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: 25th day of March, 2019
SUIT NO: NICN/PHC/38/2018
BETWEEN
MARTINS AGABI
CLAIMANT
AND
NIGERIAN AGIP OIL COMPANY LTD
DEFENDANT
Representations:
D.C Anyaibe with R.C Oburu and E.C. Amadi for the Claimant .
T.J. Krukrubo with D. Seth-Nzor for the Defendant.
Judgment
This suit was commenced by way of a general form of Complaint originally filed on the 14th of March, 2018 however, the Claimant filed an amended copy of the entire originating process on the 6th of December, 2018 along with a statement of material fact, schedule of documents to be used at trial, an amended statement of claim, list of witnesses, amended witness statements on oath and copies of the documents to be relied upon at trial.
The Claimant is by the statement of claim, claiming against the Defendant the following:
- An order of specific performance of the Collective Agreement of 2014 conditions of service between Defendant’s management and its staff for supply and delivery of 1800 litres of diesel and 380 litres of fuel monthly to the Claimant pursuant to vested retirement benefits save for the back log of the same supplies of the petroleum products from the Claimant’s date of retirement on 11thof April 2016.
- An order that the Defendant takes all such acts and execute all such logistics as may be necessary to supply and deliver the aforesaid petroleum products to the Claimant’s home in Fugar, Edo State in accordance with the extant agreement in place for appropriate level of retired officer of the Defendant as at 2014, Collective Agreement of the Defendant and its staff.
- An order that the said backlogs of supplies of petroleum products from date of retirement of 11 April 2016 until supplies and delivery of the petroleum products are commenced to be monetized and account taken for three hundred Naira per litre of Diesel and one hundred and eighty Naira per litre of fuel from the date of the Claimants retirement of 11 April 2016 to the date of judgment and until all backlogs of undelivered supplies are made and liquidated.
- The sum of N10, 000,000.00 (Ten Million Naira) representing damages for the breach of contract as already established from date of retirement of Claimant of April 11 2016 to date of commencement of compliance and execution of the judgment order in this suit.
In reaction to the amended statement of claim, the Defendant on the 14th of December, 2018 filed it statement of defence along with list of witnesses, witness statement of oath, list of documents and copies of documents to be relied upon at trial.
In opening his case, the Claimant himself as sole witness was called as CW1 and he adopted his witness statements on oath marked as C1. Through the CW1, 10 documents were tendered and admitted in evidence as Exhibits C2 – C11.
Arising from the amended statement of claim and witness statements on oath, the case of the Claimant is that he is a retired staff of the Defendant in whose employment he was until 11th April, 2016 after working for 25 years. He posited that there had been various collective agreements harnessed effectively as the conditions of service for all retiring personnel of the Defendant within the status of Deputy Divisional Manager in the services of the Defendant which he attained before his retirement on 11th April 2016. Before his retirement, he brought to the notice of the Defendant a building plan for his home in Fugar, Edo state which he intended to develop and retire into. He posited that the Defendant had actual and constructive knowledge that his retirement was to be in Fugar Edo state. He posited that at the time of his retirement, there was applicable the 2014 condition of service of the Defendant which stipulates his entitlements and benefits including diesel for generator at 1800 litres per month and fuel for car at 380 litres per month. Upon his retirement, he notified the Defendant of his retirement to his home town Fugar in Edo State for which he required that the said retirement facilities and provisions as in Article 16 of the Conditions of Service which subsists on retirement be made available to him on monthly basis in his said home town but the Defendant Company failed since 11th April 2016 to send any responses to the request. He also directed his lawyer to write to the Managing Director to demand for the supplies, yet he got no response. Claimant therefore wants the backlogs that were not supplied to be monetized and an order for the continuous supply and that led to the institution of this suit.
During cross examination, CW1 posited that he knows that there are other retirees in Lagos, Rivers and Abuja but he doesn’t know if fuel and diesel are not supplied outside the city centers of Lagos, Rivers and Abuja. He also admitted that before he retired, there used to be supplies to his residence in Port Harcourt and it was monetized. He also agreed that Exhibit C2 does not state that fuel and diesel will be supplied to his residence in Fugar, Edo state but it should be done. He also agreed that Agip was not a party to Exhibit C8 but they gave him money to purchase the land. He also agreed that Exhibit C6 was not for fuel and diesel. He posited that he is not aware that the Defendant tried to reach him in 2016 to know if the fuel and diesel can be supplied to him in Port Harcourt but he is aware that the fuel and diesel is available for collection.
Upon that, the case of the Claimant was closed while the Defendant opened theirs by calling one witness in person of Nyebuchi Okebanum Worgu, a senior Employee Relations Officer in the Human Resources Department of the Defendant as DW1. He adopted his witness statement on oath which was marked as D1. Through the DW1, 2 documents were tendered, both of which were admitted under protest as D2 and D3 respectively.
Arising from the Statement of defence and witness statement on oath, the case of the Defendant is that the Claimant retired from the Defendant’s Port Harcourt office and not the Defendants Lagos office. The Defendant posited that the “2014, conditions of service of the Defendant’s Company” referred to by the Claimant at paragraph 7(c) of the Statement of Claim was revised on August 17, 2015. Therefore, the applicable conditions of service for the Defendant’s Nigerian Managers (when the Claimant retired) was contained in a hand book revised on 17th August 2015. They posited that it established a staff Home Ownership Scheme on 21st September 2001 which was later revised on 1st December 2010 and the said Home Ownership Scheme was only designed to enable eligible employees build or purchase homes of their own. He added that the Defendant states that it had no knowledge of the Claimant’s intention to retire in Fugar, Edo State as alleged by the Claimant as the Home ownership scheme was merely designed to ensure that eligible employees of the Defendant build or purchase homes of their own and in any place of their choice. The Defendant agreed that the Claimant is indeed entitled to 1,800 (One Thousand, Eight Hundred Litres) of diesel for generator per month and 380 Litres (Three Hundred and Eighty Litres) of petrol for car per month but it is the obligation of the Claimant to make arrangements to take delivery of the petroleum products from the Defendants operational areas in the cities of Abuja, Lagos, or Port Harcourt as is the established practice and the Defendant never agreed to deliver the said diesel and petrol to the Claimant’s ancestral home town/village in Edo State, which is outside the Defendant’s operational areas and that they are not under any obligation to pay money to the Claimant or anybody in lieu of the uncollected petroleum product. The Defendant via a letter dated 30th June, 2016 with reference No: AUAIEME/PH/0071/0371/2017 requested the Claimant to provide his contact for the purpose of collecting the said diesel and petrol in Port Harcourt or in any of the Defendant’s operational areas in accordance with the Defendant’s established practice but the Claimant refused, neglected and failed to respond to the Defendant’s letter dated 30th June 2016. The Defendant concluded that the Claimant is not entitled to any relief as they are baseless, spurious and annoying and urged the court to dismiss same with cost.
In the course of cross examination, DW1 posited that he has been working for the Defendant for 23 years and that it is false that the Defendant has operational bases in Benin and Warri. He confirmed that before 2015, the Defendant gave their officers petroleum product but it is not correct to state that the policy was to have it delivered to their homes. He confirmed that from 2015, the products were monetized for workers/managers and the Claimant was a beneficiary having retired in 2016. He confirmed that the current monetization applies to junior workers, managers and superintendents but it has never been applied to retired staff. He added that the current policy is for the retiree to come to the operational base and collect fuel with a collection card while for diesel, he is to choose from Port Harcourt, Lagos or Abuja for delivery.
Upon that, the DW1 was discharged and matter was adjourned for adoption of final written address.
The Defendant filed their final written address on the 4th of February, 2019 and same was adopted by Counsel to the Defendant, T.J. Krukrubo Esq., on the 27th of February, 2019.
Arising from the Defendant’s final written address, Counsel to the Defendant T.J. Krukrubo Esq. formulated a sole issue for determination to wit:
Whether the Claimant is entitled to judgment in his favour having regard to the pleadings and evidence presented by the parties.
Before addressing the sole issue, counsel addressed the admissibility or otherwise of Exhibits D2 and D3 that was admitted under protest. Counsel posited with regard to Exhibit D2 that the Claimant’s objection is without legal basis as Section 89 (a) (i) of the Evidence Act 2011 permits a party to use secondary evidence of a document when the original is shown or appears to be in the possession of the person against whom the document is sought to be proved. He added that by paragraph (a) of Section 90 (1) of the said Evidence Act, any secondary evidence (including a photocopy) of the original documents referred to in Section 89 of the Act is admissible. Counsel posited that the said Exhibit D2 is a photocopy of the letter written by the Defendant to the Claimant and added that Claimant’s objection that the Defendant did not lay foundation before tendering the photocopy of the letter would have been reasonable if the Defendant was tendering the said photocopy in proceedings against a third party.
With regards to Exhibit D3, counsel submitted that that noncompliance with the frontloading requirements prescribed by the Rules of this Honourable Court does not affect the admissibility of exhibit D3 as the mere failure to frontload a document which a party seeks to put in evidence is not a recognized/known ground of objection to the admissibility of documents under Nigerian law. Counsel cited the cases of Accord Party v Saraki (2010) ALL FWLR (Pt. 544) 65 @98—99 and Ogboru v Uduaghan (2011)2 NWLR (Pt. 1232) 538 @ 569 -570. He added that it suffices, for purposes of admissibility, that the document (exhibit D3) was pleaded by the Defendant, relevant to the issue(s) in controversy between the parties and in admissible form.
He urged the court to reject the Claimant’s objection.
With regards to the sole issue, counsel submitted that there is nothing in the evidence presented by the Claimant, both oral and documentary, that supports the reliefs sought by the Claimant.
He posited that the allegations of the Claimant as arising from the statement of claim is that the defendant is obligated to deliver the petroleum products in question (diesel and fuel) to him in his home town in Fugar, Edo State and also pay money to the Claimant in lieu of the uncollected/undelivered backlogs of the said petroleum products since his retirement on 11th April, 2016 and same are anchored on the Defendant’s Conditions of Service for Nigerian Management Staff. Counsel reproduced paragraph 9 – 18 of the amended statement of claim and posited that Exhibit C2 does not prove the Claimant’s claim that the Defendant is legally bound to deliver the said petroleum products to his home town in Fugar, Edo State nor to pay money to the Claimant in lieu of uncollected/undelivered petroleum products.
Counsel further added that exhibits C3, C4, C5, C6, C7 and C8, merely raise a presumption that the Defendant is aware that the Claimant owns a property in Fugar, Edo State and nothing more and the presumption does not, by any rule of interpretation, translate to an agreement by the Defendant to supply the said petroleum products to the Claimant in Fugar, Edo State. Counsel submitted that the law is that the onus rests squarely on the Claimant to prove his case by presenting credible and reliable evidence in support of his case and that general rule which is technically referred to as “burden of proof” is enshrined in Section 131 of the Evidence Act 2011. He cited the case of E.I.B Building Society Limited v. Dimeji Adebayo (2003) 11 NWLR (PT. 832) 497 @ 502 Ratio 5) and Obasi Bros. Co. Ltd. v. M.B.A.5 Ltd. (2005) 9 NWLR (Part 929) P9. 117 at 123 Ratio 6. To posit that the Claimant has failed to discharge the burden.
Counsel also referred the court to paragraphs 10, 14, 15 and 16 of the statement of defence where the Defendant denied the obligation to deliver the petroleum product and informed the Claimant to collect the petroleum products due to him. Counsel posited that the facts were not denied as the Claimant did not file a reply and is deemed to have admitted them citing the case of Solana v. Olusanya & Ors (1975) 6 S.C. (Reprint) 49; Lawal Owosho & Ors v Adebowale Dada (1984)7 SC, 149 @ 163-164; Okereke & Anor v Aba North LGA (2014) LPELR-CA.
Counsel concluded by urging the court to answer the sole issue formulated for determination in the address in the negative by holding that the Claimant is not entitled to the reliefs sought in this suit having failed woefully to prove his claim. Hence, the suit should be dismissed with substantial cost.
In reaction to the Defendants, final written address, Claimant on the 19th of February, 2019 filed his Final Written address which was adopted by his counsel, D.C. Anyaibe Esq. on the 27th of February, 2019.
Arising from the said final address, Counsel to the Claimant formulated two issues for determination to wit:
- Whether the agreement and understanding embodied in the post retirement benefits and entitlements pertinent to petroleum products supplies to the Claimant admit of and uphold circumstances and facts by implications which warrant the supply of these products to the Claimant in his home town Fugar in Edo State Nigeria.
- Whether the relationship and circumstances of the antecedent contract of service are not collateral support for post retirement benefits and its application such that the Claimant is availed a monetization of the benefit under the conditions of service, and which said facts and evidence to support paragraph 16(D) of Exhibit C2 and therefore ought to be equitably applied.
Before addressing the issues for determination, counsel addressed the status of Exhibits D2 and D3 which were admitted under protest by contending that Exhibit D2 is secondary evidence as it is a photocopy which was sought to be tendered without the necessary foundation being laid. He added that there was no notice to produce the said document indicated to the Claimant, in accordance with S.86 of the Evidence Act 2011. He posited that without proof of the delivery of exhibit D2 in any form howsoever, the Defendant cannot dispense with laying the proper foundation before seeking the admission of this document, which is a secondary document.
With regard to exhibit D3, counsel posited that the Document was not pleaded and what was sought to be admitted is a photocopy without any foundation laid as to its character of secondary evidence. He added that assuming it is a computer generated document, there was no reference and compliance with section 84 of evidence Act 2011.
He concluded by urging the court to reject the documents and mark then as such.
With regards to issue one, counsel referred the court to and reproduced paragraph 16(D) of Exhibit C2 and posited that the said exhibit is without a direction as to how the petroleum products are to be made available to the beneficiaries. He added that Claimant wrote to the Defendant how he then wants the provision to apply since there was no notice of policy to the Claimant by the Defendant on the supply of the Petroleum products.
Counsel also referred the court to the admission of DW1 that the Defendant also has Benin and Warri operational Bases.
Counsel further cited section 72(2) of the Petroleum Act Cap 10, Laws of the Federation which states that “no person should carry Petroleum in bulk by road except in a tank vehicle which complies with the provisions of the act” and posited that various contingencies were not factored in the understanding as reached in paragraph 16(D) of Exhibit C2. He added that this court has the powers of equitable remedy to order the first relief as embodied in the complaint and cited the case of West Construction Co,. Ltd V Batalha (2006)7MJ.S.C PG 184 at 191.
With regards to issue two, counsel submitted that the ground reckons with provisions of Order 30 Rule 13 of the National Industrial Court Rules and of the extant Law which enjoined this Court not to speculate on facts but what it can do is to draw conclusions from surrounding circumstances of a case afotiori bringing to bear an interpretation of Exhibit C2 and its provisions aimed at equitable justice in this matter as regards the cardinal function of the Court to do equity. He cited the case of lgwilo V Central Bank of Nigeria (2000) GNWLR PT 672 Page 302 AT307.
Counsel posited that in view of the lacuna in paragraph 16(D) of Exhibit C2, the policies, now relied upon and now held out by the Defendant to meet the needs of provisions of paragraph 16(D) of the conditions of Service (Exhibit C2) are former policy requiring that workers entitled to petroleum products are supplied the products but this policy has been superseded by the current monetization for current staff, part of which Claimant benefited before retirement.
Counsel further cited section 128 (1) (4) of the Evidence Act to posit that oral evidence may be allowed to prove the existence of any separate agreement as to any matters on which the document is vital or not inconsistent with its terms. He added the provision of Order 30 Rule 13 National Industrial Court Rules.
Counsel then submitted 5 points and grounds to invite the Court along the legal thoughts of implied terms in construing provisions of paragraph 16(D) of exhibit C2 to wit:
- That the provision of paragraph 16(D) of Exhibit C2 did not envisage residency outside of the arbitrary choice of Abuja, Port Harcourt and Lagos. Neither did it expressly mention those three operational areas, now advanced by the Defendant even though there are five operational areas of the Defendant, two of which are proximate areas to Claimant’s home town in Fugar, i.e. Warri and Benin.
- The provisions also never envisaged haulage of Diesel products. For instance from far flung areas which would entail, putting up the additional effect of a storage tank and also moving such large quantity of Diesel with a tanker as the law requires. This is an infraction against S. 72(2) of the Petroleum Act] should such a bulky quantity be hauled in a manner not envisaged under the Act.
- There has not been a consistent and regular policy guideline on the benefits of petroleum products entitlement whereby in one breath, the regulating policy is that the products were supplied conveniently to workers namely diesel to homes of workers using appropriate vehicular transfer (tanker) and delivered in provided storage tanks.
And in another breadth, the petroleum product became monetised for diesel and fuel supply made to run in terms of supply for serving workers which Claimant had benefit before his retirement.
- Curiously, the said policy was suspended for the Claimant upon retirement in total lack of good faith and reasonableness and indifferent as to whether the Claimant makes use of the product or not. More curious is that there was a limit as to where to collect the products.
- The said policy pursuant to paragraph 16(D) of Exhibit C2 as relied upon by the defendant detracts from fair deal and highly unconscionable given that up till the 2ndJune 2017 when the Defendant communicated the said Policy to the Claimant it remained an uncommunicated intention, bereft of expected reasonable notice to the Claimant showing the conduct of defendant clearly malafide as it assured that the said provisions of paragraph 16(D) were simply one of courtesy or convenience to it and had no legally binding from it (sic)
Counsel enjoined the court to apply the maxim that where there is a wrong, there is definitely a remedy. He cited the case of West Construction Co. Ltd V Bata Iha (2006) 7 MJSC Page 184 at 191
With regards to the counsel to the Defendant’s submission that the Claimant’s failure to file reply amounts to deemed admission, counsel to the Defendant argued that the consequences of not filing a reply is not to be taken to have admitted the truth of the allegations of fact in the paragraphs 10-16 of the statement of Defence, so as to free the Defendant from the obligation to lead evidence in proof of what he alleges. Counsel cited the case of Egesimbia v. Onwuzurike (2003) 13 W.R.N. Vol 13 page 78 at page 82.
Counsel concluded that the Defendant will suffer nothing should it be ordered to monetise the benefit of the Claimant from the time of his retirement in April 2016 and for life for it has a capacity to so do and urged the Court to grant the relief or the alternative reliefs.
In view of all the foregoing, I have carefully evaluated and understood 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 carefully evaluated 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.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:
- Whether in view of the evidence before the court, the Claimant is entitled to the relief sought.
Before I resolve the sole issue, it is pertinent for this court to ascertain the status of Exhibits D2 and D3 that were admitted under protest.
With regards to Exhibit D2 which is a letter dated the 30th June 2016, counsel to the Claimant contended that it is a photocopy and that the necessary foundation was not laid for the tendering of same and no notice to produce was made for the production of the original while counsel to the Defendant responded that the fact that the document was written to the Claimant and tendered in a suit against the Claimant erases the need for laying foundation before same is admissible.
Upon a look at the said exhibit D2, I find that same is rightly addressed to the Claimant and bears a stamp that same is received. However, the stamp does not bear the name nor signature of the Claimant to ascertain the reception by him. In view of the foregoing, I reckon the position of the law that documents shall be proved by primary evidence except in the cases mentioned in the Evidence Act. See section 88 of the Evidence Act, 2011. However, the same Evidence Act by section 89 approves of the admissibility of the secondary documents when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. In the instant case, the Defendant has by paragraph 10(d) of its statement of defence mentioned that a letter was written to the Claimant on 30th June 2016. It is needless to say, if such is truly the case, that the original of the letter would rightly be with the Claimant in which case the Defendant do not need notice to produce for them to tender the photocopy of the said letter in view of section 91(b) of the Evidence Act.
That said, on a general note, I find the said Exhibit D2 relevant and admissible and same is hereby admitted in evidence.
With regards to Exhibit D3 which was admitted under protest due to the contention of counsel to the Claimant that same was not pleaded nor frontloaded while counsel to the Defendant contended that frontloading is not a prerequisite for admissibility.
I refer to the case of DONLI v. ABDULLAHI & ORS (2014) LPELR-23011(CA) where the court held that:
“…Three main criteria govern the admissibility of a document in evidence, namely:
(1) Is the document pleaded?
(2) Is it relevant?
(3) Is it admissible in law? Per AKOMOLAFE-WILSON, J.C.A. (P. 27, paras. E-F)
In another instance, the court in G. CAPPA LTD v. DAILY TIMES OF NIGERIA LTD (2013) LPELR-22028(CA) posited that:
“…the admissibility of a document in evidence is one thing while the probative value that may be placed thereon is another – see Okonji V. Njokanma (1999) 14 NWLR (Pt. 638) 250 SC, wherein Achike, JSC, added that three main criteria govern the admissibility of a document, namely- Is the document pleaded? Is it relevant to the inquiry being tried in Court? And is it admissible in law?” Per AUGIE, J.C.A. (Pp. 36-37, paras. F-A)
In view of the foregoing, I have taken a keen look at Exhibit D3 and find that same was pleaded in paragraph 8(b) of the statement of defence wherein the Defendant posited that the handbook referred to by the Claimant was revised in August 2015.
While I reckon that the document was not frontloaded, there is no gainsaying that same is relevant and admissible in law. Consequently, the said exhibit D3 is admitted in evidence.
I must however be clear as to the fact that the admissibility of a document and the weight accorded to it are two different things. The court in CHUKWU V. STATE (2012) LPELR-15360(CA) posited that:
“I need not reiterate that in law, there is a distinction between admissibility and the weight to attach to a document. See LAWAL V. U.T.C. (NIG.) PLC. (2005) 13 NWLR (Pt.943) Pg.601 and OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (2005) 8 NWLR (Pt.928) Pg.547. Thus, a document may be admitted in evidence but it has to be tested for credibility, so as to determine the weight and cogency to attach to it. In attaching weight to it, the entire circumstances to the making of the document have to be considered.” Per TSAMMANI J.C.A. (Pp. 46-47, paras. F-A).
Having said that, I now turn to the sole issue for determination, the resolution of which is directly connected to the reliefs sought by the Claimant.
I must foremost point out that the reliefs as outlined in the Complaint under the heading of ‘statement of material fact’ bears some difference from what is captured in the statement of claim especially with the consideration of relief 1 which is for an order of specific performance. Also, I find that the reliefs in the statement of claim are not alternatives as there are clearly four reliefs while that in the complaint is in the alternative.
In this wise, the court in Jambo v. Gov. Rivers State (2007) 17 NWLR (Pt. 1062) 198 at 216, paras. F – H (CA) has authoritatively posited that the statement of claim supersedes a writ, in this case a complaint. The court held that:
“The claims set out in a statement of claim supersede the particulars of claim made in a writ of summons. Thus, where a claim is made in the subsequent statement of claim, such claim earlier claimed is deemed as having been abandoned. However, an additional claim made in a statement of claim which was not made in the writ of summons is deemed valid. See Eya v. Qudus (2001) 15 NWLR (Pt. 737) 587; Lahan v. Lajoyetan (1972) 6 SC 190; Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) 671; Opigo v. Yukwe (1997) 6 NWLR (Pt. 509) 428.” Per Saulawa, JCA.
Consequently, it is the reliefs that are stated in the statement of Claims that takes priority over those mentioned in the Complaint and those are the reliefs that this court is taking cognizance of for the purpose of this judgment.
That said, I reckon that the reliefs are in respect of an entitlement which the Claimant wants to be performed in a specific way in line with the collective agreement as captured in the staff condition of service between himself and the Defendant. For want of clarity, the Claimant is entitled to 1800 litres of diesel and 380 litres of fuel as a retiree of the Defendant as per paragraph 16(D) of the conditions of Service (Exhibit C2) issued by the Defendant. He perhaps has been enjoying the entitlement while in service and same is to continue upon his retirement. He however want something more. He now wants the products delivered to his home in Fugar, Edo State, where he has chosen to retire. He posits that the Defendant has knowledge of the fact that he intended to retire there having played a part in how he secured the home. In another breath, he wants the products that were not supplied to his home since he retired till the time of judgment to be monetized since he has no storage capacity to put such volume of petroleum product.
He also wants the court to grant him damages for breach of contract perhaps for failure of the Defendant to supply the products to his home in Fugar, Edo state since he retired in April, 2016.
In view of all that the Claimant wants, there is no gainsaying that the burden of proof rests on his shoulders to prove that indeed the Defendant owes him such obligations and the obligations were breached. In this regard, the court in Uzokwe v. Densy Ind. (Nig.) Ltd. (2002) 2 NWLR (Pt.752) Pg. 528 at 544 Para C – D held that:
In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led on either side has the general burden of proof. See Elemo & Ors. v. Omolade & Ors (1968) NMLR 359. See also section 137(1) of the Evidence Act. Per Ogwuegbu, JSC
The holding of the Supreme Court streamed from the provision of section 131 of the Evidence Act which provides that:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist”.
In attempt to discharge the burden, the Claimant posited that the entitlement is mentioned in the condition of service that guided his employment relationship with the Defendant and tendered same as Exhibit C2 with particular reference to paragraph 16 (D) which contains the Claimant’s entitlement to the petroleum products. He also tendered Exhibits C5, C6, C7 and C8 to establish the fact that the Defendant has constructive and actual knowledge of his home in Fugar, Edo state. Exhibits C5 is the application for home ownership scheme by the Claimant to the Defendant, Exhibits C6 is the Approval of the application by the Defendant, Exhibit C7 is the Pledge form signed by the Claimant while Exhibit C8 is the Agreement for purchase of land situate at Fugar, Edo state.
In addition to the foregoing, Claimant tendered the letters he wrote to the Defendant through himself and through his lawyer in request for the supply of the products as Exhibits C3 and C4 while the eventual response of the Defendant was Exhibit C9.
By way of evaluation, I must start with Exhibit C2 which is the fulcrum of the Claimant’s grouse against the Defendant. Foremost, I reckon that the said Exhibit C2 is the condition of service for Nigerian Management Staff of the Defendant and I take into account the assertion of the Defendant that same was revised in 2015. Upon that account, I find that the provision in paragraph 16(d) is not different despite the said revision. Hence, I find it apposite to reproduce the said paragraph in the portion relevant to the instant suit. The paragraph in part reads:
Retired MDM, General Managers, Division Managers and Deputy Division Managers shall continue to enjoy the following:
- Diesel for generator: 1800 litres per month
- Fuel for car: 380 litres per month
In view of the foregoing provision, it is without doubt and also not in contention that the Claimant as a retiree of the Defendant is entitled to continue to enjoy the benefit of the products. What is in contention is that the Claimant now wants the products delivered to his home in Fugar, Edo state. Counsel to the Claimant also posited in the course of argument in the Claimant’s final address that the provision has a lacuna as it does not state how the products are to be delivered; that the provision did not envisage the residency outside Abuja, Port Harcourt and Lagos and is not in contemplation of section 72 of the Petroleum Act and it is in view of these that the Court should order the Defendants to supply the products to the Claimant’s home in Fugar Edo state. He added that during cross examination of DW1, he reckoned that the Defendant has operational bases in Warri and Benin, hence the Defendant could have chosen Benin as the proximate place to the Claimant’s home. Counsel wants the court to apply equity in the consideration of the lacuna in favour of the Claimant on the basis that where there is a wrong, there is a remedy.
In reaction, Counsel to the Defendant posited that the Defendant is not legally bound to deliver the products to the Claimant’s home in Fugar, Edo state and the condition of service does not obligate the Defendant to pay money to the Claimant in lieu of uncollected products.
In resolving the foregoing contention, I must state that the duty of this court in relation to the agreement between the parties is merely that of interpretation and pronouncement as the court does not re-write agreement for parties. The court in the case of ALHAJI S. ADETORO V. UNION BANK OF NIGERIA PLC (2007) LPELR-8991(CA) held that:
“It is trite that parties are bound by the terms of their agreement and the Court will certainly not step into the arena to dictate new terms for them. Instead, the Court, as an impartial umpire, exists only to interpret strictly the terms of such contracts or agreements as entered into between the parties” Per SANKEY, J.C.A (P. 53, paras. F-G)
In similar wordings, the court in RENE ANTOUN & ANOR v. BENSON OGHENE (2012) LPELR-8502(CA) posited that:
“The terms of a contract is binding between parties thereto and is sacrosanct. It cannot be altered or rewritten by the parties, except under their agreement. In the same token, even the court cannot so alter such contract. It can only enforce the terms except they are against public policy or are illegal or contra bonus mores (contrary to morality).” Per DANJUMA, J.C.A (P. 21, paras. A-F).
In view of the forgoing authorities, I must reiterate that it is not the duty of the court to fill the lacunas in an agreement reached between the parties.
That notwithstanding, I have considered the provision of paragraph 16(d) and find rightly so that there is no provision for how the petroleum products are to be benefitted by the Claimant. I also found that the provision does not place any obligation on the Defendant to either supply the product to the Claimant’s home in Fugar, Edo state or anywhere in fact, neither does it place the obligation to monetize the product on the Defendant and in view of that, this court cannot make such order to compel the Defendant to do what it has not expressly or impliedly agreed to do.
I must also state that the exhibits (i.e. Exhibits C5, C6, C7 and C8) in relation to the acquisition of the home in Fugar, Edo state by the Claimant which the Claimant intends to use to establish the Knowledge of the Defendant of his home in Edo state, so that the Defendant will use its initiative to decide to supply the products in Edo state, has no nexus with the provision of paragraph 16 (d) and even as the knowledge exists, it cannot be used to impose an obligation which paragraph 16(d) of the condition of service does not contemplate nor expressly provide for as to how the Claimant is to obtain his benefit of the petroleum products.
In view of the forgoing, does it then mean that the benefit of the petroleum products is intended to be a Greek gift which would then require the equitable intervention of the court? The answer to this is in the negative in view of the testimonies before the court.
Before I pick on the testimonies, I reckon that the Defendant wrote a letter to the Claimant’s lawyer in response to the demand made by the lawyers on behalf of the Claimant for the supply of the petroleum products. The Claimant tendered the letter as Exhibit C9. In the said letter dated the 2nd of June, 2017, the lawyers were informed by the Defendant that it is the established practice for the petroleum products to be collectable from any of their operational areas in Port Harcourt, Lagos or Abuja. Therefore, the Claimant should provide an address within any of the three operational areas to enable the Defendant make necessary arrangement to provide him the products.
The Claimant perhaps was not satisfied with this response from the Defendant and that was why he instituted this suit since he wants the products delivered in Fugar, Edo state.
With respect to the testimonies before the court, I am much aware that the testimonies are not the oral agreements to add to or vary the provision of paragraph 16(d) of the condition of service. In addition, if there was such oral agreement, I am not oblivious of the provision of section 128 of the Evidence Act with respect to exclusion of oral evidence. The court in Olanlege v. Afro. Cont. Nig. Ltd (1996) 7 NWLR (Pt.458) 29 had posited that “It is firmly established as a rule of law that parol evidence cannot be admitted to add, to vary or contradict a written instrument… Accordingly, parol evidence will not be admitted to prove that some particular term which had been verbally agreed upon had been omitted (by design or otherwise) from a written agreement constituting a valid and operative contract between the parties.” Per OGWUEGBU, J.S.C. (P. 16, Paras. D-F)
Notwithstanding the forgoing, I find it expedient to take into account the testimony of witnesses before the court to ascertain how the benefit stated in paragraph 16 (d) had been enjoyed in practice.
In the course of cross examination of the Claimant, he admitted he is not aware of the fact that the products are not supplied outside the city centres of Rivers, Lagos and Abuja. He also admitted that before he retired, the products were supplied to his residence in Port Harcourt. This suggests that the Claimant had been benefitting and the Defendant is not by any means attempting to deny him the benefit in view of Exhibit C9.
DW1 on his part testified that the policy of the Defendant is that it has three operational bases though he was referred to page 17 of Exhibit D3 which portrayed 5 work locations. The DW1 posited that before 2015, the Defendant gave officers petroleum products and same was monetized from 2015 but that it has never been applied to retired staff. He added that the current policy for retirees is to collect fuel with a collection card while diesel is to be delivered at any point chosen amongst the operational bases.
A look at paragraph 16(d) once again shows that one operative and helpful word in the provision is ‘continue’. The said word is helpful in the sense that since the Claimant had been supplied the products while he was in service and the provision says he should continue to be supplied when he retires, will anything change in terms of the location where he was supplied after his retirement?
The court in the case of A.I.B. Ltd. v. Lee & Tee Ind. Ltd. (2003) 7 NWLR (Pt. 819)366 provided the meaning of the word ‘continue’ when it held that:
“The word “continue” means – “to draw out or prolong; to extend; to go on with; to be a prolongation of; etc”, (see The Chambers Dictionary).” Per AUGIE, J.C.A. (P. 23, Para. A)
In view of the foregoing meaning of the word ‘continue’, it suffices to say that the Claimant would go on with the collection of the products as he has been doing in the absence of any change in practice. In other words, the Claimant shall continue to collect the products in Port Harcourt where he was collecting same before he retired subject to the current policy of the Defendant barring the monetization of the products for retirees as stated by DW1.
Having said that, I then turn to the reliefs as sought by the Claimant.
Reliefs 1 is for “An order of specific performance of the Collective Agreement of 2014 conditions of service between Defendant’s management and its staff for supply and delivery of 1800 litres of diesel and 380 litres of fuel monthly to the Claimant pursuant to vested retirement benefits save for the back log of the same supplies of the petroleum products from the Claimant’s date of retirement on 11th of April 2016”.
With regards to the relief being for an order of specific performance, the court in ODOGWU v. AMZARANDA (2010) LPELR-4680(CA) held that:
“Specific Performance is an equitable relief given by the Court to enforce against a Defendant the duty of doing what the Defendant has agreed to do by contract. See U.B.N Plc v. Erigbuem (2003) FWLR Pt. 180 page 1365. Per ABOKI, J.C.A. (Pp. 22-23, paras. D-C).
In view of the forgoing authority and in view of the fact that specific performance is an equitable relief granted on equitable grounds where the relief of damages will not suffice, the simple duty placed on this court is to find first if there is an agreement to do what the Claimant wants the court to order the Defendant to do and if the Defendant has refused to do same.
While I have reckoned that there is indeed a valid agreement between the parties as regards the Claimant being entitled to certain litres of petroleum products courtesy of the Defendant, I have also in the course of the analysis of the dispute between the Claimant and the Defendant, found that the Claimant has been informed via Exhibit C9 to make provision for the address within the three operational areas for the collection of the said petroleum products which he is entitled to under the condition of service. It is also noteworthy that paragraph 16 (d) of the condition of service which the Claimant has referred to as a collective agreement does not place any obligation on the Defendant which the court is to Order the Defendant to carry out. There is no evidence before the court to prove that the agreement has been breached or that the Defendant is unwilling to perform the terms of the contract as contained in paragraph 16 of the condition of service.
Consequently, relief 1 has no basis for its demand. It lacks merit and same is accordingly refused.
Relief 2 is for “An order that the Defendant takes all such acts and execute all such logistics as may be necessary to supply and deliver the aforesaid petroleum products to the Claimant’s home in Fugar, Edo State in accordance with the extant agreement in place for appropriate level of retired officer of the Defendant as at 2014, Collective Agreement of the Defendant and its staff.
I have made it abundantly clear that the Court is not in a position to re-write agreements for parties and in view of the finding that paragraph 16 (d) of the condition of service, which is the agreement between the parties does not either expressly or impliedly contemplate the supply of diesel and fuel to the Claimant’s home in Fugar, Edo state, consequently the said relief two is also refused.
Relief 3 is also for An order that the said backlogs of supplies of petroleum products from date of retirement of 11 April 2016 until supplies and delivery of the petroleum products are commenced to be monetized and account taken for three hundred Naira per litre of Diesel and one hundred and eighty Naira per litre of fuel from the date of the Claimants retirement of 11 April 2016 to the date of judgment and until all backlogs of undelivered supplies are made and liquidated.
With regard to the said relief, there is no proof before this court that the Defendant is under an obligation to monetize uncollected petroleum products which the Claimant is entitled to. Paragraph 16 (d) of the condition of service makes no such provision hence there is no basis for this court to make such order. Consequently, relief 3 is also refused.
With regards to relief 4 which is for “the sum of N10, 000,000.00 (Ten Million Naira) representing damages for the breach of contract as already established from date of retirement of Claimant from April 11 2016 to date of commencement of compliance and execution of the judgment order in this suit”
The court in Kemtas Nig. Ltd. v. Fab Anieh Nig. Ltd. (2007) ALL FWLR (Pt. 384) 320 at 342 Paras. B – C (CA) posited that:
“A breach of contract is committed when a party to a contract, without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or either performs the obligation defectively or incapacitates himself from performing the contract or by wrongfully repudiating the contract”. Per Abdullahi JCA.
The purport of the above is that there must first exist an undertaken obligation before there can be a failure to perform since one cannot place something on nothing and expect it to stand.
In the instant case, the supposed breach of contract is the alleged failure of the Defendant to supply the petroleum products which the Claimant is entitled to at his home in Fugar, Edo state. for the umpteenth time, I repeat that while the Claimant is entitled to certain litres of petroleum products, there was never an obligation for the Defendant to supply or deliver same at the home of the Claimant in Fugar Edo state. hence, no breach.
In the absence of a finding of a breach, there can be no remedy either in law or in equity. Consequently, relief 4 also fails.
In view of the forgoing circumstance, it goes without saying that the sole issue is resolved in favour of the Defendant and against the Claimant to the effect that in view of the evidence before the court, the Claimant is not entitled to the relief sought.
In the final analysis, the case of the Claimant is devoid of all merit; it fails in its entirety and same is accordingly dismissed.
Judgment is accordingly entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.
