IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/376/2016
DATE: JULY 20, 2018
BETWEEN:
MR. AJAH MUSA SAMUEL – CLAIMANT
[SUBSTITUTED BY MRS. DORIS AJAH MUSA
BY COURT ORDER OF 20TH APRIL 2018]
AND
GLOBAL MANNING RESOURCES LIMITED – DEFENDANT
REPRESENTATION:
E.O Ikhuoria – for the Claimant;
Uzo Ezeh – for the Defendant.
JUDGMENT
This matter was originally commenced at the Federal High Court, Lagos Division in Suit No.FHC/L/CS/1175/2015, vide a Writ of Summons issued and dated 30th July 2015. By a Court Order per C.J Aneke, J of the Federal High Court, Lagos Division, the matter was later transferred from the Federal High Court to the National Industrial Court of Nigeria (NICN) on 18th January 2016, pursuant to S. 22(2) of the Federal High Court Act and S.24(3) of the National Industrial Court Act. Upon receipt of the case file at the NICN’s Registry, the matter was assigned to Oyewumi, J on 7th June 2016, but was later re-assigned to A.N Ubaka, J on 20th December 2016, and then to this court on 31st January 2018.
From the pleadings, the Defendant employed the Claimant as a Chief Engineer to work on board the ‘Adessa Ocean King’ Vessel, on a daily pay rate of $650.00, and he was owed a cumulative sum of $52,650, for the period spanning from 10th September 2014 to 20th November 2014, which he worked without pay. With the Defendant’s protracted delay to pay the outstanding sum, the Claimant then approached the Federal High Court for recovery of the outstanding sum.
The Claimant’s endorsed Reliefs are as follows:
1. The sum of $52.650 (fifty two thousand six hundred and fifty United States Dollars only) being the total sum of wages owed the claimant for work done on board the Adessa Ocean King Vessel for eighty one days at the rate of $650 (six hundred and fifty United States Dollars) per day.
2. Interest on the said sum of $52,650.00 at the rate of 21 per cent from 20th November 2014 till judgment is delivered.
3. Solicitor’s fees in the sum of N500,000 (five hundred thousand naira)
4. Cost of this action.
In response to the suit, the Defendant filed its Statement of Defence and other defence processes on 27th October 2017, basically disputing being directly liable for the payment, which it said, was the responsibility of the Adessa Drilling & Marine Services, and that an invoice has been sent to it based on a Manning Agreement between it and the said Adessa Drilling & Services (owners of the manned vessel- ‘Adessa Ocean King’). In a Reply dated 18th November 2015, the Claimant contended that it is not a party to said Manning Agreement and thus not bound thereby, and maintained that the Defendant remained his sole employer.
Unfortunately, while the suit is subsisting, the Claimant died on 24th October 2016. His spouse and next of kin, Mrs. Doris Ajah, made efforts to be recognized by the Defendant to receive the said outstanding wages’ sum, but was not successful as the Defendant denied her not being sure she was the one nominated by the Deceased Claimant as his next- of- kin in his Employment Bio-data Form while in the employment.
By a Motion on Notice dated and filed on 6th August 2017, praying the court for an order of substitution of the Deceased Claimant with his Wife and for an Order compelling the Defendant to produce the said Employment Bio-data of the Deceased Claimant showing that he did nominate his wife as his next –of- kin. The Defendant again, opposed the application highlighting a major legal defect in the application as the Deceased Claimant was described as the ‘Applicant’, instead of his wife which sought to substitute him. At the resumed proceedings of 8th March 2018, learned counsel for the Claimant, S.E Negbenebor Esq, applied to withdraw the said Motion, and later filed a new one dated 13th March 2018, which properly described Mrs. Doris Ajah as the Applicant. The Motion was heard at the proceedings of 23rd March 2018.
In a considered Ruling delivered on 20th April 2018 on the said motion, I took the view and held that the appropriate application to file where a deceased party in a proceedings is to be replaced with another living person is very critical as a party who is deceased cannot continue to maintain an action or be an Applicant or Respondent to an Application seeking to replace him, even if the cause of action survives him. And that the person to replace him is not coming in by way of ordinary joinder of parties but by Substitution, which necessitated the withdrawal of the previous defective Motion. See: Shodeinde v. Lawal [2012] 9NWLR (Pt. 1304) CA 38@43, Paras.G-A, wherein it was held that “a joinder is not possible where a party to a suit is dead. If the action survives the deceased, the only proper order of joinder is that of his estate and any identifiable personal or legal representative will then be substituted for the deceased”.
In the Ruling, I reviewed the tenor of the reliefs sought for in the said Motion and ordered the Substitution of the Deceased Claimant with his wife, Mrs.Doris Ajah, the Applicant, and directed that the matter be proceeded with by her, since the subject matter certainly survived the deceased Claimant, being monetary claim for his entitlements while in employment with the Defendant.
The issue of the request for Bio-data of the Employment Form in the Defendant’s office, which was filled by the original Claimant (the Deceased) while working with the Defendant, which was said to contain the deceased’s surviving spouse as his next- of- kin was also reviewed and ruled on. I took the view and held that Or.11 R.1 and 2 NICN (CP) Rules 2017,is one of the key innovations of the new rule of the court-NICN (CP) Rules 2017, as it seeks to assist a beneficiary of an estate of deceased employee who died in intestacy. Thus, a person named as a next- of- kin in the employment bio-data form completed at the place of work, can use such document to process the deceased employee’s benefits without waiting for and obtaining Letter of Administration from the Probate Registry of the State High Court, which procedure is often fraught with attendant challenging bureaucracy, that occasion hardship on beneficiaries, who may even not be able to complete the process in their own life time. And that by Or.11 R.2, where this vital document (employment bio-data) was filled and copy withheld by the deceased’s employer, ‘the Claimant may apply to the court for an Order compelling the employer of the deceased to produce before the Court a copy of the employment bio-data form of the deceased in which the claimant was named as next-of-kin or beneficiary’. Accordingly, I ordered that the Deceased Claimant’s employment bio-data filled in the office of the Defendant should be filed in the court’s Registry and copy produced in court at the next adjourned date.
At the resumed proceedings on 30th May 2018, learned Defendant’s counsel, T.S Okonkwo, Esq., informed the court of their compliance with the Order of the court, and that they filed an Affidavit to explain out the loss of the said deceased’s completed bio-data form, of which they were no longer disputing that it contained the name of his surviving spouse, Mrs. Doris Ajah as the sole next-of kin. With the confirmation of Mrs.Doris Ajah as the deceased’s next-of-kin, she was allowed to testify as CW1, at the trial. She testified and adopted her 6-paragraph Witness Statement on Oath. She further testified that she was later approached for settlement by the Defendant before the trial date but the terms were not reduced into writing or executed by the parties.
Given the CW’s testimony regarding the settlement, I directed for the trial to be narrowed to the establishment of the particular fact of the settlement negotiated by the parties, pursuant to Or. 40 R.2(1) NICN (CP) Rules 2017. On that note, CW testified that in the course of the settlement meeting between herself and the team of lawyers on both sides, it was agreed that the sum of N7, 002,450(seven million, two thousand, four hundred and fifty naira) as full and final settlement of the outstanding wages owed to the deceased Claimant, for the work done on board the ‘MV Adessa Ocean King’. And that the said sum shall be paid in two installments of N2, 800,980.00(two million, eight hundred thousand, nine hundred and eighty naira) representing 40% of the agreed sum, and payable on or before 25th February 2018, which was acknowledged as paid. That the balance of N4, 201,470.00 (four million, two hundred and one thousand four hundred and seventy naira), representing 60% of the agreed sum, shall be payable on before 30th April 2018, but which was not yet paid. She was cross-examined and she restated the agreement as payment for full and final settlement.
On the part of the Defendant, Efosa Igbinoba, Esq, the legal executive of the Defendant company, testified as DW, and restated the terms of the payment of the agreed sum as testified by the CW. Under cross-examination, he confirmed that the outstanding 60% has not been paid even after the agreed date of 30th April 2018 elapsed, but stated that he could not confirm the exact date for the full payment.
Both counsel agreed to an abridged time for filing and exchange of Final Written Addresses, and matter was adjourned for adoption of the Final Written Addresses. At the resumed proceedings of 9th June 2018, both counsel adopted their respective Final Written Addresses, and the matter was adjourned for Judgment.
COUNSEL’S SUBMISSIONS
Both counsel for the parties, filed and exchanged their respective
Final Written Addresses, dated and filed on 6th July 2018 and 20th June 2018, respectively. It was common ground from the counsel’s submissions that parties have agreed to settle and that the payment plan for the two installment payment of 40% and 60% was also agreed on, and that the 40% has been paid leaving a balance for the 60% still outstanding despite the lapse of the agreed time line for the full payment, expiring 30th April 2018.
The Defendant’s counsel’s sole issue is as to: whether the court can enter full and final settlement agreement entered by the parties as judgment of the court? Claimant’s counsel on the other hand, raised an issue as to: whether having regard to the materials and evidence placed before the court, the Claimant is entitled to the outstanding settlement sum?
Both counsel canvassed legal authorities to support their issues, and urged the court to uphold same and enter judgment accordingly.
COURT’S DECISION
I followed the proceedings; listened to and observed carefully the events of the proceedings and read relevant processes, and as well, watched the parties’ witnesses testify on the later development in the matter resulting in a trial narrowed to adduce evidence on the particular fact of the proposed settlement by the parties.
Parties having abandoned their respective pleadings and processes and concentrated on the establishment of the agreed terms for effectual resolution of their dispute, I will also concentrate on the further oral testimonies of the respective party’s witness to that end. I felt fortified by the provisions of Or.40 R.2 (1) NICN (CP) Rules 2017, to the effect that: “The court may, at or before the trial of an action, order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the order or direction”.
Consequently, the averments in the said pleadings earlier filed and exchanged by both parties are deemed abandoned and are hereby discountenanced. I so hold.
From their further testimonies at the trial, in my humble view, the lone issue arising is: whether the court can enter judgment based on the parties’ consensual testimonies about their agreed terms for resolution of their dispute? To resolve this issue, I hold the view that there is no doubt that the agreed terms of settlement testified to by the parties’ Witnesses at the trial amounts to admission on the part of both parties. In Popoola v. Babatunde [2012] 7 NWLR (Pt. 1299) C.A 302 @ P 331, para. B, it was held that what is admitted need no further proof. See also: Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279@ P. 296, para. G-H, where the court held that :
“By virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.
In the circumstance of this case, by directing the narrowing of the trial towards establishing the particular fact of existence and terms of the parties’ proposed agreed terms to resolve their dispute and the witnesses for both parties having given evidence in admission of the agreed terms, I am satisfied that sufficient evidence has been laid by the parties’ witnesses (CW and DW) towards establishing the particular fact of the existence and terms of the proposed agreement by both parties to resolve their dispute in this matter, as also amply demonstrated in the respective counsel’s Final Written Addresses and their adumbration while adopting their said Final Written Addresses. Accordingly, I hold that the parties’ evidence of their proposed agreed terms of settlement succeeds, and judgment is so entered.
On the whole, and for clarity, I hold and order as follows:
(i). The sum of N7,002,450(seven million, two thousand, four hundred and fifty naira) shall be paid by the Defendant as full and final settlement of the outstanding wages owed to the Deceased Claimant, for the work done on board the ‘MV Adessa Ocean King’.
(ii). The said sum N7, 002,450(seven million, two thousand, four hundred and fifty naira) shall be paid in two installments; the first installment being N2, 800,980.00(two million, eight hundred thousand, nine hundred and eighty naira) representing 40% of the agreed sum, and payable on or before 25th February 2018 (which sum has been paid and acknowledged by the Substitute-Claimant).
(iii). The balance of N4, 201,470.00 (four million, two hundred and one thousand four hundred and seventy naira), representing 60% of the agreed sum, and payable on before 30th April 2018, but which has not yet been paid shall be paid immediately upon this Judgment, having exceeded the agreed time line for the payment.
(iv). Any further default of payment by the Defendant of the outstanding sum in (iii) above, after two (2) months of this Judgment, shall attract an interest of 10% until fully liquidated.
Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice N.C.S Ogbuanya
JUDGE
20/7/2018.
