IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALBAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP:
HON. JUSTICE M. N. ESOWE
DATE: 4TH OCTOBER, 2018
SUIT NO: NICN/CA/08/2016
BETWEEN
ASUQUO EFFIOM OTU
CLAIMANT
AND
ADDAX PETROLEUM DEVT. LIMITED
DEFENDANT
REPRESENTATION
ORCHARDSON UMOH Esq. with him EMMANUEL AKPABIO Esq. for the Claimant
KELECHI NWIZI Esq for the Defendant.
JUDGMENT
INTRODUCTION
This suit was instituted by the Claimant vide a General Form of Complaint filed 2nd March, 2016.
The reliefs sought by the Claimant are:
- A DECLARATION that it is an unfair employment practice for the Defendant to use and also engage the Claimant’s services to several other companies simultaneously while the Claimant is in the Defendant’s employment
- AN ORDER directing that the Claimant be paid all his salaries and entitlements from August, 2013 till the date of judgment and further until his employment is officially terminated by the Defendant
- ALTERNATIVELY, Claimant claims the sum of Thirty Million Naira (N30,000,000) as general damages for the unfair employment practice and abuse of his rights by the Defendant, unpaid salaries and pay-off
SUMMARY OF FACTS
The Claimant avers that in 2010 when the Defendant advertised for the position of maintenance/roustabout in their oil field in Effiat (Adanga West) off the Coast of Cross River State, he applied and after undergoing all the trainings and relevant medical tests, he was deployed to an off-shore jack-up drilling ring called Onome a rig that was owned and operated by another company called sea-wolf Oil Services. From Sea-Wolf, his services were transferred to Transocean Support Services Limited (TSSL); from there to Geoplex Drilling Limited. From 2010 till July, 2013, his salary was directly paid by his employer or indirectly by Geoplex Drilling Limited. In August, 2013, the Defendant suddenly stopped paying him his salary even though there was no notice to lay him off or terminate his employment. Claimant is herein desirous of seeking redress on the stoppage of his salary without termination notice as well as the unfair manner Defendant engaged his services of companies other than the Defendant.
On their part, the Defendant stated that the Claimant was never their employee but among the youths that were engaged by the Defendant as part of their Corporate Social Responsibility (CSR) initiative aimed at empowering the indigenes of its host community to garner experience and expertise in offshore operations. The Claimant was among ten of the youth who were deployed to work offshore on Onome Rig operated by Sea-Wolf Oil Services Limited, an independent contractor of the Defendant and the owner/operator of the said rig. That contrary to the averment of the Claimant, he was deployed by Sea-Wolf Oil Services Limited based on his nomination by his Ikot-Ansa community through their accredited leaders. That except the for the salaries of April and May, 2011 which was paid by the Defendant to Claimant and nine others in order to avoid an imminent community crisis at the time arising from an accident which made it difficult for Sea-Wolf Services to pay the salaries of the Claimant and nine others for the said, the salaries of the Claimant at all material time were paid by Sea-Wolf Oil Services Limited. Arising from the accident by Sea-Wolf Oil Services, the Claimant, alongside nine others, was transferred in June, 2011 to another independent contractor of the Defendant known as Transocean Drilling Limited who was the owner/operator of Adriatic X Rig. That Defendant never transferred the services of the Claimant to Geoplex; it never employed the Claimant hence it is not in a position to pay off or terminate the employment of the Claimant. Therefore, the Claimant is not entitled to the reliefs sought.
On receipt of Defendant Statement of Defence, Claimant filed a Reply dated 12th May, 2016 but filed 13th May, 2016.
COMMENCEMENT OF HEARING
Hearing in this suit commenced on 18th of January, 2017. Claimant testified as CW1, adopted his witness statement on oath, tendered their exhibits and he was cross examined accordingly. Thereafter, Claimant closed his case on 27th November, 2017.
On their part, Defendant opened their defence on 7th March, 2018, by calling one Idorenyin Edet-Inwang as DW1 who adopted his written Witness Statement on Oath. He was cross examined and thereafter, Defendant closed their case.
Thereafter, parties filed, exchanged and adopted their final written addresses. Defendant did not file their final written address within time thereby leading to the Claimant filing before the Defendant
CLAIMANT’S FINAL WRITTEN ADDRESS.
In Claimant’s final written address dated 26th April, 2018 and filed on 26th April, 2018, Learned Counsel on behalf of Claimant formulated a sole issue for determination, that is:
Whether the Claimant is entitled to his claim
ARGUMENT
Learned Counsel submitted that from the evidence before the Court, it is clear that the Claimant is a trained roustabout who was used by the Defendant in its drilling operations operated by subsidiary companies controlled by Defendant. That the Defendant who preferred the use of the word “engage” as against “employ”, did not tender any evidence of the disengagement of the Claimant.
Learned Counsel submitted further that from the decision of the Supreme Court in Longe V. FBN Plc (2010) 6NWLR (Pt.1188) 1SC, there are three categories of employment:-
- Purely masters and servants relationship
- Servants (their services at the pleasure of the employer
- Employment with statutory flavour
That contract of employment may be in any form, that is, in writing, and it may be inferred from the conduct of the parties if it can be shown that such a contract was intended although not expressed. He relied on John V. Mobil Production (Nig) Unltd (2010) 7NWLR (Pt.1194)462 CA.
It is the submission of Learned Counsel that from the evidence adduced in this case, it is clear that Claimant was employed/positioned as a Roustabout as at 2013. That in a purely master-servant relationship, an employer can terminate the employment of the employee by giving adequate notice. He relied on Idufueko V. Pfizer (2014) 58 (Pt.1) NSCQR 601 @622. In the case herein, Defendant simply stopped paying the salary of the Claimant without giving him notice. Therefore, Claimant is entitled to length of notice before the termination of his appointment and pay-off if the Defendant no longer requires his services.
He therefore urged the Court to resolve this issue in favour of the Claimant and grant the reliefs sought.
DEFENDANT’S FINAL WRITTEN ADDRESS
In Defendant’s final written address dated 30th April, 2018 and filed 4th May, 2018, Counsel on behalf of Defendant formulated three (3) issues for determination, that is:
- Whether from the preponderance of the evidence before this Honourable Court, the Claimant has shown he is an employee of the Defendant.
- Whether the Claimant has proved his case as required by law to be entitled to the reliefs sought
- Whether the Claimant is entitled to general damages
ARGUMENT
ON ISSUE 1: Whether from the preponderance of the evidence before this Honourable Court, the Claimant has shown he is an employee of the Defendant.
Learned Counsel submitted that in civil cases, the standard of proof required is determined by the preponderance of evidence and balance of probability. Moreso, the party who asserts must prove. He relied on Purification Technique (Nig) Ltd V. Jubril (2012) 18NWLR (Pt.1331) 109 @146 Paras E – F; Section 131 – 133 (1) Evidence Act, 2011; Eyo V. Onuoha (2011) 11NWLR (Pt.1257) 1 @26 Para G-H SC.
It is the submission of Learned Counsel that Claimant failed to prove that he was employed by Defendant
ON ISSUE 2: Whether the Claimant has proved his case as required by law to be entitled to the reliefs sought
Learned Counsel, while referring Court to the pleadings and evidence lead in this suit, submitted that onus of proof lies with the Claimant and Claimant has not discharged this onus to be entitled to the reliefs sought.
ON ISSUE 3: Whether the Claimant is entitled to general damages
Learned Counsel submitted that where the Claimant is unable to prove special damages, his case crumbles and a trial Court cannot compensate him by granting him general damages. He referred Court to Shell Petroleum Devt Coy Nig Ltd V. Tiebo VII (2005) 9NWLR (Pt. 931) @470, paras C-E Ratio 8, Per Niki Tobi, JSC, where it was stated thus:
… The issue in this appeal is whether a Court can award general damages in place of special damages. The answer is no, where a Plaintiff is unable to prove special damages, his case crumbles and a trial judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed..
It is the submission of Learned Counsel that Claimant, having failed to prove how he is entitled to special damages claimed, cannot be granted the general damages claimed.
He therefore urged the Court to dismiss this suit.
COURT
Having gone through the Claimant’s case, Defendant’s defence, evidence adduced at trial and the final written submissions of Counsel to the Claimant as well as Counsel to Defendant, this Court hereby distils a sole issue for determination, to wit:
Whether the Claimant has proved his case to be entitled to the reliefs sought
In an attempt to understand the circumstances of this case, I think it will be good to start by having a better understanding of what Oil Mining Lease (OML) is, especially given the fact that the Defendant stated in Paragraph 2 of their Statement of Defence that the Defendant is an oil exploration and production company and engages in the business of oil drilling pursuant to its oil Mining Lease (OML 123) granted to it by the Federal Government of Nigeria. An Oil Mining Lease (OML) also known as Oil Mining License is one of the two types of licenses issued to oil producers in Nigeria with validity periods ranging from 5 to 20 years respectively. Oil licensing in Nigeria covers large blocks in Southern Nigeria containing a lot of oil fields and gas fields.
This Court as a labour Court is well aware and has taken judicial notice of the fact that in the oil sector, after the bid for Oil Mining Lease (OML) and its acquisition, a lot of activities like oil exploration, drilling, seismic, mining crude exportation, refining etc take place. In the course of this, even the holder of the Oil Mining License may lack the expertise and man power to do all of these. As a result, the Court is well aware that a lot of partnership arrangements take place by way of Joint Ventures Agreement (JVA) between one company and a number of others. It is therefore not surprising that for a particular Oil Mining License (OML) covering a specified area or oil field, it is not surprising to see Mobil Workers, Shell workers as well as NNPC workers working in the same area. In circumstances like this, it is called Mobil/Shell/NNPC Joint Ventures Contract (JVC). This is conventional in the oil sector and this Court as a labour Court is well abreast of this.
In the case herein, from all the evidence adduced, it is not in doubt or in contention that the Onome Rig that the Claimant was transferred to was not owned by the Defendant even though it was contracted to SeaWolf Oil Services Limited by Defendant; it is not in dispute that Adriatic X Rig on which the Claimant was subsequently transferred to was operated by Transocean Drilling Services, another independent contractor of Defendant (see paragraph 3(viii – xi) of Defendant’s Statement of Defence. However, what is in dispute is the company that employed the Claimant. According to Claimant, he was employed by the Defendant while Defendant denies ever employing the Claimant. I think unraveling the true identity of who employed the Claimant is relevant to the case of the Claimant as well as determining whom the Claimant should seek his reliefs from.
Granted as well as drawing from the decision of the Court in ZIIDEEH V. RIVER STATE CIVIL SERIVCE COMMISSION (2007) 4MJSC 150, a party who seeks justice from the Court on the breach of his contract has the onerous duty of proving that the terms and conditions of his contract were breached. In order to determine the existence of a contract of employment between two parties, the first thing to resort to is the letter of appointment. However, in the absence of letter of employment, nothing bars the Court from looking at the conduct of the parties to decipher if there was a binding contract of employment between them. In this sense, whereas it is easier for the Court to determine the existence of employment relation between the employer and the employee, it is not easy to determine the terms and conditions of service in the absence of a formal document. In the absence of any formal document embodying such terms and conditions, the Court can resort to custom, convention or practice prevalent in such industry especially if the Claimant can lead evidence to the satisfaction of the Court that such is the custom and convention prevalent in the industry he worked. The Court can also resort to any general employment or labour law applicable to the circumstances of the case.
The Defendant, while denying employing the Claimant, stated however that it engaged the Claimant as part of its Corporate Social Responsibility (CSR) initiative aimed at empowering the indigenes of its host communities to garner experience and expertise in offshore operations. This Court is of the view that besides the fact that Defendant wants to intentionally avoid the use of the word ‘employ’, I do not find any difference, given the circumstances of this case, in ‘engaging’ and ‘employing’ the Claimant. Employing or engaging the Claimant as part of Corporate Social Responsibility is one and same thing, and I so hold. In this regard and given the evidence adduced as well as the conduct of the parties before the Court, this Court finds and I so hold that the Defendant actually employed the Claimant in 2010 even though Defendant did not find the decency in issuing the Claimant employment letter.
Claimant alleges and claims unfair employment practices in that he was transferred or his services were used or engaged by other companies at the behest of the Defendant. It is apposite for the Court to state here that given the analyses of the Court above on the workings of the oil sector, outsourcing or sending members of staff to work in a particular rig operated by another company is so possible especially when there is a Joint Venture Agreement (JVA) between your company and the other company. It is therefore not enough to complain of unfair employment practice simply because you find yourself working in a rig owned by your company but operated by another company. Except the claimant is complaining that he was treated unfairly compared to other staff or that the job he did at the different rigs he was transferred was not the type of job he expected or signed up for when he was employed by the Defendant, I do not see how being outsourced or transferred to work with another company which your company has a joint agreement with translates to unfair employment practice especially given the peculiarity of the oil sector as analyzed above. From the evidence adduced in this case, this Court finds that at every stage that the Claimant worked at the Onome Rig, Operated by Sea Wolf Oil Services; Adriatic X Rig, operated by Transocean Support, and Geoplex Drilling limited, the Claimant underwent all the necessary trainings and certification. This Court wonders why he did not complain when he underwent the different trainings and certifications that prepared him for the work ahead but now complains as if the job he did at the rigs or companies other than the Defendant were different from what he was trained and certified on. In any event the law is trite that he who alleges must prove. See Tajudeen Ibrahim Olagunju V. Alhaja Habibat Yahaya (2004) 11NWLR (Pt.883) 24, where the Court of Appeal held:
In a civil suit, the person who asserts has the primary burden of proving his assertion. The failure of the Defendant to prove or his refusal to testify cannot alleviate the primary burden on the Plaintiff.
From the circumstances of this case, the Claimant has not proved any unfair employment practice he suffered as a result of his transfer of services by the Defendant from one company to another, and I so hold.
Having earlier held that it was the Defendant who employed the Claimant, the next step is to address the status of the Claimant whether or not he is still in the employment of the Defendant.
Generally, in master-servant relationship (which the employment of the Claimant herein falls into), the settled law is that he who has the power to hire has the power to fire. However, in the event that the Court finds that the termination of the employment of the employee was wrongful, the remedy of the employee will lie in damages. This is so because when the Court finds the termination to be wrongful, it cannot nullify or void the termination as it cannot foist a willing employee on an unwilling employer. The only remedy available to such an employee is in damages not reinstatement. See Osinsanya V. Afribank (2000) 1NWLR (Pt.642) Pg.558
In the case herein, the grouse of the Claimant is that without any notice of termination or query howsoever, the Defendant stopped paying him his salary starting August, 2013. I must pause here to digress a little on who was paying the Claimant’s salaries for the period he was paid or who was not paying his salaries from the period he worked. The Claimant alleges that at different times, he was paid by Defendant and Geoplex Drilling Services, an affiliate of the Defendant while the Defendant states that at every material time, salaries of the Claimant were paid by Sea Wolf Oil Services, an independent contractor of Defendant. That the only time Defendant paid the salaries of Claimant was April and May, 2013 when there was an accident at the Onome Rig operated by Sea Wolf Oil Services which made Sea Wolf Oil Services unable to pay the said salaries. According to Defendant, in order to avert community crises, it stepped in to pay the salaries of April and May, 2013 on behalf of Sea Wolf Oil Services. I must say that having earlier held that it was the Defendant that employed the Claimant, it is of no moment that his salaries were paid by Sea Wolf Oil Services or any other company that enjoys contractual relationship with the Defendant because the Claimant is not privy to any contractual agreement between the Defendant and the other companies as to whose responsibility it was to pay salaries of the staff of the Defendant working in Rigs operated by these other companies. What matters to the Claimant is that his salaries are paid as at when due. In the event that his salaries are not paid, he cannot meet any of the independent contractors but the Defendant who employed him based on the principles of privity of contract, and I so hold. Therefore if there is any relief bordering on unpaid salaries or terminal benefits, the Claimant cannot get such from any other person but the one who employed him.
Now going back to the position of the Claimant that his salary was stopped in August, 2013 without any notice of lay-off or query, this Court wishes to state that when an employer, especially in the private sector stops paying your salaries and at the same time turns around to say that he was not the person that employed you, the implication is that you have been constructively dismissed. To put it clearly, the case of the Claimant herein is in the realm of constructive dismissal and his damages must arise from same.
This Court, as a labour Court, does not cordon any acts of constructive dismissal which is an unfair way of severing the relationship between an employer and employee, and I so hold.
From all that have been said above, the claim of the Claimant succeeds in part as follows:
CLAIM 1 Fails
CLAIM 2 Fails
CLAIM 3 Succeeds only to the extent that the Defendant shall pay the Claimant the sum of N1000,000.00 (One Million Naira) as damages for constructive dismissal.
For the avoidance of doubt, the Court orders as follows:
THE COURT HEREBY ORDERS the Defendant to pay the Claimant the sum of N1,000,000.00 (One Million Naira) as damages for constructive dismissal of the Claimant from its employment without regard or notice to the Claimant
Judgment is hereby entered accordingly.
…………………………………..
HON. JUSTICE M.N. ESOWE
Presiding Judge
