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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP: HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: February 16, 2014 SUIT NO. NICN/CA/10/2013 BETWEEN EDET UDOH - CLAIMANT AND 1. GLOBEMASTER SERVICES (NIG.) LTD DEFENDANTS 2. BISHOP ROWLAND OBU REPRESENTATION C.A.C Efifie, with him E.J Amatey, A.E. Abu for claimant. Eke Edem, with him Eta Okongor, A. Ekanem for defendants. JUDGMENT The claimant took out a writ of summons against the defendants on the 22nd July 1999 at the Cross River State High Court, Calabar Division. The matter was subsequently transferred to this court on 16th October 2012. The claimant by an amended statement of claim dated 11th September 2013 is seeking the following reliefs: i. The sum of Eight Hundred and Fifteen Thousand, Three Hundred and Fifty Five Naira, Sixty Kobo (N815,355.60) only being the retirement benefits due to the claimant. ii. The sum of Twenty Thousand, Three Hundred and Eighty Three Naira, Eighty Nine Kobo (N20,383.89) only being money due to the claimant as three months’ salary in lieu of notice. iii. The sum of One Hundred and Eight Thousand, Seven Hundred and Fourteen Naira, Eight kobo (N108,714.08) only, being the claimant's Repatriation allowances covering himself and his registered dependants at the time of his retirement. iv. The sum of Seven Thousand, Eight Hundred and Sixty Two Naira, Seventy Eight kobo (N7,862.78) only, being the balance of the claimant's 1996 leave grant. v. The sum of Thirty Nine Thousand, Seven Hundred and Twenty Five Naira, Fifty Six kobo (N39,725.56) only, being the claimant's 1995 and 1997 leave grant. vi. The sum of Five Million Naira (N5,000.000.00) only as General damages. vii. Interest of 21 % per annum on the total sum claimed, beginning from the 18th day of January, 1998, when the claimant was retired to the date of judgment, and thereafter interest at the rate of 10% on the judgment sum until fully liquidated. Accompanying the amended statement of facts is the claimant’s written statement on oath and copies of documents to be relied upon. The defendants filed an amended statement of defence, witness statement on oath and copies of documents to be relied upon on 2nd October 2013. The claimant filed a reply on the 29th October 2013. The matter then went to trial. The claimant’s case on the pleadings is that he was a staff of the 1st defendant, before he was forcefully retired by the defendants on the 18th day of January,1998. The claimant pleaded that Biakpan Rubber Estate where he was employed was leased to the defendants by the Government of Cross River State on 30th October, 1995 and the lease renewed in 1997. He pleaded that the Biakpan Rubber Estate is the property of the Government of Cross River State of Nigeria, which she inherited from the defunct Eastern Nigeria Government. The claimant averred that the Biakpan Rubber Estate was formerly under the control and management of the Eastern Nigeria Development Corporation (ENDC) and when the South Eastern State of Nigeria was created, the control and management of all Government owned Estates in the State, including the Biakpan Rubber Estate, were taken over by a new body called the Agricultural Development Corporation (ADC) which subsequently became the Cross River Estates Ltd (CREL), at the creation of Cross River State. The claimant pleaded that Biakpan Rubber Estate was formerly under the direct control and management of the Government of Cross River State; and the conditions of service of the senior staff of the estate was governed by the CREL conditions of service and general rules and regulations for senior staff. He pleaded that under the conditions of service, a senior staff who disengages from service will be eligible to one third of his annual salary for every completed year of service. The claimant averred that in the Lease Agreement between the 1st defendant and the Government of Cross River State, the 1st defendant accepted and inherited all the assets, liabilities and obligations of the Government relating to Biakpan Rubber Estate including the condition of service for senior staff of the estate. The claimant averred that through series of transfers during the subsistence of his employment with the Government, he finally came to Biakpan Rubber Estate in September 1995 where he served the Government until the 1st defendant took over the control and management of the Estate on 1st" November, 1995. The claimant pleaded that his services in the Biakpan Rubber Estate continued even after the estate was leased to the 1st defendant whom he rendered selfless services until the 18th day of January, 1998, when he was retired as Assistant Production Manager without the required three (3) months retirement preparatory notice or payment of salary in lieu thereof. That, at the time of his retirement, his gross monthly salary was Six Thousand, Seven Hundred and Ninety Four Naira, Sixty Three Kobo (N6,794.63) while his monthly basic salary was N4,138.08. He averred that by virtue of his date of employment and the lease agreement he had served the defendants for a total period of 30 years. He pleaded that a senior staff on annual leave is entitled to 40% of his annual basic salary and that in 1995, 1996 and 1997 when he was on annual leave, he was only paid N12,000.00 out of the total sum. He pleaded that he is entitled to repatriation allowance, which was not paid by the defendant and that he has not been paid his retirement benefits. That sometime in March 1999, he complained to the Military Administrator of Cross River State, through the Commissioner for Agriculture on the basis of which complaint the defendants made promises to pay him his entitlements, but which promise they have failed to live up to till date. The claimant pleaded that he made other several demands on the defendants for the payment of his entitlements and they refused to pay to him. The claimant pleaded that he engaged Kanu G. Agabi & Associates, to write to the defendants demanding for the payment of his retirement benefits. He averred that when the defendants received the letter from his solicitor, instead of paying his entitlements as he requested, they wrote asking him to go back to work, but he refused to go back to the defendants because they refused to pay his outstanding entitlements and he no longer trusted them. He pleaded that he did not accept the conditions imposed by the defendants even though he collected part of the monies owed him by the defendants. He averred that he told the defendants his position orally and through a letter from his lawyer dated 4th December, 1999. The claimant pleaded that the defendant is indebted to him in the the sum of One Hundred and Ten Thousand, Nine Hundred and Seventy Eighty Naira, Ninety Five kobo (N110,978.95) which is balance of his salaries arrears from February 1998 to October, 1999 as agreed to by the defendants in their letter of 11.10.1999. He pleaded that he is married with children and the non-payment of his retirement benefits has affected his family and his children's education; that by reason of his age, he has not been able to secure an alternative job in order to alleviate the hardship the defendants are subjecting him to and he could not go back to the defendants for fear of being victimized. The claimant testified as the only witness in support of his case. His evidence in chief was by witness statement on oath which he adopted and was in terms of the pleading. Under cross-examination he told the court that he joined the services of the 1st defendant in 1967; and that the defendants leased the Biakpa Rubber Estates from the Cross River State Government. The claimant said and he sued both defendants because they inherited the assets and liabilities of Biakpa Rubber Estates and so inherited him. The claimant told the court that CREL was liquidated by the Government and that he heard of the appointment of a liquidator. He said he was retired in error in 1998 and admitted that the defendants gave him a letter of reinstatement and the sum of N38,580.08 which was part of the money owed to him. The claimant said he was to be paid his full entitlements before going back to work; but this was not paid and so he did not go back to work. The claimant told the court that CREL was liquidated by the Government and that he heard of the appointment of a liquidator. He said the liquidator did not pay the Biakpa Rubber Estate retirees but paid Akamkpa Retirees. He said the money he received on July 16, 2004 was not from the liquidator but was part of the monies owed him by the 1st defendant. The claimant then closed his case. The defendants case on the pleadings is that the claimant was retired in error from the services of the 1st defendant in January 1998 and when he protested to the 2nd defendant as the Chairman of the 1st defendant he was promptly reinstated with effect from February 1998 and paid his entitlements but he decided to stay away from work and renege on the agreement he entered into with the 1st defendant. The defendants pleaded that the 2nd defendant is an agent of the 1st defendant whose involvement in the transaction leading up to this suit was entirely in his capacity as the Chairman of the company and that he was wrongly joined as a party to this suit. They pleaded that the 1st defendant leased the Biakpan Rubber Estate from the Cross River State Government for two years (i.e. November 1995 to October 1997). Thereafter, the lease was renewed for five years (i.e. from November 1997 to October 2002) when the 1st defendant left the plantation, which has since been sold outright by the government to some other company. They averred that they were not bound by the claimant's conditions of service with the Cross River Estates Limited (CREL) or by the rules and regulations of that company because they were not parties or signatories to those conditions or regulations. The defendants pleaded that the parties to the lease agreement for Biakpan Rubber Estate (i.e. the Cross River State Government and the 1st defendant) could not agree on the retirement benefits of former employees of the estate and the modalities for the payment of such benefits, hence no such benefits was paid by the 1st defendant; that the claimant does not have the locus standi to enforce the lease agreement of which he was not a party. The defendants averred that the claimant voluntarily left the services of CREL and joined the 1st defendant in November 1995 where he worked until January 1998 when he was wrongfully retired from the services of the 1st defendant and not from CREL. That initially the claimant did not complain about his wrongful retirement and instead took up a better paying job with the 1st defendant as a contract tapper but when his tapping contract was terminated, he complained about his retirement and was reinstated to his former job vide a letter dated 11th October 1999. They averred that the conditions for his reinstatement were that he would be paid all his entitlements from February 1998 to October 1999 less the period he worked as a contract tapper in three equal installments. The claimant accepted the conditions and signed for the first installment but refused to go back to work. The defendants pleaded that the claimant's salary as at the time he abandoned his employment with the 1st defendant was N6,794.63 and he was not due for retirement because he had not served the 1st defendant for up to 30 years, rather he worked for the 1st defendant from November 1995 to October 1999. The defendant’s pleaded that the 1st defendant was not bound by the claimant's terms of employment with CREL, rather the claimant and the 1st defendant were both bound by the terms of employment that was mutually agreed between them which is that the claimant would be entitled only to his salaries for the period of his employment with the 1st defendant. The defendant pleaded that it was not the duty of the 1st defendant to compute and pay the retirement/terminal benefits of government or CREL employees rather it was the responsibility of the government to do so. That in 2003/2004 when the Cross River State Government decided to wind up CREL it appointed a firm of Chartered Accountants Davies, Offiong & Ukah as liquidators to pay off the benefits of former CREL employees including the claimant. The defendants pleaded that the claimant's entitlements were computed and paid to him on 16th July 2004 by the Cross River State Government through the liquidator of CREL during the pendency of this suit. The defendants averred that the claimant's hardship if any is self-induced because he refused to return to his employment with the 1st defendant on the ground that he was old enough to retire and instead of pursuing the Government who had employed him for 30 years for his retirement benefits the claimant decided unfairly to harass the defendants with this suit. The defendant called one witness Mr Usen Umoh (DW). His evidence was by witness statement on oath which he adopted and was in terms of the pleadings. Under cross-examination, DW told the court the claimant was an employee of Biakpan Rubber Estate when the defendants took it over. He admitted that the defendants inherited the employees of Biakpan Rubber Estate. DW told the court that the claimant was paid money to go back to work after he was wrongly retired. DW said the claimant was not paid the two other installments referred to in exhibit CW11. He said it was the Government that was to pay the claimants retirement benefits and that the Government has paid the claimant. The defendant then closed its case. The parties were ordered to file their final addresses. The defendant’s final address is dated July 9, 2014 and filed the same day. The claimant’s final address is dated July 21, 2014 but filed on 5th August 2014. The defendants’ reply on point of law is dated 11 August, 2014 and filed the same day. Learned counsel to the defendants submitted the following issues for determination: 1. Whether the claimant was reinstated in his employment by the 1st defendant. 2. Whether the claimant is entitled to the reliefs sought by him against the defendants in this suit. 3. Whether the 2nd defendant can be sued personally in this suit. He submitted that on the evidence, particularly exhibits CW10 and CW 18, the claimant was reinstated and collected the first installment of his salary arrears but refused to resume to his duties. He referred to Osadare V. Liquidator (Nig.) Paper Mills Ltd [2012] All FWLR (652) 1784 at 1806-1807. He urged the court to hold that the claimant's wrongful retirement by the 1st defendant was cancelled and he was reinstated to his former employment. He submitted that Exhibit CW5 does not show that defendant accepted and inherited all CREL assets, liabilities and obligations including the obligations created under the conditions of service for CREL senior staff. That the claimant did not tender any document to show the assets, liabilities and obligations verified and agreed between the Government and the 1st defendant and that it will amount to speculation or conjecture for the court to hold that the claimant's retirement benefits and other claims in this suit are part of the debts, liabilities and obligations assumed by the 1st defendant under Exhibit CW 5. He cited Agip (Nig.) Ltd V. Agip Petroli International [2010] All FWLR (Pt. 520) 1198. He submitted that if it was the responsibility of the 1st defendant to pay the retirement/terminal benefits of CREL staff the Cross River State Government would not have mandated Messrs Davis, Qffiong & Ukah, the liquidators of CREL, to pay the retirement benefits of CREL staff as evidenced in Exhibits DW1 and DW2. He submitted that the fact that the defendants were not responsible for the payment of the claimant's retirement/terminal benefits is further buttressed by the fact that those benefits are contained only in the Conditions of Service and in the Rules and Regulations of CREL, which is a contract of employment between the claimant and CREL and it cannot be enforced against the defendants who were not parties to the contract. He submitted that the law is that a person who is not a party to a contract cannot be held bound by it and cannot sue or be sued under it - C.N.E. Inv. (Nig.) Ltd V. Asco Inv. [2012] All FWLR (Pt. 611) 1588. With regards to the claimant's reliefs Nos. (vi) and (vii) for N5 million as general damages and 21% pre-judgment interest respectively counsel submitted that general damages and pre-judgment interest cannot be awarded in contracts of employment citing Strabag Construction Nig Ltd V. Aoeyefa [2001] FWLR (Pt. 60) 1538 at 1558. Counsel submitted that the relief for repatriation allowance is unfounded because there is no evidence before the court to show that the claimant was entitled to such an allowance. Learned counsel submitted that on the state of the claimant's pleadings and evidence, the 2nd defendant was neither a necessary nor a competent party in this suit and as such he cannot be sued or held personally liable in this suit. He submitted that in law the 2nd defendant is the agent of a disclosed principal (i.e. the 1st defendant) and it is settled law that agents of a disclosed principal cannot be joined as co-defendants in an action against their principal citing Qua Steel Products Ltd V. Bassey [1992] 5 NWLR (Pt. 239) 67, Vassilev V. Paas Industries Ltd [2000] FWLR (Pt. 19) 418. He urged the court to hold that the 2nd defendant cannot be held personally liable in this suit because he is an agent of a disclosed principal, the 1st defendant. He then urged the court to dismiss the suit in its entirety for lack of merit. Learned counsel to the claimant submitted the following issues for determination: i) Whether the employment of the claimant was continuous from the South Eastern State to the Cross River State and to the 1st defendant? ii) Whether the conditions of service and General Rules and Regulations for Senior Staff of CREL were inherited by the 1st defendant and apply to the claimant and whether the claimant is entitled to his claims? iii) Whether the retirement benefits and other entitlements of the claimant were paid to the claimant and whether the defendants’ witness is a witness of truth to be believed? He submitted that on the evidence adduced, the services of the claimant were not severed but was continuous from South Eastern State to the Cross River State. He further submitted that by the Lease Agreement between the Government of Cross River State and the 1st defendant, the 1st defendant accepted and inherited all the assets, liabilities and obligations of the Government relating to Biakpan Rubber Estate including the conditions of service for Senior Staff of the Estate. He argued that this fact has been admitted and needs no proof referring to Section 123 of the Evidence Act, First Bank of Nig. PLC v. Bani [2011] All FWLR (PT. 599) 1175 and that parties are bound by their agreement citing Kaydee Ventures Ltd v. Hon. Minister, FCT [2010] All FWLR (Pt. 519) p.1099. Counsel submitted that the “taking over of the claimant and strictly adhering to the terms and conditions of employment” as contained in the lease agreement presupposes that the employment of the claimant is a continuous one, more so when there were no new terms of employment between the claimant and the 1st defendant. Counsel submitted that where a party to a suit does not adduce evidence which he is supposed to then it may be presumed that the evidence will be against him if adduced citing Dare v. Fagbamila [2009] 14 NWLR (Pt. 1160) 197. It was his contention that clause 5.15 of the lease agreement where the 1st defendant covenants “to take over all employees in the Estate and to ensure that in so doing strict adherence is made to the terms and conditions of employment namely, the removal, dismissal, transfer, retirement and promotion of such employees for purposes of maintaining industrial peace and harmony or healthy management/union relations” is clear unambiguous, and needs no qualification. He submitted that where the words of a contract agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning citing Dalek Nig. Ltd v. OMPADEC [2007] All FWLR (Pt. 364) 236. He submitted that the rule of privity of contract has exceptions and which exceptions enure in the claimant in the nature of assignment of contractual obligation wherein the legal rights of the claimant against the Cross River State Government has been taken over by the 1st defendant referring to Ekere v. Anuku [2011] All FWLR (Pt. 561) 1573. Smith, Stone and Knight v. Bimighton Corporation [1939] 4 All ER 116, 120, Marina Nominees Ltd v. Fed Board of Inland Revenue [1986] 2 NWLR (Pt. 20) 48. Counsel contended that the 2nd defendant who was signatory to the documents relied on in the matter and who was directly and personally involved and has been material at all times is a necessary party in this suit. He further argued that the 2nd defendant was not wrongly joined because he is the owner and alter ego of the 1st defendant has been relevant at all time material to this case citing Longe v. F.B.N Plc [2010] 6 NWLR (Pt. 1189) 43. He argued that by the conditions of service for senior staff the claimant is entitled to his retirement benefits and other entitlements. Learned counsel submitted that on the evidence no retirement benefits were ever paid to the claimant, either by the Government of Cross River State or anyone else. He submitted that exhibits D1 and D2 were wrongly admitted as they were secondary evidence and the defendants failed to call the maker of the exhibits to tender the documents and be cross-examined on same for the truth to be unraveled. He urged the court to expunge exhibits D1 and D2 from the records of the Court for being wrongly admitted citing Latif v. FRN [2010] FWLR (Pt. 2010) 1188, N.S.I.T.F.M.B. v. Klifo Nig. Ltd [2010] 13 NWLR (Pt. 1211) 326. It was his submission that the defendants’ letter of reinstatement was an offer referring to Amana Suits Hotels Ltd v. P.D.P [2007] 6 NWLR (Pt. 1031) 476. He argued that defendants' witness made a lot of contradicting statements on oath to deserve not being believed in his testimony by this Honourable Court. He submitted that no witness who has given on oath two materially inconsistent evidence is entitled to the honour of credibility citing Ajose v. FRN VoI. 1, I.C.P.C.L.R. 116. Replying on point of law, counsel submitted that the law is trite that the party to whom notice to produce has been given is under no duty or obligation to produce the document or evidence sought to be produced referring to Babalola V. Rufus [2010] All FWLR (Pt. 515) 309. He submitted that Section 167(d) of the Evidence Act, 2011 should be invoked against the claimant because he relied on Exhibit CW5 and tendered the secondary evidence in part and withheld some part citing Oceanic Securities Int'l Ltd V. Balogun [2012] All FWLR (Pt. 643) 1880. He submitted that the conflicts mentioned by counsel in paragraphs 6.48 - 6.51 of the address are not material as they do not go to the real issue or question before the court citing Ogunsakin V. Ajidara [2010] All FWLR (Pt. 507) 109 at 132. Now, this judgment was to be delivered on January 12, 2015. It could not be delivered that day as a result of the industrial action embarked upon by Judiciary Staff Union of Nigeria (JUSUN). It is due to this reason, the judgment is being delivered today outside the three months period. I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited. The issue for determination is whether on the pleadings and evidence adduced the claimant ought to be entitled to judgement. I will begin this judgement with the preliminary issues raised. The defendants have submitted that the 2nd defendant is not a necessary party to this action as he is the agent of the 1st defendant. Both parties are in agreement that the 2nd defendant is the Chairman of the 1st defendant. The evidence adduced is that the 1st defendant entered into a lease agreement with the Cross River State Government. The law is settled that an agent of a disclosed principal cannot be sued or joined in a suit for the wrongs of his principal where the principal is disclosed. The 2nd defendant is the agent of a disclosed principal, who is the 1st defendant and as such cannot be sued or joined for the wrong of the principal. See Qua Steel Products Ltd v Akpan Bassey [1992] 5 NWLR (Pt 239) 67 at 69, Niger Progress Ltd v North East Line Corporation [1989] 3 NWLR (Pt 107) 68. Consequently, the name of the 2nd defendant is struck off this suit. Learned counsel to the claimant has urged the court to expunge exhibits D1and D2 for being wrongly admitted. At the proceedings of the 14th February 2014, counsel to the claimant objected to the admissibility of the documents. A ruling was given and the documents were admitted as they were pleaded, relevant to the defendant’s case and the main document exhibit D1 is the original document. It is surprising that counsel is raising this issue again. Furthermore, I do not find any material or fundamental contradictions in the evidence of DW as contended by the claimant. The claimant was employed by the Government of South Eastern State on 15 June 1967 and was promoted to the position of Acting Gang Headman with effect from April 1, 1968 by the Department of Agriculture, Ogoja Province. A series of transfers brought him to Biakpan Rubber Estate which is owned solely by the Government of Cross River State where he rose to the position of Assistant Production Manager. The evidence before the court is that the Government leased Biakpan Rubber Estate to the 1st defendant from November 1995 to October 2002. The 1st defendant covenanted with the Government in Clause 5.15 and 5.16 of the lease agreement (exhibit CW5) as follows: 5.15 To take over all employees in the Estate and to ensure that in so doing strict adherence is made to the terms and conditions of employment namely, the removal, dismissal, transfer, retirement and promotion of such employee for purposes of maintaining industrial peace and harmony or healthy management/union relations; 5.16 To be responsible for the payment of the wages and salaries and other such incentives that would enhance the efficiency and productivity of the employees taken over in 5.15 above. The combined effect of the above provisions is that the defendant took over the claimant together with the other employees. The claimant became the defendant’s employee with effect from November 1995, which is the effective date of the take over. The evidence is that the claimant was retired in error from the services of the defendant by letter dated 18th January 1998 and he was subsequently reinstated on 1st October 1999 by the defendant in its “Notification of Reinstatement” letter which is partly reproduced as follows: 4. You are hereby reinstated with effect from 1st October 1999. Your arrears of salaries from the period you were disengaged (February 1998) till date less the period of your contract tapping (i.e. 3 months) shall be paid to you. 20 months less 3 months = 17 17 x N6794.63 =N115,508.71. 5. The sum of N115,508.71 (one hundred and fifteen thousand, five hundred and eight naira, seventy one kobo) is your due. You will be paid in three instalments of N38,502.90 each. The first instalment shall accompany this letter while the other two will be paid variously in December 1999 and February 2000. 6. You are to report to the General Manager for deployment at the estate. The claimant admitted collecting the first instalment of N38,508.71 with his letter of reinstatement but did not go back to work as directed to be deployed. I find that the claimant was retired in error by the defendant and this was corrected when the defendant reinstated him. I also find that the claimant accepted the terms of his reinstatement when he collected the first instalment of N38,508.71k. By refusing to go back to work and without giving the defendant any notice of his withdrawal from service, I find that the claimant abandoned his duties and thereby unilaterally terminated his employment contract with the defendant. I hold that the defendant reinstated the claimant and he is not entitled to retirement benefits, three months salary in lieu of notice or reparation allowance from the defendant. The claimant has alleged that he was not paid his leave grant for the years 1995, 1996 and 1997. Section 131(1) & (2) of the Evidence Act 2011 has placed the burden of proof of this fact on the claimant. The claimant has not placed any evidence before the court to support this allegation. He has therefore not discharged the legal burden of proof placed on him. He is not entitled to this relief and it is hereby refused. On the issue of the payment of the claimant’s retirement benefits, the evidence before the court is that the Cross River State Government wound up CREL and appointed the firm of Davis, Offiong & Ukah as the liquidator of the company. The evidence shows that the liquidator paid staff of Biakpan Rubber Estate their terminal benefits. I find from exhibit D1 and D2 that the claimant was paid his retirement benefits in the sum of N128,000.00 which he collected on the 16th July 2004 during the pendency of this suit. I therefore hold that the appointed liquidator of CREL has paid the claimant his retirement benefits. This suit is frivolous and misconceived. It is hereby dismissed in its entirety. Costs of N10,000.00 awarded in favour of the defendant. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae