Olarewaju Israel ToluwaseC.S. Mocha -VS- MID Atlantic Sea Foods

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE K. I. AMADI.

DATED: June 11, 2019 SUIT NO: NICN/LA/283/2014

OLAREWAJU ISRAEL TOLUWASE } CLAIMANT

AND

MID ATLANTIC SEA FOODS COMPANY LIMITED

ROBINSON OMOMUAH DEFENDANTS
LIU

CAPT. ZHAING HAIJUN

Representations:

T. Dabor with C.S. Mocha for the claimant

Nelson Otaji with B. B. Obinna – Madu for the defendants.

JUDGMENT

INTRODUCTION

The Claimant commenced this suit by a general form of complaint dated 23^rd day of June, 2014 wherein he claimed against the defendants as follows:

A declaration that the Defendants are guilty and in breach of Contractual obligations and responsibilities imposed on them by the contract of employment with the Claimant and the Labour Law currently in force in Nigeria.
A declaration that the defendants are guilty of negligence and in breach of its obligations and responsibilities to provide adequate equipment and safe working environment as imposed by the contract of employment with the Claimant and the Labour Law currently in force in Nigeria.
A declaration that the purported termination of the Claimant’s employment by the 4^th Defendant orally from the employment of the 1^st Defendant with effect from the 10^th of March 2014, while still under the 1^st Defendant’s employment at Beach land Estate, Warehouse, Apapa, Lagos is unlawful, illegal, irregular, wrongful, invalid and/or in bad faith and/or in breach of natural justice and therefore null and void and incapable of having any legal consequence.
A declaration that the purported termination of the Claimant’s employment by the 4^th Defendant orally from the employment of the 1^st Defendant with effect from the 10^th of March 2014, while still under the 1^st Defendant’s employment at Beach land Estate, Warehouse, Apapa, Lagos is illegal, wrongful and inconsistent with the provisions of the Labour Law.
A declaration that the Claimant contract of employment with the 1^st Defendant is still valid and subsisting.
An order of court directing the Defendants to pay the sum of ₦18,150.00 monthly salary from 1^st of March 2014 till Judgment is delivered.
The sum of ₦10,000,000.00 as compensation for the eye injury suffered by the Claimant on the course of employment
The sum of ₦5,000,000.00 as general damages for the unjustifiable, unfair, unconscionable, mala fide and wrongful termination of the Claimant employment which caused the Claimant serious inconvenience, trauma, set back and emotional discomfort and amounted to a breach of contract between the Claimant and the Defendant.
Interest at the rate of 21% per annum on the total sum of the monthly salary of ₦18,150.00 from 1^st of March 2014 till judgment is delivered and at the rate of 7% thereafter until the final sum is liquidated.
An order of court granting the Claimant the sum of ₦1,000,000.00 being the cost of retaining solicitors and the cost of this action against the Defendant.

The Defendants joined issues with the Claimant by filing Statement of Defence dated 19^th September, 2014. In response to the Defendant’s Statement of Defence, the Claimant filed a Reply dated 19^th November 2014 and filed same day.

The Defendants also filed a Notice of Preliminary Objection dated 18^th November 2014 and filed same day. In response to the Notice of Preliminary Objection the Claimant filed a Counter Affidavit dated 11^th December 2014 and filed same day. The Notice of Preliminary Objection was later withdrawn by the Counsel.

The matter was mentioned on 22^nd September 2014 and hearing commenced in the case on 9^th June, 2015. Claimant opened his case and the Claimant testified as the sole witness and tendered (9) nine documents marked CA to CK3 respectively he was cross examined and claimant closed his case.

On 28th September 2017 defence opened their case and called one witness and tendered (7) seven documents marked DA-DH1, Witness was cross examined and defence closed their case.

At the close of the trial the defendants filed their final written address dated 14^th November 2017 and filed on 15th November 2017.

FACTS OF THE CASE

The Claimant is an employee of 1^st Defendant; the Claimant was employed by the 1^st Defendant as a Sailor in November 2006. After working for about two months in the 1^st Defendant Office at Beach Land Estate, the Claimant was deployed as a cook on board the vessel Golden Gulf II owned by the 1^st Defendant and he worked on board with the 4^th defendant who is the Captain of Golden Gulf II. The Claimant stated that in the course of his employment he was made to work under difficult conditions, the Claimant and other Nigerian sailors are often time harassed, intimidated and assaulted by the expatriate employees of the 1^st Defendant. Claimant and other employees of 1^st Defendant were made to work without necessary safety equipment. The Claimant and other officers on board Golden Gulf II on 3^rd February 2014, were directed to do some chipping work on board the vessel without any protective wears and in the course of doing the job some pebbles entered the eyes of the Claimant which caused him discomfort and he thereafter visited the hospital and he was given some medication and he sailed back to the sea. The Claimant stated that there was a practice of throwing fish back at sea when there is excess catch and even after he took photographs of the incidents and reported to the operation manager, nothing was done about it.

That on the 10^th day of March 2014, the 4^th Defendant instructed the Claimant to throw fish back at sea again but he refused, and the Claimant told the 4^th Defendant that instead of throwing the fish back at sea and pollute the sea, it was better to sell the fish and make more money for the 1^st Defendant. The 4^th Defendant disagreed and there was little argument between the Claimant and 4^thDefendant, in the course of the argument the 4^th defendant threw a small schnapps glass cup at the Claimant, the glass cup hit the Claimant on his right eye which was undergoing treatment and blood started gushing out of the Claimant’s eye. After the incident the 4^th Defendant immediately retrieved from the Claimant the entire 1^st defendant’s file informing the Claimant that his appointment has been terminated and his responsibilities was immediately handed over to another sailor. The Claimant boarded a flight back to Lagos and was taken to NATAFOD Consultants Hospital Lagos for check up and treatment. After treatment Claimant went back to resume work but was denied access to the 1^st defendant’s premises by the officials of the 1^st Defendant.

Claimant’s Solicitor wrote the Defendants demanding payment of money expended on the treatment of the Claimant and compensation for the injuries he suffered. The Defendants on receipt of the letter replied inviting the Claimant to a meeting to discuss the issues. At the meeting the Defendants agreed to pay ₦5,000,000.00 (five million naira) as against the ₦7,500,000.00 (Seven Million Five Hundred Thousand naira) demanded by the Claimant.

After the agreement by the parties, the Claimant thought the matter has been resolved, but to the surprise of the Claimant, 1^st defendant through his Solicitors wrote the Claimant requesting for another meeting which the Claimant’s Solicitors obliged. At the meeting the Defendants offered to pay the Claimant ₦800,000.00 (Eight Hundred Thousand naira) which the Claimant did not accept.

The Claimant has tried to no avail to make the Defendants pay for his medical expenses and also compensate him for the injuries sustained in the course of his employment. All attempts have been rebuffed and made futile by the Defendants, hence this suit.

TRIAL

Hearing commenced on the 9^th June 2015 and Claimant testified for himself as CW1. Witness identified his witness statement on oath dated 23/6/2014 and adopted it as his evidence in the trial. It was admitted and marked CWE1.

Nine (9) documents were tendered through this witness. They were admitted and marked as follows:

Identity Card CA
Photographs of the Incident CB-CB1
Photographs throwing excess fish at sea CD-CD4
Medical Report CE
Solicitors Letter of 20/3/2014 CF-CF2
Defendant’s Solicitor Letter of 25/3/2014 CG
Defendant’s Solicitor Letter of 14/4/2014 CH
Merchant Navy (stwc) Certificate CJ
Crew list of Golden Gulf II CK-CK3

During cross examination witness mentioned the names of the defendants he sued in the case as follows: Capt. Zhaing Haijun, Mr. Robinson Omomuah, Mr. Liu, Mid Atlantic Sea Foods Company Limited but that Mr. Robinson Omomuah was the one who employed him. That he wrote an application to the 1^st defendant applying for the post of a sailor and immediately he submitted the application on the 3/12/2007, he was called on to start work. At this stage the application was tendered admitted and marked Exhibit DA. In response to counsel’s question witness stated the addressee on Exhibit DA is the Operations Manager, Mid Atlantic but he sued the 2^nd defendant because he is the Chairman of the 1^st defendant. Continuing his testimony, witness stated that he worked with the 1^st defendant for 6 years and his duty as a Sailor was to work on board on a ship.

Further, witness stated that when he submitted his application he attached his qualification; a Seaman’s passport. He stated that he was promoted to the rank of Chief Officer by the 1^st defendant and he performed his duty. Witness stated that from the date of employment to the date of this suit he never complained of any injuries.

Continuing his testimony witness stated that the deposition in par 30 of his witness statement on oath may be a mistake or written error but he never argued with his Captain. That on the day in question 10/3/2014 he was on deck and the Captain was in the wheel house and that he does not know the distance between the deck to the wheel house. But that the Captain assaulted him by stretching himself from the window and threw a schnapps glass cup at him.

Witness stated that the defendants referred him to a Clinic called NATAFOD Consultants Hospital in Apapa Lagos for medical check-up and treatment. By Exhibit CF witness affirmed that the particles in his eyes was removed but defendants never paid for the cost of his medication and they abandoned him just before his surgery and he had to pay for the surgery and he is still paying as he has not being able to complete payment.

Witness stated that he collected his salary for the month of March 2014, and since then he has never been to work as the Captain sacked him on board, took all the documents of the defendants from him and that he is not owed any arrears of salary.

Claimant closed his case.

On the 28^th September 2017, defence opened their case and called a sole witness DW1 (MOSES OLOGBO). Witness identified his witness statement on oath dated 22/9/2014 and adopted it as his evidence in the trial. It was admitted and marked DW1E.

Seven (7) documents were tendered through this witness. They were admitted and marked as follows:

Handwritten Application DA
Log Book DB-DB48, DC-DC50
Letter from Dept. of Fisheries DD
Receipt of Payment (treatment) 24/2/2014 DE-DE1
Receipt of Payment for Treatment 13/3/2014 DF-DF1
Mutual Insurance Policy Solicitor DG-DG6
Salary Roll for crew DH-DH1

During cross examination witness stated that he was employed by 1^st defendant on February 2008 and the Claimant was employed by the 1^st defendant before him. Witness stated that if an employee sustains injury in the course of his employment it is the duty of the 1^st defendant to treat him, and that was why they took the Claimant to NATAFOD Consultation Hospital. The witness stated that the 1^st defendant never provided the Claimant with the recommended glass.

Continuing witness stated that he was not at the scene when the 4^th defendant injured the Claimant and the facts he deposed to were what the Claimant told him. Witness stated that the Claimant was never promoted by his company but went ahead to say that he signed the document wherein the Claimant was referred to as Chief Officer.

The witness stated that the Claimant did not return with crew and when he called the claimant, he told him that he had a problem with the crew and could not continue because of the injury he had. He (witness) sent an agent to pick the Claimant up at the high sea and take him to Calabar and he was flown from Calabar to Lagos, and sent him to the Hospital.

At the conclusion of hearing on 28^th September, 2017, the respective counsel to the parties were ordered to file and exchange Final Written Addresses. The matter was then adjourned for adoption of Final Addresses. The matter was further adjourned severally and the learned counsel for the claimant abandoned the case and did not file any final written address. Thereafter the learned counsel for the defendant adopted his final written address on October 25, 2018, this judgment could not be delivered within the 90days window allowed for delivery of judgments for reasons stated in my letter to the Chief Justice of Nigeria in that regard.

In his final written address counsel for the defendants raised a sole issue for determination thus:

Whether the Claimant whose act and or conduct of insubordination, assault and affray against the 4^th Defendant, which took place on the high sea during a fishing expedition, had proved the reliefs claimed in order to be entitled to judgment in this suit.

Counsel submitted that the honourable court guided by the principles of fair hearing in doing justice to the Claimant and the Defendants is primarily to consider the endorsement and or reliefs claimed on the pleadings, and evidence in corroboration of the documents tendered.

Counsel submitted further that the reliefs endorsed on the Complaint filed before the court are declaratory and pecuniary damages against the Defendants jointly and severally paragraphs 46 (a-j) of the statement of claim. That the law is settled that a declaratory relief is discretionary in nature and the burden of proof requires that the Claimant must plead and lead evidence to establish his entitlement to the declaration sought.

In other words, it is part of our adversarial or judicial system that the burden of proof to be discharged by the Claimant in this suit is on the balance of probabilities. Thus, Section 131 Evidence Act 2011 Cap. 14 provide “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts exists”.

Counsel submitted that the Claimant in this suit has failed to establish any legal right that inures to him on the existing facts as stated in the statement of claim and or the witness statement on oath corroborated by the documents admitted in evidence. Be that as it may, it is germane for the Honourable Court to consider the Claimant’s averment in Paragraphs 28-30 of the Statement of Claim.

Paragraph 28: “On 10^th day of March 2014, the 4^th Defendant instructed the Claimant to throw fish back at sea again and he said No but the 4^th Defendant called an artisan boat to buy the remaining fish after the 1^st Defendant’s products has been graded. The 4^th Defendant further instructed the Claimant to send the boat on an errand but the captain of the boat refused. Immediately the 4^th Defendant ordered the boat to leave.

Paragraph 29: “The Claimant told the 4^th Defendant that instead of letting the boat leave and throwing the fish back at sea to pollute the sea, it was better to sell the fish and make money for the 1^st Defendant. The 4^th Defendant disagreed and there was little argument between the Claimant and the 4^th Defendant.”

Paragraph 30: ‘In the course of the argument the 4^th Defendant throw a small schnapps glass cup at the Claimant. The said glass hit the Claimant on his right eye which was undergoing treatment and blood started gushing out of the Claimant’s eye”.

Counsel argued that from the foregoing paragraphs of the Claimant’s pleading it is unequivocally admitted as to the cause of action, to wit; insubordination, assault and or affray. Put differently, in the words of the Claimant. “It was better to sell the fish and make money for the 1^st Defendant. The 4^th Defendant disagreed and there was little argument between the Claimant and the 4^th Defendant”.

Counsel submitted that an admitted fact is not in dispute citing Section 20 Evidence Act, 2011. And the case of OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR pg. 26.

On the other hand, the pecuniary claim of damages by the Claimant had not been proved. Particularly paragraph 46 sub paragraph F-J of Statement of Claim, the spurious heads of claim of ₦10,000,000.00 for eye injury, ₦5,000,000.00 as general damages and ₦1,000,000.00 as Claimant’s solicitors fees respectively are in law special damages that need to be particularized, pleaded and proved by oral and documentary evidence. That the Court of Appeal in WEMA Bank Plc. v I.I. (Nig.) Ltd. (2011) 6 NWLR (pt. 1244) pg. 2 pg. 479 2 pg. 487 ratio 13 held thus: “To succeed in a claim for special damages the Plaintiff must not only itemize the loss which entitles him for special damages but he must also prove each of the said item in the particulars of damage”.

That by Exhibits DE-DE1, DF1 and CE respectively, the defendants have taken all the responsibility to provide adequate medical attention to the Claimant and paid all medical expenses. That Exhibit CE which is a Medical Report from NATAFOD CONSULTANTS HOSPITAL expressly states as follows: “Treatment for DM and cornea abscess was given with good effect, foreign body removed cornea healed”. (emphasis supplied)

Counsel submitted that under cross examination the status of the Claimant’s eye was confirmed by the court as he was asked to read his witness statement on oath and the result was perfect.

Continuing, counsel submitted that the claim for salary too should fail, the reason being that the Claimant admitted during cross examination that no salary was owed and due to him as the Claimant had received his salary for March 2014 before excusing himself from work.

Furthermore that, the Claimant’s prayer that the Defendants pay the sum of ₦1,000,000 (One Million Naira only) as solicitor’s fee negates the decided authorities and the established principle of law that parties bear their respective solicitors fees.

Counsel concluded that the gravamen of the Defendants’ final written address is that based on the Claimant’s pleadings, the Claimant has completely failed to prove his case and had not discharged the burden of proof in this case. Counsel urged the court to dismiss this suit.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that the sole issue raised by the learned counsel for the defendant summarized the issues in controversy between the parties. I hereby adopt it as mine; consequently, I shall treat the claims of the parties seriatim as follows:

Claims A, B and G are declaratory reliefs for breach of contractual obligations negligence and compensation thereof. There is undisputed evidence before the court by the claimant that the he was asked to do chipping works inside that vessel Golden Gulf 11 and in the process, chippings entered into his eyes which later formed abscess whereupon he was taken to the hospital for treatment. The claimant also gave evidence that he was not provided with any protective glasses before being mandated to carry out the chipping work. I therefore find that the failure of the defendants to provide protective glasses for the claimant before giving him the chipping works to do was negligent on their part and I so hold. The claimant therefore shall be entitled to compensation thereof.

Claims C, D, E, and F are challenging the termination of the claimant, order that his employment is still subsisting and payment of his salaries. They also shall be treated together. There is no dispute of the fact that the claimant was employed sometime in December 2007. He was equally disengaged or had his employment terminated orally sometime in March 2014, meaning that he worked for more than 6 years for the defendants. There is no evidence of the length of notice required for termination of this employment relationship between the parties, where there is no agreement on the length of notice required to terminate the employment relationship section 11 of the Labour Act Cap L1 2004 shall apply.

Section 11 of the Labour Act, Cap L1 laws of the Federation of Nigeria 2004., subsection (1) provides that; Either Party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

Subsection (2) provides that:

The notice to be given for the purpose of this section shall be:-

(a) One day, where the contract has continued for a period of three months or less

(b) One week, where the contract has continued for more than 3 months but less than two years

(d) One month where the contract has continued for five years or more

(e) Any notice for a period of one week or more shall be in writing.

(f) Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him to treat it before the making of this act.

(g) Nothing in this section shall prevent either party to a contract from waving his right to notice on any occasion, or from accepting a payment in lieu of notice.

I have found out above that the Claimant herein worked for the defendant for more than 6 years. By section 11(2) (d) the length of notice required for termination of this type of employment is one month’s notice or payment thereof.

It is settled that, where an employee is entitled to a length of notice or payment in lieu of notice and the employer determines that contract without the requisite notice, that termination is complete but wrongful, see Isievwore v. NEPA [2002] 13 NWLR (Pt. 784) 417 SC. The employee under that circumstance is entitled to damages, the measure of which is the amount representing the length of notice prescribed, see the case of Afribank (Nig.) PLC v Osisanya (2000)1 NWLR (Pt.642)592. Since this case is a pure case of master and servant relationship, reinstatement is not a remedy for wrongful termination of employment. I therefore find and hold that the termination of the employment of the claimant here was wrongful in which case the claimant is entitled to payment of damages, but not null and void, see SPDC (Nig.) Ltd v Ifeta (2001)11 NWLR(724)473.

Claims H, I and J deal with general damages, pre-judgement interest and cost of this suit. I have already held that the claimant is entitled to compensation for the eye injury which he sustained, and considering the fact that the injury was further threatened by the act of the 4^th defendant by throwing a schnapp glass cut at it I hereby award N3, 000,000.00 to the claimant. I have equally held that the termination of the employment of the claimant is wrongful I also award the sum of N18150.00 in lieu of notice. By the provision of Order 47 Rule 7 of the National Industrial Court Rule 2017 pre judgment interest is not contemplated by the Rules of this court. The claim for prejudgment interest is therefore refused.

In all, I make the following orders:

The Defendants shall pay to the Claimant the sum of ₦3,000,000.00 (Three Million Naira) being compensation for the eye injury he sustained in the course of his employment with the defendants.
The Defendants shall pay to the Claimant the sum of ₦18,150.00 (eighteen thousand, one hundred and fifty naira) only being his one month’s salary in lieu of notice.
The defendants shall pay the claimant the sum of N250, 000, being the cost of this suit.
The defendants shall pay all monetary awards in this judgment within 30 days from the date of this judgment failing which they shall attract 20% interest per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

(Judge)