IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: THURSDAY 16THJANUARY, 2020 SUIT NO: NICN/PHC/108/2013
BETWEEN:
MFON EFFIONG OKON ������������CLAIMANT
AND
- UNIVERSAL SODEXHO NIG. LTD
- GEORGE WALLACE
(sued in the capacity as the General Manager/
Managing Director of the 1st Defendant and �.DEFENDANTS
now the Managing Director of the 3rd Defendant Company)
- CATERING FACILITY SOLUTION (CFS)
REPRESENTATION
Mr. P.I.Akam Esq for the Claimant.
Mr. D.U. Ejesu Esq for the Defendants.
JUDGMENT
INTRODUCTION AND CLAIMS
This action was commenced by a Complaint dated and filed on the 11th of July, 2013, which was taken out by Pat I. Akam Esq on behalf of the Claimant; wherein the Claimant claims from the Defendants the following reliefs:
- AN ORDER directing the Defendants to pay the Claimant the sum of N630,591.66 representing the unpaid salary of (N35,032.87 per month) due to the Claimant, covering the period of eighteen (18) months within which the Defendants bluntly refused to pay the Claimant�s entitlement as calculated by the Defendants.
- AN ORDER directing the Defendants to pay the Claimant the sum ofN897,750.00 representing the amount spent by the Claimant while treating his fractured hand at various local bone clinics.
- AN ORDER directing the Defendants to reimburse the Claimant the documented amount so far spent by him towards the treatment of the Claimant�s fractured right hand which is a total ofN1,701,150.00 as well as the estimated amount of N350,000.00 required for the removal of the implants from the hand of the Claimant.
- AN ORDER directing the Defendants to pay the Claimant the sum of N50 million, representing further treatment of the fractured hand of the Claimant, compensation for permanent disability and or general damages for the various losses, pains and emotional torture the Claimant has suffered as the Defendants abandoned the Claimant to die in his present condition which condition has deteriorated the right hand of the Claimant to a point of doubtful recovery and the fact that the Claimant may not use his right hand again for his profession.
- AN ORDER directing the Defendants to pay the Claimant the cost of N2million as the amount which the Claimant expended as legal fee in bringing this action against the Defendants.
- AN ORDER directing the Defendants to pay an interest rate of 20% of the judgment debts until all the various amounts are paid up.
The Defendants entered a memorandum of appearance under protest dated the 22nd of July, 2013 but filed on the 23rd of July, 2013. They however filed their Statement of Defence on the 1st of November, 2013 before eventually amending same by leave of this Court,filing an Amended Statement of Defence dated the 12th day of October, 2018.
At the hearing of the case, the Claimant testified as a sole witness and tendered 19 documents, which were admitted and marked accordingly, while the Defendants called one witness in their defence, who tendered 10 documents as exhibits (EXHIBITS DWSX 001 � DWSX 010)
CLAIMANTS� CASE IN BRIEF
The facts of the Claimant�s case as per his statement on oath is that he is a constructive staff of the Defendant companies by virtue of the fact that he received his entitlement benefits in April, 2012, despite being issued with a letter of termination of his employment in October, 2010; by the Defendants. According to the Claimant, the termination of his employment was invalid within the period when the Defendants failed to pay him his terminal benefits. He was a baker in the 1st Defendant company serving on the Sendje Berge offshore location and ran shifts, spending two weeks on and off. That he got the permission of his Coordinator not to resume on the date of his supposed resumption to duty on the 8th of September, 2009, but to resume on a different date because he was indisposed. The Claimant states that on the 15th of September, 2009, when he was rescheduled to fly to the Berge, he realised that he forgot his identity card at his place of lodgement and was on his way back to retrieve same when he was knocked down by an unknown vehicle. X-rays showed that he fractured his right hand and was admitted in a hospital in Port-Harcourt. That despite being visited by some members of staff of the 1st Defendant, the Defendants refused to take responsibility of his treatment or reimburse him for the expenses he made on treatments. The Claimant�s complains further that he is entitled to free medical treatment as per the Collective Agreement between the 1st Defendant and its workers, but that the 1st Defendant violated the said Agreement by failing to grant him free medical treatment.That all these were what led him to engage the services of his Solicitors, who engaged the Defendants in a series of correspondences.
The Claimant resorted furtherto state that he did not abandon his work as he was making efforts to treat his injured hand before he was issued a termination letter dated 28th September, 2010. He admits that he was paid his terminal benefits sometime in 2012.According to the Claimant, his present claims before this Court is for the treatment of injury sustained while on his way to board a flight to the Defendants� Rig.
Under cross-examination, the Claimant as CW1 testified that he was on duty on the 15th of September, 2009 when the accident occurred though he was not within the premises of the company. He reiterated that his terminal benefits were paid to him about two years after he was told that he would be paid the benefits. He was also informed that the 1st Defendant would cease to exist and that he may be called upon by the new company should his services be required, though he was never called. It was his further testimony that his employment was still running since he was not immediately paid his terminal benefits. CW1 stated that he was not referred to any hospital by the Defendants. He admits that he did not formally inform the Defendants of the hospital he was receiving treatment after the accident nor did he inform the Medical Director of the 1st Defendant when he resumed back. He confirmed in evidence that he was being paid during the period of his sickness and that he reported to the Personnel Officer when he resumed.
THE CASE OF THE DEFENDANTS
In defence, while the 3rd Defendant denies liability in its entirety and even challenged the jurisdiction of this Court over its joinder as a party to this suit, the 1st and 2nd Defendants state that it complied with all of its obligations towards the Claimant before it ceased doing business in Nigeria. They further state that the employment of the Claimant was duly terminated via Exhibits DWSX 001 and DWSX 002. According to the Defendants, the Claimant was on a frolic of his own and did not attend to the duties of his employment with the 1st Defendant prior to his accident. That the purported claims of injury by the Claimant was not a work or industry related injury and that it did not occur in the course of duty, hence the Claimant was not entitled to the support or assistance of the 1st Defendant. They aver that the Claimant�s condition was regarded as a non-industrial sickness, necessitating his continued absence from work for one (1) year, of which he was continuously paid his salaries in adherence to the Collective Agreement (Exhibit CW1 017).
THE SUBMISSION OF THE DEFENDANTS
In his Final Written Address, Learned Counsel on behalf of the Defendants formulated three (3) issues for this Court to determine, to wit:
- Has the Claimant�s employment with the 1stDefendant been duly terminated?
- Having regard to the lawful termination and final payments to the Claimant, are the claims for medical benefits for unrelated injuries sustainable?
- Can the 3rdDefendant who is not privy to any contract of employment with the Claimant be bound thereby to invoke the jurisdiction of this Honourable Court in this suit?
According to the arguments proffered by Learned Counsel for the Defendants on his issue one, Counsel submits that the 1st Defendant had discharged its obligations towards the Claimant before it ceased to exist. He reminds the Court of the position of the law that parties are bound to the terms of their contract and as such the Court should not lend itself into reading any other meaning into the clear terms of such contracts. Counsel submits further that despite being absent from his job for one (1) year prior to the termination of his employment, the 1st Defendant ensured that all the salaries of the Claimant were paid during the period. He maintains that the Claimant has not shown any proof to entitle him to further payment of salaries after the termination of his employment.
Counsel representing the Defendants answered his issue two in the negative. He submitted that the Claimant cannot claim against a person or thing that does not exist. He further submits that the claims of the Claimant are unsubstantiated because the Claimant was aware that the 1st Defendant had ceased to exist. And even so, the Claimant has not shown any proof of how he is entitled to free medical treatment as per the Collective Agreement (Exhibit CW1 017). Counsel urged this Court to give Article 34 of the Collective Agreement, its unambiguous meaning while positing that the Claimant was on a frolic of his own and that the injury did not occur in the course of his duty. According to his further arguments, Counsel contends that Exhibit CW1 015(Flight Schedule) is only known to the Claimant as the document is unsigned and therefore inadmissible. He relied on the authorities of AREGBESOLA v OYINLOLA (2011) ALL FWLR (PT.570) PG.1223-1427 AT 1317; OMEGA BANK (NIG.) LTD v OBC LIMITED (2005) 1 SCNJ, 150, amongst other authorities.
Learned Counsel further maintains that the Claimant failed to comply with the conditions contained in Article 10 of the Collective Agreement and as such cannot be entitled to any claims being made by him. He concludes by stating that the accident does not amount to an industrial accident because it occurred when the Claimant was on a frolic of his own.
On his issue three, Counsel argued that the 3rd Defendant on record was not a Party to whatever contract there was between the Claimant and the 1st Defendant. He maintained that only Parties to a contract can maintain an action under such contract. According to his submission, the 3rd Defendant is a stranger in the instant case and all the claims against it should be discountenanced. He contends that the 3rd Defendant remaining a party to the suit robs the Court of its powers to exercise jurisdiction over the 3rd Defendant.
THE SUBMISSION OF THE CLAIMANT
In his Final Address, Learned Counsel to the Claimant also raised three (3) issues for determination, as follows:
- In the circumstances of this case, whether the Claimant has a right in law to benefit from the Collective Agreement between the management of Sodexho Nigeria Limited and National Union of Hotel and Personal Services Workers (NUHPSW)
- From the available proofs before the Court, whether this matter was settled amicably between the Parties and the Claimant received his full and final payment.
- Whether the Claimant has proved his case to be entitled to the reliefs sought before the Court.
Counsel commenced his argument on issue one with the position that the Collective Agreement (Exhibit CW1 017) is the working document between the 1st Defendant and its workers and submits that the Claimant has a right, by virtue of Article 10 of the Collective Agreement, to be treated of his injury by the Defendants. He called upon this Court to give the provisions of Article 10 of Exhibit CW1 017 its ordinary meaning. Furthermore, Counsel submits that Exhibit CW1 015 (Flight Manifest) is aclear evidence that the Claimant was booked to fly to the Defendants� Rig on the 15th of September, 2009, which evidence was not controverted by the Defendants. He also contends that by dutifully paying the Claimant his salaries in line with Article 11(1) of Exhibit CW1 017, the Defendants have admittedthat the Claimant was sick. He maintains therefore that the Claimant�s situation having not fallen within any of the exceptions provided for in Article 10 of the Collective Agreement, it qualifies him for the free medical treatment provided for by the Collective Agreement. Counsel relied on some foreign authorities and the provisions of Section 7(1) & (2) of the Employee�s Compensation Act, 2010.
Counsel submits in his issue two that the matter between the Parties herein has not been settled before the commencement of the instant actionas alleged by the Defendants. According to Learned Counsel, the Defendants� insistence that the matter between them had been amicably settled before now amounts to foisting upon the Claimant an unfair deal which the Defendants have failed to achieve through peaceful negotiations.
On issue three, Counsel for the Claimant maintains that the Claimant has established his case by providing evidence that he is a staff of the Defendant companies and that the accident that led to his injury occurred in the course of his employment with the Defendants. That the Claimant has also proven the amount that he incurred for the treatment of his injury as per the Exhibits before this Court.Counsel contends that the failure of the Defendants to pay the Claimant his entitlements at the time other workers were paid, entitles the Claimant to some compensatory salaries. All these claims, he maintains, should ordinarily be borne by the 3rd Defendant, which took over management of the 1st Defendant.
DEFENDANTS� REPLY ON POINTS OF LAW
The Defendants� Counsel, in his reply on points of law which was filed on the 14th of June, 2019; submits that the onus is on the Claimant to adduce credible evidence to prove his claims rather than for the Defendants to call evidence to rebut their assertions. He insists that the Claimant is not entitled to any claims of medical benefits, particularly from the 3rd Defendant who is a stranger to the contract. He argued that Exhibit CW1 015 is an unsigned document and was not certified. He urges this Court to hold the said evidence as inadmissible hearsay.
According to Learned Counsel, any further payment of monetary benefits to the Claimant would amount to double compensation since he was paid his salaries for the one year, even though he was not entitled to it. He also maintains that the injury sustained by the Claimant was not work related as it did not occur out of and in the course of employment. Counsel relied on several authorities to buttress his arguments.
COURT�S DECISION
After a careful analysis and x-raying of the entire proceedings and the processes filed and/or admitted in this court as well as a thorough observation of the actions, inactions, arguments canvassed by both parties including the exhibits tendered, it is pertinent that this Honourable Court is called upon to determine the questions formulated and argued upon by the Parties. Having given sufficient consideration to the pleadings and evidence of the Parties, I have formulated one issue for determination, to wit:
- Whether the Claimant has sufficiently proven his case to entitle him to the reliefs sought from this Honourable Court.
Before delving into the substance of the arguments proffered by Parties or the cardinal issuesas identified by this Court, I must first attend to the question of the exercise of jurisdictional powers of this Court over the 3rd Defendant on the record, because the question of jurisdiction is a fundamental and threshold issue which must be placed on the front burner in the determination of any action before a Court of Law. As such, it must be resolved firstly, before any other step can be taken.OGBORU & ANOR v UDUAGHAN & ORS (2012) 2-3 SC, P.66;
The Defendants have contended that the 3rd Defendant was not a Party to the contractual agreement between the Claimant and the 1stDefendant and as such, the Court cannot exercise jurisdiction over it. This submission was countered by the Claimant, who stated that the 3rd Defendant, having taking over the 1st Defendant, inherits both the assets and liabilities of the 1st Defendant. This is not far from the position of the law. The purchaser of a company buys its assets and liabilities. However, aside from the testimony of the DW1 under cross-examination that the 1st Defendant was bought over by the 3rd Defendant, there is nothing before this Court to prove such acquisition.The law is settled that a party who asserts an acquisition must present before the Court documents from the Corporate Affairs Commission (CAC) to justify that assertion, especially the instrument of transfer, allotment of shares or any other relevant CAC documents. See AFOLABI & ORS v WESTERN STEEL WORKS LTD& ORS (2012) 17 NWLR (PT.1329) P.286.
The oral testimony of the DW1, despite being believable, cannot take the place of documentary evidence, which would have made it more credible.Correctly, a stranger to a contract cannot benefit from or use the contract, but in the instant suit, the 3rd Defendant is deemed to be mindful of and even acquiesced to the payment of the Claimant�s entitlement benefits, via Exhibit CW1-002(b) (copy of First Bank cheque confirming payment of entitlement benefits to the Claimant), which was issued by the 3rd Defendant, thus relieving the 1st Defendant from discharging its financial obligation to the Claimant, who was a staff of the 1st Defendant, apparently on the just and fair consideration that a worker deserves his wages.The 1st Defendant also did not challenge this action of the 3rd Defendant. This is clearly an exception to the doctrine of privity of contract.FEBSON FITNESS CENTRE & ANOR v CAPPA HOLDINGS LTD & ANOR (2014) LPELR-24055 (CA); MAKWE v NWUKOR & ANOR (2001) 14 NWLR (PT.733), P.356.See also section 91 (1) of the Labour Act.
As such, it is evident that the 3rd Defendant was properly joined as a party to this action and this Court can therefore exercise its jurisdiction over the 3rd Defendant Company. I so hold.
Having dispensed with that issue, it flows thus that this Courtcan now determine the sole question for determination as formulated by this Court in line with the submissions of the Parties.
It is in fact without doubt from the reliefs sought by the Claimant from this Court that the termination of his employmentis not in issue but rather what is in issue is the Claimant�sclaims for payments of various sums representing unpaid salaries, reimbursement, compensation, etc.
On the claim for unpaid salaries, the Claimant, in paragraph 1 of his Re-Sworn Statement on Oath as well as paragraph 4 of his Further Additional Statement on Oath, posits that he was a constructive staff of the Defendant companies within the period of the issuance of his letter of termination of employment and the date he was paid his terminal benefits.
I have searched through the entirety of the Collective Agreement (Exhibit CW1 017) between the Defendant companies and its workers, to which the Claimant was previously bound, and I do not find any terms and conditions which governs the period or length of time within which the terminal benefits of a laid off staff should be paid. There is indeed no law that prescribes for such situation either, hence the argument of the Claimant�s Counsel that the Claimant became a �constructive staff� for the period between when his employment was terminated and when he was eventually paid his terminal benefits, is untenable. The Claimant did not provide any evidence to show that he continued to carry out any further duty or duties for or on behalf of the Defendants after the termination of his employment neither did he show any evidence that he was on any approved leave of absence. Since the Claimant is not challenging the termination of his employment, the termination of the Claimant�s employment, asper Exhibits DWSX 001 and DWSX 002, therefore stands as properly so determined.
More so, if the Claimant had challenged his termination of employment, his claims would also not have stood the test of settled laws, by virtue of the trite position of the law that where an employee receives his terminal benefits after his contract of employment has been brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. This is so because the receipt of payment of the employee renders the termination mutual. JULIUS BERGER (NIG) PLC v NWAGWU (2006) 12 NWLR (PT.995) P.518; GERAWA OIL MILLS LTD v BABURA (2018) LPELR-44720 (CA); EKEAGWU v NIGERIAN ARMY & ANOR (2006) 11 NWLR (PT.991), P.382.Consequently, the fact that the Claimant was paid his terminal benefits more than a year after his employment was ended, does not entitle him to any form of �compensatory salaries� for the period of wait.It would have been different if there existed a time stipulation for the payment of such terminal benefits, the Defendants would have been held liable for breach of that obligation, thus entitling the Claimant to some form of damages for breach. The Claimant fails on this ground.
Coming to the issue of payment of compensation and or reimbursement for the Claimant�s injury, the question is whether the Claimant�s injury is an industrial accident resulting in permanent disability to entitle the Claimant to compensation under Exhibit CW1 017 (Collective Agreement).
The Claimant�s evidence that he was on his way to the Airport to take a scheduled flight to the Defendants� Rig was controverted by the Defendants� sole witness, who testified on oath that the Claimant was on a frolic of his own at the time of the injury.
The Learned Counsel, on behalf of the Claimant, settled his arguments on the Claimant�s entitlement to compensation and reimbursement by relying largely on Article 10 and 11 of the Collective Agreement and Section 7 of the Employees� Compensation Act, 2010. The Claimant testified that he was entitled to free medical treatment by virtue of Article 10 of the Collective Agreement but was refused access to that treatment by the Defendants. The provision of Article 10 of Exhibit CW1 017 is clear and unambiguous. Free medical treatment for staff can only be undertaken where such treatments are carried out in a Government sponsored General Hospital nearest to the point of employment or any other hospital approved by the company, upon approval from a senior management representative or their nominated officers.
Although, I think the Claimant ought to be entitled to the free medical treatment as per the Collective Agreement, since Article 10(a) � (j) did not specify if the medical treatments contained thereof should be as a result of industrial or non-industrial accidents or sickness. However,the Claimant did not lead any evidence to show that he attempted to visit any of the approved hospitals; neither did he show, from his evidence that he solicited for but was refused approval to be treated in any of the approved hospitals. In fact, the Claimant only raised the issue of demand for treatment by the Defendants through Exhibit CW1 005 (Solicitor�s letter dated 19th October, 2009), which was after he was issued a formal letter of termination of his employment. That was an afterthought on the part of the Claimant.
In fact, I am in agreement with the Defendants� position that the Claimant was sufficiently compensated for the treatment of his injury by the payment of his full salary for a period of one (1) year, despite not showing up for work during the said period. Under Article 11 of the Collective Agreement, the Claimant ought to be entitled to �full gross monthly salary for the first six months, 50% of his gross monthly pay for the subsequent three months and thereafter any payment of salary based on the discretion of the company� management�, yet, he got full payment all through. In any event, the Claimant�s employment ought to have been ordinarily terminated by virtue of Article 11(3) of the Collective Agreement, the period of his illness having exceeded one year, without any application for sick leave or evidence of sickness presented to the company after 72 hours of the occurrence of the accident. Also, from the evidence before me of the calculation of the Claimant�s terminal benefits, there was an increment from the initial six hundred and fifty one thousand, five hundred and forty five naira, seventy-one kobo (N651,545.71) to seven hundred and thirty nine thousand, four hundred and ninety six naira, ninety-five kobo (N739,496.95), eventually paid to the Claimant.
It is not in contest between the Parties that the terms governing the contract of employment are embodied in the Collective Agreement. These terms constitute the contract that governs the relationship between the Parties, and in construing the relationship between the Claimant and the Defendants, this Court is bound to confine itself to the ordinary words and meaning derived from the said documents. IBAMA v SHELL PETROLEUM DEVELOPMENT CO. (NIG) LIMITED (2005) 17 NWLR (PT.954) P.364; MOMOH v CBN (2007) 14 NWLR (PT.1055) P.504.
This Court treats as sacred the terms of the contract as one which were freely entered into by the Parties herein, as Parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. It follows thus that where any question arises, as is apparent in this material particular, the terms in the said documents, which constitutes the contract, are the unwavering guide to its interpretation.
It flows therefore that Article 10(k)of Exhibit CW1 017 (Collective Agreement) is the only provision that ignites the application of the Workmen�s Compensation Act (now repealed by the Employee�s Compensation Act, 2010). It comes into effect where the injury suffered by the employee amounts to an �industrial accident, which results in permanent disability�. The question here thus is whether or not the injury suffered by the Claimant amounts to an industrial accident, which resulted in permanent disability.
From the definitions at my disposal, I believe that industrial accidentsare injuries sustained from accidents at workplace or in the course of employment. The rationale for compensation by the employer on this ground is to compensate an employee who suffers from injuries or dies in work-related accidents. All employers owe their workers a duty of care and protection of their safety and healthat workplaces. I am however not convinced that the Claimant sustained his injury in the workplace or in the course of his employment. My reasons are simple.
The Claimant testified that he had forgotten his identity card and was crossing the road headed for his place of secondary residence to get the identity card when he was knocked down by a hit-and-run vehicle. He was not headed for the direction of his place of work nor was he returning from his place of work when the incident occurred. For clarity, the portion of section 7 of the Employees� Compensation Act, 2010, which Learned Counsel to the Claimant argued is relevant to his case,must be necessarily interpreted. It states that:
�7(1) Any employee, whether or not in a workplace, who suffers any disabling injury arising out of or in the course of employment shall be entitled to payment of compensation in accordance with Part IV of this Act.
(2) An employee is entitled to payment of compensation with respect to any accident sustained while on the way between the place of work and �
(a) the employee�s principal or secondary residence;
(b) the place where the employee usually takes meals; or
(c) the place where he usually receives remuneration, provided that the employer has prior notification of such place.
Subsection 1 above applies where the employee suffers a disabling injury as a result of the accident which occurs in the course of employment. That is, an injury which disables the employee, when carrying out the duties or roles of his job. Firstly, I have had the privilege of observing the Claimant throughout this trial and I am not convinced that he is disabled or has a disabling injury, neither am I convinced from the evidence that the Claimant�s injury occurred when he was performing or actively involved in any of his assigned job roles. The Claimant had testified that he was a baker in the employment of the 1st Defendant. At the time of the accident, the Claimant was neither baking nor engaging in any other activity which his employers directed him to do, whether in the workplace or outside his workplace. As such, subsection 1 of the Act does not avail the Claimant in this material particular.
By a clear and distilled interpretation, subsection 2, on the other hand, becomes applicable if, and only if, the employee was in his place of work already and is on his way back to his place of residence or any other place stated in the subsection above. This was not the case of the Claimant. His case is at best a non-industrial accident;hence, his claims are not supported by the said provisions of section 7 of the Employee�s Compensation Act, 2010. I so hold.
In entirety, I hold that the Claimant has not sufficiently discharged the evidential burden placed on him to entitle him to the claims he seeks from this Court. His evidence are not fool-proofed, consequently therefore, I resolve the lone issue in favour of the Defendants. The claims of the claimant all failed. The case of the claimant is hereby dismissed. I so hold. Parties are to bear their respective costs.
Judgment is hereby entered accordingly.
__________________________________________
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
YENAGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
