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National Industrial Court

Mrs. Usumero John -VS- Diesel Power Nigeria Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.

DATE: OCTOBER 8, 2019                           SUIT NO:NICN/AWK/30/2016

BETWEEN:

Mr. Usumero John                                                                              –           Claimant

AND

Diesel Power Nigeria Limited                                                            –          Defendant

REPRESENTATION

Dr. D. Alufe with A.I. Atemubaghan, E.G. Unu, E. Agherario  and U.A. Isharo, for the Claimant

  1. Abijogun, for the Defendant

JUDGMENT

INTRODUCTION

  1. The claimant filed this action on 11th October, 2016 vide a complaint accompanied with statement of facts, list of witness, written statement on oath, list of documents and copies of the documents.  By order of Court granted on 16th February, 2017, time was extended for the defendant to file its Memorandum of Appearance and statement of defence, list of document and copy of the document and  statement on oath of defendant’s witness.  In reaction, the claimant filed a reply to defendant’s statement of defence, further statement on oath, additional list of documents and copies of the additional documents.

  1. By the complaint, the claimant is praying for:
  2. a)A declaration that the claimant is entitled to his entitlement of the sum of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being the terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said year(s).
  3. b)An order compelling the defendant to pay the claimant his entitlement of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being the terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said year(s).
  4. c)An order mandatorily compelling the defendant to avail the claimant all the necessary documents and logistics required for the claimant to have unfettered access to the funds in his pension account with Crusader Pension Limited.
  5. d)The sum of N500,00.00 (Five Hundred Thousand Naira) being general damages.

  1. e)Any other suitable relief(s) in the circumstance.

  1. At the trial, the claimant testified on his own behalf as CW.  His frontloaded documents were admitted as Exhibits CW1 to CW10.  The defendant’s Exhibit DW1/1 was also admitted through DW1, Mr. Obie Victor, a Personnel Officer at Sea Trucks Nigeria Ltd, who testified on behalf of the defendant.  He, however, denied the suggestion that the defendant company is a subsidiary of SeaTrucks Nigeria Ltd; and did not establish any nexus between the two companies either.  At the close of trial, parties filed their respective final written addresses.  The defendant’s final written address was filed on 25th April, 2019.  By order of court granted on 18th June, 2019 extending the time, the claimant filed his final written address on 18th June, 2019.  The defendant’s reply on points of law was filed on 2nd July, 2019.

THE CASE BEFORE THE COURT

  1. The claimant’s case is that he was employed by the defendant since 2006 until 2016; that while the claimant was still in the employ of the defendant, his employment was unjustly the terminated by the defendant because the claimant declined defendant’s instruction to proceed to where a life-threating radioactive material is situated.  It is the claimant’s case that by virtue of the said unjust termination of his employment by the defendant, he is entitled to terminal benefits as provided for in the contract of employment and as further amplified in an agreement entered between Sea Trucks Group of Companies which is the parent body to the defendant and the Maritime Workers Union of Nigeria (exhibit CW2); that the defendant was also expected to issue the claimant with letter to his pension managers so that the claimant can access the pension benefits that whereas the defendant refused to fulfill her obligations as stated above despite several reminders hence the claimant instituted this action against the defendant; that all efforts by the claimant for defendant to do the needful proved futile as the defendant has been obstinate to heed the modest demand of the claimant.

  1. To the defendant, it is not in dispute that the claimant was a “contract staff” with the defendant; that claimant started working with defendant as a contract staff in 2006; that what is in dispute is whether the claimant worked continuously for 10 years from 2006 until 2016 or claimant worked as a contract staff, that is, a “Deckhand” on board the defendant’s vessels based on series of contracts of employment which were usually for a short duration, sometimes just for one month as can be seen in Exhibit CW5.  That, also not in dispute is the fact that the claimant did not tender his letter of employment to buttress his case that he was employed in 2006; that Exhibit CW7 (Medical Certificate of Fitness) which the claimant tendered to show that he was employed in 2006 does not qualify as a letter of employment because it does not contain his conditions of service.  That claimant’s purported sack as stated in paragraphs 11, 12 and 13 of statement of facts is based only on his ipsi dixit (sic); that not one document to back up his claim was tendered; that whichever one it was, the onus of proof rests squarely on the claimant.

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant submitted a sole issue for the court’s determination in this suit thus: “whether the claimant proved his claims/damages in this action.” To the defendant, if the above issue is the only one available for determination in this action, then all the pieces of evidence as to why the claimant left the employment of the defendant, whether by termination, dismissal or lock out, and the rigorous cross examination of the defendant’s witness in the attempt to justify the reason why the claimant refused to sail as instructed, and the issue of radioactive substance and the failure of the defendant to provide PPE or protective gears as alleged, all go to no issue; that at the end of the day, the sole issue available for determination remains only on the damages claimed by the claimant; that the law on the proof of damages is now well settled by a long line of cases.  In arguing the sole issue submitted, the defendant elected to take the five (5) reliefs claimant seriatim to see if the claimant proved any or some or all of his claims.

  1.  On the claimant’s Relief (1) praying for a declaration that he is entitled to his entitlement of the sum of N300,000.00 per year from 2006 to 2016 being the terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said year(s), defendant submitted that a look at Exhibit CW1 would show that it is an agreement between “Sea Trucks Group of Companies” and the “Maritime Workers Union of Nigeria”.  That surprisingly the claimant who seeks to rely on this agreement did not plead or lead evidence on the fact that he is a member of the said union; that this ought to be the first thing the claimant should prove in this case.  To the defendant, the agreement in Exhibit CW2 is a “gentleman agreement” which is not justiciable in law, that the agreement made only in 2015 did not form part of the claimant’s terms of employment.  That on the face of it, Exhibit CW2 is in the nature of a “collectively bargained agreement”, that this type of agreement is such that members or officials of a trade union negotiate on behalf of a group of workers; that they usually negotiate for better wages payable by an employer to the employees; that such agreements are usually not enforceable by the individual employees on whose behalf collective agreements were purportedly made.  Reference was made to Taxaco Nigeria Plc V. Kehinde (2002) FWLR (pt. 94) 143, Nigerian Society of Engineers V. Qzah (2014) All FWLR (pt. 761) 1571 and Osoh V. Unity Bank (2013) 2 SCJN 1083.

  1. The defendant went on that the claimant needed to first prove that Exhibit CW2 forms or was incorporated into his contract of employment with the defendant; that claimant also needed to prove his membership of the Union which entered the agreement on behalf of the workers.  That a look at Exhibit CW2 would show that it was made on 22nd September, 2015 with no commencement date stated; that the claimant’s prayer to back date its applicability to 2006 when he was allegedly employed would mean reading into Exhibit CW2 what it did not state.  That assuming without conceding that Exhibit CW2 is justiciable and same was incorporated into claimant’s conditions of service, the claimant still has the burden of proof which he failed to discharge; that it is settled law that what constitutes the terms of contract of employment is a question of fact which must be established or proved by the employee claiming; that the conditions of service could be contained in one document or series of documents; that the bottom line is that the court must identify or ascertain the document(s) and based its decision only on it or them.  See DuduSola V. Nigeria Gas (2013) 3 SCNJ 24 at 34, CBN V. Igwillo (2007) 5 SCNJ 52 at 78-79, Okpomu (sic) Palm V. Isserhienrhien (2001) 3 SCNJ 79.  That claimant failed to discharge the onus of proof in this case; that he did not prove that he worked for the 10 completed years period as claimed.  That it is settled law that any monetary sum claimed in a contract can be claimed as an item of special damage; that  N300,000.00 x 10 years of service is a claim in special damages; and the defendant urged on the court to so find and hold in this case.  That it is settled law that the standard of proof in special damages is strict proof; that even where no defence is filed to a claim in special damages the claimant must strictly prove the sum as claimed.  See Omoregie v. Omagie (1990) 2 NWLR (pt. 130) 29.  The defendant then urged on the Court to answer relief (a) in the negative and dismiss same as claimed.

  1. On Relief (2) made by the claimant praying for an order compelling the defendant to pay the claimant his entitlement of N300,000.00 per year from 2006 to 2016 being the terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said year(s), the defendant contended that this relief is ancillary or consequential and dependent on the success of the declaration.  That the law is that where the main claim fails, the consequential prayer must also fail because the Court would be lacking the power to grant the ancillary order.  See Awoniyi V. Amorc (2000) 6 SCNJ 141.  The defendant urged on the Court to dismiss this relief also.

  1. Regarding Relief (3) claimed in this action to wit: An order mandatorily compelling the defendant to avail the claimant all the necessary documents and logistics required for the claimant to have unfettered access to the funds in his pension account with Crusader Pensions Limited, the defendant submitted that she is not responsible for the payment of the pension from the Crusader Pensions Limited to the claimant.  That the claimant alleged that he visited the company (Crusader Pension Limited) where he was given some conditions to comply with before he could access the fund; that he however, named only one of the conditions to be a letter of confirmation of accrued pension right, that the other conditions were not disclosed by the claimant .  That without joining Crusader Pension Limited to this action, the claimant prayed for an order which will affect the company; that the law is that the claimant must join Crusader Pensions Limited before an order that will affect her could be made.  See Awoniyi v. Armoc (sic) – supra.  That claimant has not shown that he has been cleared before asking for an order of Court compelling the defendant to issue the letter; that this order, if granted, would amount to the claimant getting access to the pension fund without complying with a condition precedent; that no employer allows an employee to leave the employment without clearance.  That this relief is also ancillary to the success of the main declaration; that claimant did not prove that his employment has come to an end; and the defendant urged on the Court to refuse this relief also.

  1. On Relief (4) made by claimant in this action being the sum of N500,000.00 as general damages, defendant submitted that this head of claim is unknown in damages for breach of contract of employment; and  urged on the Court to also dismiss it; that the award of damages in cases of breach of contract has no room for speculative or sentimental grounds. See Mann Poole & Co. Ltd V. Agbaje (1922) (sic) 4 NLR 8, Taiwo V. Princewill (1961) 1 All NLR 240, Union Beverages Ltd V. Owolabi (1988) 1 NWLR (pt. 68) 128.  The defendant submitted that there is no legal basis or justification for this claim; that the claim for general damages must not be used to cover up for special damages.  See Ogundipe V. AG Kwara State (1993) 8 NWLR (pt. 313) 558.  That claimant’s damages in breach of his contract of employment with the defendant, if any, can only be in special damages; that his failure to prove special damages cannot be compensated with general damages; and defendant urged on the Court to dismiss this relief also.

  1. Concerning Relief (5) made by claimant in this case, that is, “Any other suitable relief(s) in the circumstance”, the defendant submitted that claims such as this can only be made in customary/district/area courts; that the Courts at this level (sic) cannot award a relief not specifically asked for and backed by evidence otherwise the Court would be termed a Father Christmas; that “suitable relief(s) has/have no place in cases of breach of contract.

  1. Relying on the arguments thus far, the defendant urged on the Court to dismiss this suit with substantial costs.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant too submitted a sole issue for determination, namely: whether based on the evidence adduced, and from the facts and circumstances surrounding this case, the claimant is entitled to judgment as per the reliefs sought.  To the claimant, it is trite principle of law that civil cases are proved on the preponderance of evidence or in order (sic) words, on the balance of probabilities.  Reference was made to SPDC (Nig) Ltd V. Edamkue & ors (2009) All FWLR (pt 489) pg. 407 at 418-419, ration 12.

  1. That, firstly, the defendant’s counsel has raised and canvassed general issues particularly as it relates the reliefs sought by the claimant to which claimant will respond to and put his case in proper perspective; that in paragraph 4.4 of the defendant’s argument, counsel submitted that the evidence as to all the events leading to the termination and the termination itself, vis-à-vis the evidence adduced by the claimant, goes to no issue having regards to the relief sought; that it is submitted that such argument is misconceived.   That this Court cannot determine the reliefs of the claimant without bearing in mind the totality and entirety of the facts of the case and the evidence adduced; that the reliefs sought by the claimant borders (sic) on the unjust termination of the claimant’s employment and the refusal to pay the claimant terminal benefit; that these claims cannot be properly determine (sic) without resort to the facts, circumstances and the entire evidence as to what events actually gave rise to the claim; that such facts and evidence are very material to the just determination of the case before Court; and the Court is urged on to so hold.  To the claimant, the law is that the Court must consider the peculiar facts of every case in determination of the reliefs sought; citing Rebold Ind. Ltd V. Magreola (2015) FWLR (pt.794) 94 at 96, Ratio 1, Adeyemi V. Awosika  (2014) FWLR (pt 713) 2029 at 2032; Ratio 4.

  1. The claimant went on that the defendant’s counsel also in paragraph 4.8 of his address opined that the claimant did not show to Court that he is a member of the Maritime Workers Union of Nigeria upon which Exhibit CW2 was executed; that the submission of learned counsel is misconceived as parties never joined issues as to whether claimant was a member of the said Union.  That from paragraphs 14 and 15 of his statement of facts claimant pointed out one fact: that the said agreement (CW2) was between the defendant and the Maritime Workers and/or Water Transport Workers which fact the defendant never denied that the claimant comes under the category of Maritime or Water Transport Worker whose interest the said Union covers; that, infact, the only grouse of the defendant in respect of exhibit CW2 was to the effect that it was a “gentleman agreement” not incorporated in the contract of the claimant and not capable of been (sic) enforced, nothing  more.  That parties were not in dispute as to whether or not the claimant was a member of the Union as exhibit CW2 clearly shows that claimant was covered by same being a Maritime Worker and a contract staff.  Claimant made reference to paragraphs 2 and 15 of the defendant’s statement of defence.  That whether exhibit CW2 is justifiable (sic) or enforceable as been (sic) part of the claimant’s contract is a different argument the claimant will address in the course of his argument.

  1. The claimant went on that, as a matter of fact, the defendant in paragraph 5 of her statement of defence stated that: “The defendant avers further that the claimant had over the years worked as a contract staff “Deckhand” on board of the Defendant’s vessels…”; that from the above the claimant can be said to be a maritime worker, the defendant having admitted that the claimant works as a deckhand on board defendant’s vessels.  That the word “Maritime” connotes the navigation or commerce pertaining sea, ocean, navigable river etc while a “Worker” defines a person who labours; employed to do work for another.  See Black’s Law Dictionary (Sixth Edition).  That it follows therefore that the claimant is rightfully a “Maritime Worker” being a deckhand working in the defendant’s vessel, and as such he is rightly a member of the Maritime Workers Union of Nigeria; and claimant urged on the Court to so hold.

  1. The claimant further submitted that he has proffered sufficient and preponderant evidence before the Court to be entitled to the reliefs sought; that in deciding evidence that is preponderant, the Court is to be guided by the principle as enunciated in the case of Wuroma V. Gashua & anor (2002) All FWLR (pt. 106) 105 Ratio 8 that: “Before a Judge whom evidence is adduced by the parties before him in a civil case come to a decision as to which evidence he accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale… He will then see which is heavier, not by number of witness called  but by probative value of the testimony of those witness (sic).  This is what is meant by deciding a civil case on the balance of probabilities of preponderance of evidence.”  To the claimant, the reason the Court is urged to put evidence of both parties on the imaginary scale is to enable the Court determine in whose favour the evidence preponderates and on whose side the scale of balance tilt (sic); that the credibility of the piece of evidence adduced by the claimant were unshaken neither were they discredit (sic) under cross examination hence nothing was on the other side of the imaginary scale.  Claimant urged on the Court to hold same.

  1. The claimant continued that in the instant case, he led cogent, compelling, credible and uncontroverted evidence as to how he was employed by the defendant since 2006 which fact is not in dispute as the defendant clearly admits same; that the defendant clearly admitted in paragraph 5 of the statement of defence that the claimant has been working for the defendant “over the years”; that there is nothing on the contrary to show that the claimant was not in employ of the defendant in 2006; that the onus shifts to the defendant who alleged that its (sic) is over the years, to categorically pinpoint the year.  That the defendant’s witness who admitted under cross examination that he was employed by the defendant in 2009, clearly admitted that the claimant was employed in 2006 and that he met the claimant in the employ of the defendant; that this fact is not in dispute having been admitted, it needs minimal or no further proof which the claimant has discharged; and claimant urged on the Court to so hold.  See Nwankwo Oguanuhu & ors V. Dr. Emmanuel I. Chiegboka (2013) LPELR – 19980 (SC) Ratios 1 & 2 per Galadima JSC (p. 26), para D where it was held inter alia: “It is trite law that what is admitted need no further proof”.  Furthermore, that exhibit CW10 clearly shows that the claimant has been in the employ of the defendant since 2006; that exhibit CW10 is a letter from the defendant written in favour of the claimant wherein it tabulated the various service date/year the claimant has been working for the defendant’s various vessels.

  1. It is the claimant’s further submission that the defendant counsel’s contention that the claimant has not placed  before the Court any letter of employment to show he was employed in 2006 is of no moment; that the defendant having admitted that the claimant has been in the employ of the defendant spanning several years starting from 2006.  That the claimant under cross examination admitted that he was not given any letter of employment as at when he was employed by the defendant in 2006, the defendant asked him to conduct a medical test in 2006 which said medical certificate was tendered as exhibit CW7; that these pieces of evidence were left unshaken and not denied by the defendant.  That the claimant did not tender a letter of employment showing when he was employed is immaterial when the defendant from their own showing has agreed with the fact that claimant has been in the employ since 2006; that claimant cannot be made to suffer for the defendant’s failure to give the claimant a letter of employment the defendant having admitted he was employed since 2006 having regards to exhibit CW7 and CW10; that it simply points out the fact that there was privity of contract between claimant and defendant since 2006.  See Mobil Producing Nig. Unltd V. Udo (2008) LPELR-8440.  That the Court is urged to hold that the claimant has put sufficient evidence before Court to show when he was employed by the defendant, that is, 2006.  As to the contention of learned defendant’s counsel that the claimant did not put evidence before the Court to show when his said contract was terminated by the defendant, claimant submitted that he has proffer (sic) credible evidence to that effect.

  1. The claimant proceeded that it is imperative to state that both parties are in agreement that the event leading to the institution of this action vis-à-vis the fact in dispute as per the claimant sailing with the vessel DP46 occurred during the pendency of the claimant’s contract in March 2016; that the defendant agreed that the claimant was onboard “legitimately” and was instructed to sail with the vessel to a location to execute a contract with Chevron Nigeria Limited; that the defendant labored vigorously to paint the impression that the claimant  contract had expired on 15/03/2016 when it clearly shows that the contract was extended even after the purported expiration; that it is therefore submitted that the cause of action occurred during the pendency of the contract.  See Section 2(2.1) of exhibit DW1.  That the claimant had also shown before this Court when his employment was unjustly terminated by the defendant which is not in dispute by the parties; that the law is trite that when facts are not disputed, further proof of same is not needed or becomes minimal.  See Nwankwo Oguanuhu & ors V. Dr. Emmanuel I. Chiegboka (spra).  That the claimant having shown to Court the period of his employment spanning 2006-2016 (10 completed service years), is urging the Court to further make a declaration that he is entitled to the sum of N300,000.00 per service year for the period of the said 10 service years; that claimant has also adduced sufficient evidence before this Court in respect of same.

  1. To the claimant, the defendant’s laborious contention centered around exhibit CW2 purportedly being a “collective bargain agreement” and same not giving rise to a cause of action is unjustifiable having regards to the facts and circumstances of this case; that assuming but not conceding that exhibit CW2 is a collective bargaining agreement, claimant strongly contends  that it is not in all cases that same cannot be enforced by a party on whose behalf such document was made; that there are exception to the general principle as to when a collective agreement can be binding on an employer and a worker.  See Osoh V. Unity Bank Plc (supra).  That the Court can intrinsically glean at a contract of employment between parties and can as a matter of law, draw an inference or necessarily imply the intentions of the parties as per the collective bargain agreement where same has not been expressly incorporated in the said contract of employment.

  1. The claimant drew the attention of the Court to exhibit DW1 which is one of the contract agreements between the claimant and the defendant relied on by the defendant; that Article 10 of the said Agreement contains the termination clause; that a further glance into the provisions of sub-article 10.7 of the said agreement shows that same covers the issue as to terminal benefits; that a calm and painstaking perusal of sub-article 10.7 shows that same, without more, simply touches on terminal benefits due to the claimant upon termination of his contract by the defendant.  That it is however, without doubt that exhibit CW2 is a document covering issues related to the contract of employment between the defendant and the claimant and other maritime workers in the defendant’s employ; that a cursory look at exhibit CW2, particularly paragraph 2 of the “resolution clause” will also clearly shows (sic) that same also cover (sic) and relates to terminal benefits as it is submitted by the claimant that exhibit CW2 is a further amplification of sub-article 10.7 in exhibit  DW1 from paragraph 2 of the “resolution clause” in exhibit CW2; that by all necessary implication, it is abundantly clear that the intention of the parties in exhibit CW2 is to further adumbrate the terms in sub-article 10.7 in exhibit DW1.  The claimant urged on the Court to hold same.  To the claimant, the exception in Osoh V. Unity Bank Plc (supra) applies to the instant case as every case is determined on its own peculiarity and circumstances.  From the foregoing, claimant submitted that he has been able to adduce sufficient evidence before the Court to warrant the grant of the declaratory relief sought in relief 1 of his claim; and urged the Court to exercise its discretionary powers in granting the said relief based on the cogent and compelling facts before the Court.

  1. Regarding the second relief, claimant submitted that having proved the declaratory relief, it follows therefore that the Court can as a matter of law, grant the second relief which is an ancillary relief rested on the first relief.

  1. Concerning the third relief, claimant submitted that he has also proved same from the evidence placed before the Court; that it is pertinent to state that the said relief is principally against the defendant, which is seeking a mandatory order of this Court to compel the defendant to do an act in favour of the claimant and not against a third party (Crusader Pension Managers) as erroneously contended by learned counsel to the defendant.  That the evidence of the claimant on this relief is that the defendant is expected to issue to claimant a letter addressed to the pension company for which the claimant is a beneficiary to the pension scheme; that he further testified that it is based on this said letter from the defendant that the said pension company can enable the claimant access to his pension account which said letter the defendant has failed to issue the claimant.  That whether the claimant has met with the other conditions given to the claimant by the pension company is not the business of the defendant; that the business of the defendant at this point is simply to allow the claimant unfetter (sic) access to his pension by issuing him a letter to the said pension manager.  That in fact, the defendant’s witness agreed that the claimant is entitled to his pension but the said witness vaguely assent (sic) in paragraph 11 of his statement on oath that the claimant had a duty to approach the said pension company so as to know how he can access his pension scheme; that the claimant however, testified to the effect that he had approached the said pension company and he was requested to get a letter of confirmation from the defendant which the defendant  has refused till date.  See paragraph 11 of the claimant’s further written statement on oath dated 16th March, 2017.

  1.  That the defendant’s witness was in agreement with the fact that the claimant has not been issued with the said letter of confirmation but failed to adduce any reason; that the contention of defendant’s counsel that the claimant has not been cleared by the defendant hence the refusal to issue the said letter is untenable as no evidence was led by the defendant to this effect.  That the action of the defendant can best be described as maliciously vindictive aimed to unjustly deprive the claimant of his pension benefits as a result of the fall out between the defendant and the claimant; and claimant urged on the Court to so hold.  That this is so having regards to the fact that the claimant under cross examination without any contradiction stated thus: “When I went to the company (defendant) I was denied entry…” That assuming but not conceding that the claimant actually need to be cleared before the issuance of the said letter to the claimant, how does the defendant expect the claimant to be cleared when he is been (sic) denied entry and access? That this clearly shows the desperate actions of the defendant to clearly deprive the claimant his pension benefit, which right is constitutionally guaranteed.  See Ajao V. Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office (2016) LPELR -4107 (CA).  The claimant submitted that the line of argument of learned counsel for the defendant in paragraph 6.7 of his address that the claimant’s third relief is ancillary to the success of the declaratory reliment (sic) has come to an end and is strange and misleading; that it is imperative to state that the declaratory relief simply borders on computation and payment of terminal benefits for a particular period based on an agreement (CW2) and the contract of employment, without more; that it is not in issue between parties that there was no termination.  That infact while the claimant case is that the defendant abruptly terminated his employment without notice, for his refusal to sail with a vessel to where there are radioactive materials; that these pieces of evidence were not discredited under cross examination; that even the defendant admitted there was a termination of the employment but he untenably contended that it was the claimant refused (sic) sailing with the said vessel and left the company which facts were not substantiated; that the issue of termination of employment does not arise as the claimant clearly proved same and it is not in contention.  Wd (sic) to hold (sic).  That as for the other reliefs, claimant submits that the cases cited by learned counsel are not applicable to the instant case as the Court has the inherent powers to make orders that will save the interest of justice.  See Section 19 of the National Industrial Court Act, 2006.  The claimant submitted finally that the hurdle he needs to scale for him to succeed in this matter is based on the proof of his case on the preponderance of evidence, which proof, he submits, has been discharged by claimant based on the credible, cogent and compelling evidence on which he is entitled to judgment as per his reliefs.

 

DEFENDANT’S REPLY ON POINTS OF LAW

  1. The defendant reacted on points of law in terms of the issues raised by the claimant.  To the defendant, the submission of learned counsel for the claimant in paragraphs 4.08 to 4.12 of claimant’s written address to the effect that the claimant being a deckhand in the employment of the defendant is a “Maritime Worker” has no basis in law; that the point of law here is that parties as well as the Court are bound by the pleadings before the Court.  See Ibrahim V. Obaje (2018) All FWLR (pt. 937) 1682 (SC) and Usman V. Yusuf (2018) All FWLR (pt. 950) 1714 (CA).  That there is nowhere in the entire pleadings of the claimant did he plead the fact that he is a Maritime Worker and by virtue of that, he was entitled to take benefit under Exhibit CW2; that that was not his case on the pleadings.

  1. The defendant went on that the argument in paragraph 4.11 of the claimant’s written address to the effect that the claimant being a Maritime Worker has by virtue of that become “a member of the Maritime Workers Union of Nigeria and Water Transport Workers branch” has no basis in law; that being a Maritime Worker, it is submitted, does not by that alone make a worker a member of the Union as membership of every Union is by voluntary registration and with evidence of payment of Union dues; that there is no evidence that the claimant was a registered member of the Union in issue in this case.  See Section 12 (4) of the Trade Union Act, Cap T14 LFN 2004.

  1. The defendant further contended that Section 17 of the Trade Union Act (supra) deals with Union dues which are deductible from the worker’s wages where such a worker is a registered member of any Union; that there is no evidence of such deduction in this case of the claimant.  That the law therefore is that the claimant cannot claim benefit under Exhibit CW2 without leading evidence to show that he is a registered member of the Union in the Exhibit CW2.

  1. On the submission of the learned counsel for the claimant in paragraph 4.12 of his written address that “by virtue of exhibit CW2 and the non-denial of the defendant as to the claimant being a Maritime Worker or a member of the said Union, the Court can clearly, safely and rightly infer and hold that the claimant is a member of the Maritime Workers Union of Nigeria and Water Transport Workers branch”, Learned counsel to the defendant maintained that the submission is clearly not supported by law; that the law is that parties are bound by their pleadings, that the claimant did not plead that he is a member of the Union and there is therefore nothing for the defendant to deny; that the law in this kind of situation is settled by Section 133 of the Evidence Act, 2011 which provides that “… the  burden of first proving the existence or non-existence of a fact   lies with the party against  whom the judgment of the Court would be given if no evidence were produced on either side”.  That the claimant had a duty to first plead the fact that he is a member of the Union before the defendant would admit or deny the averment.

  1. On the submission of the learned counsel for the claimant in paragraphs 4.16 to 4.24 on whether the claimant put in 10 years of service in the employment of the defendant and the alleged admission by the defendant, learned counsel to defendant and the alleged admission by the defendant, learned counsel to defendant submitted that  the law is very trite now that counsel’s submissions cannot take the place of evidence; that the burden of proving his employment rest (sic) squarely on the claimant by virtue of Sections 131 and 132 of the Evidence Act, 2011.  See Okpomu (sic) Palm V. Iserhienrhien (supra).

COURT’S DECISION

  1. I carefully considered the processes filed and the submissions of counsel.  The key issue at hand is that the claimant seeks the Court’s declaration that he is entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said year(s).  the claimant also seeks an order of Court compelling the defendant to pay his entitlement of the N300,000.00 terminal benefit which is based on Exhibit CW2 – an agreement between Sea Trucks Group of Companies and the Maritime Workers Union of Nigeria.  The defendant in response to claimant’s case submitted that the claimant who seeks to rely on this agreement did not plead or lead evidence to show  that he is a member of the said Union; or that Exhibit CW2 formed part of the claimant’s terms of employment.  The defendant further submitted that Exhibit CW2 which is in the nature of a collectively bargained agreement made on 22nd September, 2015 is not justiciable; that claimant has not proved his membership of the Union which entered the agreement on behalf of the workers.  The defendant relied on Texaco Nigeria Plc V. Kehinde (supra), Nigerian Society of Engineers V. Ozah (supra) and Osoh V. Unity Bank (supra).  The claimant’s argument is that the defendant never denied the fact that the claimant comes under the category of Maritime or Water Transport Worker whose interest the Maritime Workers Union of Nigeria and Water Transport Workers branch protects; that defendant admitted in paragraph 5 of her statement of defence that the claimant worked as a contract staff deckhand on board defendant’s vessels over the years; that it is trite law that what is admitted need no further proof; and that  the Court should decide this case on the balance of probabilities of preponderance of evidence.  Claimant placed reliance on Wuroma V. Gashua & anor V. Dr. Emmanuel I. Chiegboka (supra).  The claimant submitted further that he cannot be made to suffer for the defendant’s failure to give the claimant a letter of employment the defendant having admitted that claimant was employed since 2006 having regards to exhibits CW7 and CW10; citing Mobil Producing Nig. Unltd V. Udo (Supra).

  1. Defendant witness stated in evidence (DW1) before the Court that he is a Personnel officer at Sea Trucks Nigeria Limited; that he knew the claimant and defendant in this case.  Under cross examination, DW1 denied the suggestion that Diesel Power Nigeria Limited, the defendant in this case, is a subsidiary of Sea Trucks Nigeria Limited or that claimant was in the employ of the defendant since 2006; that he does not know the exact date the claimant started working for the defendant; that he (DW1) only knows that when he started work in 2009 he knew claimant as a contract staff of defendant.  Under further cross examination, DW1 stated that he does more of administrative work; that the defendant does more of field work; that he (DW1) has been to the field only once in 2015 but could not remember the exact date; that on 15th March, 2016 when the claimant went to work on board the defendant’s vessel DP46, he (DW1) was told that the claimant was given safety gears; that he (DW1) was not present when claimant and others were briefed before embarking on the mission to Chevron at which concerns about the radioactive hazard materials was raised by claimant and others.  That all he (DW1) had come to tell the Court was what he was told.

  1. A witness in a case is supposed to give evidence of what he or she personally saw, did or discovered and not what he or she heard or was told by someone else.  See Brawal Shipping Nigeria Ltd V. Ometraco International Ltd (2011) LPELR-9258 (CA).  In Igwe V. Alaka & ors (2016) LPELR – 40222 (CA), the Court of Appeal per Oseji, JCA. held thus:

It is settled law that hearsay evidence is not admissible to prove a fact or matter.  The evidence of a statement to a witness is called “Hearsay” if the object of such evidence is to establish the truth of what is contained in the statement.  In other words, it is an evidence which does not derive directly from the witness himself but also rests on the veracity or competence of some other person.  Thus, where a third party relates a story to another as proof of the existence of a particular fact, it is hearsay evidence.  It is however not hearsay and thus admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that was made.  See generally Buhari V. Obasanjo (2005) 7 S.C. (pt. 711) page 1; Olalekan V. The State (2001) 18 NWLR (pt. 746) 793; Omo V. Judicial Service Commission (2000) 12 NWLR (pt. 682) 444; Kala V. Potiskum (1998) 3 NWLR (pt. 540) 1 SC.”

It stands to reason that even if a witness gives hearsay evidence and the other side does not object, the trial Judge is not expected to invite counsel to address him before he expunges such evidence or attaches little or no weight to such evidence.  See Iwuoha V. Mobil Producing Nig Unltd. (2011) LPELR-4477 (CA); Ladoja V. Ajimobi & ors (2016) LPELR -40658 (SC); Okereke V. State (2016) LPELR -26059 (SC) and Subramanian V. Public Prosecutor (1956) 1 WLR 969.  The evidence of DW1 will accordingly be rejected to the extent of its inadmissibility on grounds of hearsay.  I so hold. See Sule Mamman & ors V. Adamu Garba Kofar-Bai (2015) LPELR -25966 (CA).

  1. I now return to the merit of the claimant’s case.  The Supreme Court in Gabriel Ativie V. Kabelmetal (Nig) Ltd (2008) LPELR -591 (SC); (2008) 10 NWLR (pt. 1095) 399; (2008) 5-6 SC (Part II) 47 made it very clear that a claim is circumscribed by the reliefs claimed.  A look at the 5 reliefs of the claimant will show that the first relief is for a declaration which posits that the  claimant is entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being  his terminal benefit from the defendant for each year completed, the claimant having completed the said year(s).  It is on the basis of this declaratory relief that the claimant seeks orders compelling the defendant to pay the claimant his entitlement of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said year(s) and mandatorily compelling the defendant to avail the claimant to have unfettered access to the funds in his pension account with Crusader Pensions Limited (reliefs 2 and 3),  general damages and any other suitable relief(s) in the circumstance (reliefs 4 and 5).  What all of this means is that the claimant’s claims in reliefs 1, 2, and 3 are actually claims for terminal benefits and pension funds which are claims for special damages.  7up Bottling Company Plc V. Augustus (2012) LPELR -20873 (CA) held that claims for gratuity, pension, housing fund and salary are all claims for special damages which must be strictly proved with credible evidence to the satisfaction of the Court as the Court is not entitled to make its own estimate of same.  And by NNPC V. Clifco Nigeria Ltd (2011) LPELR -2022 (SC), what appears to be an admission cannot apply to a claim for special damages.  Alternatively put, a claim for special damages cannot be granted because it is admitted.  This is because special damages are never inferred from the nature of the act complained of.  They are exceptional and so must be claimed specially and proved strictly.  The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.  Special damages are exceptional in character and so there is no room for inference by the Court.  Has the claimant met this strict requirement of proof in order to succeed in his claim? This remains the question.

  1.  This Court has in a number of decisions laid down what a claimant seeking monetary claims from this Court must establish in order to succeed.  In Mr. Suraju Rufai V. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June, 2018, for instance, this Court stated thus:

In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it, not the oral testimony of the claimant except if corroborated by some other credible evidence.  (see Mr. Mohammed Dungus & ors V. ENL Consortium Ltd (2015) 60 NLLR (pt. 208) 39).

Accordingly, the claimant in the instant case has the twin duties of proving his entitlement to the sum he claims; and proving how he came by the quantum of the sum he claims.  See further Mr. Ignatius Anyanwu & ors V. Mr Aloysius Uzoamaka & ors (2009) LPELR -515 (SC); (2009) 13 NWLR (pt. 1159) 445 SC. Furthermore, the law is that all items of loss, that is, constituting the claim for special damages must be specified by the claimant before they may be proved and recovery granted.  See Christopher U. Nwanji V. Coasten Services Nig. Ltd (2004) LPELR-2016 (SC); (2004) 11 NWLR (pt. 885) 552; (2004) 18 NSCQR 895.  Additionally, the claimant has a duty to give specific particulars of the special damages he is claiming.  This is to enable the opposing party know what he is to meet in the case.  See AG Anambra State V. C.N. Onuselogu Enterprises Ltd (1987) LPELR – 614 (SC); (1987) NWLR (pt. 66) 47; (1987) All NLR 579; (1987) 9-11 SC 197 and Marine Management Associates Inc. & anor V. National Maritime Authority (2012) LPELR – 206 (SC).  Where can the claimant specify the items of loss, the specific particulars of the special damages being claimed? Only in the pleadings.

  1.  The claimant placed great reliance on Exhibits CW2, CW7 and CW10.  Exhibit CW2 is the agreement between Sea Trucks Group of Companies and the Maritime Workers Union of Nigeria (Seamen/NIWA and Water Transport Workers Branch).  It is dated 22nd September, 2015.  Exhibit CW7 is the Medical Certificate of Fitness for Seafarers.  It is dated 22nd June, 2006.  Exhibit CW10 is the letter of recommendation to obtain eligibility for O.O.W Examination Registration in respect of the claimant.  The letter is dated 31st July 2013 and written by the defendant to The Examiner, National Maritime Authority (NMA/NIMASA).  In paragraphs 15, 16 and 17 of the statement of facts and written statement on oath of 10th October, 2016, the claimant averred that the agreement entered (sic) between Sea Trucks Group of Companies which is a parent body to the defendant and the Maritime Workers Union of Nigeria and Water Transport Workers branch stipulates that the claimant be entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) only for every completed year as terminal benefit being a contract staff, as was the case with some of the claimant’s contemporaries that has (sic) left the employ of defendant; that he has a pension account with Crusader Pensions Limited (Pension Managers) where he is  entitled to 25% of the funds therein, whereas the defendant has refused the claimant access to the said pension as the defendant was expected to issue the claimant a letter to the said Crusader Pensions Limited so that the claimant can access the said pension account; that the defendant has however refused to issue the claimant the said letter despite several demands.  That Diesel Power (Nig) Ltd is one and the same with West Africa Venture Ltd.

  1. A look at Exhibit CW2 shows that by the heading and the first two opening paragraphs, it is an agreement made on 22nd September, 2015 between Sea Trucks Group of Companies and the Maritime Workers Union of Nigeria (Seamen/NIWA and Water Transport Workers Branch).  This effectively makes Exhibit CW2 a collective agreement as defined under Section 54 (1) of the NIC Act 2006; and I so find and hold.  This being the case, the question that arises is whether the claimant can rely on it in this suit.  The parties treated this issue as one of the bindingness of Exhibit CW2 on the claimant and the defendant.  The defendant while acknowledging that Exhibit CW2 is in the nature of a collectively bargained agreement, argued that the said agreement is what the law refers to as a gentleman agreement which is not justiciable in law citing Osoh V. Unity Bank Plc (supra); that the said agreement made only in 2015 did not form part of the claimant’s terms of employment.  The defendant however conceded that Exhibit CW2 is the type of agreement that members or officials of a trade union negotiate on behalf of a group of workers; that they usually negotiate for better wages payable by an employer to the employees.  That the claimant is asking for his terminal benefits of 10 (ten) years based on Exhibit CW2 yet he did not tender his letter of employment so as to enable the Court to ascertain when exactly he was employed; that claimant did not tender any letter of termination/dismissal as alleged by him to enable Court to determine when the 10 years came to an end; that it is not for the Court to begin to search documents in the attempt to arrive at the 10 years claimed by the claimant, rather it is for the claimant to refer the Court to the relevant section or article of his conditions of employment which gives him the claim.  In reaction, the claimant submitted that the parties were not in dispute as to whether or not the claimant was a member of the Maritime Workers Union of Nigeria (Water Transport Workers branch) as Exhibit CW2 clearly showed that claimant was a maritime worker and a contract staff; that the defendant averred in paragraphs 4 and 5 of the statement of defence that at all times material to this case, the claimant was employed, as a “deckhand” on board the defendant’s vessel name DP 05; citing and relying on the Seafarers’ Employment Agreement Crew (contract) of 16th February, 2016 which was the last contract of employment between the parties; that claimant over the years worked as a contract staff “deckhand” on board the defendant’s vessels based on series of contracts of employment which were usually for a short duration, sometimes just for one month; depending on the availability of the vessel and on the contract being executed for Chevron Nigeria Limited (CNL), the defendant’s major contractor.

  1. The defendant’s submission that the claimant is asking for his terminal benefits of 10 years based on Exhibit CW2 when the claimant did not tender his letter of employment so as to enable the Court ascertain when exactly he was employed requires an excursion into the law relating to contract labour generally.  Firstly, the relationship between the employer and his employee is generally to be found in the service agreement or letter of employment. See Anaja V. UBA Plc (2010) LPELR – 3769 (CA) and International Drilling Co. Nig Ltd V. Ajijola (1976) 1 All NLR 117 at 130.  By Ladipo V. Chevron (Nig) Ltd (2005) I NWLR (pt. 907) 277 (CA) what document contains the terms of contract of employment or service is a question of fact.  Where more than a single document provides for the terms, such document must be construed jointly in order to have the correct and total account of what the terms of the contract are; that once the terms are ascertained, it becomes mandatory for the Court to ensure that the parties to the contract have enjoyed their freedom of contract.  For our purpose here therefore, what governed the relationship between the claimant and the defendant is Exhibits CW2, CW5, CW7, CW10 and DW/1/1.  I so find and hold.  In Exhibit CW5, the contract agreement (Exhibit DW1/1) between Diesel Power (Nigeria) Ltd and Usumero John (defendant and claimant respectively) is dated 16th February, 2016 in which the defendant is the employer and the claimant the employee.  The capacity in which the claimant is to be employed is narrated in detail in the Seafarer’s employment agreement (contract).  Exhibit CW7 is Medical Certificate of Fitness for the claimant dated 22nd June, 2006; while Exhibit CW10 is the defendant’s letter of recommendation of claimant dated 31st July, 2013.  The claimant’s averment in paragraph 3 of his statement of facts and written statement on oath that he has been a contract staff with the defendant for 10 years – since 2006 and his evidence in Court to that effect was not controverted by the defendant.  I so find and hold.  Consequently, I have no hesitation in holding that the claimant has been a contract staff of the defendant since 2006.

  1. I now return to the defendant’s argument as to the non-applicability of the collective agreements.  The defendant’s counsel had contended that the current state of the law on collective agreements as espoused by the Supreme Court in Akauve Moses Osoh & ors V. Unity Bank Plc (2013) 9 NWLR (pt. 1358) 1 at 29 is that collective agreements are not legally binding and cannot create any legal obligations unless the collective agreement has been incorporated into the employee’s contract of employment.  This argument of the defendant’s counsel reveals the uncritical citation and application of case law by counsel, and hence reading of case law authorities out of context.  The point I seek to make here is that the cause of action in Osoh arose in 1994, when the action was filed at the High Court of Edo State, Benin long before the Third Alteration to the 1999 Constitution came into being.  The law is that “the law in force at the time of cause of action arose governs determination of the suit.”  See Isaac Obiuweubi V. CBN (2011) 7 NWLR (pt. 1247) 465 at 495; (2011) 3 SCNJ 166; 201 All FWLR (pt. 575) 208 and Keystone Bank Limited V. Mr. Olukayode Abiodun Oyewale (2014) LPELR -23612 (CA).  As at 1994, when the cause of action arose in Osoh, there was no provision of law that permits the interpretation and application of collective agreements as we have now under section 254C (1) of the 1999 Constitution.  Whatever it was in 1994, section 254C (1) of the 1999 Constitution has altered that position; as such Osoh as cited and applied by the defendant’s counsel is distinguishable.  The point is that Section 254C (1) cannot authorize this Court to interpret and apply collective agreements if the intention is not that collective agreements are thereby binding and enforceable.  See Lijoka Olaniyi Dennis & 1677 ors V. First Franchise Service Ltd & 1 or; unreported Suit No. NICN/LA/527/2013, the judgment of which was delivered on February 6, 2019.  Interpretation (“the action of explaining the meaning of something” by the New Oxford American Dictionary) implies a declaration of rights; and application (“the action of putting something into operation” by the New Oxford American Dictionary) implies that the interpretation would be binding and enforceable.  What all of this means is that the argument of the defendant as to collective agreement being a gentleman’s agreement cannot stand the current Constitutional ethos of section 254C (1) in terms of the mandate granted this Court to interpret and apply the agreements.  It must also be appreciated that the rule which saw collective agreements as gentleman’s agreements is a common law rule, which is rigid and immutable, and had worked hardship in the world of work.  It is this rigidity of the rule and hardship it worked on the world of work that led to the present Constitutional provision allowing this Court to interpret and apply collective agreements.  No other Court in Nigeria is given this mandate.

  1. The  point need to be made here that the hallmark of the Third Alteration to the 1999 Constitution is the creation of a new labour jurisprudence, one that seeks to check rigidity and harshness of the common law; and with it came a new thrust for this Court.  That is why in labour/employment relations substance is preferred over form principally because of the stronger bargaining power of the employer over the employee.  In Lijoka Olaniyi Dennis & 1677 ors V. First Franchise Service Ltd & 1 or (supra) this Court went on to state thus:

Globally, therefore, this is recognized in terms of the true essence of labour/industrial courts.  For instance, in India, the very essence of an Industrial or Labour or Employment Court was succinctly captured by the constructive and incisive holding of their Supreme Court in NTF Mills Ltd V. The 2nd Punjab Tribunal, AIR 1957 SC 329 in these words: The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication they must determine the ‘rights’ and ‘wrongs’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining.  The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.

This Court in Mr. Kurt Severinsen V. Emerging Markets Telecommunication Services Limited (2012) 27 NLLR (pt. 78) 347 NIC noted and applied this very essence.

  1. The claimant in the instant case is a contract staff of the defendant whose Union is the Maritime Workers Union of Nigeria (Seamen/NIWA and Water Transport Workers Branch).  The rule advanced by the defendant that membership of the trade union has to be proved before the claimant can rely on the collective agreement (Exhibit CW2) applies only when the claimant is a senior staff given that membership of senior staff unions is not presumed; it has to be actual (the staff in question must in fact opt in individually and in writing.  See Mrs. Bessie Udhedhe Ozughalu & anor V. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March, 2018.  Consequently, the applicability of Exhibit CW2 to the claimant is not in doubt contrary to the submissions of the defendant.  Arguments by the defendant as to non-incorporation of the collective agreement into the contract of employment of the claimant goes to no issue as same argument has previously been discountenanced by this Court given the new dispensation of the Third Alteration  to the 1999 Constitution.  See Mr. Valentine Ikechukwu Chiazor V. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July, 2016.  I have no hesitation, therefore, in holding that the claimant can rely on the collective agreement he tendered.  The argument of the defendant to the contrary is hereby rejected.

  1. The defendant had argued that the claimant did not tender any letter of termination/dismissal as alleged by him to enable Court determine when the 10 years came to an end.  The defendant however, stated in paragraphs 13 and 18 of his statement of defence  dated 9th November, 2016 thus:
  2. … few days after the claimant’s last contract had expired on 15thMarch, 2016 and while still on board the DP 46 boat, the claimant and the engineer on board the vessel expressed fear and uncertainty of the health hazards that may be involved at the site of the contract. The claimant complained aloud that he was not safe going with the vessel to Escravos notwithstanding the health/pep talk earlier given to all the crew members as well as the safety gears provided.  He therefore decided to abandon the vessel.  While the said engineer tendered a resignation letter to the Defendant, the claimant simply packed his luggage and disembarked from the vessel…
  3. …The claimant’s contract expired and he walked out of the opportunity to have it extended or renewed.

In reaction, it was the claimant’s contention that his contract with defendant had expired when defendant summarily terminated claimant’s employment.  Exhibit DW1/1 (which similar document formed part of Exhibit CW5 as the seafarer’s employment agreement between the defendant and the claimant dated 16th February, 2016) states in section 10.2 that if the contract is terminated due to misbehavior of the employee, the termination will be immediate.  By section 10.3, an example of misbehavior includes not following orders of superiors.  Having stated in paragraphs 13 and 18 of its statement of defence that claimant after raising issues concerning radioactive substances simply packed his luggage and disembarked from DP 46 vessel, in my considered view, tantamount to an act of misbehavior in breach of sections 10.2 and 10.3 of Exhibit DW1/1 for which the claimant’s employment was constructively terminated on 15th March, 2016 upon his final disembarkation from defendant’s DP 46 vessel.  I so find and hold.

  1. To the claimant, therefore, his relief is essentially for a declaration  that he is entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being his terminal benefit  from the defendant for each completed year, the claimant having completed the said year(s); an order compelling the defendant to pay claimant his entitlement of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being his terminal benefit from the defendant for each completed year, the claimant having completed the said year(s); an order mandatorily compelling the defendant to avail the claimant all the necessary documents and logistics required for the claimant to have unfettered access to the funds in his pension account with Crusader Pensions Limited; general damages and any other suitable relief(s) in the circumstance.  In the main, the claimant relied on Exhibits CW2, CW7, CW10 and DW1/1.

  1. It is necessary to quote verbatim the salient provisions relied upon by the claimant.  The first is Exhibit CW2 which is the agreement between SeaTrucks Group of Companies and the Maritime Workers Union of Nigeria (Seamen/NIWA and Water Transport Workers Branch) clause 2 states thus:

That every contract staff shall be entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) only for each completed year of service or part thereof as terminal benefit.

  1.   The second is Exhibit CW7, which is as follows:

ESTEE MEDICAL CENTRE

No. 3 Omerelu Street

GRA Phase 1

Port Harcourt

Tel no: 084-572627

Fax:     084-233642

Mobile:08036693633

MEDICAL CERTIFICATE OF FITNESS FOR SEAFARERS

This is to certify that USUMERO JOHN has been examined clinically by me and found to be medically:

       Fit

       Temporary unfit

       Unfit

He/she is free from any contagious disease.

Valid for only one year

Signed

  1. TANIA FASANMI

G.I.S Recognized Seafarer Dr.                                                                       22.06.06

Port Harcourt Area                                                                                         DATE

  1. The third is Exhibit CW10 which is a letter from the defendant to The Examiner, National Maritime Authority (NMA/NIMASA) Maritime House, 4 Burma Road, Apapa – Lagos dated 31st July, 2013.  The letter is headed:

 

LETTER OF RECOMMENDATION TO OBTAIN ELIGBILITY FOR O.O.W. EXAMINATION REGISTRATION – MR. USUMERO JOHN

The above named is employee of Diesel Power (Nig) Limited, Warri and has been serving onboard our various vessels and wants to write his O.O.W Examination.  We would appreciate if he is granted eligibility for the said examination.

Please find below the record of his service experience.

SERVICE EXPIRIENCE

S/NO NAME OF VESSEL RANK HORSE POWER (GROSS TONNAGE) SERVICE DATE TOTAL SEA TIME
FROM TO MONTHS DAYS
1 DP 41 Able Seaman 300T 16/10/2006 15/12/2006 2 0
2 DP 05 120T 16/12/2006 10/1/2007 0 25
3 JASCON 6 358T 20/2/2007 30/4/2007 2 8
4 DP 25 111T 17/5/2007 28/7/2007 2 12
5 JASCON 7 358T 23/8/2007 27/10/2007 2 4
6 DP 26 114T 6/11/2007 21/12/2007 1 5
7 DP 09 300T 02/1/2008 09/2/2008 1 8
8 DP 06 120T 9/2/2008 02/4/2008 1 24
9 JASCON 7 358T 11/4/2008 17/5/2008 2 13
10 DP 10 300T 29/5/2008 3/7/2008 1 5
11 DP 24 83T 16/7/2008 27/8/2008 1 11
12 DP 05 120T 17/9/2008 20/10/2008 1 3
13 DP 26 114T 13/11/2008 12/12/2008 1 0
14 JASCON 6 358T 2/1/2009 18/3/2009 2 17
15 DP 10 300T 19/3/2009 6/5/2009 1 17
16 JASCON 7 358T 21/7/2009 9/9/2009 1 19
17 JASCON 7 358T 21/9/2009 29/10/2009 1 8
18 JASCON 6 358T 10/11/2009 02/2/2010 1 6
19 DP 25 111T 29/12/2009 02/2/2010 1 5
20 DP 09 300T 16/3/2010 31/5/2010 2 15
21 DP 09 300T 6/6/2010 5/8/2010 1 0
22 JASCON 6 358T 5/10/2010 4/11/2010 1 0
23 DP 27 99T 15/11/2010 23/12/2010 1 8
24 DP 47 100T 4/1/2011 18/2/2011 1 15
25 DP 10 300T 3/3/2011 2/4/2011 1 0
26 DP 09 300T 20/4/2011 27/5/2011 1 7
27 DP 05 120T 13/6/2011 12/7/2011 1 0
28 DP 41 300T 27/7/2011 29/8/2011 1 18
29 JASCON 6 358T 25/10/2011 14/12/2011 1 19
30 DP 43 34T 15/2/2012 2/4/2012 1 15
31 DP 06 120T 10/5/2012 27/6/2012 1 17
32 DP 47 100T 10/8/2012 9/9/2012 1 0
33 DP 27 99T 24/9/2012 23/10/2012 1 0
34 DP 47 100T 30/1/2013 6/3/2013 1 6
35 DP 46 100T 21/3/2013 25/4/2013 1 5
        TOTAL 50 29

If you require further information, please contact the undersigned and it would be passed to you in confidence.

Yours faithfully

Diesel Power (Nig) Limited

(Signed)

CHIEF MOHAMMED A. KARIM

GENERAL MANAGER

  1. The fourth is Exhibit DW1/1 which is titled the SEAFARERS’ EMPLOYMENT AGREEMENT CREW (CONTRACT).  The contract agreement document is designed as a standard or format for employees or crew employed by the defendant for seafarers engaged by the defendant.  It states the name of employee, date of birth, place of birth, address and position/title.  There are 21 sections in all, including:
  2.             Capacity in which the crew is to be employed
  3.             Contract period
  4.             Station
  5.             Remuneration
  6.             Hours of work and rest
  7.             Board and lodging
  8.             Health
  9.             Professional certificate
  10.             Communication
  11.             Termination
  12.             Immigration
  13.             Policy on Alcohol and Drugs
  14.             Insurance
  15.             Repatriation
  16.             Salvage
  17.             Compensation in respect of loss of Personal Property as a Result of the Loss or Foundering of the Vessel
  18.             DP Complaints Rules and Procedure
  19.             Confidentiality
  20.             Entire Agreement
  21.             Declaration.

Exhibit DW1/1 (which also forms part of Exhibit CW5) is the agreement between the defendant and the claimant dated 16th February, 2016.  By clause 2 – contract period – the claimant’s employment as a Deckhand (GL: JFS1) is for a period commencing on 16th February, 2016 and ending on 15th March, 2016 on board DP05 unless it is terminated for justified reason(s) as contained in section 10 of this Employment Agreement.  The contract is deemed automatically extended to cover the period the claimant remains on board legitimately and working after the expiration of the Voyage Contract by effluxion of time.

  1. The reference to these provisions and exhibits by the claimant signifies that the claimant has proved the first component of the two conditions he has to meet when making claims of the sort in the instant case, that is, showing an entitlement by reference to the instrument or law that grants it.  Even here, the defendant averred in paragraphs 5 and 6 of his statement of defence dated 9th November, 2016 that the claimant had over the years worked as a contract staff “Deckhand” on board of the defendants vessels based on series of contracts of employment which were usually for a short duration, sometimes for just 1 (one) month; depending on the availability of the vessel and on the contract being executed for Chevron Nigeria Ltd (CNL); and that at the expiration of each contract, the claimant, as it is with all such contract staff of the defendant, would be paid all his wages, dues and entitlements in strict compliance with each contract of employment. The point of divergence between the claimant and the defendant, however, lies in the main, as to whether the claimant proved his claims/damages in this action. Be that as it may, what is clear from Exhibit CW10 dated 31st July 2013 is that from 16th October, 2006 to 15th December 2006 the claimant embarked on his first voyage on defendant’s DP 41 vessel for a period of two months. These service experience continued periodically from 2006 to 2013; and thereafter up to 29th March, 2016 when claimant walked off defendant’s DP 05 vessel.

  1. It is thus in proof of the second requirement, that is, how he came about the quantum of the sum he claims that the claimant called in aid Exhibits CW2, CW7, CW10 and DW1/1.   The claimant argued that being a deckhand working in the defendant’s vessel rightly made claimant a member of the Maritime Workers Union of Nigeria (Seamen/NIWA and Water Transport Workers Branch); that the claimant has proffer (Sic) sufficient and preponderant evidence before  this Court to be entitled to the reliefs sought; that Exhibit CW10 clearly shows that the claimant has been in the employ of the defendant since 2006; that when he was employed  in 2006, the defendant asked him to conduct a medical test which certificate of fitness claimant tendered as Exhibit CW7 dated 22nd June, 2006.  I have carefully considered Exhibits CW2, CW5, CW7, CW10 and Exhibit DW1/1.  I am persuaded that Exhibit CW7 was produced after the defendant employed the claimant; and by Exhibit CW 10 the defendant consistently and consecutively engaged the claimant as an employee with the rank of Able Seaman from 16th October 2006 to 25th April, 2013; that by Exhibit DW1/1, the defendant further engaged the claimant as a Deckhand between 16th February, 2016 to 15th March, 2016 on board DP 05.  I so find and hold. The defendant argued that while Exhibit CW2 showed that it was made on 22nd day of September, 2015, no commencement dated was stated; that claimant’s prayer to backdate its applicability to 2006 when he was allegedly employed would mean, reading into Exhibit CW2 what it did not state. In my evaluation of the said Exhibit CW2, item 2 states that every contract staff shall be entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) only for each completed year of service or part thereof as terminal benefit.  The operative words here are: each year of service or part thereof.  By Exhibits CW10 and DW1/1 the record of service experience, with all the service dates indicated, spanned from 2006 to 2016.  I so find and hold.  Therefore, the commencement date for the terminal benefits of the claimant for each year of service or part thereof is with effect from 2006.  I so hold.   Accordingly, it is my determination that the claimant is entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being the terminal benefit of the claimant from the defendant for each completed year, the claimant having completed the said years; same is consequently grantable.  I so hold.  Put together, the sum of the claimant’s entitlement from 2006 to 2016 being 10 years in all at the rate of 300,000.00 for each year is N3,000,000.00 (Three Million Naira). I so hold.

  1. The claimant sought an order of Court mandatorily compelling the defendant to avail the claimant all the necessary documents and logistics required for the claimant to have unfettered access to the funds in  his pension account with Crusader Pensions Limited; that key among the documents required is a letter of confirmation of accrued pension rights.  In reaction, defendant argued that she is not responsible for the payment of the pension from Crusader Pensions Limited to the claimant; that the law is that claimant must join Crusader Pensions Limited before an order that will affect her could be made citing Awoniyi V. Armoc (sic) (supra); that the claimant would be issued with the letter to access the pension after he has been cleared by defendant; that claimant must prove that his employment has come to an end.  In rebuttal of the defendant’s arguments, the claimant testified to the effect that he had approached the said pension company but he was requested to get a letter of confirmation from the defendant.  Reference was made to paragraph 11 of the claimant’s further written statement on oath dated 16th March, 2017.  In his evidence in chief, claimant tendered Exhibit CW9 dated 20th May, 2016 without objection from the defendant.  Exhibit CW9 is a letter from the defendant to the Managing Director, Crusader Sterling Pensions Ltd details of which are stated thus:

Dear Sir,

CONFIRMATION OF STATUS OF ACCRUED PENSION RIGHTS

The above subject refers.

We write to inform you that … contributed to Crusader Sterling Pension Limited under the contributory pension scheme from January, 2005 to November, 2015.

We are pleased to inform you that all his contributions for both employee and Employer, as per Pension Reforms Act, 2004 have been remitted to Crusader Sterling Pensions up to November, 2015.

We will appreciate your earliest processing of his benefits under the contributory pension scheme.

Thanks and regards

Yours faithfully

(Signed)

FELIX FAKUNLE

  1. The defendant had averred in his statement of defence in response to paragraph 16 of the statement of facts that she is not holding on to the claimant pension account; that the claimant has a duty to approach his pension fund administrator at the Crusader Pensions Limited; that payment of pension to an ex-employee is not the responsibility of a contributing employer.  These averments have however, contradicted the defendant’s letter to the Managing Director of Crusader Sterling Pensions Ltd confirming the status of accrued pension rights of a defendant’s staff in Exhibit CW9.  Defendant has not informed the court that CW9 was written after the Managing Director of Crusader Steiling Pensions Ltd was joined as a party in any suit as it requires of the claimant before Exhibit CW9 was issued. What is good for the goose must be good for the gander.  Exhibit CW9 is evidence of the defendant’s legal obligation at all times to do the needful in appropriate circumstances, in the instant case, the claimant’s access to his pension funds. I have already held that the claimant was an employee of the defendant from 2006 to 2016.  I have also held that by the provisions of Exhibit DW1/1 particularly sections 10.2 and 10.3 thereof, the claimant’s employment was constructively terminated on 29th March, 2016 by the defendant.  Having regard to all of the above, it is my determination that the claimant relief 3 is grantable.  I so find and hold.

  1. The claimant claimed the sum of N500,000.00 (Five Hundred Thousand Naira) being general damages.  The primary object of an award of damages is to compensate the claimant for the harm done to him.  See B.B. Apugo & Sons Ltd V. OHMB (2016) LPELR (40598) 1 at 61-62 and Ajayi V. Akawa (2018) LPELR (44933) 1 at 28.  As to whether the tort of malicious falsehood is applicable to a master/servant relationship; and whether damages can be awarded; the Court of Appeal in Promasidor (Nig)Ltd & anor V. Asikhia (2019) LPELR – 46443 (CA) held thus:

The maxim, ubi jus, ibi remedium, is so fundamental to the administration of justice that where there is no remedy provided by common law or statue, the Courts are urged to create one.  See Orianzi V. AG Rivers State (2017) LPELR – 41737 p. 1 at 65-66 and Labode V. Otubu (2001) 7 NWLR (pt. 712) 256.

The law ensures that where a claimant has a right he must have the means to vindicate that right and a remedy, if he is injured in the enjoyment of exercise of it.  See Bello V. AG Oyo State (1986) 5 NWLR (pt. 45) 828 and Lau V. PDP & ors (2017) LPELR (42800) 1 at 60-61 (SC).  The Court looks at the substance of the action rather than the form and a party who has established his legal right will not go away empty handed without any remedy.  See BFI Group Corporation V. BPE (2012) LPELR (9339) 1 at 33 and Eze V. Governor of Abia State (2014) LPELR (23276) 1 at 29.  The defendant argued that this head of claim is unknown in damages for breach of contract of employment; and generally not recoverable in cases of breach of contract, citing Uwaifo, JSC in a suit not stated in his final written address; that the claim of general damages must not be used to cover up for special damages.  See Ogundipe V. AG Kwara State (supra).  In reaction, the claimant submitted that the Court has the inherent powers to make orders that will serve the interest of justice; making reference to Section 19 of NIC Act, 2006.  That notwithstanding, I agree with the defendant that this is a consequential relief.  It is only after the pleadings (indeed after the last paragraph of the statement of facts, paragraph 25) that the claimant made the claims for his reliefs including the claim for general damages.  By Ishola V. UBN (2005) 6 MJSC 34 at 49-50, the often last paragraph of pleadings, which itemizes the reliefs prayed for is not facts  pleaded but claims which constitute the reliefs the claimant is praying the Court for at the end of the trial.  It cannot constitute any pleading at all as no valid order can be made under it without any facts contained in the pleadings in support of it and upon which evidence can be led.  The claim for general damages cannot, therefore, be granted.  It fails and so is dismissed.

  1. The fifth relief made in this case by the claimant is any other suitable relief(s) in the circumstance.  In reaction, the defendant submitted that Superior Courts do not award a relief not specifically asked for and backed by evidence otherwise the Court would be termed a Father Christmas; that “suitable relief(s) has/have no places in cases of breach of contract.  Here too, I agree with the defendant as Court cannot grant reliefs not sought by the parties.  The parties and the Court are bound by the reliefs sought on an application.  A Court cannot grant more reliefs than that claimed by the parties.  See Ayoade V. Spring Bank Plc & anor (2013) LPELR – 20763 (CA).  That notwithstanding, the law is also settled that a Court has the power and is entitled to grant a relief though not claimed or asked for by a party in a case if it flows from and is incidental to the reliefs claimed by the party.  A relief which is an offshoot of and which draws its existence from the main claims of a party can be granted by a Court to such a party as a consequential relief that is traceable and derivable from the reliefs claimed by the party in order to give effect to the judgment of the Court.  It must thus, not be a new, independent or fresh relief completely incongruous and not related directly to the claims made by a party as in a case in the instant suit.  See Otu & anor V. Ani & ors (2013) LPELR – 21405 (CA), NEPA V. Auwal (2010) LPELR – 4577 (CA); Ademola & anor V. Sodipo & ors (1992) LPELR -122 (SC); Funduk Engineering Ltd V. McArthur & ors (1996) LPELR – 1291 (SC) and Odunze & ors V. Nwosu & ors (2007) LPELR – 2252 (SC). Relief (5) accordingly fails and so is hereby dismissed.

  1. On the whole, and for the avoidance of doubt, the claimant’s case succeeds but only in terms of his reliefs (1), (2) and (3) as indicated earlier.  Accordingly, I make the following declaration and orders:
  2. It is hereby declared that the claimant is entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) per year from 2006 to 2016 being the terminal benefit of the claimant from the defendant for each completed year, cumulatively amounting to  N3,000,000.00 (Three Million Naira), the claimant having completed the said years.
  3. It is accordingly hereby ordered that the defendant pay the claimant the sum of  N3,000,000.00 (Three Million Naira) being the cumulative terminal benefit of the claimant from the defendant for each completed year from 2006 to 2016, the claimant having completed the said years.
  4. It is hereby ordered that the defendant avail the claimant all the necessary documents and logistics required for the claimant to have unfettered access to the funds in his pension account with Crusader Pensions Limited.

  1. Judgment is entered accordingly, I make no order as to cost.

.…………………………….

Hon. Justice J.I. Targema, Ph.D

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