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National Industrial Court

INGODIEBOFA EGELECHUKWU & 19 ORS -VS- ALCON NIGERIA LIMITED & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHER A. ALKALI

 

DATE: FRIDAY 31ST JANUARY, 2020                     SUIT NO.NICN/ YEN/ 116/2016

 

BETWEEN:

 

  1. INGODIEBOFA EGELECHUKWU
  2. SONY OMBU
  3. EZEKIEL SUOYO
  4. SEGIBO HANNIBAL
  5. DISI TOOCHUKWU
  6. SEIGBO AYIBATONBRA
  7. AYIBAKEDITON GUMUGUMU
  8. BIEBARAGHA YOGO
        CLAIMANTS
  1. OKOSA WILLIAMS MARK

 

  1. IKIETUBOUYIGHE ALFRED
  2. JOSEPH EGELECHUKWU
  3. DENGO KEKEBU
  4. BINAFEGHA ORUSA
  5. AUSTINE AYIBA
  6. ONINI BOKUROMO
  7. EBIMOTIMI YOUWEI
  8. SOLOMON IDOUYE
  9. ALLISON GODSPOWER
  10. OGAN TARE
  11. MOSTEL GEORGE

 

AND

                DEFENDANTS

ALCON NIGERIA LIMITED

 

  1. THE SHELL DEVELOPMENT
  2. COMPANY OF NIGERIA LIMITED —

 

 

REPRESENTATION

  1. P Jerimiah Esq for the claimants.

 

Mr. U.C. Ngeleoka Esq for the 1st Defendant.

 

Mr. E.N. Okpara Esq for the 2nd Defendant.

 

JUDGEMENT.

 

INTRODUCTION AND CLAIMS

 

This action was commenced by a way of a complaint dated and filed on the 24th day of June 2016. Accompanying the complaint were the statement of facts establishing the cause of action, witness deposition on Oaths, list of witnesses and list of documents to be relied upon at the trial. The claims of the claimants are set out at the endorsement made on the complaint and paragraph 12 of the statement of facts establishing the cause of action which are as follows:

  1. A DECLARATION that the Freedom to operate agreement validly entered into between the claimants’ Ogumienpolo and Ogboinbiri compounds in Opororma Community and the 2nd defendant in this suit regulates the relationship between the claimants and the 1st defendant.
  2. A DECLARATION that the claimants are entitled to all benefits as contained in the Freedom to Operate Agreement entered into between the claimants’ Ogumienpolo and Ogboinbiri compounds in Opororma Community and the 1st and 2nd defendants companies.
  3.  AN ORDER directing the 1st defendant to pay the sum of N1, 706, 000.00 (One Million Seven Hundred and Six Thousand Naira) each being the claimants Christmas bonus, daily lunch and end of the contract bonus from April 2012 to June 2016.

By a motion on notice dated the 27th day of September 2016 and filed on 30th September 2016, the 2nd defendant sought for and obtain leave of this court to file and serve their memorandum of appearance of which they file on the 30th of September 2016.

By motion exparte and on notice dated the 20th day of October 2016 and filed on 21st day of October 2016, the claimants sought an order of interim and interlocutory injunctions restraining the 1st defendant from sacking the claimants pending the determination of this suit.

Also by a motion on notice dated the 24th day of October 2016 and filed same day, the 1st defendant sought for and obtain leave of this court to file and serve her Memorandum of Appearance, Statement of Defence, List of Witnesses and Witness Deposition on Oath consequent upon which the1st defendant filed the said documents on the 24th day of October 2016. The 1st defendant also filed a Notice of Preliminary Objection challenging the jurisdiction of the court which was opposed to by the claimants and this honorable court ruled upon on the 21st day of March 2018.

Moreover, the 2nd defendant via a motion on notice dated the 21st day of October 2016 and filed on 28th October 2016, sought for and obtain leave of this court to file her Statement of Defence, Witness Deposition on Oath and all other accompanying processes of which they file same day. Also, the 2nd defendant filed a motion notice dated the 21st day of October 2016 and filed on 28th October 2016 for an Order of striking out the suit for lack of Locus standi or striking out the name of the 2nd defendant for not being a legal personality.

Furthermore, the claimants by a motion on notice dated 18th day of May 2018 and filed same day sought and obtain leave of this court to amend their statement of facts. The said motion was attached with the proposed schedule of amendment. However, it was via a motion dated the 13th day of September 2018 and filed same day that the claimants sought for, obtain leave of this court and filed their amended statements of facts, witness statement on Oath and list of additional documents on the 30th day of October2018. Consequently, the 1st defendant filed an amended statement of defence dated the 9th day of November 2018 and filed same day, accompanied with witness statement on Oath, list of witnesses and list of documents.

Upon commencement of the trial, the claimants called one witness in proof their claims who testified as CW1 (Mr Segibo Hannibal). In his testimony the claimants tendered 5 documents which are marked as exhibits CW1A L001, CW1AL002, CW1AL003,CW1AL 004 a-h and CW1AL005 respectively.

At the opening of the defence of the 1st defendant, the 1st defendant called one witness who testified as DW1 (Mr Sule Umaru). In his testimony the 1st defendant tendered different documents which are marked as exhibits DW AF 001 A— I and exhibit DWAF 002 and thereafter close her case.

Parties were then ordered to file their written addresses which were filled and adopted on the 17th day of October 2019.

 

CLAIMANTS CASE IN BRIEF

The brief fact of the case as contained in claimant’s statement of facts at paragraphs 1 to 12 is that, the claimants are all members of Ogumienpolo and Ogboinbiri Compounds of Oporoma Community in the Southern Ijaw Local Government Area of Bayelsa State and are all employed by the 1st defendant for the construction of an outstation permanent accommodation at the SPDC facility at the Nun River. That the 1st defendant is a limited liability company based in Port-Harcourt and a sub-contractor to the 2nd defendant to execute the above stated contract. The claimants aver that in line with the Freedom to Operate Agreement executed between the Ogumienpolo and Ogboinbiri Compounds of Oporoma Community and the 2nd defendant the claimants were all employed by the 1st defendant as semi-skilled and un-skilled workers. That the claimants were asked to submit two passports each after tests and medicals for them to be issued with identity cards which they did but some of them has not been given identity cards till date.  The claimants further aver that they began work for the 1st defendant in April 2012 and are paid a flat sum of N60,000.00 (Sixty Thousand Naira) only and are entitled to end of year contract bonus of 10% flat rate of N60,000.00 monthly for the duration of their employment in line with the provision of the Freedom to Operate Agreement. That the claimants had severally sought to meet with management of the 1st defendant on the issues as stated in the Freedom to Operate Agreement to the effect that the 1st defendant ought to employed 16 semi-skilled and 30 un-skilled workers. Also, the claimants tried to explore the grievance handling procedure as provided for under the Freedom to Operate Agreement, but every effort to meet the Community Relation Coordinator (CRC) and the Community Interface Coordinator (CIC) proved abortive. Consequently the claimants brief their counsel who wrote a letter on their behalf to the Managing Director of the 1st defendant and copy the 2nd defendant. The 1st defendant responded to the said letter of the claimants claiming they are not in position to discuss the demands of the claimants. The claimants concluded by stating that the said contract has been completed by the 1st defendant and the 1st defendant has started evacuating their equipments from the site but have not paid the claimants their entitlements. Under cross examination, the CW1 stated that apart from exhibit CWAL001 he has no other contract agreement with the 1st defendant and that he was not present when exhibit CWAL001 was signed. That he was not issued an identity card but few workers were issued with identity cards and he has not received any Christmas bonuses but few workers were given. Also, he stated that he has never heard of Afrotherm Nig. LTD and has never made any demand of his bonuses from them. That he however knows the CLO of the 1st defendant in person of Hon. Ikoro Wilabo.

 

THE CASE OF THE DEFENDANTS.

The 1st defendant commenced her defence by calling one Mr Sule Umaru ( DW1). The DW1 averred that he is the Personnel Officer of the 1st Defendant at Nun River Field Logistics Base Project. That the claimants were not known to the 1st defendant as its staff, this is because they were not engaged directly by the 1st defendant. He contend that the 1st defendant engaged the services of Afrotherm Nig. LTD which is an indigenous company and the company recommended by the Oporoma Community to the 1st defendant to handle matters of labour supply, payment of all entitlements, bonuses and other allowances to workers at the site in line with the Freedom to Operate Agreement and that the 1st defendant never pay any money directly to the claimants who are community workers but only paid through Afrotherm Nig. Ltd. That the 1st defendant did not at any time recognized the claimants as its staff because no privity of contract exist between them, the identity cards they were issued was for them to enter the 1st defendant site without security embarrassment. That the claimants has never made any attempt to meet with the 1st defendant and all employment and engagement of staff by the 1st defendant was done in line with the provision of the Freedom to Operate Agreement entered into with Oporoma Community. He further contend that Afrotherm Nig LTD as an indigenous company was nominated by the host community monitoring committee and work is still in progress on the site with all the needed equipment to carry out the project. That there is nothing in the agreement that makes the 1st defendant liable to the claimants since the claimants are  total stranger to Freedom to Operate Agreement, they cannot seek to enforce the content therein. Also he averred that the Freedom to Operate Agreement which the claimants are seeking to enforce have a grievance handling mechanism to which the claimants have not complied with. That the Oporoma community has not instituted any grievance process against the 1st defendant nor did the 1st defendant received any notice of arbitration and no arbitration has taken place between them. That the final means of settling disputes under the Freedom to Operate Agreement in by way of arbitration which the claimants have not explore and the project monitoring committee is very satisfied with the treatment of workers on site by the 1st defendant and have consistently ensured that Afrotherm Nig LTD pay workers their dues.

Under cross examination, he aver that he is aware of exhibit CWAL001 (Freedom to Operate Agreement) that it was Exhibit CWAL 001 that govern the relationship between the 1st defendant and the community and the claimants were employed because of the said exhibit. But the employment of workers must not be done by the 1st defendant alone. He further contend that it was not the 1st defendant that employed the community workers so he cannot say if some workers were employed and put on standby. He however admit that the 1st defendant wrote exhibit DWAF002 to Afrotherm Nig LTD but insist that the claimants are not entitled to any bonuses.

In all the 1st defendant urge the court to dismiss the claimant’s claims for being frivolous, vexatious, speculative and brought in bad faith.

The 2nd defendant did not call any witness.

 

THE SUBMISSION OF THE 2ND DEFENDANT

The learned counsel to the 2nd defendant formulated four issues for determination to wit;

  1. Whether the Freedom to Operate Agreement (FTO) on which this suit is predicated is an unenforceable contract.

 

  1. Whether the claimants have no locus standi to bring this action.

 

 

  1. Whether this suit does not raise any reasonable cause of action against the 2nd defendant.

 

  1. Whether the claimants have failed to prove their case in this suit.

In arguing issue one, learned counsel to the 2nd defendant submits that the FTO upon which this suit is founded is an unenforceable contract. That it is trite that for an agreement to be enforceable the parties must have an intention to enter into a legal relationship.  He refer the court to the case of NICON HOTELS LTD VS N.D.C LTD (2007) 13 NWLR (PT1051) 237 at 267 Paras A-C. That it is clear from the provision of the FTO that it is not an enforceable document. He base his argument on paragraph 1 of the said FTO where the FTO was said to be entered “without prejudice” and he submitted that documents or agreements entered into without prejudice are not binding on parties and are unenforceable. He refers the court to the case of Ashaka Cement Plc VS Asharatul Mubashshurun Investment Ltd (2016) LPELR-40196 (CA). And he submitted that since the FTO in this case is made without prejudice, it is not a valid and binding agreement or contract and consequently the case of the claimants failed since it is predicated on an invalid agreement. He urge the court to rely on Njikonye VS MTN Nigeria Communications Ltd (2008) 9 NWLR (pt 1092) 339 at364 paras C-D.

On issue number two, counsel to the 2nd defendant submitted that the claimants have no locus standi to bring this action and it is trite that for a party to bring an action to court he must have the right or capacity to bring such action. He refer the court to the case of Adesanya VS President (1981) 5 SC 112. He contends that in this case the subject matter is enforcement of the FTO dated the 20th day of February 2016 and the FTO agreement is made between the defendants and Oporoma community. Therefore since the claimants are not a party to the agreement and are not bringing the action on behalf of the community they lack the locus standing to institute the action. He urge the court to so hold.

On issue number three, the learned counsel to the 2nd defendant submitted that the suit does not raise any reasonable cause of action against the 2nd defendant and therefore ought to be dismissed. He relied on the case of C.A Savage & 2 Ors VS M.O Uwaeche (1972) All NLR pg 255, for the definition of the phrase “cause of action” and contend that since the case of the claimants is base on an allegation of the breach of the FTO agreement and the agreement clearly spell out the obligation of parties in article 3, but did not place the obligation of payment of salaries and bonuses complained about on the 2nd defendant, the suit therefore raises no reasonable cause of action on the 2nd  defendant. Also, there is no claim against the 2nd defendant in the reliefs sought by the claimants. He further contend that the named 2nd defendant is not a legal person and it is an established principle of law that only a natural or juristic person can be sued or named a party to a suit. He relied on the case of Admin/ Exec., Estate, Abacha VS Eke-Spiff (2009) 7 NWLR (Pt 1139) 97 at 126. He submitted that Shell Development Company of Nigeria Limited named as 2nd defendant in this case is not known to law and having not named a competent 2nd defendant in the writ the complaint is incompetent and ought to be dismissed against the 2nd defendant. He refer the court to Fawehinmi VS N.B.A (no.2) (1989) 2 NWLR (pt 105) 558.

On issue number four, the counsel to the 2nd defendant posit that, assuming without conceding that issues one and two is resolved in favour of the claimants, the claimants did not prove their case in this suit to entitle them to the reliefs sought. He bases his argument on the fact that the express provision of the FTO agreement is to the fact that only workers on site are entitle to Christmas bonus, daily lunch and end of contract bonus and since the claimants are only stand by workers they are not entitle to such rights. He refer the court to paragraph 3 (ii) and (iv) of the 2nd defendant statement of defence where it was stated that the claimants are standby workers and exhibit DW002. He also contended that the DW1 under cross examination allude to such fact. He therefore submit that since the claimants could not show they were workers on site, they have failed to prove their case and their claim must fail. He relied on the cases of BORISHADE VS NBN LTD (2007) 1 NWLR ( Pt 1015) 217 at 225 paras D-E 256 paras D-F and Imam VS Sheriff (2005) 4 NWLR ( Pt 914 ) 80 to explain who lies the burden of proofs and when the person fail to discharge the burden. He concludes that the claimants fail to discharge the burden placed on them consequently their case must fail. That they should rather be grateful to their employer and the monitoring team for paying them salary when they did not do any work.

SUBMISSION OF THE 1ST DEFENDANT.

The learned counsel on behalf of the 1st defendant formulated 3 issues for determination to wit:

  1. Whether this Honorable Court has the jurisdiction to entertain this suit in view of the grievance handling procedure contained in the Freedom to Operate Agreement.
  2. Whether the claimants posses the locus standi to commence this action not being a party to or privy to the Freedom to Operate Agreement between Oporoma Community and the 1st and 2nd defendants dated the 20thof February 2012 which agreement the claimants seek to enforce.
  3. Whether the claimants can sue the the defendants in view of the doctrine of privy of contract.

In arguing issue one, the learned counsel to the 1st defendant submitted that the case of the claimants is centered on the Freedom to Operate (FTO) Agreement and the FTO Agreement has specifically laid down process to follow where issues arises involving the operation of the said agreement. He refer the court to the 2nd to the last page of the agreement and argue that the claimants has failed to explore the procedure as laid down by the agreement before approaching the court. He relied on the case of The Owners of the M. V. Lupex VS Nigerian Overseas Chartering and Shipping Ltd (2003) LPELR-3195 (SC) where the cases of Re: An Application by the Phoenix Timber Company Limited (Appeal of V/O Sovfracht (1958) 1 Lloyd’s Rep. 305 at 308 and Heyman and Another VS Darwins Ltd (1942) vol.72 Lloyd’s Rep. were referred to. He therefore submits that it is in order to curb the issues of non parties to the agreement bringing frivolous application such as in this suit that parties use to insert grievance handling procedure clauses. He urges the court to resolve the issue in favour of the defendants for the claimants have not shown that they took the steps as stipulated by the agreement.

In arguing issue number two, counsel to the 1st defendant contend that locus standi is one of the features of jurisdiction and the absence of it robs the court the jurisdiction to entertain the claim. He refers the court to the case of Emiri Vs Osuagwu (2005) 30 WRN page 1 at page 19, lines 21-25. He submitted that in this suit the court has no jurisdiction to entertain this matter because the claimants have no locus standi to institute same. His argument is based on the fact that the claimants are not party to the FTO agreement between Oporoma Community and the defendants under which they are claiming salaries and bonuses. That the CW1 admitted during cross examination that he was not even within the area where the document was signed. He also relied on the cases of NNB Plc VS Egun (2001) 7 NWLR (Pt 711) 1 at 18-19 and Reiche VS Nigeria Bank for Commerce and Industry (2016) LPELR-40051 (SC) to buttress his point. He further submitted that even if the contract was made for the benefits of the claimants as in this case, they still do not have locus standi. He refers the court to the case of IKPEAZU VS ACB (1965) NMLR page 374 at 379 and BM Ltd VS Woermann-Line (2009) 13 NWLR ( pt 1157) 149 at 180 D-F. He therefore submitted that the claimants have not in any way established that they are parties to the FTO agreement. He urge the court to resolve the second issue in favour of the defendants.

On issue number three, the learned counsel to the 1st defendant submitted that the claimants has not made any case against the 1st and 2nd defendants for the defendants to answer, since the claimants are claiming rights contained in an agreement they are not party to. He relied on the case of Reichie VS Nigeria Bank for Commerce and Industry (supra) to state the position of the law on privity of contract. He argued that under cross examination the CW1 admitted his workplace relationship with the 1st defendant was based on the FTO agreement only and that the 1st defendant stated that the claimants were employed by Afrotherm Nigeria Ltd who engaged the claimants in line with the provision of the FTO agreement. He refer the court to paragraphs 5, 6, 8, 9, 11, and 18 of the amended statement of facts and paragraphs 4, 5, 7, 10, 11, 12, and13 of the 1st defendant statement on Oath. That the claimant did not deny or challenge any of those facts in those paragraphs and the law is that parties are bound by their pleadings hence the court is bound to accept such facts as given by DW1 since it is uncontroverted. He refers the court to the case of Kopek Construction Ltd Vs Ekisola (2010) LPELR-1703 (SC).That, even if the said Afrotherm Nigeria Ltd is an extension of the 1st defendant, the claimants did not show that any of them is a party to the agreement. The Learned counsel further argued that, even if the claimants seek the equitable jurisdiction of the court, it will not avail them for equity follow the law. He relied on the case of Reichie VS Ngeria Bank for Commerce and Industry (supra) to buttress this point. He therefore submitted that the only way the claimants can bring the suit properly was to do it through the Oporoma Community or in a representative capacity. He urge the court to dismiss the suit in its entirety as the claimants’ claim fails woefully.

SUBMISSION OF THE CLAIMANTS.

The learned counsel to the claimants formulated 3 issues for determination to wit:

  1. Whether the Freedom to Operate Agreement entered into among the claimants family and the 1st and 2nd defendants is not the document that regulate the working relationship between the claimants and the first defendant.
  2. If issue one is in affirmative, are the claimants not entitled to the benefits as outlined in the Freedom to Operate agreement.
  3. Whether the claimants are not entitled to the reliefs claimed.

In arguing issue number one, the counsel to the claimants submitted that where parties have voluntarily entered into an agreement and endorsed the said terms, the agreement must be honoured and court of law will not allow anything to be read into the express agreement, terms on which parties were not in agreement. He refers the court to the cases of Williams VS Williams (2014) 15 NWLR pt 1430 pg 213 and SCOA (Nig) Ltd VS Bourdex Ltd (1990) 11 NWLR pt 550. That it is trite law that parties are bound by terms of a contract of employment, particularly where the terms are clear and unambiguous. He relied on U. B. N. Plc VS Soares (2012) 3 NWLR Pt. 138 pg 380. He therefore argued that the claimants are all members of the Ogunmienpolo and Ogboinbiri Compounds of Oporoma Community in Southern Ijaw Local Government Area of Bayelsa State and were employed as members of the said compounds as outline in the Freedom to Operate (FTO) Agreement. He refers the court to paragraph 3 of the statement of facts and paragraph 4 of the statement on Oath of DW1. That the FTO agreement which was signed by the chiefs and the compounds leaders and the 1st and 2nd defendants made provision for the recruitment of 46 workers by the 1st defendant from the community and also list the entitlements of those workers. He therefore submits that the FTO agreement validly signed by the representatives of the claimants families, hereby being the basis of the employment of the claimants is the document that regulates the relationship between the claimants and the 1st defendant. He also contended that the FTO agreement provides that the 1st defendant is to employ community workers but did not provide for the engagement of any 3rd party to employ workers. That article 3 (b) allow the 1st defendant to sub-contract other contract to 3rd parties but not that of employment of workers. He urged the court to resolve this issue in favour of the claimants.

In response to the argument of counsel to the 1st defendant on her issue one, the counsel to the claimants posit that the claimants in paragraph 8 of the amended statement of facts and paragraph 11 of the statement on Oath had stated that they sought to meet with the Community Relations Coordinator (CRC) and Community Interface Coordinator (CIC) as provided for under the FTO agreement all to no avail, consequent upon which they wrote the 1st defendant and copy the 2nd defendant. He refers the court to exhibit CW1AL001. He submitted that the argument of the 1st defendant that the claimants made no effort to meet with the 1st defendant cannot stand when they have responded  through exhibit CW1AL003 having being notified of non-payment of benefits to the claimants. That the 1st defendant cannot approbate and reprobate at the same time, therefore, the court should discountenance the argument of the 1st defendant.

The Learned Counsel on issue number two urged the court to also resolve it in the favour of the claimants. He contend that the FTO agreement make provision for the payment of the claimed entitlements. He refers the court to Article 3 (a) (ii) of the FTO agreement. That by paragraph 11 of the statement of claims, the claimants stated that they are each entitled to N5000.00, one 12.5 kg bag of rice for December 2012, 2013, 2014 and 2015, lunch for number of days they worked and N6000.00 per month each of the entire duration of their employment as end of contract bonus. Also, by paragraph 8 of their statement on Oath, the claimant avers that they tried to explore the Grievance Handling Procedure as outlined in the FTO agreement, but effort to meet with the CRC and the CIC proved abortive as a result they wrote exhibit CW1AL001 to the 1st defendant. That the witness of the 1st defendant averred to the fact that the claimants were employed by one Afrotherm Nigeria Ltd which fact was communicated by exhibit CW1AL003. He argue that by exhibit CW1AL004 which are the identity cards issued to some of the claimants, shows that the claimants are workers of the 1st defendant not Afrotherm Nig Ltd. Also the bank statement showing payments of salaries paid to the claimants. He therefore submits that the claimants as workers of the 1st defendant are entitled to the benefits as provided for under the FTO agreement and the court should so hold.

In response to the argument of the learned counsel to the 1st defendant on their issue number 2, the learned counsel to the claimants submits that the argument of the 1st defendant cannot stand given the facts of the case. He contend that the FTO agreement was signed by the chiefs of Ogumienpolo and Ogboinbiri Compounds of Oporoma Community and the claimants were employed as members of the said  compounds as outlined in the FTO agreement. That it is settled law that locus standi is an issue of legal capacity to institute an action in court and if a person has no legal capacity to institute an action, the court will have no jurisdiction to entertain his claim. He refers the court to the cases of Thomas VS Olufose (1986) NWLR Pt 18 pg 669 and Makudolu VS Nkemdili (1962) 6 SCNLR 34. That for a person to show lcus standi to institute an action he has to show that he has an interest which is not vague, intangible or speculative and that such interest has been adversely affected by the act or omission which he seek to challenge. He rely on Ijelu VS Lagos State Development and Property Corporation (1992) LPELR (1464) (SC). He further submits that what is used in determining whether a plaintiff has locus standi to institute the action or not is the statement of claim. However the issue of locus standi is not dependent on the likelihood of success or the merits of the case but on whether the plaintiff has sufficient interest in the subject matter of dispute. He refers the court to Ojukwu VS Ojukwu (2008) 4 NWLR pt 1078 pg 435. He therefore submits that flowing from the above position of the law, the claimants who are workers of the 1st defendant and are beneficiaries of the benefits as contained in the FTO agreement, and as such have special interest in the present case. He urged the court to discountenance the argument of the 1st defendant and hold that the claimants have locus standi to institute this action.

On issue number three, the learned counsel to the claimants contend that claimants have shown by evidence that they were employed subject to an FTO agreement entered into between their families and the defendants and the claimants have led evidence to the fact that they were entitled to certain benefits as workers of the 1st defendant which evidence was not contradicted by the 1st defendant. That the claimants had made several efforts and sought to meet with the CRC and the CIC in accordance with the FTO agreement, but were refused. That they had written to the defendants who had denied them as workers that is why they file this action. He further contend that the 1st defendant raised the issue of privity of contract as the claimants are claiming rights contained in an agreement they are not parties to. He however submits that this argument cannot hold water since the claimants are all members of the said compounds and are employed as members of the families based of the said agreement. Also, the chiefs that signed the agreement did not sign the said agreement as a personal agreement but signed on behalf of the compounds. He therefore submits that the claimants as member of the said compounds and employed as such cannot be said not to be parties to the contract. He urged the court to so hold, and since the claimants have proved their case on the preponderance of evidence the court should grant all their prayers.

COURT DECISION.

I have read through all the processes filed, the exhibit tendered by the learned counsels for and on behalf of the respective parties, listened to and observed the demeanor of witnesses who testify before this court and have heard the submissions of counsel to the respective parties in support of their cases. I have carefully formulated the following issues for determination:

  1. Whether the claimants have the locus standi to institute this suit considering their position under the Freedom to Operate Agreement.

 

  1. Whether the court have jurisdiction to entertain this suit in view of the grievance handling provision of the Freedom to operate Agreement.

 

 

  1. Whether the claimants have proved their case against the defendants to entitle them to the reliefs sought.

 

ISSUE ONE

Whether the claimants have the locus standi to institute this suit considering their position under the Freedom to Operate Agreement.

Locus standi is the legal capacity to institute an action in a court of law. In other word, it is the legal standing that a claimant or plaintiff, as the case may be, have in instituting the suit in court. And if a person has no legal standing, the court will lack jurisdiction to entertain such action. For someone to have locus standi in bringing an action to court, he must show that he has sufficient interest in the Matter. See the case of Adesokan VS Adegorolu (1991) 3 NWLR (pt 179) 293 at 307 para B. The interest must not be vague, intangible or speculative and he must show that the interest has been adversely affected by the act or omission of the defendant. See the case of Ijelu VS Lagos State Development and Property Corporation (1992) LPELR (1464) (SC). To determine whether person have sufficient interest in an action before the court, the court is bound to confine itself to the writ of summons and the statement of claims before it. See the case of A/G Federation VS A/G Abia (2001) 11 NWLR (pt. 725) 689 at 742.

The defendants have argued that the claimants lack the locus standi to institute this action because the action is based on a contract or agreement to which the claimants are strangers to. They base their argument on privity of contract which precluded the claimants from benefiting from an agreement which they are not parties to. That the claimants witness testified to the fact that he was not even within the area where the document was signed. He refers the court to the cases of NNB Plc VS Egun (2001)7 NWLR (Pt 771)1 at 18-19 and Reichie VS Nigeria Bank for Commerce and Industry (2016) LPLER-40051 (SC) where the doctrine of privity of contract was emphasized by the Supreme Court to the effect that only a party to a contract that can enforce it. Also, the 1st defendant argued that even if the contract was made for the benefit of the claimants as in this case, the claimants still lack the locus to institute the action. He relied on the case of BM Ltd VS Woermann-Line (2009) 13 NWLR (Pt. 1157) 149 at 180 paras D-F. He therefore submitted that the claimants did not have the locus standi to institute this action because it is based on the Freedom to Operate Agreement which the claimants are not parties to.

This argument was contradicted by the claimants who contend that the Freedom to Operate Agreement which was entered into between the Ogunmienpolo and Ogboinbiri compounds of Oporoma community of Southern Ijaw Local Government Area of Bayelsa State and the defendants was signed by the chiefs of the compounds on behalf of the claimants. And that all the claimants have proved to be members of the said compounds and are employed only based on the said agreement. Also, the issue of locus is not dependent on the likelihood of success or the merits of the case, but on whether the plaintiff has sufficient interest or legal right in the subject matter. He relied on the case of Ojukwu VS Ojukwu (2008) 4 NWLR pt 1078 pg 435. The claimants therefore submits that the claimants who are workers of the 1st defendant and are beneficiaries of the benefits as contained in the Freedom to Operate Agreement, as such they  must have special interest in such matter thereby have locus standi to institute such action.

It is clear from the evidence and submission of parties that the Freedom to Operate Agreement was entered into between the Ogunmienpolo and Ogboinbiri compounds of Oporoma community and the defendants. It is also clear that all the claimants were engaged to work for the 1st defendant based on the said agreement and are all said to be members of the said compounds. And it is clear that none of the claimants signed the Freedom to Operate Agreement. The issue that call for consideration is whether the claimants have enough interest in the subject matter to give them right to institute this matter?

From the authorities, the question of locus standi focuses more on the legal capacity and right of a person to institute an action in court, the standing, title or qualification of a person who is approaching a court or tribunal to ventilate some grievances. See A.G Kaduna VS Hassan (1985) 2 NWLR (pt 8) 453. Nyame VS Federal Republic of Nigeria (2010) 7 NWLR ( Pt 1193) 344. The whole essence of the doctrine of locus standi is to prevent strangers and busybodies disturbing the court with frivolous cases. In determining whether a party has sufficient interest in the matter or not, the court only ought to look at the statement of claims before it and satisfy itself that there is a right of the plaintiff which the act or omission of the defendant have infringed upon. If there is no such right then the court will dismiss the case because where the party did not have locus standi, the court will have no jurisdiction to entertain the matter.

I have considered the evidence, exhibits and submissions of parties and I am of the view that the claimants in this case have sufficient interest in the subject matter to enable them institute this action. This is base on the fact that the claimants are all members of Ogumienpolo and Ogboinbiri compounds of Oporoma community, who entered in to the Freedom to Operate Agreement with the defendants for the purpose of peaceful and beneficial relationship between them during the duration of the contract. Also, the defendant did not dispute the fact that the claimants were all engaged as workers of the 1st defendant due to the provision of the Freedom to Operate Agreement. Therefore I cannot but agree with the submission of the learned counsel to the claimants that the claimants who are all members of the said compounds and are all employed in line with the said agreement have the locus standi to institute this action. Moreover, the argument of the defendants that the claimants are not privy to the said agreement cannot hold water because the said Agreement was signed by the leaders of the respective families and it is based on this agreement that the claimants were employed also there is no where it was shown that the leaders of the respective families were engaged by the defendants or show that the said agreement was not signed on behalf of the claimants. It is worthy of note that to agree with the reasoning of the defendants will amount to stretching the doctrine of privity of contract too far. This is the era of substantive justice and grieving claimants should not be shut out from ventilating their grievances on the ground of technicalities. Therefore, I resolve the first issue in favour of the claimants.

ISSUE TWO

Whether the court have jurisdiction to entertain this matter in view of the grievance handling provision of the Freedom to Operate Agreement.

The 1st defendant has argued that the case of the claimants is centered on the Freedom to Operate Agreement and the said agreement has specifically laid down process to follow where issues arises involving the operation of the agreement. Also, that the claimants failed to explore these beautiful procedures outlined by the said agreement before approaching this court. He refer the court to the case of The Owners of the M.V. Lupex VS Nigerian Overseas Chartering and Shipping Limited (2003) LPELR-3195(SC) where the Supreme Court emphasis on the need for court to give due regards to voluntary agreement of parties with respect to settlement of disputes. He urge the court to hold that the claimants did not take any step as provided for under the said agreement.

The claimants in contradicting the argument of the 1st defendant above contend that, in paragraph 8 of their amended statement of facts and paragraph 11 of witness statement on Oath, they stated that they had sought to meet with the community relations coordinator and community interface coordinator in line with the provision of the Freedom to Operate Agreement but could not. That was when they wrote a letter to the 1st defendant and copied the 2nd defendant and the 1st defendant replied the claimants and disowned the claimants that they were employed by Afrotherm Nig Ltd. Therefore, the 1st defendant cannot claim that the claimants did not comply with the provision of the said agreement with respect to the grievance handling process.

Jurisdiction is the legal power, authority and capacity vested in a court or tribunal by the constitution or a statute creating such court or tribunal. It is so important that a court must have both jurisdiction and competence to be properly seized of a matter. See PDP VS Okorocha (2012) 15 NWLR pg 205. The question of jurisdiction Is so fundamental that any time it is raised, the court must listing to its argument because where a court lack jurisdiction to entertain a matter any action taken on it amounts to a waste of time. See Lawani Vs Shettima (2001) FWLR (pt71) at 1870. Also an objection to the jurisdiction of a court can be raised at any stage of the matter. See OBETA VS OKPE (1996) 9 NWLR (PT.473) 411. The jurisdiction of a court can be determined by the subject matter of a particular case, the constitution of such court, the performance of a condition precedent and other limitation factors.

From the evidence and submissions in this case, the question before me is as to whether the court has jurisdiction to entertain this case when the claimants has failed to fulfilled the condition precedent of exhausting the grievance handling mechanism as provided for under the Freedom to Operate Agreement. In answering this question, I have perused the said agreement. And the grievance handling procedure of the said agreement provides as follows;

“In event of disagreement on any issue throughout the duration of this agreement, both parties agree to use the following procedure to amicably resolve such issue:

  1. Community ensures that the complaint is formally raised through its focal point and brought to the site supervisor.
  2. Where they do not address the complaint satisfactorily address the problem within 24 hours it should be brought to the CRO.
  3. Where the matter is not resolved by the CRO after 24 hours it should be referred to the CRC.
  4. Where the matter is not resolved by the CRC within 2 days, it should be referred to the CIC.
  5. Where the matter is not resolved by the CIC it should be referred to the Asset Manager and the paramount ruler.
  6. Where the asset manager and the paramount ruler cannot resolve the matter within 7 days, final arbitration shall be obtained with the assistance of the Hon Commissioner of Energy Bayelsa State.”

The 1st defendant has argued that the claimants did not comply with this provision of the agreement, therefore, the court did not have jurisdiction to entertain their matter while the claimants on their part has argued that they made effort to reach the CRC and the CIC of the 1st defendant and could not, that was the reason why they wrote a letter to the 1st defendant. That in view of the above the claimants has complied with the provision of the said agreement.

On a critical perusal of the provision of the agreement with respect to grievance handling procedure above, it is clear that the parties agreed to use the above provisions in order to amicably resolve their disputes and this court is of the firm view that parties are bound by their voluntary agreement. However, from the evidence before this court, the claimants have made effort to settle this matter amicably with the defendant. It is in evidence before this court that all effort to meet with the CRC and CIC of the 1st defendant proved abortive and the claimants wrote a letter to the 1st defendant on the purported breach of their rights under the said agreement, the 1st defendant replied the claimants and claim not to know them. Furthermore, the defendants did not contradict the evidence of the claimants to the effect that they made effort to reach the CRC and CIC of the first defendant and did not denied the receipt of the said letter written to them by the claimants. I am of the firm belief that the claimants has discharge their duty under the Freedom to Operate Agreement to bring this action to court and the court have jurisdiction to entertain the matter. I therefore refuse the argument of the 1st defendant and endorse the argument of the claimants on this issue and accordingly rule in their favour.

 

ISSUE THREE

Whether the claimants have proved their case against the defendants to entitle them to the reliefs sought.

The 1st defendant argued on this point that the claimants have not made any case against the defendants for them to answer. He base his argument on the ground that the claimants are claiming rights contained in an agreement which they are not party to. That according doctrine of privity of contract, the claimants as none party to the agreement cannot benefit from the said agreement. He further argue that the CW1 under cross examination admitted that the claimants work place relationship with the 1st defendant is only based on exhibit CW1AL004 and that the 1st defendant has categorically stated that the claimants were employed by Afrotherm Nig Ltd in line with the provision of the said Agreement but the claimants did not deny nor challenge these facts. That the law still hold that parties are bound by their pleadings hence the court is bound to accept these facts since it is uncontroverted. He went further to state that the fact was substantiated by exhibits DW1AF001 A-I. He referred the court to the case of Kopek Construction Ltd VS Ekisola (2010) LPELR-1703(SC) where the Supreme Court emphasize on this. He urged the court to dismiss the case in its entirety as the claimants have failed woefully.

The claimants on their own part argued that the claimants have led evidence to the effect that they were employed base on the Freedom to Operate Agreement and that as workers of the 1st defendant they are entitled to certain benefits which evidence was not contradicted by the 1st defendant. Also, they made several efforts to meet with the CRC and CIC in accordance with the provision of the said agreement but could not meet them. That since all the claimants are members of the said compounds and the chiefs that signed the agreement signed on behalf of compounds, not as personal agreement. He therefore conclude that the claimants have proved their case on a preponderance of evidence and urge the court to grant their reliefs.

The law is very clear that the burden of proof in civil case is on the claimant to first and foremost lead evidence in proving his case. A party who assert must prove on the authority of section 131(1) of the Evidence Act, 2011, A.G Rivers State VS A.G Bayelsa State (2013) 3 NWLR p. 123. However, this burden of proofs is on the balance of probabilities based on the preponderance of evidence which may shift from one party to another depending on the evidence. The burden will rest on the party that would fail if no evidence were led on either side. See Sakati VS Bako & Anor. (2015) LPELR 24739 (SC).  When the claimant, by his cogent and clear evidence prove the acts or omissions of the defendant which constitute the infraction, then the burden will shift to the defendant. See Ohochukwu VS A.G Rivers State (2012) 6 NWLR p. 53. It is worthy of note that the burden of proof in this proceeding must be connected to the issues raised in the pleadings and the entirety of evidence adduced at the trial.

The claimants allege that they are all members of Ogunmienpolo and Ogboinbiri compounds of Oporoma community of Southern Ijaw Local Government Area of Bayelsa State, who were employed by the 1st Defendant based on a Freedom to Operate Agreement which specify certain benefits the claimants are to enjoy as workers of the 1st defendant. They tendered exhibits CW1AL001 to CW1AL005 which are all admitted in evidence. The defendants on their part contend that the claimants are not parties to the said agreement, therefore, cannot benefit from the agreement. They further contend that the claimants were not directly employed by the 1st defendant but by a 3rd party nominated by the project monitoring committee, so all their demands should go to the 3rd party company. However, the claimants vehemently oppose this line of argument base on the fact that the said agreement did not allow the 1st defendant to sublet the power of employment of the claimants to a 3rd party.

It is apparent from the provision of the Freedom to Operate Agreement the power of employment of community workers fall within the powers of the 1st defendant, though there is nothing in the provision that preclude the 1st defendant from delegating the power to a 3rd party. But the 1st defendant did not show that the 3rd party was acting for the claimants and the invoice from them tendered in evidence did not show that the benefits were paid to the claimants. This is based on the fact that most of the alert in the financial records tendered by the claimants are in the name of the 1st defendant. So when did they engage the services of the 3rd party to deal with the claimants. Also, the identity cards tendered bear the name of the 1st defendant, so it will be injustice to hold that the claimants are not workers of the 1st defendant.

Assuming but not conceding to the fact that it was a 3rd party (Afrotherm Nig. Ltd) that employed the claimant, the question is on whose benefit did Afrotherm Nig. Ltd employed the claimants as workers? Moreover, section 91 (1) of the Labour Act defined an employer to mean any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first mentioned person and the personal representatives of a deceased employer. Therefore, I am bound to hold that the claimants are employees of the 1st defendant. I so hold.

On the issue of the benefits that is due to the claimants, from the provision of the Freedom to Operate agreement the claimants are entitled to the following benefits as workers of the 1st defendant:

  1. Annual vacation of 10 days leave for every one year worked.

 

  1. Christmas bonus of sum of N 5,000 plus 12.5kg bag of rice for each worker.
  2. Toiletries: 1 detergent (250gms) 2 toilet rolls and 2 toilet soap per month.

 

  1. Lunch: PPE and site medicals as appropriate.

 

 

  1. Workers shall be entitled to overtime pay when work beyond 5.0pm and public holidays at the rate applicable to other ALCON workers on site: holiday rate N 180.00 &N 200.00 respectively for week days and public holidays for unskilled labour and N 200.00 &N 250.00 respectively for sem/skilled labour.

 

  1. There shall be end of contract bonus in line with ALCON’s policy 10% of basic salary of  N60,000 per month for all categories of workers; cumulative for the period of engagement of the worker.

It is clear from the above that the claimants who are workers of the 1st defendant engaged in line with the provision of the Freedom to Operate Agreement are entitled to the benefits as enumerated above. The claimants have led evidence to the fact that their entitlements as shown above were not paid to them to which they made a demand on the 1st defendant to pay via exhibits CW1AL002 and the defendant did not deny the nonpayment of the above entitlement but only contend that the claimants are not entitle to benefits because they are not employed by the 1st defendant. Therefore, I am bound to hold that the claimants have discharged the burden placed on them to enable the court grant their reliefs. I resolve the third issue in favour of the claimants.

In conclusion, for the purpose of clarity and for the reasons stated in this judgment, I hold as follows:

  1. I declare that the freedom to operate agreement, validly entered in to between the Claimants’ Ogumienpolo and Ogboinbiri compounds in Oporoama community and the 2nd defendant in this suit regulates the relationship between the Claimants and the 1st Defendant.

 

  1. I declare that the Claimants are entitled to all the benefits as contained in the freedom to operate agreement entered into between the Claimants’ Ogumienpolo and Ogboinbiri compounds in Oporoma community and the 1st and 2nd Defendants’ companies.

 

 

  1. I order the 1st Defendant to pay to each Claimant the sum of N1, 706,000 (One Million, Seven Hundred and Six Thousand Naira) only being the Claimants’ Christmas bonus, daily lunch and end of contract bonus from April 2012 to June 2016.

 

  1. All terms of this judgment are to be complied with by the parties within 30 days from today. This is without prejudice to the right of appeal against the judgment by any of the party dissatisfied by this judgment. I so hold.

 

Judgment is hereby entered accordingly.

 

 

 

 

 

———————————————————-

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

YENAGOA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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