Bemil Nigeria Limited V. Marcus Emeribe & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the judgment of Honourable Justice Salisu Garba of the High Court of the Federal Capital Territory, Abuja delivered on 29th July, 2005. The High Court of the Federal Capital Territory would be simply referred to as “the lower court” hereafter.

The Respondents as Plaintiffs before the lower court commenced this action by a writ of summons against the Appellant as Defendant. The Respondents claims jointly and severally against the Appellant as set out in the Statement of Claim are for: –

1. A declaration that the termination of their appointment (sic) is unlawful.
2. A declaration that they are all entitle (sic) to payment of one month salary in lieu of notice.
3. A declaration that they are all entitle (sic) to payment of overtime for overtime work done,
4. A declaration that they are all entitled to payment of salaries for the number of days worked before they were sacked.
5. A declaration that deductions were unlawfully made from their salaries.

6, An order directing the third defendant to pay all entitlements. The breakdown of the entitlements was set out.

7. An order to refund all unlawful deductions. The unlawful deductions were itemised.
8. An order directing the defendant to pay general damages to the tune of N10,000,000,00 to all the plaintiffs for unlawful termination of appointment.

9, An order directing the defendant to pay N100,000,00 to each plaintiff as exemplary damages for unlawful termination of appointment.

10. One million Naira as cost of litigation.

The Statement of Claim filed in the action is at pages 7 – 10 of the Records.

The case set up by the Plaintiffs (now Respondents) in the process is that the Appellant is a limited liability company rendering security and other related services and is retained on a renewable contract by the United States Embassy, Abuja, The Respondents all claim to be bona fide employees of the Appellant till January, 2002. They claimed that they were severally employed by the Appellant and their appointments severally confirmed as a result of satisfactory job performance. That in January, 2002 the Appellant sacked them without notice or payment in lieu of such notice, by letters severally addressed to them. That most of them that were sacked had been in the employ of the Appellant since 1995 and had worked for more than five years and were entitled to gratuity, They also said that they worked for four public holidays for which the 3rd defendant owed them overtime payment and that the Appellant equally owed them salaries for the number of days they had worked before their sack. The Appellant was also said to have made heavy unlawful deductions from their salaries while they were in service without any evidence of tax remittances whatsoever. Deductions were also said to have been made by the Appellant from the Respondents salaries as N.S.I.T.F. contributions; and upon the death of any member of staff. Specific averments were made in relation to the 20th and 21st Respondents while some fifteen unnamed Respondents were said to be married with children and who are now all suffering due to the termination of their appointments. It was also alleged that the salaries payable to them under the contract with the US Embassy and which the Appellants collects is far above what is paid to them.

The Statement of Defence filed by the Appellant is at pages 19 – 20 of the Record. Therein the Appellant admitted the averments in paragraphs 1 – 4, 6, 13, 23 and 24 of the Statement of Claim. The averments in the admitted paragraphs relate to the following: –

1. That the Appellant is a limited liability company rendering security and other related services.
2. That the Appellant is retained on a renewable contract by the United States Embassy, Abuja to provide security and related services to the Embassy.
3. That the Respondents are Nigerian citizens and were bona fide employees of the Appellant till January, 2002.
4. That the Appellant employed the Respondents severally and their appointments confirmed severally as a result of satisfactory job performances.
5. That some of the Respondents have over the years received awards for being guards of the month, or quarter, or year, all being in recognition of good and satisfactory job performances by the US Embassy and the third defendant.
6. That the Appellant advised its Accounts Department to settle all outstanding payments such as payment in lieu of notice and outstanding overtime due to the Respondents but that this had not been paid the Respondents as at the time of filing the suit.
7. That the 20th Respondent who was sacked “due to poor job performance” was promoted from guard to senior guard in 2000 and further promoted to supervisor in 2001.
8. That the 21st Respondent was promoted from guard to senior guard in 1999 and to then supervisor in 2000 but was sacked for poor job performance.

Having admitted the averments highlighted above, the Appellant said that the services of the Respondents were dispensed with because the same was no longer required. The Respondents were also said to be entitled to two weeks notice or payment for such in lieu of notice before they can be disengaged and that the Appellant had since invited the Respondents collectively and individually to collect their entitlement which does not amount to the sum being claimed in this action. The Appellant equally attacked several paragraphs of the Statement of Claim as not disclosing any cause of action.

The lower court in its judgment delivered on 25/7/2005 having found (i) that the termination of the Respondents’ appointments to have been in breach of their letters of appointment; (ii) that unlawful deductions were made from the salaries of the Respondents; and (iii) that the Respondents are entitled to damages for the wrongful termination of their appointments; ordered as follows: –

“1. The termination of the Plaintiffs’ appointment was unlawful.

2. That the plaintiffs are entitled to one-month salary in lieu of notice which I calculate at N289,056.00,
3. That the Defendant remits all taxes and NSITF contributions deducted from the plaintiffs’ salaries to the appropriate authorities forthwith.
4. Refund the sum of N30,450,00 to the Plaintiffs as “other” deductions made in the plaintiffs (sic) salaries,
5. I order the Defendant to pay the plaintiffs the sum of N289,056,00 as general damages.
6. The sum of N100,000.00 (One hundred thousand Naira) only is paid to the Plaintiffs by the Defendants (sic) as the cost of this litigation.”

The Defendant (now Appellant) being dissatisfied with the judgment of the lower court on 1/8/2005 lodged a Notice of Appeal of the same date against the said judgment. The Notice of Appeal contains eight grounds of appeal.

The grounds of appeal shorn of their particulars read:-

1. ERROR IN LAW

The Learned Trial Judge erred in law when he did not make any finding on the competence of the action of the Plaintiffs/Respondents, an error that occasioned Injustice to the Defendant/Appellant.