Mr. Adeolu Omogbehinwa -VS- Stonebridge Maritime Services

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

Suit No: NICN/LA/479/2015

Petitioner: Mr. Adeolu Omogbehinwa

Respondent: Stonebridge Maritime Services Limited.

Date Delivered: 2017-03-16

Judge(s): HON. JUSTICE J. D. PETERS

Judgment Delivered REPRESENTATION

Gboyega Oyewole with Ademola Adefolaju for the Claimant. Godwin Nwekoyo with Tokunbo Ajibulu for the Defendant

JUDGMENT

Introduction, Claims Counter claims On the 30th of September 2015, the Claimant approached this Court via his General Form of Complaints and statement of facts sought the following reliefs –
The sum of $13,045 (or its equivalent being =N=2,152,425) being arrears of salary for the period of 15th October, 2009 to March 2010 owed to the Claimant by the Defendant.
Interest on the sum of $13,045 (or its equivalent being =N=2,152,425) at the rate of 18% per annum from March 2010 until Judgment is given and interest at the rate of 10% on the Judgment sum until the Judgment is finally liquidated.

Cost of the action. The Claimant filed along with his Form 1 and statement of facts, witness statement on oath, list as well as copies of documents to be relied on at trial. On 3/11/15, the Defendant entered an appearance, filed its statement of defence and also counter claimed as follows –
An order of this Honourable Court compelling the Defendant to the counter claim to refund the sum of $3,455 (Three Thousand, Four Hundred and Fifty Five Dollars) erroneously paid to him by the Counter Claimant.
Interest on the said sum at the rate of 21% from the time the demand was made and the time judgment is entered.
Interest at the rate of 10% from the date judgment is entered till the time same is liquidated by the counter claim Defendant.
Cost of this action.
Case of the Claimant The trial of this case commenced on 12/12/16 when the Claimant testified as CW1. Witness adopted his written statement on oath dated 30/9/15 as his evidence in chief and tendered 4 documents. the documents were admitted in evidence and marked as Exh. C1-Exh. C4.

The case of the Claimant as revealed by his pleadings is that he is a Seaman while the Defendant is a Limited Liability Company; that by a contract of employment dated 2/7/09 he was employed by the Defendant as a 2nd Officer on board the vessel M/T SUNWAY B and placed on a monthly wage of $3,000; that his employment was terminated by the Defendant vide a letter dated 6/4/10; that as at the 6/4/10 when his employment was terminated, the Defendant was indebted to him in the total sum of $16,500 being the Claimant’s salary for the period of 15/10/09 to March 2010; that consequent on the termination of his employment, the Defendant vide the termination letter dated 6/4/10 admitted to pay the outstanding sum of $16,500; that after several demands made by the Claimant on the Defendant, the Defendant paid the sum of =N=570,000 i.e. $3,455 (calculated at the exchange rate of N165) leaving an outstanding sum of $13,045; that the Defendant is now indebted to the Claimant for arrears of salary in the sum of $13,045 (or its Naira equivalent being =N=2,152,425) for the period of 15/10/10 to March 2010; that the Defendant has failed to liquidate the outstanding sum of

$13,045 in spite of several requests and visits made by the Claimant to the corporate office of the Defendant; that by a letter dated 23rd March, 2015 he sought the

intervention of the Office of the Public Defender for a peaceful resolution of the issue; that by a letter of invitation dated 23/3/15 with Ref. No. OPD/PT/655/OTA/2015/01, the Office of the Public Defender invited the Defendant for a meeting on the 8/4/15 with a view to resolving the issue between the Claimant and Defendant; that since the termination of contract, the Defendant has continued to withhold the salary of the Defendant without any lawful reason; that as a result of the unfair disposition of the Defendant as well as its refusal to honour the invitation of the Office of Public Defender, he briefed the firm of Lords and Temple to institute and action against the Defendant to recover the outstanding sum/salary; that the Defendant has never denied his indebtedness but has failed, neglected and defaulted to make the payment to the Claimant in spite of the Claimant’s persistent demand for same and that the interest rate applicable to depositors with commercial banks is 18% per annum from March 2010 to date.

Under cross examination, the witness stated that he was given a contract of employment when he was employed; that the Defendant was formerly called Marval Shipping Limited but it later changed to its present name Stonebridge; that the Defendant also gave him a letter of termination of contract; that he was a 2nd Officer on Board the Vessel; that after change of name Stonebridge that is Defendant was paying his salaries and his salary under the contract is $3,000.00.

Case of the Defendant

The Defendant opened its case on 17/1/17. It called one Abiodun Idowu as its lone witness. The witness adopted his witness deposition dated 3/11/15 as his evidence in chief. Witness also adopted his witness statement dated 25/4/16 as his further testimony respecting this case. The case of the Defendant is as contained in its statement of defence and counterclaim dated 2/11/15 and Counter-Claimant’s reply to defence to counter-claim dated 22/4/16 The Defendant averred that it did not offer employment to the Claimant on 2/7/09 or at all; that it does not employ workers onboard the vessel M/T SUNWAY B; it contracted several independent companies to carry out various repairs, installations and maintenance works onboard the vessel, who in carrying out their duties, came with their staff to effect repairs onboard the vessel; that it occasionally transfers some of its employees on secondment on board the vessel to monitor some operations; that due to the prevalent economic hardship and in a bid to restructure its operations, it paid to the Claimant the sum of $3,455 (three thousand, four hundred and fifty five dollars) only, with the erroneous belief that the Claimant was its staff and terminated the employment of the Claimant and that a forensic audit conducted into the Defendant’s operations and activities revealed that the Claimant was not its staff as evidenced by Exh. C1 tendered in support of the Claimant’s case as hitherto erroneously believed. Witness further averred that upon discovery of the above fact, the Defendant immediately wrote a letter of withdrawal of the letter of termination of employment and demanded from the Claimant, a refund of the payment of $3,455 (three thousand, four hundred and fifty five dollars) erroneously paid to him; that the Claimant, after reading the content of the letter, returned same to the bearer and refused to acknowledge the letter and that it was surprised to receive a letter scheduling a meeting from the Office of the Public Defender, which the representatives of the Defendant honoured.

Under cross examination, he has been an Accountant for over 8 years and has been with Defendant since 2012; that he was not there while Claimant was with Defendant; that he joined Defendant in September 2012; that Defendant owns several vessels; that one of the Vessels is called M/T. SUNWAY B; that the Defendant has been paying its taxes and keeping proper record of its operations; that Defendant has not been keeping adequate records of all staff; that Defendant compiled records of staff to be laid off; that Letters of termination were issued to those that the Defendant wanted to lay off; that Exh. D1 was written in November 2012 after the laying off of staff; that he is aware of other options to serve Claimant his letter of termination which he refused to accept such as sending by Registered post or Courier and that he did not do any of these.

Submissions

on Behalf of the Defendant

At the close of trial, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of Court. The final written address of the Defendant was dated and filed 7/2/17. In it learned Counsel set down a lone issue for determination as follows – Whether the Claimant is entitled to the reliefs sought by him as per his statement of facts dated 3/9/15.

Arguing this lone issue, learned Counsel submitted that the Claimant did not contradict or deny the averments contained in the Defendant’s Statement of Defence and Counter claim particularly paragraphs 3,4,5,6 and 7 and that the Claimant must be deemed to have admitted the facts contained in same. Counsel cited UBA Plc v. Ibachem Limited (2014)6 NWLR (Pt.1402) 125 at 154 Tukur v. I.P.E.S Limited (2014)17 NWLR (Pt. 1437) 575 at 596 and urged the Court to find that there is no employment relationship between the parties as made evident by Exh. C1 and that the Court lacks jurisdiction to entertain this case. Counsel submitted that the burden is on the Claimant to prove the existence of employment relationship with the Defendant, citing S. 132, Evidence Act, 2011 Odum v. Ugandem Ors. (2009)9 NWLR (Pt. 1146) 281 at 302. Counsel urged the Court to discountenance the evidence of the Claimant that the Defendant changed its name from Marval Shipping Limited as the fact of change of name is not a fact that can be proved by oral evidence; that this fact was not pleaded and that evidence led on facts not pleaded goes to no issue citing Osemwengie v. J.S.C, Edo State (2015)5 NWLR (Pt. 1453) 508 R.T.S.L.B.C v. Nnikol Res. Limited (2015)14 NWLR (Pt. 1479) 39. Counsel submitted finally that there is not contract of service between the Claimant and the Defendant; that the Claimant was employed by a third party and that the jurisdiction of this Court has not been invoked. Counsel urged the Court to enter Judgment in favor of the Defendant in terms of its counterclaim and dismiss the case of the Claimant.

Submissions

on Behalf of the Claimant

The final written address of the Claimant was dated and filed on 14/2/17. In it learned Counsel adopted the sole issue set down for determination by the Defendant also as the issue of the Claimant as follows – Whether the Claimant is entitled to the reliefs sought by him as per his statement of facts dated 3/9/15.

Arguing this issue, learned Counsel submitted that there was no admission by the Claimant of any of the averments of the Defendant; that a traverse may be made either by a denial or by a non-admission and either expressly or by necessary implication, citing Tukur v. I.P.E.S. Limited (2014)17 NWLR (Pt. 1437) 575 and that for there to be an admission in any form, same must be clear and unambiguous citing Kenlink Holdings Limited v. R.E. Invest Limited (1997)11 NWLR (Pt. 529) 438 at 449. Counsel submitted that it is not disputed that the Defendant is the owner of the vessel M/T SUNWAY B in which the Claimant was employed; that without conceeding that the Defendant contracts several independent contractors to carry out various repairs, installations, maintenance works on board the vessel, the Claimant was employed as a Seaman; that there is nowhere in the pleadings of the Defendant that Seamen are employed on board the vessel through independent contractors and that there is evidence of the Claimant to the effect that the Defendant changed its name from Marval Shipping Limited. Counsel referred to Exh. C1 and submitted that there is a proof of contractual relationship between the parties and urged the Court to hold that the Claimant is entitled to the arrears of salaries to the tune of $13,045 citing LUTH MB v. Adewole (1998)5 NWLR (Pt. 550) 466 at 422. Learned Counsel submitted that Exh. C2 contains clear and categorical admission of the Defendant

to the indebtedness to the tune of $16,500 with $3,455 having been paid leaving an outstanding sum of $13,045 citing Ifeanyichukwu T.I. v. O.C.B. Limited (2015)17 NWLR (Pt. 1487) 1 at 27. Learned Counsel urged the Court to dismiss the counter claim sought and grant the reliefs sought by the Claimant. On 22/2/17, learned Counsel to the Defendant filed a 6-page reply on points of law.

Decision

I read care and understood all the processes filed by learned Counsel on either side. I listened attentively to the oral testimonies of all the witnesses called at trial and as well watched their demeanor. I also listened to the oral submissions of learned Counsel for both parties. Having done all this, I adopt the lone issue which both the Claimant and Defendant adopted in support of their respective case for the just determination of this case as follows –

Whether the Claimant is entitled to the reliefs sought by him as per his statement of facts dated 3/9/15. The law is relative settled that in all civil causes and matters, the burden is always on the party seeking reliefs from Court to adduce cogent, credible and admissible evidence in support of same in order to be entitled to a grant by the Court.

The case of the Claimant is for payment of arrears of salary due to him from the Defendant. A claim for payment of arrears of salary presupposes the existence of employment contractual relationship between the Claimant and the Defendant at least at some point in time. If this fact is challenged, the Claimant must adduce evidence to establish same before the Court. For the Claimant to therefore be entitled to the reliefs sought as per his statement of facts, he must adduce credible evidence to the satisfaction of the Court. In proof of his claims, the Claimant testified in chief by adopting his witness deposition and was subjected to cross examination. Claimant also tendered 4 documents as exhibits which were admitted as exhibits and marked as Exh. C1 – Exh. C4. The exhibits are as follows – Contract of Employment (Exh. C1), Letter of Termination of Employment (Exh. C2), Letter of Appeal for Legal Assistance dated 23/3/15 (Exh. C3) Certificate of Service (Exh. C4).

It was the argument of the Defendant that the Claimant was not its employee and that indeed the Claimant was employed by a separate entity. Learned Counsel to the Defendant referred to Exh. C1 and contended that by that exhibit the Defendant was not the employer of the Claimant. By Exh. C1, Marval Shipping Limited was indicated as the employer of the Claimant. In paragraph 4 of its statement of defence and counter claim the Defendant had averred that ” … it contracts several independent contractor companies to carry out various repairs, installations and maintenance works onboard the vessel, who in carrying out their duties; employ staff to work with them onboard the vessel”. However, under cross examination by the learned Counsel to the Defendant, the Claimant in response to a question had answered that the Defendant was formerly known as Marval Shipping Limited and that it changed its name to Stonebridge Maritime Services. The law remains trite that evidence led under cross examination is both admissible and the Court is at liberty to rely on same as long as it is not challenged or contradicted. I note that this piece of evidence of the Claimant was not challenged or contradicted at all by the Defendant. Learned Counsel to the Defendant did not cross examine its own witness on whether or it changed its name at any time or point at all. The Defendant had opportunity to challenge that piece of evidence but chose not to. Not having done so, the facts as relating to the change of name by the Defendant is deemed admitted by the Defendant. See A.A. Fojule v. Federal Mortgage Bank of Nigeria Ors. (2000) LPELR-5169 (CA). I so find and so hold.

Now Exh. C2 was the letter from the Defendant terminating the services of the Claimant. It was dated 6/4/10. Termination of contract of employment is one of the generally known and accepted incidences of master/servant relationship. It is the exercise of power of a master over his servant. That power can only be exercised by an employer. For you cannot terminate the services of a servant you did not employ in the first place. By that exhibit the Claimant was informed that his services would no longer be required from 6/4/10 the date of the exhibit. Defendant went ahead to state the outstanding salary of the Claimant to be in the sum of $16,500.00. It was signed by Kunle Fajemike as Head of Finance Admin and Ope Makanjuola as Company Secretary/Legal Adviser. Now the argument of the Defendant respecting the exhibit is that it was written in error and that its audit disclosed that –

” … the Claimant was one of the persons who usually loiter around the vessel M/T SUNWAY

B on a continuous basis and which made the Claimant to erroneously as if he is an employee of the Defendant”.

I find it difficult to believe the position as put forward by the Defendant respecting the status of the Claimant. If, as claimed by the Defendant, the Claimant was one of the people who used to loiter around its vessel on a continuous basis how then did his name and address manage to get into the record and payroll of the Defendant’ There is no answer provided to this question. I am also constrained to comment on Exh. D1 a letter dated 13/11/12. It was meant to damage control the effect of Exh. C2 and to also demand the reimbursement of the sum of $3,455 ”erroneously paid to you”. Now that exhibit was tendered in original form. It was signed by ”Head of Account and Finance” whose name was not stated compared to Exh. C2 which contained the names, signature and designations of the authors. Question is, if this exhibit was really sent to or delivered to the Claimant as alleged, how come that the Defendant is still in possession of the original copy of the letter’ Or was it a photocopy that was delivered to the Claimant’ If yes, where is the evidence of receipt of such an important letter’ Unfortunately there are no answers to these questions. The explanation offered was that the Claimant initially collected the letter but returned same. If the Claimant received same as contended, did the Claimant acknowledge receipt of that exhibit in any form’ Again, while the Defendant averred in paragraph 18 of its Statement of Defence Counter claims that the letter withdrawing the letter of termination erroneously sent to the Claimant was dated 13/11/15, Exh. D1 tendered was indeed dated 13/11/12. Yet no explanation was offered for these anomalies. I have reasons not to believe the testimonies of DW1. I watched his demeanor while testifying. His body language conveyed that of a witness who was being extremely economical with the truth. I do not believe his testimonies.

The content of Exh. C2 is clear and unambiguous. The state of the law in relation to such is that the Court will give effect to same. See Incorporated Trustees of Nigerian Baptist Convention Ors. v. Governor of Ogun State Ors. (2016) LPELR and see also Achoru v. Decagon Investment Limited Anor. (2014) LPELR-24143 (CA). It effectively brought the services of the Claimant with the Defendant to an end, it stated the financial obligation due from the Defendant to the Claimant and directed the Claimant to ”submit all company properties in your possession and obtain a clearance from the Administrative Department before leaving”. I believe the testimonies of the Claimant and all the exhibits he tendered including Exh. C4 a Certificate of Service which bears the name of the Defendant.

Now, having reviewed the evidence led by the Claimant what are his claims before the Court’ In his General Form of Complaint and statement of facts, the first relief claimed by the Claimant is for the sum of $13,045 being arrears of salary for the period of 15th October, 2009 to March 2010 owed to the Claimant by the Defendant. I have found in this Judgment that the content of Exh. C2 is clear and not susceptible to any other interpretation than that the Defendant owes the Claimant the sum claimed. I therefore find and hold that the relief is proved and Claimant entitled to same. The Defendant is here ordered and directed to pay to the

Claimant the sum of $13,045 being the arrears of salary owed by the Defendant to the Claimant.

Secondly, the Claimant claimed interest on the sum of $13,045 (or its Naira equivalent being =N=2,152,425.00) at the rate of 18% per annum from March 2010 until judgment is given and interest at the rate of 10% on the judgment sum until the judgment sum is finally liquidated. Order 47 Rule 7, National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 allows the Court at the time of delivering Judgment or making an order to award interest at a rate not less than 10% per annum. Pursuant to the said order therefore I award interest at the rate of 10% per annum on the Judgment sum of $13,045 from March 2010 until final liquidation. The Claimant also sought award of cost of this proceedings. The law remains trite that cost follows event. The Claimant having succeeded in his action before the Court I hold that he is entitled to cost of the action. I award cost in the sum of =N=50, 000.00 in favour of the Claimant.

The Defendant also filed for counter claim as follows – An order of this Honourable Court compelling the Defendant to the counter claim to refund the sum of $3,455 (Three Thousand, Four Hundred and Fifty Five Dollars) erroneously paid to him by the Counter Claimant; interest on the said sum at the rate of 21% from the time the demand was made and the time judgment is entered; interest at the rate of 10% from the date judgment is entered till the time same is liquidated by the counter claim Defendant and cost of this action. I have carefully examined the case for counter claim as canvassed by the Defendant/Counter claimant. I note the position of the law that a counter claim is a separate and independent action of its own. See Jeje v. Enterprise Bank Limited Ors. (2015) LPELR – 24829 (CA).For the Counter claimant to be entitled to a grant by the Court the counter claims must be proved by cogent and credible evidence. It is for the Counter Claimant to discharge the burden of proof on him to be entitled to an award by the Court. See Madam Jaratu Abeje Anor. Madam Saratu Apeke (2013) LPELR-20675 (CA). The case for counter claim by the Defendant rests solely on the evidence in chief of its sole witness and Exh. D1. I have stated in this Judgment that the demeanor and the body language of DW1 showed that of a witness who was extremely economical with the truth. I found his testimony unbelievable and I do not believe same. In much the same vein, in evaluating Exh. D1 the so many loopholes in it made me to believe that that exhibit was an afterthought with the sole intention to enable the Defendant evade its legal contractual obligation to the Claimant. I found the counter claims of the Defendant

not proved. I have no hesitation in dismissing same and I so do. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,

I direct and order the Defendant to pay to the Claimant the sum of $ 13,045 being the arrears of salary due to the Claimant for the period of 15/10/09 to March 2010 owed to the Claimant by the Defendant.
I award interest on the stated sum of $13,045 at the rate of 10% from March 2010 until final liquidation of the entire Judgment sum.
I award the sum of =N=50,000.00 as cost of this action. 4. I dismiss the entire counter claims of the Defendant for lack of proof by cogent and credible evidence. All the terms of this Judgment shall be complied with within 30 days from today.

Judgment is entered accordingly.

Hon. Justice J. D. Peters

Presiding Judge