the respondents denied that the claimants ever worked with them before 30th June 2004.

Furthermore, the claimants submitted that since the respondents’ have laid them off, without any reason, they are entitled to severance and redundancy benefit to cushion the effect of hardship they will incur before getting another job. That doing so will help to breach the gap and whittle down the excessive power being wielded by the employers and encourage them to treat employees with dignity and respect. That from the way the claimants were victimized out of their job, the law has not provided any other damages accruing to them except that which flows from the contract of employment and that redundancy is one, referring to Ifeta v. Shell Petroleum Development Company Ltd [2007] 7 MJSC 126.

On the issue of pension deduction from the claimants’ salary, the claimants abandoned their claim in that regard arguing that this court lacks jurisdiction to entertain pension matters; and consequently urged the court to transfer the issue to the Federal High Court.

The claimants also urged this court to hold that the respondents by their action have contravened section 21(1)(2) and 23(1) of the Labour Act. Cap. LI L.F.N. 2004, as according to the claimants, whatever relationship the respondents operated amounted to contract that is repugnant to public policy and urged the court to so hold.

Summarising their submission, the 1st and 2nd claimants pointed out that they worked for eight years with the respondents and prayed that this court should grant them eight months of gratuity as stated in their statement of claim, while the 3rd claimant be paid five months of gratuity.

Also that this court should make an order that they should be paid their leave allowance as per the statement of claim.

The claimants then urged this court to grant their claims in this action.

In reaction to the address of the claimants, the respondents’ counsel raised one issue for the determination of this court, that is: whether on the evidence on record the claimants are entitled to the reliefs sought.

The respondents’ counsel started by submitting that it is settled law that a court cannot grant a relief that is vague, wide or imprecise. That the court should not indulge itself in speculating the specific relief a party is making because to do so will amount to making a case for that party and this will substantially bring into question the judge’s impartiality in resolving the dispute objectively in accordance with constitutionally ingrained principles of fair hearing, referring the court to AG Ogun State v. AG Federation [2002] 18 NWLR (Pt. 798) 232 SC, Ukpah v. Udo [2002] 8 NWLR (Ft. 769) 326 CA and ACS v. Nwodike [1996] 4 NWLR (Pt. 443) 470 at 486 where the court of Appeal held as follows :-

Claims in the court must be clear, specific and unambiguous. Claims which are vague cannot be granted by the court.

Moreover, the court cannot grant what is not claimed.

Also that Tobi, JCA (as he then was) held in Mojekwu v. Mojekwu [1997] 7 NWLR (Pt.

512)283 at 307 as follows:

It is my understanding of the law that for a court of law to grant a relief there must be averments in the statement of claim supporting it. In my view, a relief which is not supported by averments in the statement of claims goes to no issue and a trial judge is entitled to ignore such relief and so hold.

The respondents’ position is that applying the above stated position of the law to the case at hand, reliefs (a), (b), (c) and

(e) of the claimants’ statement of claim are vague, ambiguous, imprecise, wide and incongruous with their averments. To the respondents, in claim (a), the claimants seek a declaration that the contract of employment is illegal and against public policy and amount to casualisation and slavery. The respondents’ counsel then posed a question: what contract of employment are the claimants talking about? To the respondents, the claimants neither specified the parties who entered into this contract of employment nor the date on which it was entered into. That it is not for this court to embark on a voyage of discovery as to the intentions of the claimants. To do so, the respondents argued, will amount to making a case for the claimants which strikes at the root of violating constitutionally ingrained principles of fair hearing.

The respondents argued further that there is no averment which explains how this fancied contract of employment became illegal or against public policy. That all the averments contained in the statement of claim point to the fact that there was a valid contract of employment in existence, and so it is, therefore, incongruous to talk of a contract of employment being “illegal and against public policy.. .casualization and slavery.”

The respondents also argued that in relation to claim (b), the claimants’ claim is “a declaration that the partnership of the 1st and 2nd respondents contravenes the provisions of the Labour Act Cap. LI Laws of the Federation of Nigeria 2004 sections 21(1) (a) -(b)”.

That the question is whether there was a partnership between the 1st and 2″ respondents; and if there was, on what date did the alleged partnership come into force? To the respondents, perhaps, the claimants have used the word partnership in a special sense known only to the claimants. That in such a case it is not for this court to embark on a voyage of discovery as to the intentions of the claimants. That relief (b) is clearly vague and imprecise and to talk of a fictitious partnership between the 1st and 2nd respondents being a violation of any statute is otiose and needless.

Furthermore, in relief (c) the claimants seek an order for the 1st respondent to employ and maintain their staff directly and stop using contract employment, as this amounts to the underdevelopment of Nigeria, a place they make their wealth and impoverishment of their workers”. According to the respondents, it is difficult to understand what this means as it raises multiple questions: for instance, what staff are the claimants referring to? That obviously this has no reference to the claimants whose appointments have already been terminated. Also, that one may ask whether there is any averment in the statement of claim showing that the claimants or any of the respondents’ staff have been impoverished. Again that even if, there is such an averment, is this a claim cognizable in law? That what is the purpose of this claim in connection with the fulcrum of the averments in the claimants’ statement of claim. This, to the respondents, falls within the realm of vague and incongrous reliefs which this court ought not to grant.

Also on relief (d), which is an order for redundancy benefit to be paid according to section 20(1)(a) – (b), the respondents here again argued that the relief sought is manifestly vague and imprecise it fails to state to whom the redundancy benefits be paid to and on what law did the claimants base their claim upon. This court was thus urged not to grant same.

In relief (e), where the claimants seek an order that final benefits as calculated here is to be paid and even more for the claimants have been cheated enough, the respondents’ counsel wondered which final benefits the claimants are talking about, how much is the said benefit claimed, and whether this court can properly grant any monetary sum that has not been specifically claimed by the claimants as a relief. That granting this unascertained relief will amount to the court embarking on a voyage of discovery, as to the intentions of the claimants which should not be the business of this court.

To the respondents, assuming without conceding that the reliefs sought by the claimants are cognizable in law and precise, the claimants lack the requisite locus standi to seek the reliefs claimed and/or have not adduced relevant evidence in support of the said reliefs. That it is trite law that a party prosecuting an action will only have locus standi where the relief claimed would confer some benefits on him, referring to Senator Abraham Adesanya v. President of the Federal Republic of Nigeria [1981] 5 SC 112 at 128.

The respondents then submitted that the reliefs contained in the statement of claim are either tentative or do not confer any benefit on the claimants. That the reliefs do not reveal any sufficient interest in the claimants to warrant their grant. That Judicial authorities are agreed that where a party has no locus standing with regard to a particular case, it should be promptly struck out, citing Okafor & ors v. Asoh & ors [1999] 3 NWLR (Pt. 593) 35 at 55 where the court held as follows:-

Thus, the first hurdle for the plaintiff to surmount is to let this statement of claim to reflect his legal authority to demand declaration sought and his right which had been injured for the protection of which he needs remedy.

Also in Horizon Fibres Wig.) Pic v. BACO Linen [2002] 8 NWLR (Pt. 769) 466 at 495, the court noted that –

There is no doubt, however, that instances abound, that is, where the issue of locus standi is not raised until evidence and argument in the matter is concluded. However, where the statement of claim discloses that the plaintiff has no locus standi to bring the action, the action may be dismissed in limine, it is also an abuse of process.

And in Desokan v. Adetunii [1994] 5 NWLR (Pt. 346) 540 at 578 where Onu, JSC held that-

When a court holds that a plaintiff has no locus standi in respect of a claim the consequential order to be made is striking out of such claim and not a dismissal of the claim.

To the respondents, the law as stated above is apposite to the instant case. That reliefs (a), (b) and (c) do not proximately affect the claimants because it is not in dispute that the claimants are no longer in the employment of 2nd respondent. That the claimants have averred in paragraph 7 of their statement of claim that they were served with letters from the 2″ respondent terminating their appointments. That there is no indication that the claimants have obtained a fiat to seek these reliefs on behalf of the general public and so the relief sought according to the respondents are idle and so the claimants have no locus standi to ask for them and so urged this court to strike out the said reliefs sought.

The respondents further submitted that the claimants are not entitled to redundancy benefits. That the law on redundancy is clear. Section 21(3) of the Labour Act defines redundancy as an involuntary and permanent loss of employment caused by an excess of manpower. That redundancy is said to exist where the termination of employment is or is part of a reduction in the workforce that is a direct result of either (a) the modernization, automation or mechanization by the employer to carry on all or part of the business or (b) the discontinuance by the employer to carry on all or part of the business or (c) the sale or other disposition by the employer of all or part of the business, referring to Compendium of Employment and Labour Law in Nigeria (2006) by Abubakar Sadiq Ogwuche.

Also that Bate, SPJ in Obalaye v. Dunlop Nig. Ltd [1975] NNLR 220 at 221 – 222 observed as follows:

I find that the plaintiff was not made redundant. The definition in section 19 of the Labour Code Decree 1974, which is repeated in paragraph 20(b) of the handbook shows that there can be no redundancy unless the loss of employment is caused by an excess of manpower. This does not mean that every man whose employment is terminated may regard himself as made redundant.. .In other words, there must be a change in the circumstances of the business in which the employee is or has been employed and this change must result in a state of affairs where the employers find themselves with too many employees or too many employees in a particular place or for work of a particular kind. This is what excess of manpower means and it must be shown to exist before a claim to have been made redundant may properly

succeed.

That the claimants have not pleaded any facts in their statement of claim to support their claim for redundancy benefits and have unilaterally fixed an amount with no indication as to how it was arrived at, referring to the dictum of Tobi, JCA (as he then was) in Mojekwu v. Mojekwu (supra). The court was thus urged to ignore the claim for redundancy made by the claimants since there is no averment in the statement of claim which supports the relief.

The respondents further noted that they have specifically pleaded in paragraph 14 of their statement of defence that there was no restructuring or downsizing in its business necessitating a lay-off of staff. That the 2nd respondent simply terminated the appointment of the claimants as their services were no longer required. That even in the face of this denial, by the respondents, the claimants did not deem it necessary to allege further facts to the contrary in their reply and adduce documentary evidence in support given their claim of redundancy. This, to the respondents, is fatal to the claimants’ case as it is trite law that a plaintiff must succeed on the strength if its own case.

The respondents also submitted that they are not under any obligation to pay pension, gratuity or any further benefit to the claimants.

That section 3(1) of the Pensions Reform Act Cap. P4 Laws of the Federation of Nigeria 2004 expressly provides.

Subject to section 3(2) as from the commencement of this Act, no person shall be entitled to make any withdrawal from his retirement savings account, opened under section 11 of this Act, before attaining the age of 50 years.

Section 11 (4) further provides-

The employee shall not have access to his retirement savings account nor have any dealing with the custodian with respect to the retirement savings account except through the pension fund administrator.

That in line with the pleadings of the respondents in paragraphs 17 and 18 of the statement of defence, the claimants have not yet attained the age of 50 years and can only claim their pension from the custodian upon attainment thereof. Also, that the 2nd respondent is neither a pension fund administrator nor custodian to the claimants and cannot, therefore, be called upon to make such payment. That as a matter of fact, the claimants have by their paragraphs 27 and 28 of their statement claim identified NLPC Pension Fund Administrator Ltd and ARM Pension Managers as their pension fund administrators. That even then the claimants cannot claim their pension from the administrators as they do not come within the exceptions contained in subsection (2) of section 3 of the Pensions Reform Act.

Furthermore, the respondents submitted that the claimants are not entitled to gratuity. That there is no mention of gratuity in the employment letters of the claimants, which embody the terms and conditions of the claimants’ employment. That as a matter of fact, the claimants have not shown in their pleadings how the payment of gratuity forms part of the terms and conditions of their contract of service, and must be reserved in the contract of employment for it to be claimed as of right, referring to Adegbule v. WAB Ltd [1971] 22 NCLR 363 at 374 – 375.

To the respondents, none of the claimants is entitled to payment of gratuity as each of them has worked for less than five years, the pre-requisite for gratuity as stipulated under the 2nd respondents staff hand book and regulations. That “no evidence has been led to support the claimants’ averment in paragraph 2 of their statement of claim that the claimants started work in August and May 2001”. That the law is that evidence must be tendered in proof of a fact, referring to Towoeni v. Towoeni [2001] 12 NWLR 445 at 449. That the inference to be drawn is that the claimants had worked for less than five years prior to termination of their employment and are, therefore, not entitled to any gratuity, urging the court to so hold.

The respondents further submitted that the claimants’ appointments were duly terminated and all benefits paid. That pursuant to clause 4.2 of the 1st and 2nd claimants’ letter of employment, termination of the claimants’ appointment by either party is subject to one month notice or one month salary in lieu of notice. Also that the claimants have by implication admitted in paragraph 3 of their reply that they have already received the above payments but are only seeking an additional payment of N217,552, referring to Shokoya v. NTC Ltd [1970] NCLR 343 at 345.

The respondents then urged the court to discountenance the claimants claim for final benefit as calculated as baseless and hold that the claimants have received their full and final benefits and are not entitled to any additional benefits, and

dismiss this suit in its entirety as frivolous and totally lacking in merit.

Before addressing the merit of the case, it may be useful to make a comment or two on the quality of presentation of the case of the claimants. For one, there is much to be desired in the use of English by counsel to the claimants. In all the processes filed on behalf of the claimants, we note the errors in the use of English therein. Secondly, the Statement of Facts of the claimants as prepared by their counsel is made in a manner suggesting that counsel is also a litigant. While it is appreciated that counsel must present his/her case in the best interest of the client, it is no reason why counsel would assume the role of a litigant or witness as regards the matters pleaded in the Statement of Claims as is the case with the claimants’ counsel in this matter.

We have carefully gone through the arguments before us by the parties. In our view, the issues to be considered in this

suit are:-

a. Whether the contracts of employment of the claimants are illegal and amount to

casualization and slavery;

b. Whether the claimants’ appointments were validly terminated; and

c. Whether the claimants are entitled to gratuity payment and redundancy benefits.

The claimants, in the course of establishing this case, alleged that the contract of employment they had with the respondents is illegal and against public policy and amount to casualization and slavery. To us, if this is the case, then it must be an admission by the claimants that they had engaged in an illegality with the respondents, which they never complained of to the appropriate authorities until they were sacked. In any event, there was no evidence during the trial to establish the nature of the illegality, or how the contract became illegal or against public policy and the type of slavery they were subjected to in the course of their employment. Based on our perusal of the claims of the claimants and all the supporting documents, we find that there was a valid contract of employment.

On the issue of whether the partnership between the 1st and 2nd respondent should be declared illegal, we hold that this is not within the jurisdiction of this court, as it has no link with the provisions of section 7 of the NIC Act 2006, and so is not actionable in this court.

We noted earlier that the claimants abandoned their claim as to their share in the contributory pension scheme on the ground that this court lacks the jurisdiction to entertain the matter. This effectively means that the consideration of the issue would be academic. But we must note that issues of pension come to two categories: issues relating to investment of pension funds which may be outside the jurisdiction of this court and issues of pension relating to the labour rights of workers as contributors and beneficiaries which would rightly come within the jurisdiction of this court. Given that the claimants abandoned their claim to pension, that claim is hereby struck out.

On whether or not the claimants’ appointments were validly terminated, we have perused the provision of clause 4.2 of the 1st and 2nd claimants’ letter of appointment which provides as follows:

Clause 4.2 The termination of your appointment after confirmation by either the company or yourself is subject to one-month notice or one month salary in lieu of notice and may be with or without reason. Termination of your appointment by either party prior to the confirmation of your employment shall not require notice.

In line with the above provisions of clause 4.2 of the claimants’ appointments letters, coupled with the admissions of the claimants in paras. 9, 10 and 11 of the claimants’ statements of facts, and the contentions of the respondents in paras. 10, 11 and 12 of their statements of defence, we hold that the respondents are not in breach of the contract of employment they had with the claimants because not only have they paid the claimants pro-rated salary for the remaining days in the month of April 2008 when they were terminated, they were also paid one month basic salary in lieu of notice together with “leave pay, not attended”. We, therefore, agree with the respondents and hold that the respondents did not breach the employment contract they had with the claimants.

As to whether the claimants are entitled to redundancy benefits and gratuity payments, we agree with the submission of the respondents and hold that redundancy is said to exist where the termination of employment is or is part of a reduction in the workforce that is a direct result of either a reorganization, modernization or automation or mechanization which leads to a reduction in the workforce. Also section 21(3) of the Labour Act defines redundancy as an involuntary and permanent loss of employment caused by an excess of manpower. We, therefore, agree with the statement of Bate, SPJ in Qbalaye v. Dunlop Nig. Ltd (supra) to the effect that –

…there can be no redundancy unless the loss of employment is caused by an excess of manpower. This does not mean that every man whose employment is terminated may regard himself as made redundant.. .In other words, there must be a change in the circumstances of the business in which the employee is or has been employed and this change must result in a state of affairs where the employers find themselves with too many employees or too many employees in a particular place or for work of a particular kind. This is what excess manpower means and it must be shown to exist before a claim to have been made redundant may properly succeed.

In the instant case, the claimants have not shown to us that the circumstances shown above existed or are in pari materia to their situation. They have also not pleaded any facts in their statement of claim or gave evidence to support their claim for redundancy benefits, but went ahead to fix an amount unilaterally with no indication as to how it was arrived at. We are, therefore, unable to accede to the prayer of the claimants for redundancy benefits; it is, therefore, refused.

As regards payment of gratuity, we do not agree with the respondents’ argument that since there is no provision for gratuity in the claimants’ appointment letters, then they are disentitled to it. As a matter of fact, clause 3(1) of the claimants’ letters of appointment provides as follows:-

You shall work under the administrative control of your supervisor and abide by the rules and regulations laid down by the company in its staff handbook and which it may issue from time to time as well as the laws of the Federal Republic of Nigeria.

The next issue is whether the claimants are qualified for the payment of gratuity. While the claimants’ claim is that the 1st and 2nd claimants were employed in August 2001 up till 16 April 2008 when they were terminated, and the 3rd claimant was employed in May 2003 up till 16th April 2008, the respondents on the other hand contend that their employment was effective from 30th June 2004 respectively, thereby disentitling them from gratuity payment having worked for less than five years.

To support their argument, the claimants claimed that their appointment letters of 30th June 2004 was headed “Re-appointment of staff which to them means they were reappointed into their position. But a perusal of the appointment letters reveal that what is written there is RE: APPOINTMENT OF STAFF. What is written on the appointment letter is a “colon” in between “Re” and “appointment” and not a hyphen as the claimants would want us to believe. We, therefore, frown at the attempt by counsel to the claimants to misrepresent the wordings in the appointment letters. This is unprofessional of counsel and we so hold. That being the case, it is our finding, based on the evidence before us, that the commencement date for the claimants appointment is 30th June 2004 as averred by the respondents. In any event the claimants did not lead evidence to the contrary. We hold then that the claimants have not worked up to five years and so are not entitled to gratuity payments.

Based on our findings as stated above, we hold that, the employment of the claimants was properly terminated. Having held that the employment contracts of the claim-ants were properly terminated and also having held that the claimants are not entitled to gratuity, there is no basis to award the sum of N1million Naira as cost of this litigation to the claimants.

In all the claimants have failed to prove their claims to the satisfaction of this court. This action, therefore, fails and is hereby dismissed. We make no order as to cost.

Judgment is entered accordingly.

Hon. Justice F. I. Kola-Olalere

Presiding Judge

Hon. Justice O. A. Obaseki-Osaghae, Judge

Hon. Justice J. T. Agbadu-Fishim, Judge