IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 21st day of November, 2019 SUIT NO: NICN/PHC/28/2018
BETWEEN
BETWEEN:
FELIX O.P. TONYE��������������..�����.CLAIMANT
AND
BGAM SERVICES NIGERIA LTD.����������.DEFENDANT
Representations:
BabatundeOjo with ChiazorOkoroafor, E.F. Olatimigiri for the Claimant
O. Awari for the Defendant.
Judgment.
This suit was commenced by a General form of complaint filed on the 23rd of February, 2018 along with a statement of material fact, list of documents to be relied upon and copies of the said documents. Claimant by way of motion filed witness statement on oath on the 26th of March, 2019.
The Claimant via the Complaint and statement of fact is claiming against the Defendant the following:
1. AN ORDER of court directing the defendant to pay to the claimant the sum of N40,000.00 (Forty Thousand Naira) from the month of March 2009 to the date Judgment is given in this suit, which said sum represents the salaries and allowances owed the claimant by the defendant.
2. AN ORDER of court directing the defendant to pay to the claimant the sum N10,000,000 (Ten Million Naira) as damages for the psychological trauma and discomfort it occasioned on the claimant due to prolonged refusal to pay up the salaries and allowances for the claimant.
3. Twenty five percent (25%) on the Judgment sum from the date the judgment is given to the date of payment by the defendant.
In reaction to both processes filed by the Claimant, the Defendant entered conditional appearance on the 1st of March, 2018 and followed same with the filing of a notice of preliminary objection on the 29th of October, 2018 which was considered by this court and Ruling was delivered upon on the 23rd of January, 2019.
Consequent upon the ruling, the Defendant on the 14th of February, 2019 filed a statement of Defence and counter-claim along with list of witnesses, witness statement on oath, list of documents and copies of the said document.
The Claimant thereon filed a reply to the statement of defence and a defence to the counter-claim on the 26th of February, 2019.
The Defendant on the 19th of June, 2019 however moved an application filed on the 30th of April 2019 to discontinue the counter Claim and the said application was granted by this court.
Trial commenced in this suit on the 8th of April, 2019 with the Claimant opening his case. The Claimant was himself called as the sole witnesses in support of his case as CW1 and he adopted his witness statement on oath which was marked as C1. Through the said CW1, 3 documents were tendered and admitted in evidence as Exhibits C2(a) and (b), C3 and C4 however, Exhibit C3 and C4 were admitted under protest.
Arising from the statement of fact and witness statements on oath, the case of the Claimant is that by letters respectively dated the 2nd day of July and 1st of August, (2008) he entered into a contract of employment with the defendant and the defendant has failed, refused and neglected to pay his salaries and allowances as stated in the said contract of employment since the 9th day of March 2009. Claimant averred that the fact that the defendant last paid him salaries and emoluments in February 2009 is evidenced by his bank statement. He added that the lack of payment of salaries led to his inability to pay the medical bills of his wife when she suffered from medical complication as a result of child birth which led to her death. He added that he approached his solicitor who wrote the Defendant in demand for his salary but despite the letter of demand, the Defendant persisted in its failure to pay the said salaries.
Upon cross examination, CW1 posited that from his CV he worked in the Vessel NV Bull in 2003 and stated that he was not sacked after 6 months but left due to the fact that there was no contract and had no work to do. He stated that as an Able Seaman, his duties include cleaning, painting of vessel and when they get to the Jetty, they tie the bolts. He denied that accident occurred on vessel because he failed to perform his duty and after the accident he was queried and he replied same. He admitted he was on 6 months� probation and that he was employed in July while the accident occurred in December of the same year of his employment. CW1 also stated that there are 5 months between July and December while his employment is based on Exhibit C2(a). He testified that his certificate expired in 2007 and it takes time to process a new one while insisting that the certificate is not fake. He stated that his salary was stopped in July 2010 and added that he is still in the employment of the Defendant and from September 2010 to March 2011 he worked on NV Vessel while he was not allowed access to vessel from July to October 2014. He admitted that the Defendant has 2 vessels and he has worked on both vessels. He posited that he knows God-Bless and Idala while stating that he did not abandon work as he was posted to Mobil where he continued his work.
Upon Re-examination, CW1 posited that his salary stopped in July 2010.
Upon the discharge of CW1, Claimant closed his case while the Defendant in opening theirs called one witness in person of Captain OtuIta as DW1 who adopted his witness statement on oath which was marked as D1. Through the said DW1, 5 documents were tendered in evidence and admitted as DW1(a) � DW1(e) while DW(c), DW1(d) and DW1(e) were admitted under protest.
Arising from the statement of defence and witness statement on oath, the case for the Defendant is that the Claimant was an employee of the Defendant assigned to work on the vessel M. V. IBISO between July 2008 � February 2009 and in the course of the employment he performed his duties incompetently, was very negligent, disobedient and refused to carryout lawful instructions which led to him being given several queries by the Defendant during the period of his employment and that his salaries were stopped when he refused to give satisfactory answer to the query dated the 14/01/2009 in respect of his activities and negligence that caused the accident and damage to the vessel M.V. IBISO on 30/12/2008. The Defendant further averred that the Claimant upon the receipt of the query of 14/01/2009 and after the collection of his February 2009 salary, abandoned work to secure a job with another company thereby unilaterally terminating his employment and later reappeared in April 2010 and pleaded with the Managing Director to be re-engaged. The Defendant averred that Claimant was then re-engaged but was to be given contract of employment after three months� probationary period. The Defendant further averred that upon the re-engagement, the Claimant along with other crew members sank M. V. IBISO vessel on 30/05/2010 and they were issued query by the Defendantwhile the incidence caused the Defendant enormous resources as the Defendant had to refund the money paid for the hire of the vessel to Richmond Marine Logistics Ltd and while the Defendant was making effort to salvage the situation, Claimant again stopped coming to work from June, 2010 hence he is not entitled to any of the reliefs claimed.
Upon cross examination DW1 stated that he joined the Defendant in 2015 as Manager of Operations and by virtue of his position he is privy to all the files wherein he saw the queries and responses. DW1 added that he did not see the reply of the Claimant while positing that he was not there when the accident happened. He added that the accident happened in 2008 but he is not aware of the letter written to the Claimant by the Defendant after he replied the query. He stated further that the Claimant left the Defendant in 2009. DW1 also stated that the Captain is the Master of the vessel and that an Able Seaman is not in charge of the vessel and cannot function without a captain and concluded that he is sure the file was intact.
Upon discharge of DW1, the Defendants closed their case and matter was adjourned for adoption of final written address. Consequently, the Defendants filed their final written address on the 8th of August, 2019 and arising therefrom, counsel to the Defendant O. Awari Esq. formulated two issues for determination to wit:
- Whether this honourable court has jurisdiction to entertain this suit that is statute barred.
- Whether on the totality of legally admissible evidence and case law, the claimant proved his case to entitle him to any relief sought before this honourable court.
In arguing issue one, counsel posited that jurisdiction is said to be a threshold issue which is of a paramount importance and therefore whenever it is raised at any stage, the court before which it is raised must mandatorily look at it at the earliest stage or opportunity and determine whether it has Jurisdiction or not to hear such suit.
Counsel added that the legislature prescribes certain periods of limitation for instituting certain actions, including actions based on contract of employment as in the instant case and such statutes are known as statute of limitation.
Counsel then submitted that in the instant case, the limitation law, CAP 80, laws of Rivers State of Nigeria, 1999 by section 16 prescribes the period within which an action based on contract or tort can be brought or commenced as no legal proceedings can be properly instituted after the expiration of five (5) years provided by the law.
Counsel contended thereon that the Complaint of the Claimant is that his salary was stopped in 2009 while he filed this suit in 2018 making it 9 years after the cause of action arose. Counsel urged the court to take judicial notice of the limitation law in question and cited the case of MAITUMBI V. BARAYA (2017) 2 NWLR (PT. 1550) Page 347, esp. at pages 401 � 402, paragraphs F � B.
Counsel also submitted that where an action is statute barred as in the instant cases, a claimant who might otherwise have had a cause of action loses the right to enforce it by Judicial process before the period of time laid-down by the statute of limitation for instituting such an action has expired and therefore statute barred. Counsel cited the cases of P.G.A.T LTD. V. N.D.I.C (2019) NWLR (PT 1672), page 447, esp. page 475 paragraph F � H; MACFOY VS UNITED AFRICA COMPANY LTD (1962) A-C page 152 and INEC V ENA SITO (2018) NWLR (PT 1602) especially at page 95 paragraph c-e.
In arguing issue two, counsel submitted that it is trite law that where the terms of a written contract of employment such as the instant case is shown in Exhibit C2A & B are clear and unambiguous and the parties shall be bound by those term, based on credible admissible evidence as provided by law. See the case of CB.N V. ARCHIBONG (2001) 10 NWLR (PT 721) page 492 at 507.
Counsel thereon contended that the non-filing of the written statement on oath makes the originating process a worthless document and a nullity that cannot be regularised by any court of law. Counsel cited the case of OKOBIEMIN V. UB.N PLC (2019) 4 NWLR (PT 1662) Pages 276 � 277, Order 3 Rule 9 and Order 3 Rule 21(1) of the National Industrial Court of Nigeria Civil Procedure Rules 2017.
With regards to termination, counsel referred to paragraphs of Exhibit C2A which made provisions in relation to termination and summary dismissal while positing that based on the said relevant express provisions of exhibit C2A, assuming but not conceding that the Claimants employment was terminated by the Defendant, in the circumstances and facts of this case, the Defendant would still submit that the Claimant�s employment was terminated within the probation period and therefore not entitled to any notice of termination of employment or salary in lieu of notice.
Counsel posited the Claimant was still on probation when the accident occurred upon which the Claimant was queried. He referred to the testimony of the Claimant during cross examination and cited the cases of BPS CONSTRUCTION & ENGINEERING COMPANY LIMITED V. F.C.D.A (2017) 10 NWLR (Pt. 1572) page 1, at 51 � 52 while urging the court to hold that the Claimant having abandoned work during his probation period has no cause of action against the Defendant and this suit therefore shoud be dismissed on this point of law.
Counsel also submitted that the court in construing the relationship between the Claimant and the Defendant must confine itself to the main words and measure which can be cleared from the contract and which in this case is the express provisions of Exhibit C2A & B. He cited the cases of ABALOGU V. S.P.D.C Ltd (2003) 13 NWLR (Pt. 837) Page 308 and 333; UNION BANK OF NIGERIA LIMITED V. PROF. OZIGI (1994) 3 NWLR (PT. 333) Page 385 at 403 and DANTATA V. DANTATA (2002) 4 NWLR (PT. 756) page 144 at 162.
Counsel referred to the testimony of Claimant as CW1 in proof of the absence of the Claimant from work and submitted that his claim for salary is gold digging while adding that Exhibit C3 which is Claimant�s statement of account is inadmissible having not complied with section 84 of the Evidence Act.
Counsel concluded by urging the court to dismiss the claims of the Claimant.
In reaction to the Defendant�s final address, Claimant filed his final address on the 21st of August, 2019 and arising therefrom, Counsel to the Claimant BabatundeOjo. Esq. formulated three issues for determination to wit:
1. WHETHER THIS HONOURABLE COURT HAS JURISDICTION TO ENTERTAINED THIS SUIT AND WHETHER THIS SUIT IS STATUTE BARRED
2. WHETHER PARTIES ARE BOUND BY THEIR WRITTEN AGREEMENT (CONTRACT OF EMPLOYMENT) AND WHETHER THE EMPLOYMENT OF THE CLAIMANT HAS BEEN DULY TERMINATED BY THE DEFENDANT IN LINE WITH THE CONTRACT OF EMPLOYMENT.
3. WHETHER OR NOT THE CLAIMANT HAS PROVED HIS CASE SO AS TO BE ENTITLED TO THE RELIEFS SOUGHT.
In arguing issue one, counsel submitted that this Honourable Court has the requisite jurisdiction to entertain this action as it is settled law that for a court to be seized of jurisdiction to hear a matter, the following condition precedents must be fulfilled;
a. It is properly constituted with respect to the number and qualification of its members.
b. The subject matter of the action is within its jurisdiction.
c. The action is instituted by due process of law and
d. Any condition precedent to the exercise of its jurisdiction must have been fulfilled. See BUREMOH VS AKANDE (2017)7 NWLR (pt 15 63) 74 at P6 para F � H, DAYUMA VS USMAN (2013)6NWLR (pt 1346)50.
Counsel submitted thereon that the Claimant has fulfilled all the necessary conditions for this court to be seized of the matter.
With regards to the cause of action being statute barred, counsel argued that a cause of action is said to arise and/or accrue when the fact or combination of acts had happened or come into being and would enable a party to make an enforceable claim in law based on such facts and a cause of action accrues when the facts or combination thereof are complete for the party to be able to commence or initiate his action against another predicated on the facts. He cited the cases of WEMA BANK LTD. V. INTERNATIONAL FISHING CO. LTD. (1998) NWLR (555) 557 at 569. UBA PLC. v. ABDULLAHI (2003) 3 NWLR (807) 359. OSIGWE v. PSPLS MGT. CO. (2009) 3 NWLR (1128) 378.
Counsel argued that it is trite in law that in order to ascertain the time when the cause of action accrued, for the purpose of the Limitation Law, the Courts only looks at the writ of summons and the statement of claim which ordinarily ought to contain averments of facts as to when the wrong committed by the defendant took place and compare it with the date when the writ of summons was filed. He cited the case of FOLARIN & ANOR V. IDOWU& ORS (2013)LPELR- 22123.
Counsel posited that the claimant has stated in his statement of claim that his contract of employment has not been terminated by the Defendant, which shows that the cause of action does not fall under statute of limitation.
Counsel added that a defence that an action is statute barred is a special defence like fraud, estoppel, res judicata etc. which must be pleaded specifically in either statement of defence or counter affidavit as the case may be, by a defendant before it can be relied upon in any proceedings. He cited the case of N.I.I.A. v. AYANFALU (2006) LPELR-5960 and contended that the Defendant has failed to make such specific pleading.
With regards to the argument of the Defendant that the claimant filed his statement on oath on the 12\02\19, counsel contended that the argument has no place in law because the rules of court permits such omission to be treated as mere irregularity. He cited Order 5 Rule 1 of National Industrial Court of Nigeria (Civil Procedure Rules) 2017 which provides to the effect failure to comply with any of these rules may be treated as an irregularity and the court may give any direction as it thinks fit.
With regards to issue two, counsel argued that it is trite law that a written contract agreement freely entered into by the parties is binding on them and a court of law is equally bound by the terms of any written contract entered into by parties. He added that where the intention of the parties to a contract is clearly expressed in a document that is Exhibit C2A & CB2, the court cannot go outside that document to give effect to the intention of the parties as the general principle is that where the parties have embodied the terms of their contract in a written document, any extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. Counsel cited the case of OKONKWO V. C.C.B (NIG) PLC (1997)6NWLR pg48 AND DALEK (NIG) V. OMPADEC(2007)7NWLR(pt.1033) pg. 402
Counsel posited that Exhibit C2B was freely entered into by parties and referred to the termination clause and summary dismissal clause while adding that no notice was given to the Claimant by the Defendant in compliance with the termination clause and the Claimant has been going to work without salary until he was stopped from gaining access to the premises of the defendant�s company and all effort made to enquire the reasons for his denial of access proved abortive. Counsel posited that the Defendant�s action constitutes a clear of show of abuse of power, intimidation and harassment for not following the laid down principle of termination of employment in line with the contract document signed by both parties. He cited the cases of FamehinmiVs. G.M.H (Nig.) ltd (2018) ALL FWLR pt 960. 1324 and A.G FERRERO & Co LTD Vs. HENKEL CHEMICALS (NIG.) LTD (2011) LPELR-12.
In arguing issue three, counsel adopted issues one and two as argument and respectfully submit that the Claimant has proved his case and is entitled to the reliefs sought. Counsel added that the claimant has furnished the court with �EXHIBIT C2B �being the contract of employment and in the same vein gone further to state clearly the manner in which the Defendants breached the terms while positing that the burden of proof rest on the party who asserts but the burden shifts unto the Defendant once the plaintiff discharges his burden. He cited the case of INTERCONTINENTAL BANK V. BRIFANA LTD (2013) 3 NWLR (PT 1316)P61.
Counsel concluded by urging the court to grant the reliefs sought by the Claimant.
By way of reply on point of law filed by the Defendant on the 6th of September, 2019, counsel to the Defendant restated the argument on the suit being statute barred and added that the issues of statute of limitation is a Jurisdictional issue, which a Defendant can raise even without filing a defence and therefore whether it was raised in the statement of defence or not is immaterial. He cited the case of A.G FED V A.G; ANAMBRA STATE (2008) 6 NWLR (PT.1615) page 314.
Counsel made further arguments with regards to filing of statement on oath subsequent to filing of the originating process and the termination of Claimant�s employment.
Counsel concluded that the case of the Claimant is gold digging and should be dismissed.
Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and Defendant�s reply on point of law.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and Defendants� reply on point of law, the issues for the determination of this suit are to wit:
- Whether or not this suit is statute barred thereby robbing this court of requisite jurisdiction to entertain same.
- Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.
Before addressing the foregoing issues, it is pertinent to ascertain the status of the exhibits admitted under protest. In this regard, Counsel to the Defendant objected to the admissibility of Exhibits C3 and C4. With regards to Exhibit C3, he contended that same being a Bank statement of account is a computer generated document and is not in compliance with section 84 of the Evidence Act, 2011 while with respect to Exhibit C4, he contended that same being a letter from Claimant�s solicitor is not stamped.
Counsel to the Claimant responded by contending that both exhibits are relevant, pleaded and admissible in law.
In view of the foregoing contention, I have taken a look at the said exhibits and find rightly so that exhibit C3 is a statement of account from First Bank with the account name Patrick Felix Tonye O. which the Claimant pleaded in paragraph 7 of his statement of fact that he has not been paid salary since 9th February, 2009 as evidenced by his statement of account. I also find that being a statement of account, same bears the stamp of the issuing bank and bears the signature of the issuing banker on every page of the said document. On account of the averment in respect of the document and in view of the fact that the document was pleaded and frontloaded, there is no gainsaying that same is relevant to the determination of this suit.
Exhibit C4 on the other hand is a letter headed in the name of N.Isabu& Co. dated the 17th of January, 2018 and addressed to the Defendant in �demand for the compliance with contractual agreement� on behalf of the Claimant. Claimant with regards to this exhibit had averred in paragraph 10 of his statement of fact that he contacted the firm of N. Isabu& Co to write to the Defendant on his behalf. The foregoing finding also establishes the fact that Exhibit C4 is also relevant to this proceeding and same has been pleaded and frontloaded.
In view of the foregoing, I must state that it is indeed trite that relevancy governs admissibility. See OYEBODE & ANOR v. GABRIEL & ORS(2011) LPELR-8693(CA). Upon the finding that the said documents are relevant for the determination of this proceeding, this court is inclined to exercise its discretion as provided by section 12 (2) (b) of the National Industrial Court Act, 2006 which permits this court to depart from the rule of evidence in the interest of justice.
Consequently, I find the said Exhibit C3 and C4 to be relevant to this proceeding and are accordingly admitted in evidence.
On the part of the Defendant, Counsel to the Claimant objected to the admissibility of Exhibits DW1 (c) and DW1(d) on the ground that DW1 is not the maker of DW1(c) while DW1(d) is not signed. Counsel to the Defendant responded by contending that Exhibit DW1(c) is a detailed list of crew members of the Defendant and the said exhibit is crucial to this case while Exhibit DW1(d) is a list of workers identified by the operations manager who prepared the list. He added that the said documents are pleaded and relevant.
In view of the foregoing, I have taken a look at the Exhibits in contention and find that Exhibit DW1(c) (i) and (ii) are sample of copies of discharge certificate issued to Able Seamen (Mathew Martins and GaiboNimi) working with the Defendant while DW1(d) is a sample copy of list of fleet workers of the Defendant for various months in the years 2017 2018 and 2019.
Upon evaluation of the foregoing, I find that DW1 need not be exactly the maker of Exhibit DW1(c) in view of the fact that same is intended to be a sample of discharge certificate hence the contention holds no water. With regards to Exhibit DW1(d), the list also being a sample is to establish that the Defendant keeps a timetable for Crew members and I also find that five out of eight of the list has signatures appended on the said list.
Consequent upon the foregoing, the said exhibits is considered relevant and accordingly admitted in evidence.
With regards to Exhibit DW1(e) which was tendered by counsel to the Claimant through DW1, counsel to the Defendant contended that the document was fraudulently brought in as it does not bear the signature of the MD and it was not pleaded. Counsel to the Claimant responded that there was no fraud and since the counsel to the Defendant is not the make of the document, he cannot contend on ground of fraud.
In view of the foregoing contention, I have taken a look at the said exhibit and find that same is document dated the 6th of February, 2019 addressed by the Defendant to the Claimant with the heading �Salary Reduction�. The document is on the face of it signed by one Lucky Brown, Managing Director/CEO of the Defendant. The said DW1 through whom the document was tendered merely said he does not know that the document was written by the Defendant, a position which does not affect the admissibility of the said document.
Consequently, I find the said exhibit DW1(e) to be relevant to the proceeding and accordingly admits same.
I then turn to the issues formulated for the determination of this suit, which the first touches on the jurisdiction of this court to entertain this suit. In this wise, there is no gainsaying that jurisdiction is the life wire of adjudication and any proceeding conducted without same is a nullity. It is in this regard that the court in the case of ARDO & ANOR v. NYAKO &ORS(2013) LPELR-20887(CA) posited that:
�it is trite that jurisdiction is a fundamental and threshold matter, the life blood of adjudication which when raised, the Court ought to determine same before proceeding with the consideration and determination of the substance of the case. Where a court lacks jurisdiction to entertain a suit the entire proceeding is in nullity no matter how well conducted. It has also been held that it is the claim of the Plaintiff, in this case, it is the Statement of Claim and the Reliefs Sought by the Appellant that determine the jurisdiction of the Court. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588; Ugwu v. Ararume (2008) CCLR at 270 also reported (2007) 12 NWLR (pt. 1048) 367 at 445 paras. B – C and Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) 76.
In view of the foregoing, the ground upon which the jurisdiction of this court has been challenged is that the instant suit is caught up by a statute of limitation making the suit statute barred. Counsel to the Defendant referred to the limitation law, CAP 80, laws of Rivers State of Nigeria, 1999 which by section 16 prescribes the period within which an action based on contract or tort can be brought or commenced as no legal proceedings can be properly instituted after the expiration of five (5) years provided by the law. He insisted that the cause of action in this suit arose sometime in 2009 while the action was filed in 2018 to make 9 years after the cause of action arose.
In view of the foregoing contention, I must state that rightly so, the provisions of a limitation law is to restrict the time within which certain actions can be brought before the court as the Supreme Court in the case of ALHAJI (DR.) ADO IBRAHIM v. ALHAJI MAIGIDA U. LAWAL & ORS(2015) LPELR-24736(SC) held that:
�Its general effect is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the expiration of the period circumscribed by law. More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. See John Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345. �Per OKORO, J.S.C.
Notwithstanding the foregoing, it is essential to consider the nature of the suit before the court in order to ascertain whether or not the suit is caught up a statute of limitation as contended by counsel to the Defendant. In this regard, this court must first ascertain what the cause of action is and when same arose in view of the holding of the court in AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 where the court laid down the yardsticks to apply in determining whether an action is statute barred and they are:
- The date when the cause of action accrued;
- The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
- The period of time prescribed to bring an action to be ascertained from the statute in question.
In the light of the foregoing yardsticks, I must state that it is trite that it is the statement of fact filed by the Claimant and the reliefs sought by Claimant that determines cause of action. The Court in the case of SIFAX NIGERIA LTD & ORS v. MIGFO NIGERIA LTD & ANOR (2015) LPELR-24655(CA) also provided an exposition on what a cause of action is when it held that:
“…cause of action is defined in Black�s Law Dictionary, 9th Edition at Page 57 as: “A group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Authorities have also defined cause of action as a factual situation which a Plaintiff relies upon to support his claim, recognized by law as giving rise to a substantive right capable of being enforced against a Defendant. See AGBANELO VS UNION BANK OF NIGERIA LTD (2002) 4 SC (PT.7) 243; ADESOKAN Vs ADEGOLORU (1997) 3 NWLR (PT.493) 61; EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AKANDE vs ADISA (2004) ALL FWLR (PT.236) 413.
Arising from the said statement of fact, the highlight of the Claimant�s complain is that he was employed by the Defendant in July 2008 and he was last paid salary in the month of February 2009. Hence he instituted this suit in demand for the payment of his salary from the month of March, 2009.
Although I have taken a look at the Complaint filed in the initiation of this suit and find that same was indeed filed on 23rd of February, 2018, the question that however arises is whether a claim for unpaid salaries can be caught up by a statute of limitation?
In answering the foregoing question, I reckon that the court has maintained that limitation law applies to contract of employment as stated by the Supreme Court in UNIVERSITY OF JOS v DR. SANI MUHAMMAD ADAM (2015) 5 ACELR 106. Per AlomaMukhtar (CJN as she then was), it must be noted that same is applicable mostly in situations of termination of employment.
The foregoing position of the law has however changed with the recent decision of the Supreme court in N.R.M.A & FC v. Johnson [2019]2NWLR (Pt. 1656) SC247 where the court held that:
�Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. In this case, the respondent�s claim is on service contract. Thus, the appellants are not covered by the provisions of the Public Officers Protection Act� per Ariwoola JSC.
Bearing in mind the foregoing recent position of the law, the relationship between the Claimant and Defendant was one of contract of service and same has been completely removed from the jaws of limitation laws including the Limitation Law, Cap 80, Laws of Rivers State of Nigeria, 1999 which counsel to the Defendant places reliance on. Consequently, the said limitation law in not applicable to the instant suit in barring jurisdiction of this court.
In the light of the foregoing, the contention of counsel to the Claimant that the instant suit is statute barred holds no water and the sole issue is resolved against the Defendant and in favour of the Claimant to the effect that the instant suit is not statute barred. This court is accordingly clothed with jurisdiction to entertain the instant suit.
I then turn to issue two which deals with the reliefs sought by the Claimant. Before I proceed in addressing the said issue, I find it apposite to address the contention in respect of the statement on oath filed by the Claimant in this suit.
In this regard, counsel to the Defendant contended that the Claimant filed a complaint which was not accompanied by a witness statement on oath as required by Order 3 Rule 9(c). He added that by Order 3 Rule 21(1), the Registrar shall not accept Originating processes for filing if it is not in compliance with Rules 7,8 and 9. Counsel also cited the case of OKOBIEMIN V. UB.N PLC (2019) 4 NWLR (PT 1662) Pages 276 � 277 to contend that the failure to file the witness statement on oath at the time of filing the Complaint makes the Originating process a worthless document and a nullity that cannot be regularized.
Counsel to the Claimant responded by contending that by Order 5 Rule 1 of the Rules of this Court �permits� such omission to be treated as irregularity and urged the Court to discountenance the argument of the Defence Counsel.
Consequent upon the foregoing, it is imperative to note that I have earlier taken cognizance of the fact that the Claimant while filing his Complaint on the 23rd of February, 2018 filed same along with statement of material fact, list of documents to be relied upon and copies of the said documents. I however added that Claimant by way of motion filed witness statement on oath on the 26th of March, 2019. The said motion was moved on the 9th of April, 2019 without objection by the Defendant and it was consequent upon the application that the Claimant filed the said statement on oath.
In view of the foregoing, Counsel to the Claimant is right in contending that this court has discretion in the treatment of the provision of the Rules of this court as an irregularity as provided in Order 5 Rule 1. The omission of filing the statement on oath as required by Order 3 Rule 9 is considered by this Court to be an irregularity which has been corrected upon the order of this Court made on the 9th of April, 2019.
I must add that I am not oblivious of the case of OKOBIEMIN V. UB.N PLC (2019) 4 NWLR (PT 1662) Pages 276 � 277 cited by counsel to the Defendant. However, I must state that the said authority is predicated on the Rules of the High Court of Adamawa State and not that of the National Industrial Court of Nigeria which permits the court to treat the said omission as an irregularity. In addition, the said authority is merely persuasive in relation to this court and not of a binding capacity.
Consequent upon the foregoing, the argument raised by counsel to the Defendant in respect of the statement on oath filed by the Claimant of the 26th of March, 2019 is accordingly discountenanced.
I then turn to the reliefs sought by the Claimant which is most significantly for salaries allegedly owed by the Defendant from March 2009 till date. The said Claim is captured in relief 1 of the three reliefs sought by the Claimant which reads thus:
1. AN ORDER of court directing the defendant to pay to the claimant the sum of N40,000.00 (Forty Thousand Naira) from the month of march 2009 to the date Judgment is given in this suit, which said sum represents the salaries and allowances owed the claimant by the defendant.
With regards to the said relief 1, I must state that the law is trite that he who asserts must prove as the court in the case of Obawole v. Williams (1996) 10 NWLR (Pt.477) 146 held that:
“Under our system of procedure the duty of the person who asserts is to prove. This burden must be fully discharged so that the trial Court will be satisfied as to the genuineness of the plaintiff’s claim. The burden of proof will not shift unless the defendant admits the claim of the plaintiff, in which case, there may be no full dress hearing. However, if the plaintiff’s case is not proved then the burden of proof remains undischarged and it will be of no help to rely on the weakness of the case for defence”. PER BELGORE, J.S.C. (P.36, Paras.C-E.
In the instant case, the Claimant is not complaining of wrongful termination, but rather claims that he is owed arrears of salary by the Defendant. In attempt to prove the allegation of being owed salaries, Claimanttendered Exhibit C2(a), C2(b) and C3.
Exhibit C2(a) is a letter of offer of employment dated 2nd July, 2008 addressed to the Claimant by the Defendant. The said letter informs the Claimant to the effect that he is offered appointment as Able Seaman with effect from 11th July, 2008 with a remuneration of N40,000.00 as Basic salary and a probation period of 6 months.
Exhibit C2(b) on the other hand is a Letter of Appointment dated the 1st of August, 2008 also addressed to the Claimant by the Defendant. The said letter restates that the Claimant is offered employment as Able Seaman. However, the document puts the Claimant�s salary as N480,000.00 per annum and states that the Claimant�s appointment is full time with 3 months� probation period.
Claimant also tendered his First Bank statement of account as Exhibit C3 which covers transactions on the account from 29th of August 2008 to 27th of December, 2017. The said exhibit was to establish the fact that the Claimant had not received salary from the Defendant since February, 2009.
In addition, Claimant tendered exhibit C4 which is the letter of demand written by claimant�s lawyer to the Defendant in demand for Claimant�s salary and same is dated the 17th of January, 2018. Claimant also tendered through the Defendant�s witness (DW1) exhibit DW1(e) a letter addressed to the Claimant informing the Claimant that his salary will be N20,000 from January, 2009 until management reviews same within 6 months duration.
By Exhibit C3, the transaction narration reading salary from the Defendant last featured on the 6th of February, 2009 with the sum of N20,000 being paid into the account as salary for the month of January.
Perhaps the finding in Exhibit C3 should have sufficed in the proof of the Claimant�s claim in respect arrears of salary, however, the Defendant denied owing the Claimant salary by contending that the Claimant�s salary was stopped when the Claimant, due to his negligence, caused an accident and damage to the Defendant�s vessel M.V. IBISO on 30/12/2008 and after collecting the February 2009 salary Claimant abandoned work.
The Defendant added that Claimant resurfaced in April 2010 and after pleading with the MD, he was re-engaged but was involved in the sinking of the Defendant�s vessel again in the same month of April which cost the Defendants huge resources and the Claimant stopped coming to work in June 2010.
The Defendant tendered Exhibit DW1(a) which is the query dated the 14th January, 2009 addressed to the Claimant in respect of the damage to vessel MV IBISO.
With respect to this piece of evidence, I reckon that same is what led to the Claimant being issued with Exhibit DW1(e) wherein his salary was reduced by 50% with effect from January, 2009.
The said Exhibit DW1(a) and DW1(e) are without a doubt the reason why the Claimant was paid salary of N20,000.00 i.e. 50% of the Claimant�s salary,for the month of January, 2009 as evidenced in Exhibit C3 and the Claimant knew from then that his salary would for the next 6 months be at that rate. These facts were not stated by the Claimantin his deposition on oath as he simply posited that he was not paid salary without reference to the situation leading to the Defendant�s refusal to pay salary to him. However, the Claimant admitted in the course of cross examination that he was on board when an accident happened in December 2008 and that he was queried in respect of same.
One irreconcilable aspect of the Claimant�s claim in addition to the foregoing is that the claimant posited in paragraph 7 of his statement of fact that he was last paid salary in the month of February 2009 and that is what exhibit C3 portrays. He later stated in paragraph 4 of his statement on oath that the Defendant has neglected to pay his salary since the 9th of May, 2009 till date. Notwithstanding the foregoing discrepancy, during cross examination and re-examination, Claimant as CW1 posited differently that his salary was stopped in July, 2010. In this regard, I must state that there is no evidence before this court to support the assertion that Claimant�s salary was stopped in July 2010.Although, it can be said that the assertion of stoppage of salary in July 2010 tends to lend credence to the position of the Defendant that the Claimant resurfaced in April 2010 and was re-engaged upon which another accident happened leading to the Claimant�s absence from work from June 2010.
I must posit in the light of the foregoing that the case of the Claimant is clothed with substantial contradictions touching upon the claim made before this Court. In this regard, the effect of such contradiction was stated in the case of OGBOMO v. OGBOMO & ANOR (2014) LPELR-22612(CA) where the court held that:
“It is a settled principle, that the ultimate consequence of multiple material (substantial) contradictions in an evidence, is destructive. As once aptly reiterated by this court – The consequence of these multiple contradictions are clear. They succeed to destroy the case of the Appellants as presented�See IGBOJIMADU VS. IBEABUCHI (1998) 1 NWLR (Pt. 533)179 @ 201 paragraph D per Nsofor, JCA.”Per SAULAWA, J.C.A. (Pp. 42-43, paras. F-A).
In addition to the said contradictions, I find it apposite to state clearly that the fact that a letter of employment provides for salary does not make it axiomatic that an employee will be paid the said salary without working for same especially where the employer has made work available upon the employee making himself available for work. In other words, there is no gainsaying that the consideration for work is wages (salary), and the consideration for wages (salary) is work. See Browning v. Crumlin Valley Collieries Ltd. (1964) All ER 936. According to Black�s Law Dictionary, tenth edition, at page 1537, Salary is �an agreed compensation for services�. The said dictionary also defines accrued salary to be a �salary that has been earned but not yet paid�. The Labour Act on its part adopts the word �wages� instead of salary and defines wages thus:
“wages” means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.
In view of the foregoing meaning of wages (salary), the Claimant in the instant suit is not only burdened to prove that he had an agreement for payment of salary, but must also prove that he has worked and earned the said salaries which he claims are unpaid.
In view of the totality of the evidence before this court, the Claimant in the instant case has failed to establish to the satisfaction of this court that he was indeed performing work for the Defendant between February 2009 to date in order to earn or entitle him to claim of salary for the said period.
Consequent upon the foregoing, the claim made by the Claimant in relief 1 for an order directing the Defendant to pay the sum of N40,000 as salary from the month of March, 2009 till date of judgment in this this suit is not grantable in view of the material contradictions in the Claimant�s case and the failure of the Claimant to establish that he worked and earned the said salaries as claimed.
In other words, relief 1 as sought by the Claimant fails and same is accordingly refused.
Relief2 is for �AN ORDER of court directing the defendant to pay to the claimant the sum N10,000,000 (Ten Million Naira) as damages for the psychological trauma and discomfort it occasioned on the claimant due to prolonged refusal to pay up the salaries and allowances for the claimant.�.
With regards to the claim for general damages, the court in the case of SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS.(2008) LPELR-8462(CA)said of the nature of general damages that:
“General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Ndinwa vs. Igbinedion (2001) 5 NWLR (Pt. 705) 140 at 150; Osuji vs. Isiocha (1989) 3 NWLR (pt.111) 633; Odulaja vs. Haddad (1973) 11 SC 357; Omonuwa vs. Wahabi (1976) 4 SC 37; Lar vs. StirbugAstaldi Ltd. (1977) 11 – 12 SC and ACME Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288.”Per OMOKRI, J.C.A. (P.28, Paras.E-A).
In view of the forgoing, while the sum claimed as general damages need not be proved strictly, it is without doubt that the award of general damages in the instant case is dependent on the proof that the Defendant violated the legal rights of the Claimant upon failure to pay salaries which caused the Claimant psychological trauma and discomfort.
In addition, the court held in the case of SAIDU H. AHMED & ORS V. CENTRAL BANK OF NIGERIA(2012) LPELR-9341(SC) that:
“The law is that the claimant must prove that it was the action of the respondent that led to the loss for which he is seeking recompense. Failure to link the act of the respondent conclusively to the loss for which damages is being claimed can only lead to a dismissal of the claim for damages. Acme Builders Ltd. v. K.S.W.B. &anor (1992) 2 NWLR (pt. 590) pg.288.Victoria Laundry (Winsor) Ltd. v. Newman Industries &anor (1949) @ KB 528 Per ADEKEYE, J.S.C.
In the face of the forgoing authorities and in view of the refusal to grant relief 1, it is crystal clear that the Claimant has woefully failed to prove that the Defendant wronged him in any way by refusing to pay salary upon failure to establish that he earned such salary.
Consequently the claim for general damages automatically fails and same is accordingly refused.
Relief 3 is a post judgment interest as the Claimant seek for twenty five percent (25%) (interest) on the Judgment sum from the date the judgment is given to the date of payment by the defendant.
The said relief is dependent upon the court granting the monetary claims made by the Claimant in respect of arrears of salary and general damages which has both been refused by this Court. Upon the refusal to grant any of such monetary claims as made in reliefs 1 and 2, it is irrefutable that there is no basis upon which post judgment interest can be granted in the instant case. Consequently, the said relief 3 is bound to fail and same is accordingly refused.
Upon the determination of all the reliefs sought by the Claimant, issue two formulated for the determination of this suit is resolved against the Claimant to the effect that in view of the evidence before this Court, the Claimant is not entitled to any of the reliefs sought.
In the final analysis, the case of the Claimant lacks merit in its entirety and same is accordingly dismissed.
Judgment is accordingly entered.
I make no order as to cost.
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HON. JUSTICE Z. M. BASHIR
JUDGE.
