IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE IBRAHIM S. GALADIMA
31st January, 2019. SUIT NO: NICN/OW/11/2017
BETWEEN:
CAPTAIN YAHAYA ZAMDAI WAMBAI CLAIMANT
AND
BOURBON INTEROIL NIG. LTD. 1st DEFENDANT
OARSMANNS MARITIME SERVICE LTD 2nd DEFENDANT
REPRESENTATION:
K. C KANU, ESQ. WITH E. S. Y WAMBAI, ESQ. FOR THE CLAIMANT.
C. I. UMECHE, ESQ. FOR THE 1ST DEFENDANT.
L. B. PATA FOR THE 2ND DEFENDANT.
JUDGMENT:
This judgment is in respect of this suit which was filed on the 14th of February, 2017 seeking for the following:
A declaration that the Defendants are in breach of their contract of employment with the Claimant;
Special damages:
Six (6) years and nine (9) months withheld part – salaries and entitlements due to the Claimant for the period between May, 2009 to February 2016 equalling N 18,096,678.05;
One month salary in lieu of notice of termination of contract equalling N 562, 544.01.
Solicitors fee equalling N 4,000,000.00.
General damages for breach of contract, trauma, and hardship caused to claimant equalling N 10,000,000.00 which total the sum of N 32, 659, 222. 01.
10% interest of the entire judgment sum until paid.
The Claimant filed his Statement of Facts along with other originating processes on the said 14th February, 2017 and a reply to the 1st and 2nd Defendants’ Statement of Defence on the 22nd of December, 2017. The 1st Defendant filed its own Statement of Defence on the 21st of March, 2017 while the 2nd Defendant’s was on the 19th of September, 2017. After issues were joined, the case was set for trial with the Claimant’s sole testimony made on the 8th of May, 2017. Trial was concluded on the 12th of November after each Defendant produced a single witness. Parties subsequently filed and served their respective final written addresses which were adopted by their various Counsel on the 17th of January, 2019 and thereafter the case was adjourned to today for pronouncement of this judgment.
SUMMARY OF THE PARTIES’ CASE:
A summary of the facts as claimed are that the Claimant was an employee of the 1st Defendant employed through the 2nd Defendant who is purportedly an agent to the 1st Defendant. That the Claimant was engaged as a Seafarer (Captain) via an offer of appointment letter dated the 28th of May, 2009 which clearly stated the Claimant’s remunerations and same was accepted by him (the Claimant). It is the Claimant’s contention that at all material times prior his disengagement by the 1st Defendant, he was never paid completely according to the terms of the contract of employment despite the promises purportedly made by the Defendants to so do.
In its Defence, the 1st Defendant claims that pursuant to Clause 3 of the Baltic International Council (BIMCO) Standard Crew Management Agreement between her and the 2nd Defendant, the latter is indeed the employer of the Claimant as there exists no privity of contract between it and the Claimant. As such, the 1st Defendant denied any liability for the Claimant’s suit for the sums claimed.
The 2nd Defendant in its Statement of Defence of 19th September, 2017, also denied further liability of the claims put up and contended that the Claimant failed in proving his claims based on the minimal standard of proof required in civil cases like this. It however admitted that it employed the Claimant to work as a Seafarer in the 1st Defendant’s vessel in accordance with the written terms of contract agreement between them i.e the Defendants.
With issues properly joined, the Claimant opened his case on the 8th of May, 2018 and testified relying on his deposition on his behalf. He tendered a total of 16 documents thus:
Offer of appointment letter by the 2nd Defendant dated 28th May, 2009 – Exhibit C1.
Deed of the Contract of employment made by the 2nd Defendant as agent of the 1st Defendant dated 1st June, 2012 – Exhibit C2.
Pay slips from 2nd Defendant for the months of March 2013, June 2014, August 2014, and March 2015 – Exhibit C3.
Employment agreement between 2nd Defendant and the Seafarer containing the terms and obligations of the parties dated 16th November, 2015 – Exhibit C4.
First Bank Statement of Account of salaries from 3rd July 2009 to 4th August 2016 – Exhibit C5.
Letter of disengagement dated 1st February, 2016 – Exhibit C6.
First Bank Cheque no PC16136542 for 15th March 2016 for the sum of N153,396.86 credited to the Claimant by the 2nd Defendant – Exhibit C7.
Demand letters from Claimant’s Solicitor dated 7th December, 2016 – Exhibit C8 (a) and (b).
Response letter from 2nd Defendant dated 15th December, 2016 – Exhibit C9.
Solicitor’s Receipt for cost of this action for N2,000,000.00 – Exhibit C10.
Claimant’s ID card and letter of medical clearance from Meridian Hospitals dated 17th September, 2015 – Exhibit C 11 (a) and (b).
Copies of acknowledgement before embarking forms on behalf of the 1st Defendant’s vessel- Exhibit C12.
Incident report for down-tool by the Claimant dated 23rd February, 2013 – Exhibit C13.
Reply Letter from the 2nd Defendant in respect of the down-tool incident reported by the Claimant dated 29th February, 2013 – Exhibit C14.
Table of figures of acclaimed unpaid salaries made by the Claimant – Exhibit C15.
Income Tax Clearance Certificate dated 22nd June, 2016 admitted via cross examination on the 9th of May, 2018 – Exhibit C16.
He was thereafter cross examined by the Defendants’ Counsel.
The 1st Defendant also called in the testimony of a sole witness and she tendered series of 13 documents labeled D1 (a) to (m). The documents are known as “The Baltic and International Maritime Council (BIMCO) Standard Crew Management Agreements all variously executed by representatives of the two Defendant Companies between February 2009 to December, 2017.
The 2nd Defendant called in the testimony of a lone witness as well and tendered 3 documents as follows:
Payment vouchers of payments made to the Claimant in the sum of N153,396.86 – Exhibit D2.
Pay advice from March, 2009 to December, 2011 – Exhibit D3.
Payments slips indicating 5% salary review to the Claimant from November, 2014 to February, 2016 – Exhibit D 4.
The Claimant’s Counsel had the opportunity of cross examining the Defendants’ witnesses thereafter.
Upon the conclusion of trial, the parties filed and served their respective final written addresses in compliance with the rules of this Court. The Defendants further filed their individual replies on points of law within the time allocated to each of them. Thus completed, the parties’ Counsel moved and adopted their respective addresses and submissions on the 17th of January, 2019 and the case was adjourned to today for pronouncement of this judgment.
1st DEFENDANT’S FINAL WRITTEN SUBMISSIONS AND REPLY:
According to the submissions made by the 1st Defendant, there is a lone issue for determination thus: “Whether having regard to the pleadings and the evidence so far adduced at trial, the Claimant has established that he is an employee of the 1st Defendant and a fortiori, entitled to the reliefs sought against it”.
In arguing this issue, Counsel C. Umeche first submitted that averments which are not supported by evidence during the trial must be deemed to have been abandoned. He cited inter alia, UNION BANK PLC V. ASTRA BUILDERS (W/A) Ltd (citation supplied) and argued on that the Claimant failed to lead any evidence on his reply to the Defendants’ Statement of Defence. It is submitted on that even at the trial stage, the Claimant as CW1 did not adopt his reply to the Statement of Defence. It is crucial therefore to conclude that the replies made to the Statement of Defence though before this Court, go to no issue whatsoever since the Claimant never led any evidence in its proof. The replies must accordingly be deemed abandoned and same must not be relied upon by this Court.
Accordingly therefore, having rejected those replies made by the Claimant, this Court must automatically find the following statements made by the 1st Defendant as unchallenged. They are:
That the 1st Defendant is not the employer of the Claimant but the 2nd Defendant and so no liability whatsoever can be borne by the 1st Defendant in respect of any agreements it is not privy to.
There can be no privity of contract between the Claimant and the 1st Defendant as such, there exists no cause of action against it in this suit.
It was submitted in the arguments on the isolated issue for determination as follows:
On the question of burden of proof, that the Claimant has failed to establish probable evidence to establish that he is entitled to any claims against the 1st Defendant. It was argued in the written address (the contents of which have been adopted for the purpose of making my findings) that the Claimant has failed to establish that i)the 1st Defendant employed him; ii)the 1st Defendant was responsible for his monthly salaries; iii)the 1st Defendant was responsible for terminating his appointment; and iv)the 1st Defendant had sufficient control of his employment.
On who employed the Claimant? It was offered that like in all incidents of a binding contract, this Court must determine who employed the Claimant by looking at the exhibits before it. For instance, Exhibit C1 is a letter addressed to the Claimant by the 2nd Defendant dated 28th May, 2009 with the caption “LETTER OF APPOINTMENT”. This is accordingly significant since it establishes clearly who the employer was. Equally significant are the evidence established in Exhibits C2 and C4 all of which are employment contracts between the Claimant and the 2nd Defendant. The 1st Defendant accordingly neither made any offers of engagement of the Claimant nor was it responsible for the Claimant’s monthly wages or salaries. I have been asked to also look at the testimony provided by the Claimant under cross examination where he had answered in the affirmative that he was neither employed by the 1st Defendant nor was the 1st Defendant responsible for paying him salaries.
On who terminated the Claimant’s employment? It was submitted that Exhibit C6 which is a letter of disengagement dated 1st February, 2016 was issued by the 2nd Defendant to the Claimant. The 1st Defendant was accordingly not mentioned in that material piece of evidence. Accordingly also, under the labor law, he who hires also has the power to fire. This position has accordingly been reflected in many judicial pronouncements like SEVEN UP BOTTLING CO PLC V. ANYANYA (citation supplied). By these case laws and the labor law principles, essentially since the 2nd Defendant hired the Claimant vide Exhibits C1, C2 and C4 and fired him vide Exhibit C6, and based on the admissions made by the Claimant in open court as well as in his pleadings, there is surplus reasons to believe that the case made out (if any), against the 1st Defendant, are accordingly unproven.
On the 1st Defendant’s Exhibits tendered as D1 (a) to (m), learned Counsel alleges that these are Crew Management Agreements between the 1st and 2nd Defendants which essentially detail out the provisions of Crew Management services to the 1st Defendant’s vessels by the 2nd Defendant. That specifically according to Clause 3 part II of this Crew Agreement, the 2nd Defendant is covenanted to employ all the crew supplied to the 1st Defendant’s vessels. The Claimant is accordingly not privy to the said agreement and cannot therefore seek any advantages (if any) from it either. That it is a known law that only parties privy to any contract can enforce such contracts. There are plethora of case laws some of which were cited with approval before me.
On the claim of N32,659,221.01 made by the Claimant, the 1st Defendant’s Counsel argued that the Claimant failed to establish such special damages against it and assuming he even established his claim, the 1st Defendant cannot be made a shield or a scape goat of any liability arising from the non performance of a contract by another party. He argued on by saying that this Court cannot even grant the damages sought by the Claimant having failed to particularise the special damages allegedly suffered by the Claimant. That the Claimant failed to itemise the following ingredients i)the amount of salary he was entitled to at the material times in question ii)the exact sums paid to him each month which he alleges are not full payments iii)particulars of the short change in salaries allegedly not paid to him etc. Counsel finally urged me to dismiss the claims against the 1st Defendant.
In response to the Claimant’s final written address, learned Counsel relying on his reply brief of 16th January 2019, against the 2 issues raised by the Claimant’s Counsel, submitted as follows:
On the question of whether there is a contract of employment between the Claimant and the Defendants, it was argued that the 1st Defendant employed the 2nd Defendant as an independent contractor and not as it’s agent. That by virtue of the agreements tendered as Exhibit D1 (a) to (m), the 2nd Defendant was only obliged to provide Crew Management services to the 1st Defendant. That although the Claimant was part of the crew that worked on the 1st Defendant’s vessel, he was still employed as an employee of the 2nd Defendant. Accordingly therefore, the 1st Defendant cannot be held accountable or liable for any acts or defaults of the 2nd Defendant being that their relationship is a special kind of an independent contractor and an employer. He relied on MOTHERCAT NIG LTD V. JOHNSON (citation supplied).
On whether the Claimant had adduced sufficient evidence as raised by his issue 2, learned Counsel needlessly rearguard his submissions made in his written final address. He however added that the 1st Defendant’s witness deposition submitted before this Court cannot be treated as an affidavit stricto sensus but as evidence once it is adopted by the witness. That a failure to depose same before a commissioner of oath does not make the deposition inadmissible. He relied on TAR AND ORS. V. MINISTRY OF COMMERCE AND INDUSTRIES AND ORS (citation supplied) where the Court of Appeal had made a distinction between an affidavit and a witness deposition on oath. References were made to several other judicial authorities in respect of this question as well. Counsel urged this Court to as much as possible, recant from allowing any technicality defeat the end of justice. He referred to Section 12 of the NICN Act 2006 and Order 5 of the NICN Rules 2017 and urged this Court to discountenance the Claimant’s submissions on this issue and dismiss his claims entirely.
2nd DEFENDANT’S FINAL WRITTEN SUBMISSIONS AND REPLY:
The 2nd Defendant’s final written address and reply on points of law were filed on the 16th of January, 2019. Learned Counsel, L.B Pata, isolated a sole issue for determination thus: “Whether the Claimant has proved his case to be entitled to the reliefs sought”. In arguing this issue, it was first submitted that the burden to be discharged in civil cases is as provided for by Sections 131, 132, 133, 134, and 136 of the Evidence Act, 2011. The burden lies on the Claimant to establish his probable cause against the 2nd Defendant. As far as the 2nd Defendant is concerned, the Claimant despite providing the accounts and incidents of his employment, his relationship with the 2nd Defendant and his disengagement (as seen in Exhibits C1, C2, C3, C6 and C7, he never established that all through his employment as a Seafarer he was paid half salaries or were any shortfalls made in the salaries he received from the 2nd Defendant. That none of the other exhibits tendered by the Claimant even established how he was paid half salaries. Specifically, the Claimant must be able to establish his claim on precise facts that make any calculations possible. The case of ORIENT BANK PLC V. BILANTE INTERNATIONAL (citation supplied) was relied upon.
Furthermore, learned Counsel argued that Exhibit C8 and C13 do not qualify as letters of demands. That exhibit C9 is an admission that the 2nd Defendant does not owe any liability or indebtedness to the Claimant as it established how Seafarers are normally paid in the course of their various employments. 2nd Defendant’s Counsel also wants me to take note of the Claimant’s testimony under cross examination where he purportedly admitted the immediate above submission. That Exhibit C10 and C13 are worthless evidence despite what it contains in that C10 does not contain any suit number, or the names of the parties in this suit and or any particulars. That there is no link between Exhibit C10 and this suit whatsoever since at worst it is merely an agreement between the Claimant and his lawyer. For sake of reminder about what evidence Counsel refers to, C10 is purportedly a receipt issued by the Claimant’s Solicitor for professional fees paid. As far as the other pieces of exhibits are concerned, learned Counsel describes them as inadmissible since like Exhibit C15, it was prepared in the pendency of this suit and is undated and unsigned. He relied on G.S &D INDUSTRY LTD V. NAFDAC (citation supplied) on what evidential weight can be attached to an exhibit that is undated and unsigned. Counsel submits further that the Claimant had admitted that his salary had been N180,000.00 from 2009 to 2016 subject to such increments that were made periodically. This fact is allegedly uncontroverted and as such must be deemed to be the truth. Accordingly, the Claimant must rely on the strength of his case and not on the weakness of any defense.
On the Claimant’s claim for damages, that both the special and general damages must fail since the Claimant never proved any special damages he is entitled to. That the Claimant never particularized his special damages entitling him to the reliefs sought for. He said the Claimant never showed what actions by the 2nd Defendant led to any special damages arising therefrom. Counsel finds solace in the fact that Exhibits C1, C3 and C5 all supply how much the Claimant was entitled to when he was employed by the 2nd Defendant. He is convinced that none of these evidence show any shortfalls were made in the Claimant’s salaries for the periods between 2009 to 2016 when he was disengaged as a Seafarer. He urged this Court to dismiss the claims accordingly.
In the reply on points of law filed along with the written address, learned Counsel reemphasized that not all exhibits tendered by a Claimant can be given any probative value. He again stressed on the Claimant’s failure to establish any shortfall in his salary payments. It was finally reiterated that the Claimant’s case can only succeed on its strength and not on the weakness of the Defence. It was finally urged that this case be dismissed in the interest of justice.
CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:
In proof of his claims, the Claimant raised 2 Issues for determination thus:
Whether there is a contract of employment between the Claimant and the Defendants.
Whether the Claimant has adduced sufficient evidence in proof of his claims.
On whether there is a contract of employment between the Claimant and these Defendants, the Claimant explained that the Defendants are in an agency relationship wherein the 1st Defendant owning vessels, had contracted the 2nd Defendant to superintend and manage all crew members employed to work on the former’s vessels. That this is an admitted fact as such it is correct to say that the 2nd Defendant by the nature of its relationship with the 1st Defendant, employed the Claimant to work as a Seafarer. For this reason, the 1st Claimant is a principal of the 2nd Defendant. Accordingly, when the Claimant was employed in 2009, it was agreed upon that he will be subjected to a monthly roaster of what is called “weeks on” and “weeks off” and as such, he is entitled to remunerations during his time on and time off as clearly stated in his contract of service papers. That in fact, Exhibit C2 clearly indicates the nature of the Defendants’ relationship as an agency. Again, by Exhibit C4, the 1st Defendant was defined to be the employer of the seafarers. Accordingly, it is appropriate to regard the 2nd Defendant as an agent of the 1st Defendant as far as the Claimant’s contract of employment is concerned and this relationship creates an exception to the principle of privity of contracts in that the 1st Defendant is bound by the terms and conditions of the contract executed by the Claimant and the 2nd Defendant who for all intents and purposes is an agent of the 1st Defendant. It is submitted on that besides there is a nexus between the Claimant and the 1st Defendant since the Claimant used a staff identity card provided by the 1st Defendant and that he was introduced by a letter to the Meridian Hospital as an employee of the 1st Defendant. Also, there are a number of embarking forms duly filled and assented to by the 1st Defendant each time the Claimant captained the vessels and these evidence exhibited as C11 (a) and (b) are conclusive proof that the 1st Defendant was the employer of the Claimant. The case of DUNLOP PNEUMATIC TYRE CO LTD V. SELFRIDGE LTD (citation supplied) was relied upon. That according to the decision in SHUWA V. CHAD BASIN AUTHORITY (citation supplied), it was settled that when a person negotiates a contract as an agent between his principal and a third party, it shall be binding on the principal as though the agreement was originally between the principal and the third party. Therefore, in the law of agency, an exception is created against the principle of privity of contract since an agent has the power to create contracts which bind the principal. The case of UBA V. OGUNDOKUN (citation supplied) was referred to and relied upon. The Claimant’s Counsel therefore urged me to find in support of his submissions.
On whether the Claimant adduced sufficient evidence in proof of his case, it was submitted that the exhibits tendered by him in the form of Offer of Appointment letter, pay slips, bank statements of account, identity card, letter of introduction to a hospital etc all support the Claimant’s claims. The documents are accordingly conclusive proof that he was short paid contrary to the agreed terms of his contract of employment. Accordingly, these documents are the best proof as required by the Evidence Act and as described in a plethora of judicial authorities. It is believed that these evidence are incontrovertible proof that the Claimant is entitled to the reliefs sought. More so, that the Defendants accordingly admitted all these documents and by the provision of Section 123 of the Evidence Act therefore, what has been admitted need no further proof of. The case of EJEM V. OFIA (citation supplied) was relied upon.
In conclusion, the Claimant’s Counsel wants me to refuse to rely on the 1st Defendant’s witness deposition as same is accordingly not commissioned by the commissioner of oaths in accordance with the provisions of the law. I was finally urged to grant the reliefs sought by the Claimant.
COURT’S DECISION:
Having satisfactorily perused through the processes in this suit as well as considered the testimonies and addresses made on behalf of these litigating parties, I find that a sole issue requires determination which is whether the Claimant is entitled to the reliefs sought?
Before determining this issue though, a number of questions require answers. These questions are:
What is the nature of the relationship between the Claimant and the Defendants;
Are there any breaches of the terms of the contract of employment made with the Claimant? And
Do any damages arise from any purported breach of the employment contract?
On the nature of the relationship with the Defendants, the Claimant had argued strenuously that the 1st and 2nd Defendants are involved in an agency relationship in which the latter is covenanted to employ the Claimant on behalf of the former. The 1st Defendant denied being privy to any contract entered into by the 2nd Defendant and the Claimant insisting that the 2nd Defendant is an independent contractor with it. The 2nd Defendant agreed in its statement of defence that it is a manning/crewing agent responsible for employing staff in its name – See paragraph 4 of its Statement of Defence filed on 19th September, 2017.
It is pertinent to state that in the maritime industry it is very common to find intermediaries specialized in the recruitment of seafarers who are covenanted to provide services on board a ship operated by someone other than the one who has formally contracted the services and even different to the one who has actual ownership of the property or vessel. Such specialized intermediary companies are known as manning or crewing agencies. The purpose of this practice is not only to speed up the contracting in the maritime ambit, to which the ship owner is directly dedicated to, but, of course, to consciously reduce the labour costs of ship operations. It is clear that the end also achieved in this way is none other than the illusion of the final responsibility arising from assuming the position or status of employer to the intermediary, who sometimes is but a fictional employer without the means to face any claims the seafarers may make. The contractual relationship that connects the ship owner to the crew management company is through the signing of a manning agreement through which the manager commits to the owner to manage the crew in exchange for remuneration. With regard to the management of the crew and its contractual channelling, the parties resort to the so-called standard contracts that can be called “atypical” in that they are not covered by international laws and their compliance is relegated to the strictly private ambit. This is because they are crew agreements created by the BIMCO (Baltic and International Maritime Council) – which is an international maritime association accredited as a non–governmental organization with the United Nations.
There are two categories of employment agreements that can be created by a ship owner. One in which it directly employs the seafarers and other employees (crewmen) and the other where a manager (manning/crewing agency) uses its own (usually company) name to employ all the seafarers and employees (crewmen) to work on the vessels. Where the latter is the case, the manager becomes a pseudo employer of sorts bearing all the liabilities and responsibilities for the crewmen. Again, such manning company will usually provide an agreement in its own name with the employee or crewman. Expectedly, the contract would contain details as to the terms and conditions of the employment.
Although neither Counsel made further reference to this nomenclature, but for all intents and purposes the 2nd Defendant is a manning/crewing agent of the 1st Defendant. Manning/Crewing agents are companies that act as an employment agency for seafarers. Seafarers use them to find employment at sea and shipping companies use them to source crew.
Generally, a manning agent shall:
Provide seafarers orientation on recruitment policies and procedures, terms and conditions of employment and other relevant information.
Ensure that any seafarer recruited or deployed by them is qualified and holds the documents necessary for the job concerned
Ensure that contracts of employment are in accordance with any applicable laws, regulations and collective bargaining agreements.
Ensure that seafarers are informed of their rights and duties under their contracts of employment and the articles of agreement prior to or in the process of engagement.
Ensure that proper arrangements are made for seafarers to examine their contracts of employment and articles of agreement before and after they are signed and for them to receive a copy of the contract of employment.
Assume joint and solitary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the employment contract, including but not limited to wages, death and disability compensation and their repatriation.
Guarantee compliance with the applicable labour, social and maritime legislations, and applicable regulations of the flag state and international maritime bodies such as the International Maritime Organization (IMO) and the International Labour Organisation (ILO).
Repatriate the deployed seafarers when the need arises
Disengage any Seafarer for misconducts or failure to comply with any terms and conditions of his employment.
The above being the general indices for determining what a manning or crewing agent does, it therefore goes without saying that as far as this suit is concerned, the liability if any of the 1st Defendant to the Claimant will depend on the contents of the contract of employment entered into with the Claimant.
The law is settled on this point that in the interpretation of a contract, including a contract of employment involving several documents, the court must read all the documents together, in order to ascertain the agreement of the parties. See the case of CBN v Igwillo (2007) 14 NWLR (pt 1054) 393 at 433, A-E.
In Exhibit C2, clause 6 provides that “all employees are entitled to medical care/treatment at the ship owner’s expense.”
Clause 10 also reads:
“you shall be entitled to repatriation by the ship owner under the following circumstances; (a) if your employment agreement expires while on board, (b) when your employment contract is terminated by the ship owner or by yourself for justified reasons ….”
Also, paragraph A of the same exhibit reads:
“compensation for sickness or injury”
“Payment of wages in case of sickness and injury is subject to the following conditions:
a)when the seafarer is signed off and landed at any port because of sickness, his/her wages shall continue to be paid until he/she has been repatriated at the ship owner’s expense….”
Again, exhibit C4 signed by the Claimant and the 2nd Defendant on 16/11/2015, in clause 2 reads that:
“for the purposes of the agreement , company means [BINL] who employs the seafarer.”
Clause 3 reads in part…after this period in accordance with this Agreement, the company shall no longer be liable for the payment of wages or any other benefits unless a separate agreement has been established with the company/company’s agent.
In II 2a) of the same exhibit we see:
“ship owner: if not satisfied with a New Hires performance the company may terminate this employment by giving 1 (one month written noticed (sic) and paying wages on the date of signing off and all repatriation expenses:”
The 1st defendant’s counsel has extensively argued that clause 3 of exhibit D1B – (BIMCO) Standard Crew Management Agreement between her and the 2nd Defendant, excludes them from being the employer of the claimant. The said clause reads: “… subject to the terms and conditions herein provided, during the period of the agreement the crew managers shall be the employers of the crew and shall carry out crew management services in respect of the vessel in their own name.”
One fact to be noted is that the said exhibit D1B was executed between the defendants, to which the claimant was not privy to. Another point, to be made here is that exhibit D1 laid down the clear terms of the agreement between the defendants. The overarching issue in this case, revolves around the employment of the claimant. If exhibit D1 is helpful in this regard, it is primarily to buttress the point that the 2nd defendant was authorized to act on the 1st defendant’s behalf in respect of staffing its vessels.
Now, in my respectful view, the clauses in the claimant’s employment contracts reproduced above, give the 1st defendant certain obligations towards the claimant. The inevitable inference by me, is that, there is a “co-employment relationship” between the claimant and the defendants.
Co-employment, in simple terms is an arrangement where two or more companies are involved with a worker and both may meet the statutory or common law definition of an employer for the same worker. In other words, when two or more companies exercise real or potential control over an employee, both companies can be considered employers for legal purposes. Co-employment is inherent in the staffing firm/client relationship and since both have sufficient contact with an assigned employee, each company will be viewed as an employer.
Generally, in this sort of relationship, the staffing firm is viewed as the “primary employer” and bears most of the responsibility for the employee, while the person on whose behalf the worker is hired may be viewed as the “secondary employer”.
A perusal of the immediately preceding exhibits shows that the 1st defendant under exhibit C2 had the powers of repatriation over the claimant in certain instances, and could also have terminated the employment of the claimant. Also, it is clearly indicated in exhibit C2 that it was the 1st defendant that was obligated to provide medical care to the claimant during the pendency of his employment. It is evident from the documentary evidence in the instant case, that each of the defendants were responsible, and did share responsibility for certain obligations of the claimant’s employment.
Even clause 8 of exhibit D1B provides as follows:
“the Owners shall have the right to require the replacement at their own expense, at the next reasonable opportunity, of any crew (who is) found on reasonable grounds to be unsuitable for service. If the crew managers have failed to fulfill their obligations in providing suitable crew within the meaning of sub clause 3.1, then such replacement shall be at the Crew Manager’s expense.”
This document further lends supports to exhibit C2 and C4 to establish that the 1st defendant exercised certain obligations to the claimant.
Moreover, exhibit C4 identified “BINL” as the company who employs the seafarer for the purposes of the agreement of 2015. “BINL” is clearly Bourbon-Interoil Nigeria Limited, the 1st defendant, and not Oarsmanns Maritime Service Limited, the 2nd defendant.
In a nutshell, exhibit C2 identifies the 2nd defendant as employing the claimant on behalf of the 1st defendant. Exhibit C4 identifies the 1st defendant as the company who employs the claimant. Exhibit D1B portrays that the 1st defendant authorized its agent to employ crew, of which the claimant was one of such.
I am on firm ground in my considered view that a principal is ostensibly bound by, and responsible for the acts of its agent carried out within the scope of the agent’s authority. That is to say, a principal is vicariously liable for the acts of its agent – see Danjuma v SCC (Nig) Ltd (2017) 6 NWLR (pt 1561) 175 at 211, A-B.
The issue of lack of privity of contract between the 1st defendant and the claimant is therefore of no moment. This is because in spite of the nature of the contract relationship between the 1st defendant and the 2nd defendant in which the former describes the latter as an independent contractor, this still does not completely exculpate the 1st defendant from being jointly liable for some acts committed by the 2nd defendant while carrying out this contract. The questions which beg for resolution here are: is there a contract of employment between the claimant and the 2nd defendant? The answer is clearly in the affirmative. Secondly, is the 1st defendant bound by this contract entered by the 2nd defendant on its behalf?
The Court in Ukpanah v Ayaya (2011) 1 NWLR (pt 1227) 61 at 85 answered these questions in the affirmative in its decision as follows:
“The act of an agent, for a particular purpose, is the act of the principal. The situation is in law, as if it was the principal that did what the agent did or omitted to do. The common law rule is expressed in the maxim: Qui facit per alium facit per se which means “he who does an act through another is deemed in law to do it himself”.
Accordingly, I find and hold that the claimant was an employee of both of the 1st and 2nd defendants respectively.
On the question of whether there was a breach of the contract of employment, within the initial contract of employment between the parties (exhibit C1), the contact could only be terminated by giving one month notice or pay in lieu. Of equal significance are Clause C of exhibit C2 and Clause XIV of Exhibit C4 which both stipulate that the employment agreement may be terminated by giving one month’s written notice.
Considering that exhibit C6 was used to sever the employment relationship the claimant had with the defendants, the same which was written on 1/2/2016, was accordingly to take effect on 17/2/2016. It is my view that the duration of notice fell short of the required one month’s notice stipulated in the contract between the parties thus causing these defendants to be in breach of the stipulations of the contract of employment. See Oforishe v Nigerian Gas Company Ltd (2018)2 NWLR (pt 1602) 35 at 61.
On whether damages arise as a result of any breaches, having found the defendants to be in breach of the contract of employment, the claimant is entitled to damages for their breach – See Oforishe v Nigerian Gas Company Ltd (supra). Previously, it used to be that in awarding damages for wrongful termination of employment, this Court mostly settled for an award of one month’s salary in lieu or whatever the contract of employment provided.
However, I note that His Lordship the President of this Court, Hon. Justice B. A. Adejumo, upped the scale, when in Mrs. Folarin Oreka Maiya v. The Incorporated Trustees of Clinton Health Access Initiative, Nigeria & 2 ors (2012) 27 NLLR (Pt. 76) 110 NIC, he awarded as compensation, one year’s gross salary, which came to (N5,576,670.00) to the claimant. Also, my Learned Brother Justice B. Kanyip in Suit No: NICN/LA/40/2012 in Mrs. Titilayo Akisanya v Coca-Cola Nigeria Limited delivered on 13/4/2016 awarded as damages one year’s gross salary of N17,368,486 to the claimant.
Persuaded by these authorities, I shall award as damages to the claimant, a year’s gross “time off” salary calculable at N171,924.90 per month. Accordingly, I award the sum of N 2,063,098.80 to the claimant as general damages for the wrongful termination of the claimant’s employment against these defendants jointly and or severally.
Apart from the damages for breach of contract, the claimant sued for what he specifically claims is his six years’ and nine months’ withheld salaries and allowances between May 2009 to February 2016. To prove what he was purportedly entitled to be paid by the defendants, he tendered various documents as exhibits specifically exhibits C1, C2, and C4, C7 and C15.
In the second paragraph of Exhibit C1, we find:
“Your monthly remuneration shall be as follows N180,000(including all allowances) when on and N 180,000 as time off pay all calculated at pro rata.”
Exhibit C2 stipulates as follows:
“Time on rate shall be consolidated lump sum of-N339,669.00
Time off rate shall be consolidated lump sum of N149,500
The rate above is monthly and calculated on pro rata basis
You shall also be entitled to
Annual hazard allowance of N60,000 payable at the month of April every year
End of the year bonus of N40,000 payable at the last month of each year.”
Similarly, Appendix 1 of Exhibit C4 indicates: “Gross time off: N 171,924.90, Gross time on: N 390,619.2”
In the claimant’s exhibit C5, the claimant’s statement of account covering the duration of the claimant’s employment with the defendants, was tendered in order to establish the exact remuneration that was paid by the defendants.
From the commencement of the second contract exhibit C2, which is from 1/6/2012 to 16/11/2015 when the third contract was executed, the claimant was entitled to be paid an end of the year bonus for 2012, 2013, 2014 and 2015 at the rate of N40,000 per annum. He was also entitled to be paid an annual hazard allowance of N60,000 which was to be paid on each April of the years 2012, 2013 and 2014.
I have looked at exhibit C5 and there is no indication that any of these allowances were ever paid. The payment of the end of the year bonus is tied to the 31st day of December of each year in normal calculation. The contract providing for this bonus was signed on 1/6/2012 and elapsed in November 2015. The claimant was therefore entitled to be paid his end of year bonus on the 31st December of the four years the contract lasted. See: P.A.N. v Oje (1997)11 NWLR (pt 530) 625 at 636, D-E.
Credible evidence is one that is worthy of belief and credibility in this sense must be natural, reasonable and probable in view of the entire circumstances – See Emeka v Chuba-Ikpeazu (2017) 15 NWLR (pt 1589) 345 at at 379. Consequently, I find that the claimant proved by credible and probable evidence, that he was not paid his end of the year bonuses and annual hazard allowances from 2012 to 2015. I hold therefore, that the claimant is entitled to be paid by the defendants the total sum of N160,000 being his end of the year bonuses for 2012, 2013, 2014, and 2015 and annual hazard allowances of N180,000 for the years 2013, 2014 and 2015.
In paragraphs 8 and 10 of the statement of facts, it was averred that the claimant was never paid his salary in full. The 2nd defendant in paragraphs 8 and 9 of its statement of defence denied this, and stated that:
“The 2nd defendant states that it operated 1 month of roaster of time on and time off all through this period as could be gleaned from the letter of employment…
The 2nd defendant states that according to the claimant (sic) contract, the crew operates a 4 weeks on/off rotation. The claimant only gets N339,669.00 while on time on for a month, and gets N149,500.00 when on time off. All calculated pro rata.”
The claimant’s pleadings in this regard is to the effect that he was entitled to be paid both the consolidated lump sum of his time on rate and time off rate. His averment however, is not supported by his own evidence.
In the first paragraph of the second page of Exhibit C1, it is clearly stated “we operate a one month off roaster”. The second contract, exhibit C2 also stipulates in Clause 2 that “the vessel operates 4 weeks on/off rotation” and that the claimant’s pay was to be “calculated on pro rata basis”. Finally, the last page of C4 identifies a 30 day rotation.
All these clauses point to a logical conclusion that the claimant had two different work schedules whilst he was employed by the defendant. The first schedule “time on” covered his work hours when he was required to do work on board the ship vessel owned by the 1st defendant. In other words, during his time on, he was on the business of manning the ship. The second schedule which is “time off” covered the claimant’s hours of work when he was not on duty aboard the vessel. From his contracts before this Court, both schedules were not done simultaneously but were often rotated on a monthly basis, and the two schedules had different daily pay rates.
“Pro rata” according to the Blacks Law Dictionary 9th ed. Page 1340, means: “proportionately; according to an exact rate, measure or interest.” Simply put, pro rata is the Latin for ‘proportionally’ or a ‘proportion of’. With respect to the payment of salary, it means that the salary quoted in the contract is not what is paid to a worker. What is paid will be calculated by dividing the gross salary by the number of working days to get the daily rate of salary and multiply the daily rate by the number of days the employee actually worked.
If the contract the claimant signed, expressly stated that he was to be rotated on a monthly basis, on board and off board at different pay rates pro rata, he is bound by the contract and cannot seek to get a better contract than what he negotiated for particularly as his relationship has deteriorated with the defendants. The law does not allow either the parties or the court to change the contents of the agreements embodied in a written contract – See Cannitec Intl Co. Ltd v Solel Boneh (Nig) Ltd (2017) 10 NWLR (pt 1572) 66 at 84, and NPA v Ahmed (2017) 10 NWLR (pt 1578) 72 at 90 and 92.
On this note, I hold that claimant has failed to prove that the salaries “withheld” by the defendants were not indeed paid to him on a pro rata basis as agreed by the parties. Consequently, his claim for withheld part salaries is denied.
A Solicitor’s fees claim was made as per relief (3). I arbitrarily award the sum of N 500,000 (five hundred thousand naira) only as costs against the defendant in favour of the claimant.
In conclusion, having held that the disengagement of this claimant’s employment was in breach of the stipulations of the employment contract and for avoidance of any doubts, I hereby grant the following reliefs and award these sums only to the Claimants against the Defendants, jointly and or severally, thus:
Declare that the Claimant’s disengagement was wrongful and in breach of his contract of employment.
Order the defendants to pay the sum of N160,000.00 to the claimant being his end of the year bonuses for the years 2012, 2013, 2014 and 2015 @ N 40,000.00 per annum as per his terms of employment.
Order the defendants to pay the claimant the sum of N180,000.00 being his annual hazard allowances for the years 2013, 2014 and 2015 @ N 60,000.00 per annum as per his terms of employment.
Order the defendants to pay the claimant the sum of N 500,000.00 (five hundred thousand naira) only as cost of maintaining this action.
Order the defendants to pay the claimant the gross sum of N 2,063,098.80 calculable at N171,924.90 per month being his off-time pay (OTP) for one year only as general damages.
Order Defendants to pay the Claimant the total sums contained in Orders 2, 3, 4 and 5 above within 14 days of this here judgment, failing which the entire sum shall attract interest at 10% per annum until fully liquidated.
This suit succeeds in part only and I so pronounce.
Honourable Justice Ibrahim S. Galadima,
Presiding Judge.
