IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 3rd MAY, 2019 SUIT NO. NICN/OW/60/2015
BETWEEN:
MR. AZUH UCHECHI ROMANUS CLAIMANT
AND
1. GAC MANNING SERVICES NIG LTD
2. IBRAHIM AGORO
3. MARTINS NNOROM
4. YINSON PRODUCTION/FOPWAL DEFENDANTS
5. ARI LEHTONEN
6. ANDREY MELNIKOV
7. OSENI KAMIL
REPRESENTATION:
M. C. ONWUDIWE WITH F. O. UGWUMADU FOR THE CLAIMANT
GAMALIEL OKO FOR THE DEFENDANTS
JUDGEMENT
The Claimant commenced this suit against the Defendants by a Complaint dated 7th July 2015 but filed on the 28th July 2015. The Claimant’s claims as endorsed against the defendants are for:
“1. A declaration that the Claimant’s employment by the Defendants is still extant and subsisting and that the Claimant is entitled to all his benefits by way of salaries, allowances, over time charges and other entitlements from the 11th day of February 2015 till date.
2. A declaration that the purported letter of dismissal served on the Claimant by the Defendants dated the 17th day of May 2015 and signed by the 2nd Defendant one Ibrahim Agoro General Manager of the 1st Defendant is void, malicious, unlawful and constitute a breach of the contract of employment between the Claimant and the Defendants.
3. An Order reinstating the Claimant with all full benefit as (JMTE) Junior Maintenance Technical Engine as a staff of the GAC Manning Service Nigeria Limited the 1st Defendant.
4. An Order that the Defendants remit up to date all the deductions from the Claimant’s salaries as well as their own contributions to the pension managers i.e Stanbic IBTC Bank Plc.
5. An Order that the Defendants remit all the Defendant’s tax deductions to the BI (Board of Internal Revenue) Imo State from the date of his engagement with their company till date to enable the Claimant collect his tax clearance.
The Claimant also claims in the alternative against the Defendants thus:
The sum of N503, 598, 197.25 (Five Hundred and Three Million, Five Hundred and Ninety Eight Thousand, One Hundred and Ninety Seven Naira, Twenty Five Kobo) being special and general damages being general damages(sic) for unlawful dismissal and/or termination of appointment made up as follows:
a. N 3, 598, 197. 25 (Three Million, Five Hundred and Ninety Eight Thousand, One Hundred and Ninety Seven Naira, Twenty Five Kobo) being special damages.
b. N500, 000,000 (Five Hundred Million Naira) general damages.”
Upon being served with the Claimant’s Originating processes, the Defendants filed a joint Statement of Defence on the 8th of September 2015 and a subsequent amended statement of defence on the 18/2/2016 opposing the case of the Claimant as lacking merit and urged this Honourable Court to dismiss same entirely and award substantial cost against the Claimant.
The relevant facts of the Claimant’s case are that the he was employed as a staff of the 1st Defendant, GAC Manning Nigeria Services Ltd on the 10th of September 2007. The Claimant was a Junior Maintenance Technical Engineer (JMTE), and his appointment was confirmed by a letter dated 1st March 2008. That according to the claimant, he was put out of work by the 1st Defendant since 11th February 2015 until he was eventually given a purported letter of summary dismissal dated 27/05/2015 (Exhibit 4).The Claimant alleged that the 1st Defendant denied him of his rightful and legitimate earnings, inclusive of Retirement Savings. That tax deductions made were not duly remitted by his employer to his nominated Board of Internal Revenue. The Claimant averred that his summary dismissal was done maliciously and without regard to the terms of his employment.
The Defendants on the other hand have submitted that the Claimant committed grievous acts of misconduct to warrant his summary dismissal. The Defendants also argued that the Claimant was not owed any of his entitlements. The Defendants urged this court to dismiss the case of the Claimant for lacking merit. The Defendants particularly prayed this court to find that the Claimant has not made out a case against the 2nd to the 7th Defendants.
Trial commenced on 09/02/2018 with the Claimant himself giving evidence as CW1 and adopted his witness statement on oath. During Examination in Chief of the Claimant a total of nineteen (19) documents were tendered and duly admitted in evidence and marked as Exhibits. The said Exhibits are identified as follows: Exhibit 1A is the Confirmation of Appointment dated 1/03/2008. Exhibits 1B and 1C are Appendix I attached to Exhibit 1A. They stipulate the Claimant’s bonuses, allowances, work schedule and so forth on offer. Exhibit 1D is the Appendix II. The Claimant also tendered Exhibit 2 which is a Collective Bargaining Agreement. Exhibit 3 is overtime sheet dated 24/11/2014. Exhibit 4 is a letter of Summary Dismissal dated 27/05/2015. There is also Exhibit 5 which is a letter dated 25/02/2015 written by Claimant’s counsel. Exhibits 6A-6B series is a thread of emails with the subject as “Report of Incident on board Adoon”. Exhibit 7 is Application for tax Clearance Certificate dated 24/04/2015 while Exhibit 8 is the reply letter dated 05/05/2015 from the Board of Internal Revenue Owerri to the Claimant in reaction to Exhibit 7. Exhibit 9A-9G series is the Claimant’s Stanbic IBTC Pension Account Statement. Exhibits 10 and 11 are communiqué dated 11/12/2013 and 12/12/2013, respectively. Exhibit 12 is an email dated 08/03/2014 with the subject as “strike action”. Exhibit 13 is a letter dated 02/09/2010. Exhibits 14 and 15 are a Crew Evaluation Report dated 08/02/2014 and Sea Service Testimonial covering 10/09/2007 to 12/01/2015, respectively. Exhibits 16A-16H series is a thread of emails between the Claimant and the 1st Defendant on the demand for the Claimant’s entitlement. Exhibit 17 is an email dated 23/02/2015 sent by the 3rd Defendant to the Claimant. Exhibits 18A and 18B are documents dated 14/01/2013 and 06/09/2010, respectively. Exhibit 19 is a document dated 30/04/2014 issued to the Claimant by Royal Exchange Prudential Life PLC.
CW1 was Cross examined on 15/03/2015 and there was no reexamination thereafter hence Claimant closed his case on the same date.
The Claimant in the course of the trial though orally sought leave of Court to amend Paragraph 45 line 2 of his Statement of facts to substitute the date of 9/12/2010 as reflected in the statement of facts for the actual date on the document pleaded. After the parties addressed the court on the issue, a short ruling was delivered on the 15th of March 2018, whereby the claimant’s application was granted. The said amendment appears innocuous though vehemently opposed to by the Defendants.
It is worth remarking that after close of the Claimant’s case and before Defence could be commenced, the court was notified that the lead counsel representing the Claimant in person of C. O. Ejiogu had passed on. This court commends his commitment and service to the law profession. His family and his Learned Friends at C. O. Ejiogu & Co. have the heartfelt condolences of this Court. May his soul rest in peace.
The Defence opened on 27/04/2018 with Oseni Kamil as DW1 who is the 7th Defendant in this case. DW1 adopted his witness statement on oath dated 18/02/2018 and Six (6) documents were tendered in evidence through him. The said documents were as follows: Exhibit 20 is a Query Letter issued to the Claimant dated 02/08/2010. Exhibit 21 is a Warning letter issued to the Claimant dated 07/02/2011. Exhibit 22 is the 1st Defendant’s staff pension returns from September 2014 to February 2015. Exhibit 23 is 2014 Annual Tax Returns for the Defendant’s Enugu State Crew. Exhibit 24 is FOPWAL Crew extra days together with overtime sheet for the Claimant. Exhibits 25A, 25B and 25C series are copies of payment details for payment value dated 26/02/2014, 10/04/2014 and 07/08/2015 respectively.
On 10/07/2018, DW1 was cross examined by the Claimant’s counsel and was discharged as there was no re-examination. The Defendants then closed their case and the matter was adjourned to 25/09/2018 for the adoption of final addresses however I was before then transferred to Makurdi Division of the Court and parties adopted their final written addresses on the 2/5/2019 after fiat was issued to me by the Hon. President of this Court to conclude part heard matters.
The Defendants filed their final written address on the 27/8/2018 and formulated a sole issue for determination by this court, to wit:
“Whether the Claimant has proved his case as to be entitled to the judgment of this Honourable Court in his favour.”
While arguing their case, the Defendants urged the court to find with regards to the Claimant’s first head of claim that the claimant’s employment with the Defendants is not extant and subsisting and that the claimant is not entitled to his benefits. The Defendants called in aid Exhibit 4 (Dismissal letter), further aligning to the common law position that a contract of employment may be terminated by conduct, orally or in writing so long as the intention to terminate is clear. That even where termination of a contract of employment is required to be in writing, dismissal can be implied by an employer’s conduct. Defendants cited in support of their argument the Court of Appeal case of Shell Petroleum Development Company of Nigeria Limited v. Mr Joseph Ifeta (2001)11 NWLR (Pt. 724) 473 at Page 490, Paragraphs D-E.
The Defendants also further submitted that the Claimant cannot turn around and claim a declaration of entitlement to salaries, allowances, and so forth, from the 1st Defendant having been apprised of EXHIBIT 4, that is, his letter of dismissal since 27/05/2018. The Defendants contended that by the Claimant’s own averment before this court he was not allowed to go on board any vessel after Exhibit 4 was issued; as such he is not entitled to recover under this claim particularly as payment of salaries and allowances are done in arrears and for work done and urged the court to so hold. It is the Defendants’ opinion that the terms of contract as contained in a contract of employment are sacrosanct and ought to be applied without subtraction or addition hence; the court has no power to rewrite the contract. Defendants placed reliance on the Supreme Court cases of Afrotech v. MIA & Sons Limited (2000) 12 SC (Pt. II) 1 @15; Baba v. Nigerian Civil Aviation Training Centre (1991) 5 NWLR (Pt. 192) 388.
On the Claimant’s second head of claim, the Defendants refuted the claim that the letter of dismissal issued on the Claimant is void, malicious, unlawful and constitutes a breach of the contract of employment between the Claimant and the Defendants. Defendants submitted that it is trite law that an employer of labour is entitled to terminate the contract of employment with or without any reason at all. Cited in support is the case of Nigerian Telecommunications Plc (NITEL) & Anor. V. Mr. I. D. Akwa (2012)1 NILR 205 at pages 233-234Paragraphs D-E.
The Defendants also called the court’s attention to Exhibit 2, Exhibits 1A-D, Exhibits 20 and 21 to buttress the Defendant’s argument that Claimant was not exactly a model employee and that the Claimant’s conduct fell short of the set standard hence the dismissal issued on him was justifiable.
As to the third head of claim, the Defendants in urging the Honourable Court not to order the reinstatement of the claimant with all full benefits as Junior Maintenance Technical Engineer (JMTE) of the 1st Defendant argued that Claimant was dismissed for acts of insubordination amounting to gross misconduct. That the Claimant refused to reply the query which was issued to him on what happened on board the vessel which made him stay back on board and also refused to work. It is the Defendant’s opinion that the Claimant is a negative influence on other employees. The Defendants urged the court to disallow this claim.
With regards to the fourth head of claim, the Defendants have contended that the Claimant cannot and should not succeed in the claim for outstanding Pension contributions because the Claimant failed to adduce evidence in prove of same. The Defendants in urging this court to disregard the claim submitted that it is the trite position of the law that the claimant must succeed or fail on the preponderance and strength of the evidence adduced by the Claimant and not on the weakness of the Defendant’s case. Cited in aid the Supreme Court cases of Daudu v. NNPC (1998) 2NWLR (Pt. 538) 355; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; Alhaji Otaru & Sons Ltd v. Idris (1999) 6 NWLR (Pt. 606) 330.
Pertaining to the fifth head of claim, the Defendants have in arguing against the grant of an order that the 1st Defendant be made to remit all the Defendants’ tax deductions to the Imo State Board of Internal Revenue from the date of his engagement till date to enable the Claimant collect his Tax Clearance Certificate; submitted that the Defendants as per the Claimant’s instructions had remitted tax deductions accordingly to the Enugu State Board of Internal Revenue. The Defendants argued that the fact of the Claimant’s place of residence was not and could not be conclusively proved by Exhibits 18A and 18B, being mere requests for booking or reservation of flight. The Defendants challenged the Claimant to satisfactorily prove to the court the assertion that he was resident in Imo State.
With respect to the Alternative reliefs sought by the Claimant, the Defendants drew the attention of the Honourable Court to Exhibits 22, 24, 25A-C being payment receipts for pension, extra days etc made to the Claimant and other employees; also submitting that the Defendants had paid the Claimant for the first, third, fourth and fifth claims as particularized, before the institution of this suit. Defendants urged the Honourable Court to hold that based on evidence and law, the claimant failed to establish his entitlement to the alternative claim in this matter.
On the part of the Claimant, three (3) issue were formulated in the Claimant’s Final Written Address of 20/08/2018 but filed on 28/08/2018, to wit:
“1. Whether the claimant has proved that the purported letter of dismissal served on him by the defendants dated 17/05/2015 is void, malicious, unlawful and constitute a breach of the contract of employment between the claimant and the defendant.”
2. Whether the defendants are liable in damages to claims of the claimant.
3. If issue 1 and 2 are resolved in the affirmative whether or not the Claimant is entitled to judgment in regard to all the reliefs sought in his claim.”
The Claimant first addressed a preliminary issue of why the 2nd to 7th Defendants were made party to the suit. The Claimant sought to convince the Honourable Court that 2nd to 7th Defendants are necessary parties. It is the argument of the Claimant that the 2nd to 7th Defendants are parties who are not only interested in the subject matter of the proceeding but who also in their absence, the proceedings could not be fairly dealt with. He Cited the case of Green v. Green (1987)3 NWLR (Pt 61 P. 480); Babayeju v. Ashamu (1998)9 NWLR Pt 567 @546.
On issue one (1), the Claimant argued in support of his case that the letter of dismissal dated 17/05/2015, that is Exhibit 4, was malicious, unlawful and therefore void. The claimant contended that the said Exhibit 4 did not cite or disclose the reasons for the purported dismissal as being “insubordination and gross misconduct”. The Claimant further submitted that absence of a statement of the specific offence warranting service of Exhibit 4 on him is clear evidence of malice and unfair treatment. The Claimant insists that there was no wrong doing on his part and that the instructions of 09/02/2015 which the Defendants cited him for disobedience was not communicated to him in writing, hence unofficial.
The Claimant is of the view that after he completed his assigned schedule of work, he was detained on board the vessel against his will by the Defendants. The Claimant called the Court’s attention to his testimony under cross examination before the court and also the testimony of DW1. The Claimant in support of this argument and submission referred this court to the case of Kopek Construction Ltd v. Ekisola (2010) 3NWLR (pt. 1182) 618 at 668, paras C-D per Mohammad J.S.C.
Much else of the Claimant’s arguments on this issue centered around the evidence of DW1 which the Claimant urged this court to agree that the evidence elicited from the Defendants or their witness under cross examination which goes to support the case of the Claimant constitutes evidence of his case. Cited the cases of Ismaila v. Mathew (2017) ALL FWLR Pt. 891, 824 @ 828; Akomolafe v. Guardian Press Ltd (2010) ALL FWLR (Pt. 517) 773, 784.
On whether the Defendants knew about the Claimant’s place of residence, the Claimant submitted on the strength of Exhibits 7, 8, 13, 18A to 18B and Exhibit 4 that his place of residence was “Umuoka Emeke Agbala, Owerri North LGA, Imo State” and that the Defendants were aware of this fact as reflected in the exhibits cited. That he, the Claimant at no time provided Enugu State as his address to the Defendants.
It is the Claimant’s argument before the Court that the Exhibits 23A-23E series of documents tendered by the Defendants are fraudulent, irrelevant and a diversionary tactics employed by the Defendants to mislead this Honourable Court. In this regard, the Claimant submitted citing Exhibit 23B as showing the sum of N1,591,000 having been remitted to the Enugu State government using a teller which had only 9 digits thus: “017641303” as against 10, The Claimant therefore urged this Honourable Court to discountenance same.
The Claimant also alleged that the Defendants deliberately failed to produce before this Honourable Court Original copy of the Claimant’s Employment Forms in a calculated attempt to mislead the Court, despite the notice given to produce same.
The Claimant submitted finally with regards to issue one, urging this Court to find that Exhibit 4, the dismissal letter was not issued in line with the procedure contained or outlined in Article 9 Page 5 of Exhibit 2 which is the Collective Bargaining Agreement between the 1st Defendant and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) (KNOCK ADOON/MARC LORENCEAU) Branch. The Claimant is of the opinion that Exhibit 2 is binding on him as he is a signatory to same.
On the issue two as formulated by the Claimant for the Court’s Determination, Claimant argues that the Defendants are liable despite Exhibits 22, 24A-24D, 25A-25C tendered by the Defendants as according to the Claimant, these are fraudulent documents. That though failing short of denying outright, any payments to him by the Defendants since the commencement of this suit argues however that Defendants still owe him large sums of money on his entitlements, overtime and gratuity. The Claimant urged this Honourable Court to resolve issue two in his favour.
On issue three, which the Claimant formulated, he calls in aid his arguments on issues one and two and urged this Honourable Court to hold that the Claimant has on the preponderance of evidence proved his case as to be entitled to the judgment of this Court. He Cited the case of Ibiyeye v. Fojule (2006) 3 NWLR (Pt. 968) @ 640 paragraphs B-C.
The Claimant further asked the Court to hold:
i. That his Dismissal was wrongful.
ii. That the alleged instructions issued to him by the Defendant after his shift were not contemplated nor covered by his contract of employment hence cannot amount to incidence of insubordination to ground his dismissal.
iii. That his 3 day stay aboard the vessel from 09/02/2015 to 11/02/2015 after his shift ended and when his reliever arrived be construed as the Claimant’s forced detention by the Defendants.
iv. That the Defendants are liable in general and special damages for unpaid entitlements and overtime.
V. That the Defendants pay about N 1,776,929.25, being gratuity owed to him between 2014 to 2015.
Vi. That his Tax deductions from 10/09/2007 to 31/12/2014 be remitted to Imo State board of Internal Revenue.
Vii. That in view of the Pension Act 2004 and 2014, the 1st Defendant’s calculation and remittance of Claimant’s pension was improper.
In the Defendants’ Reply on Points of Law dated and filed on 24/09/2018, the Defendants have contended as follows:
That contrary to the Claimant’s views, the Collective Bargaining Agreement, Exhibit 2 is not binding on all parties. Defendants cited and relied on the case of Olatunbosun v. Niser (1988) 1NSCC VOL.19 (Pt. 1) @ 1025, line 25 that an employee whose contract has been terminated even unlawfully cannot claim wages or benefits for the services he never rendered. It is also the Defendants’ expressed view that the Collective Bargaining Agreement is merely persuasive and has no binding effect. The Defendants further submitted that contrary to what the Claimant wanted this Honourable Court to believe, that the Claimant is not signatory to Exhibit 2. The Defendants also cited the case of Texaco Nigeria Plc v. Alfred G. Adegile Kehinde (2014)42 NLLR (Pt. 132) Pg. 480 @ 520, Para. B-C and Pg. 526-527, Para. F-E. to the effect that a collective Agreement cannot ground a cause of action.
The Defendants also in arguing against the Claimant’s case submitted that the said Collective Agreement, (Exhibit 2) is not dated. Urging the Honourable Court not to rely on an undated document as per the cases of Chief Sunday Effiong & Ors v. Chief Sunday Kofee Essien & Ors. (2014) LPELR 22684 (CA); G. S. & D. Industries Ltd. V. NAFDAC (2012) 5NWLR (Pt 1294) Pg. 511 @ Pg. 538 Para. H
The Defendants argued and submitted before this Honourable Court that the Claimants outright refusal to carry out lawful instructions given to him on 09/02/2015 amounts to “Gross Misconduct” as judicially defined by the Supreme Court in the cases of U. B. N. Ltd v. Ogboh (1995) 2 NWLR (pt. 380) Pg. 647; University of Calabar v. Essien (1996) 10 NWLR (pt. 477) Pg. 225.
DECISION OF THE COURT
Having gone through the pleadings of the parties, the evidence adduced and the submissions of counsel, I consider it necessary to first address the preliminary issue of the parties as constituted in this case before the Court. The Claimant maintained that his case subsists against the 1st to 7th Defendants. It is the Claimant’s argument that the 2nd to 7th Defendants are necessary parties and hence are indispensable to his case, while the Defendants argued that the 2nd to 7th Defendants are not necessary parties.
Now, a necessary party is someone whose presence is necessary as a party. What makes a person necessary party is not of course merely that he has relevant evidence to give on some of the questions involved or that he merely has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the existing party may not advance them adequately, the only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. See Emmanuel Babayeju V Elijah Ayo Ashamu (1998) Legalpedia SC MCY3. Anabaronye V Nwakaihe (1997) NWLR (Pt.482) 374, SC
It is an elementary procedure in civil claims that parties against whom complaints are made in an action must be parties to such action and failure to join all parties necessary to come to court for the invocation of the judicial powers so as to give the court jurisdiction to grant the reliefs sought may render the suit incompetent. See Awoniyi V Amorc (2000) W.R.N. 1
The Supreme Court in the case of Kalu v. Uzor (2004) 12 NWLR (Pt. 886) 1 @ 33 has held that “necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled, unless they are parties to the action instituted by the Plaintiffs.” Per Mohammed, J.S.C. (Pg. 22, Paras, E-G). See also Bwacha v. Ikenya & Ors (2011) LPELR 8105(SC).
It is the respectful view of this Court that where as in this case, it is clear from the Reliefs sought by the Claimant that the substance of his claim is solely against one of the parties, the 1st Defendant in this case, the matter can be determined in the absence of those parties whose participation in the proceedings is thought to be essential. If anything, the parties thought by the Claimant to be essential in this case, that is, the 2nd to 7th Defendants are persons or agents through whom the 1st Defendant manages and/or oversees its affairs. The law in that regard is fairly settled that an agent of a disclosed principal suffers no liability for such acts which bind the Principal. See the cases of Amadiume v. Ibok (2006) 6 NWLR (pt. 975) 158; Niger Progress Ltd v. North East Line Corporation (1989) LPELR-SC. 46/1988.
As such, this Court finds that the 2nd to 7th Defendants are not necessary parties. They are accordingly dismissed as parties from this suit.
Though the 6th Defendant was the captain on board the vessel under whose instructions the claimant was asked not to disembark, he can at best be made a witness but not necessarily a party.
Now, moving on to the substantive case as claimed by the Claimant against the Defendants. This Honourable Court shall adopt the issue formulated by the Defendants in determining this matter. The issue as submitted by the Defendants for determination by this Court is:
“Whether the claimant has proved his case as to be entitled to the Judgment of this Honourable Court in his favour.”
The Claimant under his relief NO. 1 sought for a declaration that his employment is still extant and subsisting and he is entitled to his benefits till date.
For this, It is elementary law in civil cases, that he who asserts bears the burden of proving that which he asserts and the success of a party seeking for declaratory relief depends on the strength of his case not on the weakness of the defence. See Oscar V Isah (2014) LPELR – 23620(CA), Faleye V Dada (2016) LPELR 40297-(SC).
The burden that the Claimant bears here is to found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. See Idoniboye – Obu V NNPC (2003) LPELR – 1426(SC), Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC.
Exhibits 1A, 1B and 2 are instructive. Exhibit 1A is the confirmation of appointment letter of the claimant while Exhibit 1B gives either party the right to terminate the contract by giving one month notice or salary in lieu of notice. Exhibit 2 is the Collective Bargaining Agreement between the 1st Defendant and its staff.
It follows from the above, that the Claimant’s employment with the Defendant is a contract of service terminable by either party by one month notice or salary in lieu of notice.
I agree with the argument of the counsel for the Defendants Mr. Gamaliel that the Claimant has not shown before the court that his contract of employment with the 1st Defendant has a statutory protection to entitle him to a declaration that his employment is still extant and subsisting and that he is entitled to his benefits by way of salaries, allowances and other entitlement from the 11/2/2015 till date.
The general law is that the courts will not grant specific performance of a contract of service and therefore a declaration that a contract of service still subsists will rarely be made. For that declaration to be granted, special circumstances will be required and such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship or a special legal status such as a tenure of public officers is attached to the contract of employment. See Idoniboye-Obu V N.N.P.C (2003) LPELR – 1426 (SC). Festus Mrakpor & Anor. V Police Service Commission(2018)15 ACELR 20 CA
It is also the law that, termination even if wrongful, bring to an end the contract of service owing to the confidential relationship between master and servant which cannot continue in the absence of mutuality. See Ifeta V. S. P. D. C. Nig Ltd (2006) LPELR-1436(SC).
In the light of this, claimant’s relief NO.1 is not grantable and is therefore refused.
The Claimant’s relief NO. 2 is for a declaration that the purported dismissal letter is void, malicious, unlawful and constitutes a breach of contract of employment between the parties.
Exhibit 4 is a letter of Summary Dismissal. It states that the services of the claimant were no longer needed. Defendants’ argument that an employer is entitled to terminate the contract of employment with or without reason is apt.
The phrase that your services are no longer needed does not amount to giving reason which requires the employer to justify. And motive which informed the employer to terminate a contract of employment is also irrelevant so long as it is not expressly stated, hence the exercise of the employer’s right to terminate a contract of employment cannot be vitiated on grounds of malice or improper motive, once no motive is expressed by the employer as the reason for terminating the employment. See Union Bank Nigeria Plc V Alhaji Y. Salahuddeen (2018) 15 ACELR CA, 30.
Although an employer is not bound to give reasons for terminating the employment of his employee, where he gives a reason for terminating the employment, the law imposes on him a duty to establish same to the satisfaction of the court. See Union Bank Nigeria Plc V. Alhaji Y. Salahuddeen(Supra).
On this, I wish to state that the dismissal of the claimant cannot be made void since the employment does not have a legal or statutory flavour putting it over and above the ordinary master and servant relationship. I wish to state also and agree with the Defendants’ counsel that there is no evidence before the court that the dismissal of the claimant was occasioned by malice. It was held in Patrick Ziideeh V Rivers State Civil Service Comm. (2007) NWLR (Pt. 1022), 554 that,
“this is settled that a court cannot impose or foist an employee on an unwilling employer. The remedy is always, an award of damages where the termination is held to be wrongful. But certainly, not a declaration that the termination (if wrongful), is null and void as appear in claims Nos. 1 and 2 of the appellant. This is why; there cannot be a relief for specific performance like an order for reinstatement… ”
For the Claimant’s relief NO. 3, he asks for an order reinstating him with full benefits as a staff of the 1st Defendant. This relief being akin to relief NO.1 is also not grantable in contract of private employment.
Reliefs Nos. 4 and 5 as sought by the Claimant are for remittance of pension deductions and Tax deductions to the appropriate organization. Exhibits 23 to 25B have shown that the remittances have been made. The urge on the Court to order remittance of tax may not be within the jurisdiction of this court. The reliefs are therefore refused.
Claimant seeks in his alternative relief for the sum of N 503, 598,197.25 as special and general damages for unlawful dismissal and or termination of appointment.
Considering the pleadings of the parties and the entire circumstances of this case, It can be unarguably stated that the 1st Defendant has proffered reasons and tried to justify same in its pleadings. The Defendants in urging the Honourable Court not to grant the reliefs of the claimant contended that the Claimant was dismissed for acts of insubordination amounting to gross misconduct where the Claimant refused to reply the query which was issued to him on what happened on board the vessel which made him stay back on board and also refused to work. It is the 1st Defendant’s opinion that the Claimant is a negative influence on other employees.
In trying to further justify the claimant’s dismissal, the 1st Defendant stated that the Claimant has a history of misconduct and it presented Exhibits 20 and Exhibit 21 which are query and warning letters respectively, issued on the Claimant by the 1st Defendant sometime between 2010 and 2011. Furthermore, concerning the incident that occurred between 9/02/2015 and 11/02/2015, the 1st Defendant stated that the Claimant refused to heed to instructions and advice. 1st Defendant brought DW1 as its witness to testify on the incident that happened between 9/2/2015 and 11/2/2015, however DW1 stated under cross-examination that he could not talk on Exhibits 14 and 15 because he did not work directly on board the vessel with the Claimant. For short DW1 said he was not at the scene of the incident of 9/2/2015.
On the part of the claimant, he disputed the above facts and stated that he was told by the 6th defendant on the 9/2/2105 not to disembark the vessel because his back to back was attending a PENGASSAN meeting. That he did not refuse to carry out his lawful duties or instructions rather the defendants imposed on him the duties meant for his back to back without fore knowledge and discussion. Claimant stated that he was not issued a query but was asked to write an incident report which according to him was not his duty to write. That he did not commit any act of insubordination to any relevant authority to warrant his dismissal.
I consider it necessary that in order to determine the rights and obligations of the parties in a contract of private employment, resort shall be had to the agreement of the parties which contains the terms and conditions of the employment. In the instant case, the claimant has placed before the court Exhibits 1A, 1B, 1C, 1D and 2. Exhibit 1A is the Confirmation of his Appointment letter. Exhibits 1B and 1C are Appendix I attached to Exhibit 1A. They stipulate the Claimant’s bonuses, allowances, work schedule and so forth on offer. Exhibit 1D is Appendix II. While Exhibit 2 is a Collective Bargaining Agreement.
Although, the 1st Defendant contended that there is nothing in Exhibit 2 that links the document to the claimant nor is there anything that shows that the Claimant is a party to the agreement. But for me, I find Exhibit 2 to be relevant and applicable to the claimant’s case. Exhibit 2 is an agreement between the 1st defendant and the Association of its staff (Pengassan Knock Adoon/Marc Lorenceau) Branch. It was signed by the 2nd Defendant as the General Manager of the 1st defendant. The signature of the 1st Defendant’s Operations Manager (Uche Egbon) also featured there. The other signatures were that of the Executive members of the Branch and Zonal levels of the Association. I find that Exhibit 2 was dated 14/9/2014 and signed accordingly by the appropriate persons contrary to the 1st Defendant’s contention. The claimant also said in paragraph 41 of his statement of facts that the Defendants reported the incident of 9/2/2015 and the subsequent happenings to his Union Chairman ie Mr. Azuibuike Madubueze who is a one of the signatories to Exhibit 2, where Mr Azuibuike called the claimant and explained to him about the alleged query letter.
Arising from the above, I find that the evidence of DW1 who was not on board the vessel on the 9/2/2015 would not be enough to justify the reason for the dismissal of the claimant. I find the testimony of DW1 with regards to the incident of 9/2/2015 as hearsay.
Article 9 of Exhibit 2 states as follows:-
“ARTICLE 9- DISCIPLINARY PROCUDRE
Purpose and Scope:
The main purpose of a disciplinary procedure is to correct and guide rather than to punish. This procedure is designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and job performance. It will apply to breaches of Company rules and other incidents of misconduct, including misuse of company assets, disregard of Company policies, poor attendance, and matters relating to performance. The aim is to ensure consistent and fair treatment for all.
The Disciplinary Procedure is to be seen as a guide only. However the Company reserves the right to terminate or dismiss an employee who has been convicted by a Court of competent jurisdiction for criminal offence without the necessity of invoking the disciplinary procedure, except with traffic offences.
Principles:
a) No Disciplinary action will be taken against an Employee until the case has been fully investigated. The investigation may be initiated with a query letter.
b) The employee will be advised of the nature of the complaint and will be given the opportunity to state his/her case before any decision is made.
c) No Employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice.
d) In all cases of disciplinary action that involves dismissal, the Association will be involved in the investigation.
Whenever the Company has cause to query the conduct of an employee, the following disciplinary procedure these shall apply:
Verbal Warning
If conduct or performance does not meet acceptable standards the Employee will be given a VERBAL WARNING. The Employee will be advised of the reason for the warning.
Stage 1-QUERY
Upon repeat of same act or other unacceptable act the employee will be issued a written query and response will on or before 48 hours upon receipt of the query.
Stage 2- Written Warning
If the offence is a serious one, or if a further offence occurs, a WRITTEN WARNING will be given to the Employee by the supervisor. This will give details of the complaint, the improvement required and the time scale. It will warn that action under Stage 3 will be considered if there is no satisfactory improvement. A copy of this written warning will be kept in the Employee`s file but it will be disregarded for disciplinary purposes after 12 months subject to satisfactory conduct and performance
STAGE 3- SUSPENSION FROM WORK
For an offence that warrants more serious disciplinary action than warning, the employee could be suspended without pay for a period not exceeding one month.
Again, where an employee commits an offence which might make him/her liable to summary dismissal, the staff may be suspended without pay, pending investigation. If after investigation, the staff is reinstated, the salaries shall be paid in full for the period of suspension
STAGE 4- TERMINATION OF EMPLOYMENT
An Employee`s employment may be terminated in the following cases:
* Refusal to perform a duty under employee job description and scope
* Refusal to submit to medical examination when so ordered by the company;
* Refusal to submit to alcohol or drug test in the work place;
* Disclosure of Company confidential information without authority;
* A third warning letter within twelve months will lead to termination of the Employee`s employment;
* Refusal to accept transfer or reassignment for reasons other than personal safety;
* Violation of any of the Company`s HSE Standards or Policies as posted on Company`s website and (or) worksite HSE requirement
*Any action that brings the Company into disrepute.
If an employee commits an offence as per above, the Company may terminate his employment after one month`s notice or payment in lieu of notice. An employee whose services are terminated by the Company shall be paid applicable terminal benefits.
The employee shall be entitled to:
i) One month’s notice or one month Salary payment in lieu of notice
ii) Salaries/Allowances up to last date worked
iii) In addition an employee shall be paid 2months Basic salary per year served.
SUMMARY DISMISSAL:
The following list provides examples of offences, which are normally regarded as gross misconduct and which will lead to dismissal:
a) Gross misconduct
b) Misappropriation of Company funds or property, fraud, deliberate falsification of records.
c) Deliberate damage to company property.
d) Substance abuse and or intoxication with alcohol while at work.
e) Serious negligence which causes unacceptable loss, damage or injury.
f) Bringing the company or its clients into disrepute.
g) Fighting/Assault in the work place.
h) Serious breach of confidential information relating to company or its client.
Note: PENGASSAAN shall be duly informed in any case involving termination/dismissal of its members, and may carry out its own investigation if it considers it necessary, of which management shall be informed of their findings within 30days, if not the case will be classified, closed.”
It follows from the above that, Article 9 says that no disciplinary action will be taken against an employee until the case is fully investigated which will be initiated by a query but in the case of gross misconduct, an employee will be dismissed without notice or salary in lieu of notice.
From the circumstances of this case, it has not been shown by the 1st Defendant that the act of the claimant of refusing to reply to the query on what happened on board the vessel amounts to gross misconduct. Exhibits 6A to 6C are communications on about six occasions to the claimant by the 3rd defendant to give a report of the incident that happened on 9/2/2015. Exhibit 17 was also sent to the claimant by the 2nd defendant to give the incident report. However, the claimant in Exhibit 17 argued and requested the 2nd defendant to tell the 3rd defendant to compose the letter because incident report is not a query.
Although exhibit 1B sets a standard of behavior that is expected of the Claimant during his employment, which if not adhered to will result to immediate dismissal, but Exhibit 2 should be put into consideration as well. I am of the view that even though the claimant did not properly respond to Exhibits 6A to 6C and 17, the 1st Defendant should have strictly followed Exhibit 2 by giving the claimant a query for his refusal to respond to Exhibits 6A to 6C which will contain the nature of the complaint and giving him opportunity to state his case and subsequently take the appropriate action. I believe the 1st defendant has the right to dismiss the claimant summarily for disobedience or insubordination but only if it can be justified. I find that Exhibits 6A to 6C and 17 do not qualify to be a query.
In the light of the above, the summary dismissal of the claimant is wrongful and the Claimant is entitled to his gratuity and his salary from February to May, 2015.
On the whole, the 1st defendant shall pay to the Claimant the sum of N1, 776,929.25 as his gratuity from January, 2104 to May, 2015.
The 1st Defendant shall also pay to the Claimant the sum of N1, 960,000 as his unpaid salary for the months of February to May, 2015.
Judgment is entered accordingly.
……………….………………………………..
HON. JUSTICE S. H. DANJIDDA
JUDGE
