| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
—————————————————— Suit No: NICN/CA/54/2015 Petitioner: CAPTAIN CHRISTIAN IPRETE OLALI And Respondent: TALON GLOBAL SERVICES LTD. Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION: BENEJAMIN ONAH for the claimant E. U. EBA for the defendant J U D G E M E N T The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 19th November, 2015, against the defendant for the following reliefs: 1. A declaration that claimant is entitled to payment of 30 days salary in lieu of notice from defendant for wrongful termination of claimant’s contract of employment without notice. 2. Special damages of #8,761,500.00 (Eight Million, Seven Hundred and Sixty One Thousand and Five Hundred Naira) only, being the total sum due to claimant from defendant as 30 days salary in lieu of notice for wrongful determination of claimant’s contract of employment without notice. 3. The sum of #1,200,000.00 (One Million and Two Hundred Thousand Naira) being the cost of instituting this action by claimant against the defendant. The Claimant’s Case The Claimant became defendant’s employee by a Letter of Employment embodying the terms and conditions of employment dated 23/2/2015, mutually agreed upon and titled TSMA II CONTRACT AGREEMENT. He was employed to work at defendant’s work site situate at Qua Iboe Terminal (QIT) as Mooring Master in defendant’s off-shore loading of vessels contract for Mobil Producing Nigeria. Around May, 2015, defendant instructed him to sign for payment of claimant’s 2 months arrears of salary and was subsequently paid. However, that the defendant proceeded to terminate his contract of employment wrongfully without notice by a Letter of Disengagement dated 6/5/2015. The Claimant stated that till date, he has suffered serious economic loss and damages as a result of defendant’s breach of contract, default and or miscarriage of justice. The defendants filed their STATEMENT OF DEFENCE dated 17th December, 2015 on 18th December, 2015. The Defendants Case The defendant averred that though the claimant was employed by the defendant as Mooring Master for Mobil Producing Nigeria Unlimited in the defendant’s company, his Letter of Offer of Employment dated 23/2/2015 did not contain any term and conditions of employment. That the claimant did not perform effectively in his place of duty hence Mobil Producing Nigeria Unlimited requested the defendant to discharge his services and that the claimant’s services was properly disengaged on 6/5/2015 by Letter of Service of Disengagement. Also, that claimant was duly paid the salary for March and April, 2015 respectively. The Defendant, maintain that she never agreed to pay the claimant 30 days in lieu of notice of termination but rather, that the parties mutually agreed to terminate the contract at will, hence, the claimant was not entitled to any salary for days he had never worked for the defendant. The Defendant stated that she never sent a fresh Contract Agreement to the claimant but rather relied totally on the signed contract of employment between them executed on 23/2/2015. Furthermore, that the liability and benefits of the claimant is strictly on the Terms and Conditions contained in the TMSA II Contract Agreement executed by the claimant and the defendant on 23/2/2015. And that by Clause 15 of the Contract of Employment, the claimant’s action is moot and premature as the claimant has not exhausted the settlement mechanism provided for the contract of employment before instituting this action in court, therefore, that the court lacks jurisdiction to entertain this suit. The claimants filed their CLAIMANT’S REPLY TO DEFENDANT’S STATEMETN OF DEFENCE on 27th January, 2016. Wherein the claimant stated that his letter of employment and the contract of employment categorically stated that defendant employed the claimant to work in the defendant’s project with Mobil Producing Nigeria Unlimited at Qua Iboe Terminal. That he was not an employee of Mobil Producing Nigeria Unlimited and as such Mobil could not have terminated his employment by the alleged letter of disengagement dated 4/5/2016. At the trial as the claimant suing through his lawful attorney Sampson Ola Esq. testified as CW on behalf of the claimant, adopted his written statement on oath which was marked Exhibit C1 and his Power of Attorney was admitted as Exhibit C2 and proceeded to tender seven (7) other documents that were marked in turn Exhibit C3- Exhibit C9, and another document Exhibit C10 was tendered through CW during cross examination. CW further testified during cross examination that the claimant had worked for the defendants for two months and was paid his remuneration for the two months after he was terminated. He also testified that he had written to the defendant thereby complying with the pre action requirements before coming to court and that he was in court to claim his 30 days in lieu of notice. At the end of trial parties were directed to file their final written addresses in line with the rules of this Court. The DEFENDANT’S FINAL ADDRESS was filed on 1st November, 2016. Wherein the defendant raised the following two (2) ISSUES 1. Whether from the totality of the pleading evidence and the law, the claimant has established his case and is entitled to the reliefs he is seeking in this Court. 2. Whether the claimant’s action as constituted is premature for failure to comply with Clause 15 of the Contracts of Employment dated 23/2/2015 tendered as Exhibit C10, D2 and D3. ON ISSUE 1 Whether from the totality of the pleading evidence and the law, the claimant has established his case and is entitled to the reliefs he is seeking in this Court. Learned Counsel for the defendant E. U. EBA Esq. submitted that once condition of service exist between the parties, the provisions contained therein are binding on them, such as termination of employment or dismissal must be in accordance with the laid down procedure as provided by the contract of employment agreement. DANA LTD. v. OLUWADARE (2006) 39 WRN 145. ON ISSUE 2 Whether the claimant’s action as constituted is premature for failure to comply with Clause 15 of the contract of Employment dated 23/2/2015 tendered as Exhibit C10, D2 and D3. Defendant’s Counsel submitted that this action is premature as Clause 15 of the Contract of Employment creates condition upon which the claimant may exercise his right to claim against the defendant. He submitted that the law is that where a statute or Agreement lays down a procedure for doing anything, no other method is to be employed in doing the thing. CCB PLC v. A.G. ANAMBRA STATE (1992) 10 SCNJ 137. The CLAIMANT’S FINAL ADDRESS was filed on 24th November, 2016. The claimant raised two (2) ISSUES for the court’s determination 1. Whether the instant suit is properly constituted before this Honorable Court as to allow the Court exercise its jurisdiction? 2. Whether by the preponderance of evidence, documentary and oral, the claimant had proved his case before this Honorable Court as to be entitled to the reliefs sought? ON ISSUE 1 Whether the instant suit is properly constituted before this Honorable Court as to allow the Court exercise its jurisdiction? Learned Counsel for the Claimant Sampson Ola Esq. argue that in respect of the conditions that must co-exist for a court to be vested with jurisdiction in any matter before it, counsel cited the following authorities: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; LADOJA v. INEC (2007) 12 (PT. 1047) 119 @ 130; SEC. 254 (C) 1 of the 1999 CONSTITUTITON (as amended by the Third Alteration); ORDER 2 RULE 1 of the NATIONAL INDUSTRIAL COURT RULES, 2007. To propound the three rules and jurisdiction and went on to submit that this court is seized with the appropriate jurisdiction to decide this matter. Learned Claimants counsel relying on the case of SEN. BELLO SARKIN YAKI (RTD.) & ANOR. v. SEN. ATIKU ABUBUKAR BAGUDU & 2 ORS. SC 722/2015, submitted that failure to affix a legal practitioner’s seal to a document is an irregularity capable of rectification. ON ISSUE 2 Whether by the preponderance of evidence, documentary and oral, the claimant had proved his case before this Honorable Court as to be entitled to the reliefs sought? Counsel submitted that in civil cases, a litigant must stand or fall by the strength or weakness of his own case. ORGAN v. N.L.N.G. LTD. (2013) 16 NWLR (PT. 1381) 506 @ 512; PATRICK ZHDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) CLRN 22 @ 23. He also submitted that it is not the duty of the employer as a defendant in an action brought by an employee to prove any fact. KATO v. CBN (1999) 6 NWLR (PT. 607) 390 @ 405; FAKUADE v. OAU TEACHING HOSPITAL COMPLEX MANAGEMETN BOARD (1993) 5 NWLR (PT. 291) 42 @ 57-58. It is counsel’s submission that a contract of employment may be in any form 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. JOHN v. MOBIL PROD. (NIG.) UNLTD. (2010) 7 NWLR (PT. 1194) 462. Counsel relying on the case of OSUMA v. E.B.S. (2004) 17 NWLR (PT. 902) 332 @ 338, submitted that where the terms of the contract between parties are clear and unequivocal, the court must, in construing the relationship of the parties, confine itself to the terms and contract of service between the parties. He submitted that he who hires can fire. Nevertheless, an employer must observe and adhere to the conditions under which the employee was hired before such an employee can be fired, otherwise, the employer can ipso facto be held liable for unlawful termination of the services of the employee. ORGAN v. N.L.N.G. LTD. (2013) 16 NWLR (PT. 1381) 506 @ 518. On the 6th December 2016 parties adopted their final written addresses and adumbrated their respective positions. The matter was then adjourned for judgement. Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement, specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues as formulated by the claimant to wit: 1. Whether the instant suit is properly constituted before this Honorable Court as to allow the Court exercise its jurisdiction? 2. Whether by the preponderance of evidence, documentary and oral, the claimant had proved his case before this Honorable Court as to be entitled to the reliefs sought? These issues properly address the questions and sub issues integral to this case. With regard to issue 1. Whether the instant suit is properly constituted before this Honorable Court as to allow the Court exercise its jurisdiction? The defendants have argued that the claimant in bringing this suit did not fulfill the provisions in Clause 15 and urge the court to hold that this suit is premature and incompetent. The claimant on their part submit in paragraph 18 of their statement of fact and averment 18 of Exhibit C1 that they had written to or reported the defendants default to Mobil Producing, averment to which the defendants responded as moot and premature stating their position that the claimant had not exhausted the settlement mechanism contained in Clause 15 f Exhibits C3 and C10(1). The claimant had tendered Exhibit C3- C3(3) as their contract of employment whereas the defendants during cross examination of CW tendered Exhibit C10-C10(3). Because of the differences contained in these documents which I find is actually the crux of this case, I shall refer to both copies in relation to clause 15. Clause 115 in both Exhibit C3(3) and C10 (3) contain the very same provisions and words; Clause 15 “Settlement of Dispute: All claims and complaints relating to this employment contract shall be settled in accordance with Talon Global Service policies, rules and regulations. In case the employee contests the decision of the employer, the matter shall be settled amicably with the participation of the client representative i.e. MPN. In case the amicable settlement fails, the matter shall be submitted to the competent or appropriate government body in Nigeria.― Now neither party presented to this court any evidence of what constitutes the defendants policy rules or regulation, nor did they tender the Mobil Producing Agreement, to enable the court determine what the defendants policy, rules and regulations are in relation of dispute resolution, who shall be responsible for reporting a dispute, the manner in which it should be made the duration and who matters in the process are all ingredient necessary to enable the court determine whether the action of the claimant as stated above satisfies the requirement of clause 15. The claimant have stated that they wrote Mobil Producing Nigeria, with no response. Is Mobil Producing Nigeria the MPN referred to in the fourth line of clause 15? The court is precluded from speculating. MASADE v. C. ISIKHUEMEN 9. (1978) 2 SC 87. Be that as it may the position of the law is that in respect to pre litigation clauses in agreements is that “Under section 6 of the Constitution of the Federal Republic of Nigeria, 1979, it is to courts and not to non-judicial bodies that judicial powers of the Federal Republic of Nigeria are vested. So, the courts take the view that it is open to the parties to choose whether to follow the normal channel for determination of controversy through the machinery of the courts or to submit the matter voluntarily to the non-judicial body for a decision―, See the case of . AWOSILE V. SOTUNBO (1992) NWLR (PT. 243)514 Having said that I find it is too late in the day for the defendants to bring up this issue of non -compliance especially as the position of the law is that a party seeking to raise this submission is expected to do so at anytime after appearance but before delivering pleadings. See the case of K.S.U.D.B. V. FANZ CONST. LTD (1990) LPELR-1659(SC), (1990) NWLR (PT.142)1 (Kano State Urban Dev. Board) where it was held that “If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any other person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when proceedings were commenced, and still remains ready and willing to do all things necessary to the proper conduct of the arbitration may make an order staying proceedings.” In addition to the above the claimants paragraph 18 had not been adequately refuted as the law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details falls short of the legal requirement of a traverse and amounts to an admission. See the unreported case of SUIT NO. NICN /LA /651 / 2013 MR. JEZREEL ELO MAYOR Vs. ECO EXIM ALLIED LIMITED & ANOR delivered on the 29th October 2014. The question of sealing and stamping legal processes has been long resolved and this court in line with the President National Industrial Court’s Practice Direction. Processes filed where the counsel has paid for the seal and stamp would be allowed in this court as such processes are by law currently voidable See the cases of NICN/UY/04/2015 INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors Vs. delivered on 16th February 2016 and NICN/AK/22/2015 CHIBUZOR ONYE-NSO Vs. FIRST MAXIMUM POINT INDUSTRIES LIMITED delivered on the 9th February 2016. I resolve this issue for the claimant. With regard to issue 2; Whether by the preponderance of evidence, documentary and oral, the claimant had proved his case before this Honorable Court as to be entitled to the reliefs sought? The claimant’s reliefs are as follows; 1. A declaration that the claimant is entitled to payment of 30 days salary in lieu of notice from defendant for wrongful termination of claimant’s contract of employment without notice. 2. Special damages of #8,761,500.00 (Eight Million, Seven Hundred and Sixty One Thousand and Five Hundred Naira) only, being the total sum due to claimant from defendant as 30 days salary in lieu of notice for wrongful determination of claimant’s contract of employment without notice. 3. The sum of #1,200,000.00 (One Million and Two Hundred Thousand Naira) being the cost of instituting this action by claimant against the defendant. As stated above the crux of this dispute is whether the claimant is entitled to payment of 30 days salary in lieu of notice. The claimant in framing his reliefs asked that the court make a declaration of his entitlement to 30 days salary in lieu of notice for wrongful termination without notice (Relief 1). And then payment of the 30 days salary as special damages then cost of this suit. Taking reliefs 1 and 2 together; In support of his claim for 30 days’ notice and payment in lieu the claimant tendered Exhibit C3-C3(3) the contract agreement at C3(2), clause 14 provides that “Either party may terminate the contract by giving 30 days written notice or payment of basic salary in lieu of notice.― The claimant is asking for N8, 761, 500.00 Eight Million Seven Hundred and Sixty-One Thousand, Five Hundred Naira) which my simple mathematics translates to N292, 050 the claimants contracted daily remuneration for (multiplied by) 30 days. The court is not told what the claimants basic salary is although Exhibit C3 (1) refers to his remuneration as consolidated, and in clause 9, Pensions reference is made to a base rate. I shall come back to this point. The defendants relying on C10 (3) argue that the claimant is not entitled to notice and that the contract is determinable at will. Clause 14 of C10 (3) states “Either party may terminate this contract at will―. But for this and one other difference Clause 5 where C3(3) states that the claimants “Remuneration; Consolidated N292, 050/day ALL EXCLUSIVE pay―. Whe4e as the defendants document C10 (3) in clause 5 states “Remuneration; Employee shall be paid an all inclusive monthly gross salary of N292, 050/day ALL EXCLUSIVE pay subject to statutory deductions― and the defendants contract has no stipulation as to taxation, unlike Exhibit C3. The question now is which of the two contracts can the Court give legal status as the one binding the parties. The claimant Exhibit C3(3) is the original copy of the agreement the cover letter is unsigned and the attestation part is only signed by the claimant. Whereas the defendants Exhibit C10(3) is a scanned copy of the agreement, both the cover letter and the attestation part of the agreement are duly signed and that would have laid the question to rest, I am aware that Exhibit C10(3) did not comply with the provisions of Section 84(2) and (4), 89(h) and 90(1)(e) of the Evidence Act 2011, however the defendants in Exhibit C8(1) dated 28th July 2015 had in response to the claimants claim for his salary in lieu of notice stated “Note however that the contract letter sent to all Mooring Masters (Captain Olali included) by Talon Global Services Ltd on April 7th 2015 stipulated under Paragraph 14 that; “Either party may terminate this contract at will― Meaning there was ‘NO’ terminal benefits under the contract. This went to Capt. Olali and the mail forwarding same contained an instruction to “Please ignore the contract previously sent to you by us and take this as the final and approved contract of employment―. The claimant’s response to this is that it was only after the claimants contract was terminated that the claimant became aware of the attempt to substitute the contract and deny ever signing the new contract. See Exhibit C7(2). In Exhibit C7(2) the claimant wrote that he would be relying on the defendants emails to confirm that they received the email of a new contract on the 7th May 2015 after their contract had been terminated. Now the emails, have not been tendered in this court and the defendants who aver that they sent an email varying the contract terms was never tendered in either as proof that the said contract was sent to the claimant and or as evidence to show when it was sent. In a contract particularly a written contract terms can only varied by mutual consent. See the case In BALIOL NIGERIA LTS. Vs. NAVCON NIGERIA LTD. 210 LPELR 717 SC, The Supreme Court held “It is now settled that a contract which must be in writing, can only be varied by an agreement on writing, in other words where a contract is in writing, any agreement which seeks to vary the original agreement must itself be in writing― per Ogbuagu JSC (P.10 para B-C). see also KUFUROJI &ANOR Vs. V.Y.B. (NIGERIA ) LIMITED [1961] LPELR 1716 SC. The bottom line is that there must be an agreement the defendants cannot willy-nilly thrust new contract on the claimant without obtaining the claimant buy in, i.e. consent in a written agreement in. I hold. The defendant having stated that they sent the claimant a new contract which the claimant and other Mooring Masters duly executed the onus lies on the defendant to prove that they sent the said contract, these they could have done by presenting the printout of the email showing when and to whom it was sent and also the received and returned acknowledgement. The defendants in court, DW, however denied sending a fresh contract to the claimant, but remained silent about Exhibit C 7 (3), a strategy I find most curious. Which leaves us with Exhibit C 10 (3) As for Exhibit C10(3) I find it does not quiet hit the mark not only is it a scanned copy it is contained in three documents the signature page bearing only the signature of the parties with no other indication beyond stapling that it is supposed to be part of an agreement. Courts have been enjoined to be wary of such photo tricks in tendering secondary evidence of computer generated documents; Niki Tobi JSC in the case of ARAJA Vs. EGBUE [2003] 33 WRN 1, 15-17 had this to say “… in this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) (a) of the Evidence Act could be doctored and therefore not authentic―. His Lordship JSC continued “Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence does not completely and totally reflect the original and therefore is not a carbon copy.― Section 97(2) is in pari materia with Section 90 the Evidence Act 2011 which provides for the certification of secondary documents. And considering that the Supreme Court Jurist made the pronouncement with regards to documents in 2003, afortori what could be said today. I find the account of the claimant more credible than that of the defendant, the defendants clearly wrote Exhibit C7(3) in response to the claimants repeated demands. On balance the veracity of the claimant’s case outweighs that of the defendant. I find that the claimant was entitled to 30 days’ notice or 30 days salary in lieu of notice, having not given the claimant his due notice Exhibit C5 is wrongful, the claimant’s termination is constructively wrongful, I resolve this issue for the claimant. Reliefs 1 and 2 therefore succeeded. As I mentioned earlier the parties have not brought to the court the actual amount that was the claimant’s basic salary, the claimant had pleaded in paragraph 12 that he is entitled to a gross salary of N292, 050 per day. That being the case I find that the claimant is entitled to N292, 050 per day for 30 days as salary in lieu of notice. Relief 3 is for cost of this suit which he had put as the sum of #1,200,000.00 (One Million and Two Hundred Thousand Naira). The position of the law is that it is unethical and an affront to public policy to pass on the burden of solicitors to the other party, GUINNESS NIGERIA PLC V. EMMANUEL NWOKE [2000] LPELR-6845(CA) in stating this I am aware that there are situations when legal practitioners bill of charges can be treated and special damages but I find this is not one of such situations. See the case of SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC). As it is I find that this Relief 3 is speculative and cannot be granted. This is the judgement of this court. It is hereby declared that claimant is entitled to payment of 30 days salary in lieu of notice from defendant for wrongful termination of claimant’s contract of employment without notice. It is hereby ordered that the defendants shall pay to the claimant the sum of #8,761,500.00 (Eight Million, Seven Hundred and Sixty One Thousand and Five Hundred Naira) only, less statutory deductions such as income tax e.t.c, being the total sum due to claimant from defendant as 30 days salary in lieu of notice for wrongful determination of claimant’s contract of employment without notice. All sums payable within 30 days thereafter interest of 10% will incur. This Judgement is hereby entered accordingly. ………………………………….. Hon. Justice E. N. Agbakoba Judge. |
