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Chief Kalama Abraham & 49 ORS -VS- BGP/CNPC International Nig

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

DATE: SEPTEMBER 27, 2019

SUIT NO: NICN/YEN/112/2016

 

BETWEEN:

 

  1. CHIEF KALAMA ABRAHAM
  2. MR. FELIX NWOYORO
  3. MR. OWATE KALAMA
  4. FAKIDOUMA WILBERFORCE
  5. PANEBI IMOFO
  6. GIFT ELEKELE
  7. AUGUSTINE ELEKELE
  8. TARI ERIGI
  9. WENIBO T. LONG
  10. SAMPSON BUNAKEMEFA
  11. MY-OWN WILSON BUNAKEMEFA
  12. EZI PEACEFUL
  13. IMOMOEMI WENIBO
  14. AVO IMOMEMI
  15. BENSON GOODDAY
  16. OWAWE KALAMA
  17. SARA MIEBI                CLAIMANTS
  18. KOFI OKAH
  19. OSOKUNA JEREMIAH
  20. AKORI RAPHAEL
  21. AKADUMEME KELVIN
  22. IBE RICHARD
  23. ATAMAH GOODLUCK
  24. MATEIKUMO SIMEON
  25. NWALIA FELIX
  26. NYEKIFAMO FREEBORN
  27. INOGULA EBIWARI
  28. LEVI EBIDOUWEI
  29. JACKSON SEIBA
  30. IBATOU GLORY
  31. THEOPHILUS ALAWEI
  32. OLULU AZIBAOLONIYARI
  33. MARRY RIGHTOUSNESS KOLOGA
  34. KEMEKEKURO ODOIBO
  35. THOMAS BURUARIKUMO
  36. AMOS WISDOM
  37. BONIFACE IGBUDU
  38. GBAKA EVERLASTING
  39. CYPRIAN DAMION
  40. INNOCENT PHILIP OSUOTO
  41. WISDOM DOKUMO
  42. AMOH FEDINAND
  43. ZAGUNU MOSES
  44. PRINCE IWEAIS
  45. REUBEN ITUKUNU
  46. JOSUHA OGIDI
  47. PRAISEGOD ZAGUNU
  48. BENNETH INNUMA
  49. CHIEF ALBERT ADEBO
  50. GODGIFT OBONAH

 

AND

 

  1. BGP/CNPC INTERNATIONAL NIG. LTD
  2. SHELL PETROLEUM DEVELOPMENT                    DEFENDANTS

COMPANY LIMITED

 

 

REPRESENTATION

 

Mr. Perebi Benard Tamuno Esq for all the Claimants.

 

A.A. Katele Esq for the 2nd Defendant.

 

1st Defendant not represented.

 

 

JUDGMENT

INTRODUCTION AND CLAIMS

 

This suit was first commenced by the 1st – 3rd Claimants through their originating process dated and filed on the 16th of June, 2016 but were joined by the 4th – 50th Claimants via a motion granted on the 7th of May, 2018 by this Honourable Court. This Court shall however rely on the Claimants’ Further Amended Statement of Fact, which was filed before this Court on the 11th June, 2018, wherein the Claimants sought the following reliefs from this Court:

 

  1. A DECLARATION that the 2nd Defendant entered into a Global Memorandum of Understanding (GMOU) with members of Okordia/Zarama Cluster Communities on the 11th day of May, 2011, which specified the monies to be paid as monthly salary to unskilled, semi-skilled and skilled workers under the 2nd Defendant’s seismic operation/activities.

 

  1. A DECLARATION that the Claimants are employees of the 1st Defendant.

 

  1. AN ORDER directing the 2nd Defendant to call the 1st Defendant to comply with the Global Memorandum of Understanding (GMOU) entered with members of Okordia/Zarama Cluster Communities on the 11th day of May, 2011.

 

  1. AN ORDER directing the 1st Defendant to pay the unskilled workers the sum of Sixty Thousand Naira (N60,000.00) only monthly, the semi-skilled workers the sum of Ninety Thousand Naira (N90,000.00) only monthly and pay the skilled workers the sum of One Hundred and Twenty Thousand Naira (N120,000.00) only in line with the Defendants normal rates as provided for in pages 2 and 9 of the Global Memorandum of Understanding (GMOU) entered with members of Okordia/Zarama Cluster Communities on the 11th day of May, 2011.

 

  1. AN ORDER directing the 1st Defendant to pay the Claimants and other workers all their balance of unpaid salary forthwith starting from the day of their employment where the unskilled workers are to be paid the sum of One Hundred and Twenty Thousand Naira (N120,000.00) only each, the semi-skilled are to be paid the sum of One Hundred and Thirty Five Thousand Naira (N135,000.00) only each while the skilled workers are to be paid the sum of One Hundred and Seventy Five Thousand Naira (N175,000.00) only each monthly.

 

  1. AN ORDER directing the 1st Defendant to pay the Claimants and other workers all their pay-off salary which is agreed to be paid after every three months.

 

  1. AN ORDER directing the Defendants not to further withhold the Claimants’ salary and other benefits due the Claimants and other workers till the end of the Defendants seismic operations.

 

  1. AN ORDER directing the Defendants to pay the Claimants the sum of One Hundred and Twenty Five Thousand Naira (N125,000.00) only as special damages.

 

  1. AN ORDER directing the Defendants to pay the Claimants the sum of Four Million Five Hundred Naira (N4,000,500.00) only as general and exemplary damages.

 

  1. AND ANY OTHER FURTHER ORDERSthis Honourable Court may deem fit to make in the circumstances of this case.

 

The complaint is also accompanied with other accompanying documents such as the Complainants’ Statement of Facts, Witness Deposition on Oath, List of and copies of the Documents to be relied upon at the trial.

 

The 1st and 2nd Defendants entered a Conditional Appearance on the 26th day of August, 2016 and the 7th day of May, 2018; respectively. They also filed alongside, their Statements of Defence, Witness Statements on Oath and other accompanying processes.

 

Upon opening its case, the 1st Claimant testified as the sole witness for the Claimants. The Claimants tendered 5 exhibits in total (3 from CW1 and 2 from DW1).

 

Both the 1st and 2nd Defendants also called 1 witness each in their defence and apart from the 2 exhibits tendered through DW1 by the Claimants’ Counsel under cross examination, the Defendants’ witnesses did not tender any exhibit. At the close of the trial, this Court called upon the Parties to file their final written addresses, which were all adopted on the 1st of July, 2019.

 

CLAIMANTS’ CASE IN BRIEF

The case of the Claimants is that they were employed by the 1st Defendant, who is a contractor to the 2nd Defendant, to carry out seismic operations in Okordia/Zarama territory in Yenagoa, Bayelsa State. It was the pleadings of the Claimants that they were employed between the 1st week of February and the 29th of March, 2016. According to the Claimants, the 2nd Defendant had entered into a General Memorandum of Understanding (GMOU) with the Okordia/Zarama Cluster Communities on the 11th of May, 2011 wherein the 2nd Defendant was obligated to pay certain amounts of money as salaries to the various categories of workers it employed or any of its contractors may employed from the communities to carry out any of the 2nd Defendant’s projects within the communities. That upon commencement of work in 2016, the 1st Defendant contractor failed to pay the Claimants the agreed sum captured in the GMOU. The Claimants went further to state that they wrote a letter to the 1st Defendant requesting it to pay the workers under its employment as per the GMOU but were served with a backdated letter of warning from the 1st Defendant (that is EXHIBIT CW1 KL 002).

 

That due to the underpayment of salaries by the 1st Defendant, the Claimants have been traumatized, emotionally, psychologically, financially and otherwise.

 

When placed on cross examination, CW1 restates that the Claimants case is based on the GMOU (EXHIBIT CW1-KL 001), which was to operate for 5 years from the date of its execution. That he was given a letter of employment by a brother company of the 1st Defendant and that the said letter of employment was with his lawyers. In his evidence, he states that he received salaries from the month of March until this case was instituted in June, 2016. When further questioned on the Exhibit CW1 KL 001, CW1 confirms that the 1st Defendant is not a party to the GMOU. That he was aware of the provisions that provides for dispute resolution in the GMOU but was unaware that he had to take his complaint to the Cluster Development Board (CDB). CW1 posits also that he was not aware if the other Claimants were issued with letters of employment. He seems not to know some of the Claimants in the suit.

 

CW1’s evidence was similar when placed under cross examination by the Counsel to the 2nd Defendant. He claims to be in court on behalf of the workers from his community under the employment of the 1st Defendant and not on behalf of the Okordia/Zarama communities. He insists that he is a party to Exhibit CW1 KL 001.

 

THE CASE OF THE 1ST DEFENDANT

The 1st Defendant, as per its Statement of Defence, admits to being a contractor to the 2nd Defendant but was not privy to the said Exhibit CW1 KL 001 between the 2nd Defendant and the Claimants’ communities. The 1st Defendant also admits to being the employer of some of the Claimants who were issued with letters of employment at the time of their employments. That it had never underpaid or plans to deny/deprive any of its employees his/her full salaries as agreed between them before the issuance of their letters of employment. That, the actions of the Claimants are aimed at inciting other workers but which said attempt does not have the approval of majority of its workers.

 

DW1’s evidence under cross examination was that the Claimants were not directly employed by the 1st Defendant but through third party contractors. He seems to have only become aware of the complaint by the Claimants of being underpaid upon the filing of this suit by the Claimants. DW1 confirms that the Claimants under the 1st Defendant’s employment were all given letters of employment and that the contract of employment was not based on the GMOU (Exhibit CW1 KL 001).

 

THE CASE OF THE 2ND DEFENDANT

On its part, the 2nd Defendant states that the employment contract between the Claimants and the 1st Defendant was not in reference to the GMOU, which was between the 2nd Defendant and the Okordia/Zarama cluster communities. According to the 2nd Defendant, the Claimants cannot enforce the GMoU as they are not parties thereto nor are they the accredited representatives of the parties. It was the 2nd Defendant’s further evidence in chief that the said Exhibit CW1 KL 001 has lived out its life span of five (5) years and that it had fulfilled its entire obligation under Exhibit CW1 KL 001. It was the evidence also of the 2nd Defendant that it does not arrogate to itself the powers of a wages commission over the 1st Defendant.

 

The evidence of DW2 under cross examination admits of the fact that the 2nd Defendant indeed contracted the 1st Defendant to carry out seismic operation but does not know whether the 2nd Defendant can fix salaries of employees for the 1st Defendant. DW2 also does not know if paragraph 11.3 of Exhibit CW1 KL 001 is what regulates the wages of workers employed from the Okordia/Zarama cluster communities. Parties closed their cases and filed a Written Address which same were adopted on 1st July, 2019.

 

THE SUBMISSION OF THE 1ST DEFENDANT

 

In their final address 1st Defendant raised three issues for determination in the final written address, to wit:

 

  1. Whether the Claimants can properly bring this action in a representative capacity.

 

  1. Whether the GMOU is enforceable by the Claimants and against the 1st Defendant.

 

iii.               Whether the Claimants proved the claims/damages claimed in this case.

 

On issue one, Learned Counsel contended that the Claimants ought to have individually proven their claims since it involved their individual employments. Counsel argues that there is nothing as representative action in employment matters. He relied on the decision in the case of BOSSA VRS JULIUS BERGER PLC (2005) ALL FWLR (PT.290) 1503 AT 1517. In effect, Learned Counsel submits that CW1 who was the sole witness of the Claimants and who represented the Claimants, acted without locus and as such, his evidence cannot be used to prove the claims of the other Claimants. He urged the Court to dismiss the suit on this ground.

 

In arguing its issue two, Counsel argued that Exhibit CW1 KL 001, upon which the Claimants based their claims is a collectively bargained agreement and on the authorities, such agreements are unenforceable by the individual employees on whose behalf the collectively agreement was made. According to Counsel, collective agreements are gentlemen agreements and become legally binding and justiciable only if incorporated into the employee’s contract of service, and that only parties to an agreement have the locus to enforce or take benefit/liability from the agreement.

 

On issue three, he argued that the Claimants had the burden of proving the condition of the service with the 1st Defendant and to show how the 1st Defendant has breached the contract of employment. He maintained that having failed to place before this Court their letters of employment from the 1st Defendant and how the conditions thereof were breached, the Claimants cannot succeed on the strength of their claims.

 

Counsel asked the Court to dismiss the suit in its entirety as the Claimants have failed to discharge the burden placed on them.

 

SUBMISSION OF THE 2ND DEFENDANT

On his part, Learned Counsel to the 2nd Defendant raised 4 issues for this Court to determine. They include:

 

  1. Whether the GMoU constitutes a contract of employment or a regulation of employment between the Claimants and the 1st Defendant

 

  1. Is the GMoU enforceable by the Claimants in their individual capacity (sic)

 

  1. Can the 2nd Defendant be made to enforce the GMoU against the 1st Defendant who is not a party to the GMoU

 

  1. Whether in view of the evidence and pleadings, the Claimants have proven their case as to entitle them to judgment

 

On his issue one, Learned Counsel answers in the negative. He submits that although one of the attributes of the GMoU involves employment opportunities and the remuneration where available, the GMoU does not create an employment contract. He urged the Court not to read into agreement terms which are not agreed upon by the parties. It is Counsel’s further argument on the issue that the GMoU is not a contract of employment between the Claimants and either of the Defendants and does not purport to regulate the terms of their employments.

 

According to Counsel, the failure of the Claimants to tender their respective letters of employment is fatal to their case, as that was the foundation of their case which must be proved to entitle them to any relief. He relied on the authorities of AMODU v AMODE (19990) 5 NWLR (PT.150) 356 and CALABAR CO-OPERATIVE v EKPO (2008) (citations provided). Learned Counsel contends that failure of the Claimants to produce their letters of employment is because they are withholding evidence which they believe would not support their false claims. He asked the Court to rely on the provisions of Section 167(d) of the Evidence Act, 2011.

 

Counsel’s argument on his issue two was concise, wherein he maintained that only parties to an agreement can claim benefits or suffer liabilities therefrom. He contends that from the face of the GMoU, the Claimants are not listed as parties thus the Court should not aid the Claimants to enforce an agreement to which they are not parties. He maintains this submission on his issue three.

 

On his issue four, Counsel maintains a negative answer to the question raised. He contends that notwithstanding that the 1st Defendant admitted being the employer of the Claimants, the fact that the Claimants’ claims are declaratory, they ought to have specifically proven their claims with sufficient evidence and their failure to produce evidence of their employment with the 1st Defendant was a fatal blow to their case.

 

SUBMISSION OF THE CLAIMANT

 

The submissions of the Claimants are as contained in the Claimants composite final written address in which they raised 7 issues for this court to determine, it is as contained in their final written address dated 22nd day of March, 2019:

 

Learned Counsel argued issues one and two together. He contends that since the GMoU was between the 2nd Defendant and the Cluster Community of which the Claimants belong, and that the 2nd Defendant contracted the seismic work to the 1st Defendant to perform on its behalf, then the 1st Defendant is bound by the GMoU.

 

Furthermore, it was the argument of the Claimants that there was no other form of employment agreement between themselves and the 1st Defendant other than the GMoU, hence the GMoU qualifies as a contract of employment and should be held as such.

 

The Claimants’ counsel’s contention on issue 4 stands on the head that the GMoU should be regarded as a collateral contract, which, according to the Counsel, provides for a duty of care to be extended by one of the contracting parties to a third party who is not party to the original contract. Thus, it should be honoured by the Defendants.

 

On his issue 5, Learned Counsel submitted that the action as presently constituted was not brought in a representative capacity. He maintains that it was not for the Defendants to suggest that the action was one brought under the form of representation as there are laid down practice and procedures for bringing an action in a representative capacity. He submits that should the Claimants have wanted to do so, they ought to have followed the laid down practice and procedure of instituting representative actions. He cited the authority of NIGERIAN AGIP OIL CO. LTD v OGINI & ORS (2017) with citations.

 

Counsel issue six deals with the fact that Exhibit CW1 KL 001 was still subsisting as at the time of the Claimants were employed by the 1st Defendant and as such was applicable to their terms of employment. He contends that there is no other document regulating the relationship between the Claimants and the 1st Defendant as regards the wages of the Claimants other than the Exhibit CW1 KL 001. He urged the Court to see the Exhibit as such and not to rely on the argument of the Defendants of the existence of letters of employment. Counsel argued that the Defendants ought to have pleaded the said letters of employment if there was any at all.

 

He concluded with issue seven that the Claimants have proved their case on the strength of the evidence in Court and urged the Court to grant the Claimants all the reliefs sought.

 

COURT’S DECISION

 

I have diligently gone through all the processes filed by Learned Counsel for and on behalf of the Parties in this suit. I listened to the witnesses who gave evidence and I took ample time to appraise the Exhibits tendered and admitted by this Court. I have also perused the final submissions of Counsel for the Parties. Some of the issues are intertwined and relatively similar, so and I have opted to draw strength therefrom and formulate the following issues for this Court to determine. They are:

 

  1. Whether actions relating to employment can be brought in a representative capacity,

 

  1. Whether from the circumstances of the case, Exhibit CW1 KL 001, which is a collective agreement, can be enforceable against the 1st Defendant.

 

iii.               Whether the Claimants are entitled to the reliefs sought from their evidence and proof thereof before this Court

 

Issue One:

On whether the action as presently constituted is one brought under a representative capacity.

 

This issue raises the fundamental question as to the competence of this action ab initio. The provisions of Order 13, Rule 1 & 11(1) of the NICN (Civil Procedure) Rules, 2017, cited by Learned Counsel to the 1st Defendant refers clearly to situations where one or more persons are sanctioned by various or numerous others, to sue in their stead, having found that they share common interests. To determine at this point whether or not an action is brought in a representative capacity, the originating process and the particulars in the Statement of Fact, must be closely considered. A person suing or claiming to maintain an action on behalf of other party or parties in a representative, must disclose same in the statement of claim. BAMISILE v OSASUYI & ORS (2007) 10 NWLR (PT.1042) P.225; ABUBAKAR v USMAN (2018) LPELR-44089 (CA).

 

On the face of the Complaint, there is nothing to suggest that this action was brought in a representative capacity. Although it is recognized that the Claimants have the same interest and obviously common grievance, yet it does give the present case the coating of a representative action. In fact, in their particulars of claim, the Claimants identified themselves as indigenes of Ogbolomabiri, Akumoni Community, Okordia/Zarama Clans in Yenagoa LGA, Bayelsa State and who are the employees of the 1st Defendant. They were categorical in their identity and did not concede powers to any particular one of them to sue on their behalf. Even so, it is the practice of our Courts that where more person than one have the same interest in a suit, one or more of such persons may, with the leave and approval of the Court, be authorized by the other persons interested, to sue or defend the suit on behalf and or for the benefit of all. DURBAR HOTEL PLC v ITYOUGH & ORS (2011) 9 NWLR (PT.1251) P.41.

 

Each of the Claimants duly represented themselves in their individual capacities with their names captured in the Complaint, the fact that only the 1st Claimant gave evidence as CW1 does not deviate from this fact. I do not hesitate to hold that the present action as constituted is not one brought in a representative capacity hence I resolve issue one in favour of the Claimants.

 

I must state here as an obiter that whether activated in an employment action or otherwise, “a representative action is not a matter of strict law, which requires adherence and compliance. It is not to be treated as a rigid rule of law but as a flexible tool in the administration of justice”. DURBAR HOTEL PLC v ITYOUGH & ORS (supra).

 

Issue Two:

Whether from the circumstances of the case, Exhibit CW1 KL 001, can be enforced by the Claimants against the 1st Defendant

 

A lot of energy has been expressed by Learned Counsel to the respective Parties on the legal and/or binding effect of Exhibit CW1 KL 001. In fact Learned Counsel to the Claimants preferred to refer to the Exhibit as a “Collateral Contract”. Learned Claimants’ Counsel relied on the definition posited by OSEJI, JCA in LINTON INDUSTRIAL TRADING COMPANY NIGERIA LTD v C.B.N & ANOR (2013) LPELR-22036 (CA), where he defines a collateral contract “as a side agreement that relates to a contract, which if unintergrated, can be supplemented by evidence of the side agreement. It is also an agreement made before or at the same time as, but separately from another contract.”

 

From the pleadings and evidence before this Court, I do not find anything to justify the imputation of the nomenclature proffered by Counsel. There must be a substantive agreement between the Parties to warrant a “side agreement”, which relates to it. In fact Learned Claimants’ Counsel submitted strenuously that there was no other agreement between the Parties other than the GMoU (Exhibit CW1 KL 001), despite CW1 stating in evidence that he was employed by the 1st Defendant and issued with a letter of employment by a brother company. I do not think it would be fair to Counsel for me to hold that Exhibit GMoU is a side agreement, when he does not believe in the existence of a substantive agreement in the first place.

 

The Defendants counsel preferred the term “collective agreement” to refer to Exhibit CW1 KL 001. The statutory definition of “Collective Agreement” is as defined in section 47(1) of the Trade Disputes Act, 1990, which provides as follows:- ‘Any agreement in writing for the settlement of disputes and relating to the terms of employment and physical conditions of work concluded between: (a) An employer, a group of employers and one or more organizations’ representatives of employers, on the one hand; and (b) One or more trade unions or organizations representing workers or duly appointed representative of any body of workers on the other hand”. The case of OSOH & ORS v UNITY BANK PLC (2013) 9 NWLR (PT.1358) P.1, is instructive.

 

I will pause to agree here with the nomenclature applied here in referring to Exhibit CW1 KL 001, as it captures the very essence of the said exhibit. Without beating around the bush as I prefer not take up the toga of a hunter but remain as a Minister in this temple of justice, I must state here also that it is the trite position of our law that the relationship between an employer and his employee is generally to be found in the service agreement or letter of employment.

 

In the absence of these documents, this Court is naturally stripped of its jurisdiction to determine a complaint in an employment action as it is unable to ascertain the existence or otherwise of the relationship between the employer and the employee. It is clear, even to the blind that Exhibit CW1 KL 001 is a collective agreement made between the Okordia/Zarama Cluster and the 2nd Defendant. The Parties therein are different from the Parties in this suit. Exhibit CW1 KL 001 does not regulate the relationship between the Claimants and Defendants and as such, none of them can sue or be sued on it here. The call by the Claimants to this Court to rely on Exhibit CW1 KL 001 and make declarations on it regarding the relationship between the Parties herein has no legal basis. It has been held in a plethora of cases that Collective Agreements, simpliciter, do not give an individual employee the right to bring an action in respect of any breach of its terms, except it is accepted between the employer and the employee to form part of the terms of the employment.  See UBA v EDET (2014) LPELR-24243 (CA). On the face of Exhibit CW1 KL 001, the Claimant and the 1st Defendant did not enter into the said GMoU and nothing in the contents of the GMoU binds the 1st Defendant to its terms. It is a basic principle of the law of contract that a non-party cannot enforce such agreement, even if it was made for his benefit. SHUAIBU v NAB (1998) 4 SCNJ 109 AT 129; IKPEAZU v ACB (1965) NMLR 374 AT 379.

 

The Claimants cannot also call on this Court to order the 2nd Defendant to compel the 1st Defendant to perform any obligation contained in the GMoU towards the Claimants. Exhibit CW1 KL 001 is at best a “gentleman’s agreement” which is void of sanctions, unless it has been agreed by the Parties to be incorporated in their employment contract. I have looked at all the evidence before this Court, and I find no such agreement on the records. Exhibits CW1 KL 001 has no evidential value as far as this action is concerned, and I so hold. I therefor resolve Issue Two in favour of the Defendants.

 

Having resolved issue two in favour of the Defendants, it becomes glaring that issue three will naturally follow the same conclusion. The Claimants have indeed failed to discharge the burden placed on them by law to entitle them to the reliefs sought in their Complaint. Notwithstanding the admission by the 1st Defendant as the employer of some of the Claimants, it was for the Claimants to prove the existence of their relationship with the 1st Defendant through the production of their terms or letters of employment as well as prove in evidence the legal nexus between the said terms/letters of employment and the GMoU (Exhibit CW1 KL 001). Although the Court is enjoined to search for the real intention of the Parties in the absence of any clear expression of adoption of a collective agreement as part of the terms of employment, I do not find any iota of evidence to help this Court in the adventure.

 

I am therefore not satisfied with the evidence of the Claimants and thus dismiss all their claims for want of evidence.

 

I so hold.

 

Judgment is hereby entered accordingly.

 

Parties are to bear their respective costs.

 

 

 

 

 

SIGNED

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

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