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National Industrial Court

Affah Abel Edara -VS- Walvis Nigeria Limited & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 27th FEBRUARY, 2020                 SUIT NO: NICN/UY/21/2017

 

BETWEEN

 

AFFAH ABEL EDARA ..………………………..CLAIMANT

 

AND

 

  1. WALVIS NIGERIA LIMITED

                                                                                                             DEFENDANTS

  1. SEA TRUCKS NIGERIA LIMITED

 

REPRESENTATION

 

Nsikak Akai with MichealItamafor the Claimant.

  1. S. Ojiakofor the Defendant.

 

JUDGMENT

The Claimant who was a staff of the Defendants commenced this action on 31st August, 2017by filing a Complaint accompanied by Statement of Facts, Statement on oath and List of documents claiming against the Defendants jointly and severally as follows:

 

  1. A declaration that the Defendants acted ultra vires the Collective Bargaining Agreement when they terminated the Plaintiff’s employment without service of valid notice and/ or payment of salary in lieu of notice.

 

  1. The sum of N2,700,000 only being the Plaintiff’s terminal benefit representing 9 years period which the Plaintiff worked for the Defendants.

 

iii.              The sum of N15,000 only being the Plaintiff’s entitlement of a day’s salary in lieu of notice.

 

  1. The sum of N230,000 being the Plaintiff’s unpaid salary for the months of June/July 2016.

 

  1. The sum of N20,000,000 being general damages.
  2. The cost of this action.

 

At the trial, the Claimant testified for himself as CW while one UchennaAgwagom, Legal Manager of the Defendants testified as DW. In the course of the trial, CW tendered nine (8) documents as Exhibits while DW tendered (17) documents.

 

At the close of trial, parties were invited to file and serve their Final Written Addresses beginning with the Defendant. The Defendant’s Written Address was filed on the 10thDecember, 2019 while that of the Claimant was filed only on 7thJanuary, 2020. The Defendants filed a reply on 20th January, 2020. Thereafter, parties adopted their Final Written Addresses on 30thJanuary, 2020 thereby paving the way for this judgment.

 

The Case of the Claimant

 

The Claimant who graduated with Upper Credit from the MaritimeAcademy of Nigeria, Oron in 2008, was until sometime in the month of July 2016, a staff of the defendants.

 

The Claimant was offered a contract of employment as a Deck Cadet with the 1st Defendant by a letter dated the 12thday of November, 2008, which the Claimant accepted. The duration of the contract was for a period of Three (3) calendar months subject to renewal. But before the expiration of the first contract, he was offered another contract with the 1stdefendant for a period of four (4) calendar months. After the completion of his six (6) month probationary period in accordance with the policy of the company, his appointment was confirmed and he was given a copy of the Collective Bargaining Agreement (which is the entitlement of only confirmed employees). In the course of his employment with the defendants, the Claimant was offered three (3) addendums by the 1st defendant on 19/03/2009, 19/01/2011 and 21/12/2012 and promoted to the position of 2nd Mate effective from 28thJune, 2013 in accordance with section 4.11 of the Collective Bargaining Agreement of December, 2012.

 

The case of the Claimant is that following the agreement of 22/10/2015which sought to supplement the Collective Agreement of December, 2012, every staff of the defendants is entitled to the sum of N300,000.00 (Three Hundred Thousand Naira) only for each completed year of service as terminal benefit and since the Claimant has put in Nine (9) years of service for the defendants, he is entitled to the Sum of N2,700,000.00 (Two Million, Seven Hundred Thousand Naira) only as his terminal benefit.By the terms of the contract, the Claimant was to be on board from the 19thof June 2016 till 18thAugust 2016 but while he was on board, the Defendants without notice sent the Claimant a letter of redundancy or termination purportedly dated 8th July, 2016. At that point in time, the Claimant’s salary of N230,000.00 (Two Hundred and Thirty Thousand Naira) only remained unpaid. In an attempt to pay the Claimant his terminal benefits, the Defendant presented a voucher showing N225,800.00 in figures and N2,700,000.00 in words, which the Claimant rejected. The Claimant’s case is also that despite deducting monies from his monthly salaries as contributory pensions, the defendants have failed, neglected or refused to pay same to the Claimants in spite repeated demands. The Claimant felt that he has been subjected to severe pains and injury and should be recompensed hence this action.

                                                                                                                                   

The Case of the Defendants

 

The case of the Defendants is that 1st Defendant engaged the Claimant as a contract employee for the position of a Deck Cadet by virtue of a Voyage Contract Agreement dated 12th November, 2008 for a term of 3 (three) months commencing from 10th November, 2008 to 9th February, 2009. At the termination of the Voyage Contract Agreement by effluxion of time, the Claimant was paid end of voyage contract bonus and invited to enter a fresh voyage contract agreement with the 1st Defendant only if the 1st Defendant needs the services of the Claimant. The renewal of the voyage contract agreement was not automatic and the said Voyage Contract Agreement has no provision for renewal. The first Voyage Contract Agreement with the Claimant was terminated on 9th February, 2009 and it was not until 16th March, 2009 that another one was entered. It is the case of the Defendants that the terms and conditions the Claimant’s employment are contained in the successive Voyage Contract Agreements and Seafarers’ Employment Agreements Officer (Contract) entered into between the 1st Defendant and the Claimant. There is a provision in each successive Voyage Contract Agreement and Seafarers’ Employment Agreement Officer (Contract) specifying the duration of the employment. There is also no provision in these agreements for a 6 (six) months probationary employment for the Claimant or at no time did the 1st Defendant handed over any Collective Bargaining Agreement to the Claimant nor did it ever incorporate the Collective Bargaining Agreement into any of Voyage Contract Agreement or Seafarers Employment Agreement Officer (Contract) between it and the Claimant.

 

The Claimant was promoted on the ground of his acquisition/obtaining the required certifications/competency and the promotion have no bearing with the provisions of section 4.11 of the Collective Bargaining Agreement of 1st December, 2012 at all. It is also the further case of the Defendants that by the letter of promotion dated 28th June, 2013, the Claimant was elevated to the officer cadre in the 1st Defendant and therefore ineligible to be a member of the union and this fact is reinforced by sections 1.02, 1.03 paragraphs i, vi and vii of the Collective Bargaining Agreement dated 1st December, 2012. Again, to the Defendants neither the Collective Bargaining Agreement of 1st December, 2012 nor the one dated 31st January, 2015, which extended the life of the Agreement of 1st December, 2012 was incorporated into the terms of the Claimant’s successive Seafarers’ Employment Agreements Officer (Contract). As a result the provisions of the Agreement of 22nd October, 2015 were not applicable to the Claimant including the payment of the sum of N300,000.00 to every contract staff for each completed year of service or part thereof. But Assuming but not conceding that the Claimant should be paid N300,000.00 by the 1st Defendant for every completed year of service, such payments is not as of right to the Claimant but merely a gratuitous reward by the 1st Defendant which the 1st Defendant cannot be compelled to discharge as no right was conferred on the Claimant by virtue of Claimant’s successive Seafarers’ Employment Agreements Officer (Contract) and the successive Voyage Contract Agreements. Again, the successive Seafarers’ Employment Agreements Officer (Contract) of 12th December, 2014; 10th December, 2015 and 18th June, 2016 etc each constituted the entirety of the terms and conditions of the Claimant’s employment contract at any given period.

 

The 1st Defendant calculated in favour of the Claimant a total sum of N791,583.00 (Seven Hundred and Ninety-one Thousand, Five Hundred and Eighty Three Naira) only represents his gratuitous benefit having worked for a period of 1 year and 9 months as an officer after the Claimant’s promotion letter of 28th June, 2013. Out of the sum of N791,583.00, the Defendants had to deduct the sum of N554,580.00 the Claimant owed the Sea Trucks Group Multi-purpose Cooperative Society Limited leaving a balance of N237,003.00 which the Claimant refused. The 1st Defendant however admitted that the period the Claimant worked as a Deck Cadet was not factored for and which is for a period of 2 years and 4 months which accrues to the Claimant an additional gratuitous benefit in the sum of N703,330.00 (Seven Hundred and Three Thousand, Three Hundred and Thirty Naira) only. The Claimant is not therefore entitled to the sum of N2,700,000.00 (Two Million, Seven Hundred Thousand Naira) only as terminal benefits.

 

The Defendants also posited that the Claimant’s employment was terminated in line with the provisions of Section 10.1 of the Claimant’s Seafarer’ Employment Agreement Officer (Contract) of 18th June, 2016 which was then in force by payment of Claimant’s 7 (Seven) days basic salary in lieu of notice. The second paragraph of the said letter of termination dated 8th July, 2016 provides that the Claimant’s July 2016 salary, end of contract bonus/sum and end of year bonus are pro-rated and paid together with the Claimant’s benefits.

 

On the deductions of contributory pension, the Defendants asserted that the funds were deducted and remitted to the Claimant’s chosen Pension Fund Administrator in accordance with the law. Similarly, Union dues were deducted from the Claimants earning in accordance with his instructions and the deductions ceased when the Claimant was promoted to 2nd Mate by the 1st Defendant on the 28th June, 2013. This was based on the fact that the Maritime Workers Union of Nigeria is a union to which only Junior and Intermediate staff employees of the Defendants belong to.

 

The Defendants state that they are not liable to the Claimant in general damages and the cost of this action in any sum and at all.

                                                                                                                                               

Defendant’s Submission:

 

The Defendants formulated seven (7) issues for determination:

 

  1. Whether the Claimant has been able to prove that his employment with the 1st Defendant is of a permanent nature and not periodic.

 

  1. Whether the Claimant could lawfully claim any terminal benefit outside the successive Voyage Contract Agreements and Seafarers’ Employment Agreements Officer (Contract) between him and the 1st Defendant.

 

  1. Whether the Claimant’s employment was lawfully terminated in line with Seafarers Employment Agreement Officer (Contract) of 18/6/16 (Exhibit DW4C.), and if not what is the measure of damages the Claimant is entitled to.

 

  1. Whether the Claimant has proved that he is entitled to take benefit as of right under the Agreement of 22/09/15 (Exhibit DW 16).

 

  1. Whether the 1st Defendant rightfully deducted the sum of N554,580.00 which the Claimant owed Sea Trucks Group Multi-­Purpose Co-operative Society Limited from the terminal benefit of the Claimant.

 

  1. Whether this Honourable Court could lawfully exercise jurisdiction over the 2nd Defendant in view of the fact there is no proof of service of the originating processes of this suit on her.

 

  1. Whether from the pleadings and evidence before this Honourable Court, the Claimant has proved that his salary for the period commencing from 21st June, 2016 to the date of termination which is 8/7/16 was not paid and whether he is entitled to recover the cost of this action.

 

Issue 1:         Whether the Claimant has been able to prove that his employment with the 1st Defendant is of a permanent nature and not periodic.

 

On this issue, the Defendant started by stating that the law is that for a contract to be regarded as legally binding and enforceable, parties must reach a consensus ad idem in respect of its terms referring to the cases of Usman v. Ibe (2017) LPELR-43303 (CA) pp. 30-31, paras. B-D; Njikonye v. MTN Communications Ltd (2008) 9 NWLR (PT. 1092) 339 andAdedeji v. Obajimi (2018) 16 NWLR (Pt. 1644) 146 at 167 paras G-H.

 

According to the Defendants the contract of employment between the Claimant and the 1st Defendant which was the foundation of the said relationship  were spelt out in the various Voyage Contract Agreements and the Seafarers’ Employment Agreements Officer (Contract) admitted in this suit as Exhibits DW1, DW2, DW3, DW4A, DW4B and DW4C. To the Defendants these Exhibits clearly show that these were periodic contracts and were the only binding agreements between the parties and no other. The Defendants relied on the case of Bilante Int’l Ltd. v. N.D.I.C (2011) LPELR-781 (SC) per Tabai, J.S.C (p. 20, paras C-E) to the effect that:

 

“The basic constituents of any contract are offer and acceptance. And a contract could be oral or written. When a contract is contained in a written agreement, it is that document that determines the intention and terms of the parties to it. It is the terms in that document by which the parties will be bound. And none of the parties to the contract will be allowed to read into it, a term or terms not contemplated by and agreed to by them.”

 

On this the Defendant also cited the cases of Mandilas&Kalaberis Ltd v. Otokiti (1963) LPELR-15462 (SC) perBairamian, J.S.C (p. 7, para. 8) andUwah&Anor v. Akpabio&Anor (2014) LPELR-22311 (SC) per Mohammad, J.S.C (pp.25-26, paras. E-B).

 

The Defendants further submitted that Exhibit DW1 dated 12/11/08 clearly stated that the Claimant was engaged as a Deck Cadet for a voyage of 3 months on board Walvis 1 from 10/11/08 to 9/2/09. It is the further contention of the Defendants that the Claimant having freely signed Exhibit DW1, the document which dealt with matters relating inter alia to the remuneration of the Claimant, end of voyage contract bonus and a statement to the effect that the agreement constituted the entire terms and conditions of the Voyage Contract Agreement, the document is binding on the parties. The Defendant called in aid the case of Nwaka v. Shell (2003) 3MJSC 136 at pp. 146-147, paras G-A where the Supreme Court held:

 

“When parties make a contract they make their own law to which they are subject and which creates the rights and obligations which bind them to which the general law only gives recognition and force. The common law we practice recognizes the freedom of contract.”

 

On the effect of letter of promotion dated 28/6/13 admitted as Exhibit CWI/Exhibit DW5 and having noted that the Exhibits CWI and Exhibit DW3 were both dated and signed by the Claimant on 28/6/13, the Defendants submitted thatExhibit CW1 is not in conflict with Exhibit DW3 at all because Exhibit CW1 did not change the character or nature of employment of the Claimant as contained in Exhibit DW3. The Defendants reiterated that Exhibit CW1 merely provided the position/designation in which the Claimant would be engaged in subsequent periodic or term contracts and also specified the remuneration and submitted that Claimant was not a permanent employee of the 1st Defendant rather the Claimant had several periodic or term contracts with the 1st Defendant with definite/specific commencement date and termination date.

 

Issue 2:        Whether the Claimant could lawfully claim any terminal benefit outside the successive Voyage Contract Agreements and Seafarers’ Employment Agreement Officer (Contract) between him and the 1st Defendant.

 

Here, the Defendants attacked the position of the Claimant that the Collective Bargaining Agreement 1/12/12 Exhibit CW3/Exhibit DW15 was applicable and/or formed part of the terms and conditions of the agreement he had with the 1st Defendant. In support of this, the Claimant had asserted that the 1st Defendant had a policy of placing its newly recruited employees on a six month probationary period at the end of which and if confirmed, the person would be given a copy of the Collective Bargaining Agreement as was done to him in the instant case. The Defendants strongly submitted that the two contracts the Claimant referred to were Voyage Contract Agreement dated 16/3/2009 (Exhibit CW2) and Exhibit CW4 dated 12/11/2008 did not refer to the Collective Bargaining Agreement of 1/12/2012or any reference to a probationary period and the said contracts have commencement and terminal dates in contradiction to the position of the Claimant that he was employed and placed on a six months probationary period in the service of the 1st Defendant.

 

Referring to the cases of Adedeji v. Obajimi supra at p.166 paras C-D andLayade v. Panalpina World Transport Nigeria Ltd. (1996) LPELR-1768 (SC) per Adio, J.S.C (p. 22, paras D-F), the Defendants argued that the law is that where parties have embodied the terms of their contract in a written document, extraneous evidence is not required to add, subtract from, vary or contradict the terms of the written document.

 

It is also the position of the Defendants that it is clearly illogical for the Claimant to argue that the Agreements he had with the 1st Defendant in 2009 and 2008 could have anticipated a Collective Bargaining Agreement made in 2012. To the Defendants, the law is that a collective agreement such as Exhibits DW6, DW15 and DW16 are at best a gentleman’s agreement, an extra-legal document devoid of sanctions and can only bebinding on the parties when incorporated by reference, or embodied into the conditions of contract of service citing the cases of Texaco Nigeria Plc v. Kehinde (2002) FWLR (PT. 94) 143 at pp. 160-161 paras H-B andOsho&Ors v. Unity Bank Plc (2013) LPELR-19968 (SC) perChukwuma-Eneh, J.S.C (pp. 37-38, paras. A-B) where the Supreme Court held:

 

“It is on principle of privy of contract that courts have shown great reluctance to enforcing collective agreements between collective parties at the instance of employee(s) without the collective agreements having firstly been incorporated into his contract of employment.”

 

The Defendants contended that since the Claimant had equally failed to give any cogent evidence in proof of his claim that the Collective Bargaining Agreement applied to him, the court shouldhold that the Collective Bargaining Agreement of 1/12/12 which is Exhibit DW15 and also Exhibits DW 6 and Exhibit 16 do not apply to the Claimant.

 

It is also the further contention of the Defendants that the law is trite that where there is a document or series of documents incorporating the terms and conditions of an employment, like in the instant case, the court should not look outside those terms in deciding the rights and obligations of the parties referring to the cases of Ishenov. Berger (2008) 4 MJSC 104 at 127 F-G.; The Rector, Kwara Poly &Ors v. Adefila&Ors (2006) LPELR-8248 (CA) pp. 87-106 paras D-F.

 

Applying the above proposition of the law to the facts of this case, the Defendants urged this court not go outside various Voyage Contract Agreements and the Seafarers’ Employment Agreements Officer (Contract) admitted in this suit as Exhibits DW1, DW2, DW3, DW4A, DW4B and DW4C in deciding the rights and obligations of the parties in this suit.

 

Issue 3:        Whether the Claimant’s employment was lawfully terminated in line with Seafarers Employment Agreement Officer (Contract) of 18/6/16 (Exhibit DW4C.) and if not, what is the measure of damages the Claimant is entitled to.

 

The Defendants noted that the Claimant claimed that he was on board on 18/6/16 and disembarked on 18/7/16 but maintained that the 1st Defendant took diligent steps to ensure that the Claimant was disembarked from the Vessel and was at the 1st Defendant’s office on 8/7/16.

 

The Court was urged to hold that the Claimant was lawfully disengaged from the services of 1st Defendant in line with the provisions of Exhibit DW4C, which the severance/termination letter of 8/7/16 (Exhibit DW13) made reference to and payment in lieu of notice was made which constituted part of the terminal benefit of the Claimant as contained in Exhibit DW17.

 

The Defendants also reiterated the objection to Exhibit CW8 and urged the Court not to attach any weight to the document as itwas not pleaded to enable the Defendant verify same before trial citing the cases of George v. Uba Ltd. (1972) LPELR-1321 perFatayi-Williams, J.S.C (p. 12, paras A-C) andYara v. National Salaries, Wages & Income Commission (2013) LPELR-20520 (SC) perGaladima, J.S.C (p. 14, paras. B-D).

 

The Defendant placed reliance on the case of Gboboh v. British Airways Plc (2016) LPELR-40099 (CA) pp. 29, 30, para. E.to argue that even if the contrary is established, the law is that the only remedy available for an employee whose employment was wrongfully terminated is an action for damages in lieu of notice.

 

On the authority of the cases of Nigerian Gas Company Ltd v. Unuavwodo (2003) FWLR (PT. 169) p. 1196 at 1208 para.; Obanye v. Union Bank Plc (2018) LPELR-44702 S.C. pp. 24-27 paras F-E., the Defendants posited that the measure of damages the Claimant is entitled to is what he would have earned over the period of notice required to lawfully terminate his employment.

 

Similarly, the Claimant is not entitled to general damages because the law is that a Claimant whose contract has been wrongly terminated is not entitled to general damages but to the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn; other employment as in the case of National Electric Power Authority v. Enyong (2003) FWLR (Pt. 175)452 at 473 paras C-F.

 

Issue 4:         Whether the Claimant has proved that he is entitled to take benefit as of right under the Agreement of 22/09/15. (Exhibit DW16).

 

On this, the Defendants maintained that from a perusal of the agreements the Claimant had with the 1st Defendant, it becomes obvious that the Claimant was in error in claiming that the agreement embodied in Exhibit DW16 dated 22/9/15 applied to him because agreement was not incorporated in the successive Voyage Contract Agreements and Seafarers’ Employment Agreements Officer (Contract) entered into between the 1st Defendant and the Claimant. This is in view of the case of Osho&Ors v. Unity Bank Plc supra and Texaco Nigeria Plc v. Kehindesupra.

 

The Defendants referred to Exhibit DW4C (Seafarers Employment Agreement Officer (Contract)) dated 18/6/2016 to submit that the Claimant was not entitled as of right to the benefits mentioned in the Agreement of 22/9/2015 because it was not contained in his last periodic contract with the 1st Defendant. So that being the case, the promise to pay the Claimant the benefits as contained in the Agreement of 22/9/15 (Exhibit DW16), was merely a gratuitous reward by the 1stDefendant to the Claimant, which the 1st Defendant could not be compelled to discharge.

 

The Defendant however informed the court that, notwithstanding that the Claimant was not entitled to terminal benefits outside his agreement with the 1st Defendant, the latter had gone ahead to calculate the sum of N705,330.00as additional gratuitous sum to the Claimant which was earlier erroneously omitted representing the periods the Claimant had Voyage Contract Agreements in the position of Deck Cadet with the 1st Defendant amounting to 2 years, 4 months and 7days. This sum and in addition to N237,003.00 that is, Exhibit DW12were what was due to the Claimant and not the sum of N2,700,000.00.

 

On the interpretation of “every completed year of service”, the Defendants submitted that DWI had given unchallenged evidence to the effect that the phrase with respect to the 1st Defendant’s Contract Employees such as the Claimant was interpreted and calculated as the number of month(s) of distinct contracts of employment which constituted or made up 12calendar months.

 

Issue 5:        Whether the 1st Defendant rightfully deducted the sum of N554,580.00which the Claimant owed Sea Trucks Group Multi-­Purpose Co-operative Society Limited from the terminal benefit of the Claimant.

 

On this issue, the Defendants noted that the Claimant failed to particularize his calculations of his terminal benefit on allegation of working for nine years from 12/11/2008to 18/7/2016, and submitted that the Defendants had presented Exhibit DW17 which showed the different headings of monies due to the Claimant and the deduction of the Sea Trucks Group Multi-Purpose Co-operative Society Limited debt.

 

It is the submission of the Defendants that byExhibits DW7 and DW8, its pleadings and evidence, the 1st Defendant has established that the Claimant took a loan of N600,000.00 from Sea Trucks Group Multi-Purpose Co-operative Society Limited. The Defendant also tendered a letter (Exhibit DW9) by the Claimant authorizing thedeductionof the outstanding loan from his terminal benefits. The Defendants invited the court to note that although the Claimant denied the knowledge or authorship of Exhibit DW9 in his Statement on Oath, he had admitted under cross-examination on 9/7/2019 that he applied for a loan of N600,000.00 from the Sea Trucks Group Multi-Purpose Co­operative Society Limited and being indebted to the said Co-operative Society. It is therefore the submission that the law is that evidence procured from the heat of cross-examination is more reliable and compelling than the ones oozing out of examination-in-chief.As for the admission, the Defendants cited the cases of Impact Solutions Ltd &Anor v. International Breweries Plc (2018) LPELR-45441 (CA) perOgbuinya, J.C.A. (pp. 28-31, para. A) andKpandegh&Anor v. Kyenge&Ors (2015) LPELR-41785 (CA) perOgbuinya, J.C.A (pp. 17-18, paras. F-E)tothe effect it is a statement made by a party of the existence of a fact which is relevant to the cause of his adversary or a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action.

 

Based on the foregoing, the Defendants urged this Court to hold that the Defendants were correct to deduct the debt owed by the Claimant to the Multi­-Purpose society from the terminal benefits of the Claimant.

 

Issue 6:         Whether this Honourable Court could lawfully exercise jurisdiction over the 2nd Defendant in view of the fact there is no proof of service of the originating processes of this suit on her.

 

On this, the Defendants stated that there is no proof of service of the originating processes of this suit on the 2nd Defendant and submitted that the law is firmly established that the failure to serve a writ of summons on a Defendant is a fundamental vice since the service is a condition precedent to the exercise of the jurisdiction by the Court. The Defendants found support in the case of National Bank Limited vs. Guthrie (1993) 3 NWLR (Pt. 284) 643 @ 659 paras E­F.

 

Issue 7:         Whether from the pleadings and evidence before this HonourableCourt, the Claimant has proved that his salary for the period commencing from 21st June, 2016 to the date of termination which is 8/7/16 was not paid and whether he is entitled to recover the cost of this action.

 

The Defendants in answering this in the negative, submitted that from the un-contradicted evidence of DW1 and Exhibit DW17, it is clear that the Claimant was paid the sum ofN147,380.00 as his salary for the period as contained in Exhibit DW12. It is therefore the submission of the Defendants that the claim of sum of N230,000.00 as unpaid salary for the month of June/July 2016 is unsupported by any evidence and is contrary to Exhibits DW4C, DW12 and DW17 and should be dismissed.

 

Finally, the Defendants contended that there is no evidence from the Claimant for the grant of the cost of this action to the Claimant.

 

Claimant’s Submission

 

The Claimant formulated only one issue for determination thus:

 

“Upon the preponderance of evidence, whether the Claimant in the light of exhibits DWI3, DWI5 and DWI6, is entitled to the reliefs sought against the defendants jointly and severally.”

 

The Claimant answered this in the affirmative but drew the court’ attention to the way and manner all the Defendants’ processes were signed and filed in this caseagainst the decisions of the apex court. The Claimant went on list the ingredients of a properly filed court process as enunciated in the cases of Okafor v. Nweke (2007) 10 NWLR (Pt. 10430 521; The Nigerian Army vs. Samuel (2013) 14 NWLR (Pt. 1375) 466,as follows:

  1. A signature or any contraption.
  2. Name of Counsel.
  3. Who counsel represents in the suit
  4. Name and address of legal firm.

 

The Claimant submitted that the above listed steps were never complied with in the instant case and that by so signing their processes, the Defendants very much want this court to believe that “Chukwura S. Ojiako& Co” is a legal practitioner within the contemplation of the Legal Practitioners Act and on whose behalf. “C. S. Ojiako” signed all the processes in this suit.

 

To the Claimant this is not a mere irregularity but very fatal to the validity of the processes filed and the entire proceedings. Arguing that it is settled law that a business name does not possess a legal personality and as such cannot be held out as a legal practitioner who could sign processes for use in a court of law, the Claimant relied on the recent Supreme Court case of Tanimu vs. Rabiu (2018) 4 NWLR (Pt.1610) 505 @ 521-522paragraphs D-E, where it was held:

 

“Furthermore, beneath the name GIOVANNI D. LAAH, Esq. are the words: PP: Garba U. Shehu& Co. the letters “PP” stand for “per pro” aid are used when signing a document on someone’s behalf. They are placed before the name of the person whose behalf the document is being signed. This therefore reinforces the conclusion that the person who signed the notice of appeal did so, on behalf of Garba U. Shehu& Co.”

 

Based on the foregoing, the Claimant urged the court to strike out all the processes filed by the defendants in this suit including their Joint Statement of Defence and final written address and to treat the case and the evidence of the Claimant as undefended as Chukwura S. Ojiako& Co lacks the competence to take up the defence of this suit having not been called to practice law in Nigeria by virtue of the Legal Practitioners Act.

 

On the merit of the case, the Claimant reiterated that his claim is that the defendant acted ultra vires exhibit CW3 (which was also tendered as Exhibit DW15 by the defendants), when it purportedly terminated his employment on the 8th of July 2016 and sought to prove same as follows:

  1. That by paragraph 9 of his statement of oath, the claimants’ evidence reveals that his first contract of employment with the defendants was in November 2008.
  2. That by paragraph 12 of the said statement on oath as a policy of the defendants, newly recruited staff are always placed on a 6 month probationary period at the end of which such a staff would be availed a copy of the Collective Bargaining Agreement (exhibit CW3 or DW15) referring section 4 of Exhibit CW3 or Exhibit DW15 particularly at pages 6-7:

“The employment of all persons by the company shall be subject to a probationary period, the duration of which shall be six months from the date of employment. During the period of probation either party could terminate the appointment without notice.”

iii.               That from the above, it is clear that the phrase “all persons” simply means that all employees without distinction are subjected to a six month probationary period.

  1. That DW1 therefore lied when under cross examination, he answered as follows:

“Q:             When the claimant was offered his 1st contract in 2008, he was not entitled to a copy of the Collective Bargaining Agreement. Is that true?

A:            Yes because he was not a permanent employee of the company therefore is not covered by CBA.

Q:            When he was offered another contract in 2009 as per Exhibit CW2, he was still not entitled to a Collective Bargaining Agreement Yes or no?

A:            Yes, he is not entitled.

 

Q:              It is correct that it was upon the end of the claimants’ contract as shown in Exhibit CW2 that the claimant was then issued with CBA. Yes or No.

A:              No, it is not correct.

 

Q:              It is the policy of the Sea Trucks Group of companies that their newly employed staff are placed on 6month probation period subject to confirmation. Yes or No?

A:              No, that is not correct.

 

Q:              Are you maintaining that no such policy exists or existed at all? Yes or No.

A:              Yes, I am maintaining my position.”

 

The Claimant went on to attack the Defendants’ argument that the employment of the Claimant was periodic and not a permanent contract as misplaced. In urging the court to discountenance the argument, the Claimant asked some pertinent questions: Whether the claimant was at any time in the employ of the defendants? Did he offer any form of service to the defendants? Was he entitled to certain benefits as a result of the services offered?

 

The Claimant also noted that the argument that his employment is not permanent and the CBA never applied to him is an attempt to use oral evidence to change, alter, modify or vary the clear contents of a documents which is not right in law placing reliance on Section 132(1) of the Evidence Act, 2011. On the importance of documentary evidence,the Claimant cited the Court of Appeal case of Aiki vs. Idowu (2006) 9 NWLR (PT.984) 50, thus:

 

“Documents when tendered and admitted in court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of men as they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. Thus, documentary evidence, being permanent in form, is more reliable than oral evidence, and it is used as a hanger to test the credibility of oral evidence”.

 

On the authority of the recent case of Owena Mass Transportation Company Limited v. Lucky Okonogbo (2018) LPELR 45221 (CA)in which the Court of Appeal distinguished casual and permanent employment, the Claimant argued that since he was not paid hourly but monthly and he enjoyed the benefits of promotion, medical allowance, pension and insurance benefits, severance entitlements,he is a permanent staff entitled to notice before termination. On this on this point, the Claimant cited Owen Ltd vs. Okonogbo(supra), to the effect that:

 

“Once, it is held that the Respondent was not a casual worker, he is entitled to be given notice before his contract of employment can be terminated”.

 

It is therefore the submission of the Claimant that he was terminated without a noticeas there is nothing to show the Defendants had invited the union for a meeting before his termination as envisaged by Section 8.01 (iv) (ii) of exhibit DW15,which provided that:

 

“The company shall give notice to the union in writing whenever redundancy action is contemplated for a meeting to discuss the redundancy”.

 

On the issue of the Collective Bargaining Agreement, the Claimant conceded that it is not binding on a company except where by express or by necessary implication, reference is made to it by the parties calling in aid the case of Oguejiofor vs. Siemens Ltd. (2008)2 NWLR (PT.1 071) 283 where it was held thus:

“When a collective agreement is incorporated or embodied in the conditions of a contract of service, whether expressly or by necessary implication, it will be binding on the parties but not otherwise.”

 

The Claimant however submitted that there is an express reference to the CBA by the defendants in the contracts offered the claimant as well by necessary implication. The Claimant started with the inference which made the CBA binding between the parties in this case by necessary implication. Instance was given of page 19 of Exhibit CW3 or DWI5, where the defendants provided for redundancy benefits which are in tandem with Exhibit DW16 which clearly showed the entitlements of staff members. This isa  clearindication that the defendants intended the CBA to be a part of its contract with the claimant which is why the above exhibits referred to it. The court was so urged on the authority of Daodu vs. UBA Plc (2004) 9 NWLR (Pt. 878) 276 where the Court of Appeal held:

 

“Where a collective agreement is incorporated or embodied in the conditions of a contract of service, whether expressly or by implication, it will be binding on the parties. In the instant case, the collective agreements exhibits K and K2 were binding on the parties. Chukwumah vs. Shell Development Company of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512 referred to. (P. 293, paras. B-C).”

 

On the express reference of the CBA to the Claimant’s contract of service, the Claimant referred to Paragraph 13 of Exhibits DW4B &DW4C which reads thus:

 

“Compensation payment will be made based on CBA agreement and the Laws of the Federal Republic of Nigeria, including ECA, etc”.

 

Thereafter, the Claimant set out to argue his entitlement to the reliefs sought. He started with his claim to N230,000 being the salary for the month of June/July, 2016. The Claimant took time to respond to the submission of the Defendants that the Seaman’s Record Book of Discharge Certificates (exhibit CW8) should be discountenanced for not being pleaded. Firstly, the defendants are not denying that such a document exists or that they are unaware of the fact that NIMASA issues such a document to show when every seaman is on board a ship and when he disembarks. The Defendants are not also saying that this is the first time they are seeing that such a document is issued by NIMASA to a seaman.Secondly, by the law establishing this court and its rules of procedure, this court is empowered to do substantial justice to the parties before it on the merit of their cases and not on the basis of technicality. Thirdly, there was no objection from the Defendants when Exhibit CW8 was sought to be tendered. Finally, on this point, the defendants have failed to prove that exhibit DW13 (termination letter) was served on the claimant on any date at all before 18/7/2016 which could have lend credence to their story of 8/7/2016.

 

On relief (ii) which is the claim for N2,700,000.00 only representing claimant’s terminal for the nine years of service, the Claimant submitted that exhibits DW13 and DWI6 are very relevant and crucial. The Claimant recounted the foundation laid for the admissibility of exhibit DW16 as a product of an unresolved labour related issues which the Defendants admitted in cross-examination and submitted that the law remains settled that facts admitted requires no further proof on the authority of Adike vs. Obiareri (2002) 4 NWLR (Pt. 758) 537.

 

The Claimant asserted that it never in doubt that he was an employee of the 1st defendant which is part of the sea trucks groups of companies and that he was a senior staff of the 1st Defendant as admitted during cross-examination of DW. Flowing from this the Claimant submitted in respective of his status, whether as junior or senior staff, senior staff or a contract staff, he is entitled to N300,000.00 for each of service. His stance for this are clauses to 2and 3of exhibit DW16 which provided as follows:

 

Clause 2:

 

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

 

Clause 3:

 

“That clauses 1 and 2 above is applicable to all Junior/Intermediate employees, senior staff employ and Nigerian Mangers”.

 

The Claimant then turned his attention to the letter of termination (exhibit DW13) and quoted the first paragraph thereof:

 

“We regret to inform you that your employment is hereby severed and/or terminated on ground of redundancy, effective from the 8thday of July 2016. You shall be paid Seven (7) days basic salary in lieu of notice as contained in your contract of employment and also benefits as contained in the Agreement of 22ndSeptember, 2015.”

 

The Claimant invited the court to note in one breath, the Defendants argued that the benefits in exhibit DW16 were not applicable to the claimant while in another breath, even though the Claimant was entitled to the benefits, such was not as of right. It is therefore the submission of the Claimant that the law is clear that a party cannot impugn a document he has taken advantage of as defendants seek to do in this case calling in support the case of Anyaoha vs. Obioha (2014) 6 NWLR (PT. 1404) 445 @ 475-476.

 

On the reliefs for general damages and cost of action claimed as reliefs (v) and (vi) respectively, the Claimant submitted that the Claimant having satisfactorily shown his entitlements to the other reliefs, he is entitled to a claim in general damages whichdoes not require a strict proof. As for the costs of action, the Claimant submitted that cost follow the event and where the court finds the case of the Claimant successful, he should be entitled to the cost of action as in the case of Owena v. Okonogbo (Supra).Finallyon the point, the Claimant urged the court to exercise its discretion judiciously and judiciously by awarding the general damages and the cost of this action.

 

By way of reaction to the contention by the Defendants that there is no proof of service of the originating processes on the 2nd Defendant, the Claimant submitted that should be discarded by a wave of hand and overruled effortlessly.The Defendants argued that the fact that the Defendants filed a Joint Statement of Defence on 7/2/2018, counsel entered appearance and defended the case for both Defendants, shows clearly that both defendants were in this suit having been duly served. Having submitted that the law remains that the best form of proof of service is the appearance of counsel, the Claimant urged the court resolve the issue in favour of the Claimant.

 

On the whole, the Claimant having satisfactorily discharged the onerous burden placed on him urged the court to grant him all the reliefs as claimed.

 

Defendants’ Reply to Claimant’s Address

 

In response to the Claimant’s final address, the Defendants filed aReply of 3 pages on the 28th January, 2020 which would be considered in due course.

 

Decision of the Court

 

I have digested the facts of this case as given in the various processes, carefully examined the documents and the copious submissions of parties, and I think the case can be determined on a narrow compass: Whether on strength of the documentary evidence, the Claimant is entitled to any or all of the reliefs sought.

 

Before I delve into the issue proper, I need to say a word or two on some issues. The first is the Defendants’ Reply to the Claimant’s Final Written Address filed on the 28thJanuary, 2020. All the Defendantsdid in the said reply was to reargue and sometimes seek to improve on the arguments proffered in the Final Written Address. This is not the purport or function of a reply. A reply on point of law is not supposed to be a repair kit to correct an error or lacuna in the initial brief of argument. It was Niki Tobi, J.S.C. (of blessed memory) who in the case of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238, held:

 

“Counsel for the appellants as well as counsel for the 1st set of plaintiffs/respondents repeated themselves in their reply briefs. A reply brief should be limited or restricted to answering any new points arising from the respondent’s brief and not to repeat points already made or dealt with in the appellant’s brief. It is not the function or role of a reply brief to improve on the appellant’s brief by repeating the arguments contained therein but rather to reply to new points which are substantial in the respondent’s brief.”

 

See also the Supreme Court case of BasincoMotora Limited v. Woermann Line & Anor (2009) 13 NWLR (Pt. 1157) 149. Since the reply filed by the Defendants in the instant case is a mere repetition of the arguments in the final address and therefore clear negation of above principles, I have no option but to discountenance the reply in this judgment. I so hold.

 

The second is the contention that there was no proof of service on the 2nd Defendant of the originating processes in this suit and therefore goes to root of jurisdiction. On this, I agree entirely with the postulations of the Claimant that the Defendants having entered appearance, filed a Joint Statement of Defence and defended the suit, the contention can be dismissed without much ado. I have judicial support for this in the dicta ofI. T. Muhammad, J.S.C. (as he then was)in the case of Vab Petroleum v. Momah (2013) 1 S.C.N.J. 313:

 

“In fact, the court below appreciated and reiterated the position of the law that service of process on counsel is as good service on a party to the proceedings and that proof of service is unnecessary where a defendant appears. The court however, erred, in my view, where it stated in this case that proof of service can only be established by an affidavit of service deposed to by a court below. The correct position of the law has repeatedly been stated by this court that it is straining the rule on proof of service to say that a defendant who filed a defence to the statement of claim, was not served the writ of summons because there was no bailiff’s endorsement on the writ. See: Okesuyi v. Lawal (1991) 1 NWLR (Pt.176) 661 per Olatawura, JSC (of blessed memory).”

See also the case of Duke v. Akpabuyo (2005) 12 S.C.N.J. 293 to some extent.

 

Third is the alleged signing of the processes in this suit by “Chukwura S. Ojiako& Co”.

Now it is settled law that court processes have to be signed and issued by a legal practitioner enrolled to practice law as cognizable under the Legal Practitioners Act. See the cases of Okarika v. Samuel (2013) 2 S.C.N.J. 504-505 and Braithwaite v. Skye (2012) 12 S.C.N.J. 122. So all the cases of Okafor v. Nweke (2007) 10 NWLR (Pt. 10430 521; The Nigerian Army vs. Samuel (2013) 14 NWLR (Pt. 1375) 466 andTanimu vs. Rabiu (2018) 4 NWLR (Pt.1610) 505 @ 521-522paragraphs D-Ecited by the Claimant are apposite both in terms of purport and effect. What I find inapposite however is its application to the facts of this case. Even a casual look at the processes here shows that the processes were signed by C. S. Ojiako, a legal practitioner with SCN no. 32485. This is in substantial compliance with even the requirements or ingredients enunciated in the casescited and relied upon by the Claimant. This is therefore resolved against the Claimant.

 

Now is the time to consider whether the Claimant is entitled to the reliefs sought. The onus is on the Claimant to prove that he is entitled to the reliefs to the satisfaction of the court. The law is that he who asserts must prove and in monetary claims rooted in employment relations as the instant case, he is required to proof not only his entitlement to the claims but the quantum of the sums claimed.To prove an entitlement to a claim, reliance must be placed on an instrument, be it a law, circular, letter or collective agreement which confers the right to the entitlements. See Mohammed Dungusors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39.Since the Claimant is seeking to rely on the Collective Bargaining Agreement (hereinafter referred to as “CBA”) for the reliefs herein, it is also his burden to prove that same is applicable to him.

 

The status and application of the CBAis a subject of intense and keencontest in this case. In evidence is the CBAdated 1st December, 2012 (tendered as exhibit CW3 by the Claimant andexhibit DW15 by the Defendants), which the Claimant is claiming to form partof the terms and conditions of the agreement with the 1st Defendant. The attempt to rely on the CBA by the Claimant met with stiff opposition from the Defendants. As far as the Defendants are concern, the foundation of the employment contract between the parties are found in the various Voyage Contract Agreements and the Seafarers’ Employment Agreement Officer (Contract). To the Defendants it is very clear from these agreements that the Claimant was not a permanent employee of the 1st Defendant but an employee on periodic terms with definite commencement and terminal dates. The Defendants also contended that the various Voyage Contract Agreements and the Seafarers’ Employment Agreement Officer (Contract) were never referred to or incorporated into the CBA and therefore not binding. See the cases ofOsho&Ors v. Unity Bank Plc supra and Texaco Nigeria Plc v. Kehindesupra.

 

The Claimant agreed with the position of the Defendants that CBA is not binding on the Defendants except where reference is made to it expressly or by necessary implication.The Claimant however maintained that in the instant case reference were made expressly to the CBA in various employment contracts. Now the question is did the Claimant from the evidence discharge the burden on him to prove a nexus between the CBA and his employment contracts for same to be applicable to him? The answer to this is in the affirmative. From the evidence of the Claimant, I can identify at least four pertinent provisions in the CBA which showeda nexus with the Claimant’s contract of employment, expressly or by necessary inference.

 

First, the Claimant cited section 4, paragraph 4.06 at page 6-7 of Exhibit CW3 (DW15):

 

“The employment of all persons by the company shall be subject to a probationary period, the duration of which shall be six months from the date of employment.

 

Second, the termination of employment letter (Exhibit DW13) paragraph 1:

 

“We regret to inform you that your employment is hereby severed and/or terminated on ground of redundancy, effective from the 8th day of July 2016. You shall be paid Seven (7) days basic salary in lieu of notice as contained in your contract of employment and also benefits as contained in the Agreement of 22nd September, 2015.”

 

Third, Exhibit DW16 (a review of the CBA), which provided at clause 2 that every contract staff shall be entitled to N300,000.00 for each year of service and provided at clause 3 that:

 

“That clauses 1 and 2 above is applicable to all Junior/Intermediate employees, senior staff employ and Nigerian Mangers”.

 

Four, the Seafarer’s Employment Agreements (Exhibits DW4A, DW4B, DW4Cetc)  at paragraph 13 provided to the effect that:

 

“Compensation payment will be made based on CBA agreement and the Laws of the Federal Republic of Nigeria, including ECA, etc”.

 

Not only that, a look at the scope of the CBA at section 1.02 will put paid to any speculation on the application of the CBA to the Claimant’s contract of employment. It provides “This Collective Agreement shall apply to all junior and intermediate staff of the Companies in the Sea Trucks Group of Companies.”When this is read in combination with the Addendum to Voyage Contracts (Exhibits CW6A and CW6B), which reviewed the benefits of the Claimant as Junior/Intermediate Staff, the status of the Claimant as belonging to this category of staff is beyond reproach or question.Another case in point is the consistent reference to the grade level of the Claimant as JFS1 in all the Voyage Contract Agreements which is interpreted as Junior Floating Staff in Exhibit CW7.

 

I have therefore no hesitation in finding and holding that the Claimant has succeeded in proving that the CBA forms part of his contract of employment and therefore binding on the parties therein. See the case of Abalogu v. Shell (2003) 6 S.C.N.J. 287.

 

The question now is the Claimant entitled to the reliefs? The first relief is a declaration that the Defendants acted ultra vires the CBA in terminating the Claimant without notice or payment in lieu of notice. The facts of the case is that the Claimant’s employment was terminated on 8th July, 2016 with a clear statement that 7 days basic salary in lieu of notice and benefits in line with agreement of 22nd September, 2015 shall be paid to the Claimant. This is in accordance with paragraph 10.1 of Exhibit DW4C. This is however lost on the Claimant who insists that the termination was ultra vires section 8.01 (ii) of the CBA (Exhibit CW3 or DW15). Now section 8.01 reads “The Company shall give notice to the union in writing whenever redundancy action is contemplated for a meeting to discuss the redundancy.” It is on the basis of the failure of the Defendants to give notice to the union about the Claimant’s redundancy that the Claimant wants this court to declare the action ultra vires the CBA. Is this tenable? I think not. A cursory look at the above provision indicates that it is not tailored for the Claimant’s situation but rather where redundancy is contemplated for many staff as in Exhibit DW6. So for all intend and purpose, the applicable provision in the instant is paragraph 10.1 of Exhibit DW4C which provides for payment 7 days basic salary in lieu of notice. The Claimant have therefore failed to prove his entitlement to the declaratory relief and is hereby refused. I so hold. The same goes with relief (iii). The Claimant is however entitled to the payment 7 days basic salary in lieu of notice, which remained unpaid.

 

On the relief of the sum of N230,000 being unpaid salary for June/July, 2016, the facts of the case was that the Claimant’s employment came to an end on the 8th of July, 2016 with a clear statement that 7 days basic salary in lieu of notice and benefits in line with the agreement of 22nd September, 2015 shall be paid to the Claimant. The Claimant however stated that he was not aware of the termination as he was on board the vessel and only disembarked on 18th July, 2016. To buttressed this, the Claimant tendered Seaman’s Record Book and Certificate of Discharge (Exhibit CW8) which clearly captured the date of his engagement as 20/06/16 and Discharge 18/07/16. In the absence of any evidence from the Defendants to the contrary and in spite of the belated objection to the admissibility of Exhibit CW8, I find the document relevant, independent and reliable and there admissible. I therefore find and hold that the Claimant is entitled to the unpaid salary for June/July, 2016.

 

Having found that the CBA forms part of the Claimant’s contract of employment, the task of the court as regards the relief of N2,700,000.00 as terminal benefits is easy. The termination letter of 8th July, 2016 (Exhibit DW13) specifically referred to the Claimant’s benefits as contained in the agreement of 22nd September, 2015 (Exhibit DW16). Exhibit DW16 in paragraph 2 has fixed the terminal benefit of every contract staff at N300,000.00 for each year of service. It went further to state that terminal benefit shall be applicable to all junior/intermediate employees, senior staff employees and Nigerian Mangers. This same formula was used by the Defendants in the computation of the Claimant’s Redundancy benefit of N705,330.00 for the period of 2 years, 4 months and 7 days representing the period of Claimant’s cadetship with the 1st Defendant. This is Exhibit DW14. Since there is evidence that this employment relationship extended beyond this period to being promoted to the position of 2nd Mate and up to the termination date of 8th July, 2016, it is my considered opinion that the Claimant is entitled to the terminal benefit of N2,700,000.00. I am however not unmindful of the Defendant’s claim that Claimant is supposed to repay the outstanding loan of N554,580.00 owed the Sea Trucks Group Multi-Purpose Co-operative Society Limited. From the pleadings and evidence before this court I find and hold that this debt is well founded and should be deducted from the terminal benefit of the Claimant as the Defendants attempted to do. The terminal benefit of the Claimant is therefore hereby reduced to N2,145,420.00.

 

The claim of N20,000,000.00 for general damages is not grantable. It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provides for a specific period of notice before termination or salary in lieu thereof, as in this case, the only remedy available to an employee is the award of salary for the period of the notice and other legitimate entitlement due to him at the time the employment was brought to an end and no more. See Kato v. C.B.N. (1999) 6 N.W.L.R. (pt 607) 890 at 406, Idonoboye-Oba v. NNPC (2003) 1 S.C.N.J. 105-106, Ifeta v. Shell Petroleum (2006) 4 S.C.N.J. 127-128 and Ativie v.Kabelmetal (2008) 5 S.C.N.J. 222-223.The Claimant is entitled to only what is payable for the period of notice, which in the instant case is 7 days basic salary in lieu of notice.

 

The relief for the cost of this action is also untenable. This because the law is that a Claimant cannot foist his cost of litigation on the defendant in absence of an express agreement.See the cases of S.P.D.C. v.Okonedo (2007) ALL FWLR (Pt. 368) 1104, Guinness Nigeria Plc v. Nwoke (2001) FWLR (Pt. 36) 981 at 998, Nwanji v. Coastal Services (Nigeria) Ltd (2005) 1 CLRN 15-31 and Ihekwoaba v. ACB Ltd (1998) 10 NWLR (Pt. 570) 590.

 

The Claimant’s claim against the Defendants jointly and severally succeeds in the following termsand the Defendants shall pay the Claimant:

 

  1. a)The sum of N230,000.00 being his unpaid salary for the month of June/July, 2016.

 

  1. b)The sum of N2,145,420.00being his terminal benefit for the period he worked for the Defendants.

 

  1. c)7 days basic salary in lieu of notice.

 

  1. d)Orders a) – c) shall be complied within 30 days from today.

 

 

Judgment entered accordingly.

 

 

 

………………………………………

HON. JUSTICE M. A. NAMTARI

 

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