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MR BASIL EJY MANAFA VS EMERSON PROCESS MANAGEMENT

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  TUESDAY 27TH NOVEMBER 2018

SUIT NO. NICN/LA/735/2016

BETWEEN:

MR BASIL EJY MANAFA           

                                                           

CLAIMANT

AND

EMERSON PROCESS MANAGEMENT                       

                      

DEFENDANT

 

Representation:

Emeka Onohwakpor appears for Claimant

Inam Wilson, with Joseph Abukpain and IO Uwaifo appear for Defendant.

 

JUDGMENT

The Claimant commenced this action against the Defendant by a General Form of Compliant dated and filed on 28th November 2016 together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; all dated the 28th November, 2016 and copies of all the documents to be relied on  by the Claimant at the trial of the suit. The Claimant claims the following reliefs against the Defendant:

 

  1. A DECLARATION that the purported termination of his employment by the Defendant was done in bad faith, tainted with racism and contrary to the Department of Petroleum Resources Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, Labour Laws international best practices;
  2. AN ORDER of this Honourable Court directing the Defendant to pay N10,000,000.00 (Ten Million Naira Only) being outstanding commission, due to him;

iii.                $3,706.62 (Three Thousand Seven Hundred and Six Dollars, Sixty Two Cents) being unpaid medical bill incurred by the Claimant in the Defendant’s premises;

  1. N21,350,000.00 (Twenty One Million, Three Hundred and Fifty Thousand Naira Only) being the cost of the use of his vehicle for the total of 854 days at the cost of N30,000 (Thirty Thousand Naira) per day;
  2. General and Exemplary Damages in the sum of N5,000,000.00 (Five Million Naira) for stress and health challenges sustained by the Claimant while working for the Defendants; and
  3. the sum of N1,000,000 (One Million Naira only) being the cost of instituting this suit.

In response to the claim, the Defendant entered appearance by a Memo of Appearance dated 13th December 2016. The Defendant filed its Statement of Defence on 30th January 2017 together with a List of Defendant’s Witnesses and Defendant’s Witness Statement on Oath deposed to by  Olaoluwa Agbelusi, List of Documents and copies of the documents to be relied on at the trial.

The Claimant did not file a Reply to the Defendant’s Statement of Defence.

Trial commenced on 17th January, 2018 and on that day the Claimant testified on his own behalf, adopted his Witness Statement on Oath, was cross-examined and tendered 10 documents marked as follows:

  1. Exhibit C1 – Copy of Letter of employment dated 20th April, 2011
  2. Exhibit C2 – A copy of the Defendant’s letter terminating Claimant’s employment dated 25th August, 2016
  3. Exhibit C3 – Department of Petroleum Resources Guidelines and Procedures for the Release of Staff in the Nigerian Oil and Gas Industry
  4. Exhibit C4 – Claimant Attorney’s letter to Defendant dated 14th September, 2016.
  5. Exhibit C5 – Copy of Sales Excellence Award FY 14 for Excellence in Building and Developing Customer Relationships.
  6. Exhibit C6 – Copy of Sales Excellence Award FY 14 for Excellence in executing Integrated Solutions Sales Process – NPDC Project.
  7. Exhibit C7 – 2 Certificates of Completion and 1 Long Service Certificate.
  8. Exhibit C8 – Copy of hospital bill from Colorado USA.
  9. Exhibit C9 – Letter from Defendant to Claimant dated 29th September 2016.
  10. Exhibit C10 – FY16 Sales Excellence Incentive Plan Overview.

On 17th April, 2018 the Defendant opened its defence by calling its sole witness, Olaoluwa Agbelusi.  He adopted his Witness Statement on Oath sworn to on 30th January, 2017 and was subsequently cross-examined.  Through him, 6 documents were tendered and marked as follows:

  1. Exhibit D1 – Claimant’s letter of offer of employment dated 20th April, 2011.
  2. Exhibit D2 – Emerson Process Management MEA Sales Excellence Incentive Plan with effective date of 1st October, 2015.
  3. Exhibit D3 – Termination letter dated 25th August, 2016.
  4. Exhibit D4 – Claimant’s Payroll Sheet – End of Service attached to Mounir Taleb’s email dated 25th August, 2016.
  5. Exhibit D5 – Claimant’s Solicitor’s Letter dated 14th September, 2016.
  6. Exhibit D6 – Defendant’s Letter dated 28th September, 2016.

At the end of trial, the Court ordered the parties to file their respective final written addresses.   The Final Written Addresses were adopted on 29th October 2018 and the Court adjourned for judgment.

CASE OF THE CLAIMANT

The Claimant is an engineer who was employed by the Defendant as a Regional Sales Manager.  The Defendant is a company engaged in the business of selling metering equipment and solutions in Nigeria, Dubai UAE and other countries. The Defendant also carries out business in Nigeria’s Oil and Gas industry and had a permit from the Department of Petroleum Resources (DPR) of NNPC. The Claimant was employed in April 2011 as Business Development Manager Nigeria reporting to the Sales Manager Southern Region Middle East and Africa by a letter of employment dated 20th April 2011. The Claimant carried on his duties with so much diligence and was very result oriented that he won many awards.  The Claimant started to experience racism as soon as one Mr. Sanjeev Sharma an Indian was brought into the company as the new Country Manager. The said Sanjeev Sharma embarked on a voyage of pulling down the Claimant and embarrassing the Claimant.  Mr. Sanjeev Sharma intentionally exposed the Claimant’s salary by leaving same at the pool photocopy contrary to the company’s policy. The Defendant’s Career page states that Emerson’s equal opportunity employment policy assures that there will be no discrimination or harassment against an employee or applicant on the grounds of race, colour, religion, sex, sexual orientation, age, disability, national origin, veteran status or any other factor considered unlawful by applicable laws and regulation. Despite the Defendant’s above stated policy Defendant discriminated against the Claimant as Schooling benefits are part of the employee benefits in Emerson Global and Emerson Middle East and Africa. The Defendant does business in United States Dollars and pays salaries in Naira. Meanwhile with the very high inflation in Nigeria, the Defendant easily apply discriminatory policies that deny the Claimant benefits applicable to Middle East and Africa but when it suits the Defendant, it applies mandatory policies that apply deductions that are applicable to Middle East. Claimant always surpassed his sales target set by the Defendant yearly; the Claimant brought in business worth $77M in commitments with NPDC out of which a net value of $32M was booked in 2014. The Claimant’s sales target was $5.75M. The next year the Claimant netted $13M over 80% of the Defendant’s over bloated target.

Particulars of Racism, Discrimination and Tort:

  1. As soon as Mr. Sanjeev Sharma assumed the position of Country Manager – Nigeria, he targeted the Claimant for removal from office to consolidate his position.
  2. Mr. Sanjeev Sharma refused to cooperate with the Claimant or give the Claimant the needed support in his sales drive.
  3. The Claimant’s 2011 sales incentive was not paid.
  4. Indians in Africa Oilfield Services Orwell, the Defendant’s Local Business Partners (LBP) refused to support the Claimant; they refused to introduce Claimant to their customers and Claimant only got to know their customers when they have issues to resolve and Claimant was called upon to assist dissatisfied customers.
  5. In recognition of this fact, Claimant was authorized by the then Sales Director (Keven Dunphy), and manager – Keith Meadway, to create his own customer base.
  6. Mr. Sanjeev could not hide the fact that he hated Claimant’s guts because he is a Nigerian Engineer that performs his duties diligently. He threatened to deal with Claimant by claiming to belong to a Dubai Mafia of the organization made up of Indians, and intensified his efforts when the Claimant was promoted to the regional role as the Flow Regional Sales Manager – West Africa.
  7. Mr. Sanjeev frustrated the efforts of the company to employ another Nigerian as a support to the Claimant even when this role was awarded by the global organization in recognition of the Claimant’s successes and have even accepted to bear the cost of the investment rather than the MEA world area. Mr. Sanjeev Sharma spread denigrating lies about the candidate that was proposed by the Claimant. Mr. Sanjeev Sharma discriminated against the candidate because she was a female.
  8. Mr. Sanjeev with the aid of his fellow Indians in the company spread lies about Claimant to diminish Claimant’s performance.
  9. The Claimant avers that after netting in a business commitment of $77,000,000.00 out of which $32,000,000.00 was booked as against the target of $2,650,000 in the particular business unit, he was given an appraisal of 3% while the next year after netting in $13,000,000.00 he was given an appraisal of 4%.
  10. The Claimant avers that on attaining Five (5) years in the Defendant’s employ he was given only a certificate of long service award without the customary gift that the Defendant usually give to staffers.
  11. The Claimant was made to use his personal vehicle for official duties and despite the Defendant’s policy of paying for the use and maintenance, the Defendant refused/neglected to pay the Claimant for the daily use of the vehicle thereby incurring a debt of N21,350,000.00 (Twenty One Million, Three Hundred and Fifty Thousand Naira Only) being the cost of the use of Claimant’s vehicle for the total of 854 days at the cost of N30,000.00 per day payable to the Claimant.
  12. The Defendant refused/neglected to give the Claimant an official car until the wear and tear of using the Claimant’s car finally damaged the car beyond repairs.
  13. Mr Sanjeev encouraged the Local Business Partners (LBP) and other customers to stop relating with the Claimant on Flow Systems business.  He also instructed the Subject Matter Experts (SMEs) on Terminals and Pipelines not to relate with the Claimant except strictly on Products. It got so bad that Messrs Venky and Sachin would not let the Claimant in on Flow Systems opportunities with AOS Orwell, the LBP.
  14. The Claimant reported this situation to Mr Mounir of the Defendant and nothing was done. At a point when Claimant confronted Sachin on the Pinnacle opportunity, he specifically told Claimant that Sanjeev instructed that Mr Victory should lead the opportunity, which was not in Mr Victory’s purview.
  15. The Claimant avers that sometime in April 2016, while in a meeting with Mounir in Nigeria, Mr Sanjeev could not hide his hatred for the Claimant to the extent that he was pointing and shouting at the Claimant and muttering Indian slur words against the Claimant amidst racial gestures in the presence of Mr Mounir.

 

Particulars in Respect of Nigerian Petroleum Development Company (NPDC) Sales Commission:

  1. The Claimant was able to bring in NPDC job worth $77,000,000 (Seventy Seven Million Naira Only) out of which $32,000,000 was paid in 2014 to the Defendant in respect of which accomplishment the Claimant was given an award.
  2. Claimant was able to bring in another $7,039,000 (Seven Million and Thirty Nine Thousand Naira) out of the outstanding $45M which contributed to the $13M that was netted amidst the falling oil price in 2015.
  3. On the eve of the termination of his contract on 23rd August 2016, the sum of $10M was paid to the Defendant as variations to the sum $32M booked in 2014 by NPDC.
  4. The Claimant states that the remaining sum of $43,000,000.00 shall be paid to the Defendant in due course of execution of the job and the execution of the job is not his purview.

 

The Claimant was shocked to receive a letter terminating his employment with the Defendant dated 25th August 2016.  The reason the Defendant told the Claimant for terminating his job was that business is bad in Nigeria and later claimed that the Claimant did not meet his sales target which was not true. The Defendant deliberately embarked on anti-labour practices and was very hostile to the Claimant while displaying a high degree of racism against the Claimant.

The Claimant states that the Defendant refused/neglected to abide by the Department of Petroleum Resources’ Guidelines and Procedures for the Release of Staff in the Nigerian Oil and Gas Industry, Labour Law and international best practices.  The Claimant states that other staffers were given official vehicles while the Defendant refused to oblige Claimant same until his car was damaged beyond repair due to its being used by the Claimant for the Defendant’s official jobs. It is Claimant’s case that after his appointment was terminated the Defendant instructed all its staffers not to communicate with the Claimant and warned that any contravention shall be met with a sack. That the Defendant’s action has disrupted his career growth and made it difficult for him to get another job as there was no justifiable reason for the treatment meted on him.  The Claimant made several demands on the Defendant for payment for the use of his private car for official duties and outstanding sales mission but the Defendant wilfully refused to pay same.

 

CASE OF THE DEFENDANT

It is the case of the Defendant that in addition to his Letter of Offer of Appointment, Claimant’s employment with Defendant is governed by the Emerson Process Management MEA Sales Excellence Incentive Plan which came into effect on 1st October, 2015.  The Defendant employed Claimant as Business Development Manager Nigeria as part of Defendant’s business development strategy and the Claimant’s primary role was to develop the Defendant’s business within Nigeria. The Defendant’s business development strategy was predicated on a projected improvement in the investment climate and improved business opportunities in the oil and gas industry in Nigeria. Defendant states that from 2012 the Nigerian oil and gas industry suffered massive depression resulting in the lack of investments by International Oil Companies (“10Cs”) in Nigeria’s oil and gas industry. This situation impacted negatively on the Defendant’s business which is largely dependent on work requests from the 10Cs. Consequently, Defendant was compelled to change its business strategy and adopt cost saving measures in order to remain in business. Defendant states that on 4th April, 2016, Mounir Taleb, the General Manager, North & West Africa, discussed with the Claimant about the need to improve Claimant’s work performance, communication and level of accountability. The areas of performance that required improvement included taking a proactive and strategic approach to Claimant’s function, focusing on driving a structured country plan, and communicating effectively with Claimant’s managers and colleagues. Based on the foregoing observations, the Company put in place certain action plan to improve the Claimant’s performance. That, in view of the fact that the Claimant’s performance did not improve and the glut in Nigeria’s oil and gas industry had worsened, the Defendant was constrained to terminate Claimant’s employment via letter dated 25th August, 2016. That, Claimant’s appointment was terminated in accordance with his contract of employment and his severance package and outstanding expenses were duly paid and received as shown in the Claimant’s Payroll Sheet – End of Service attached to Mounir Taleb’s email dated 25th August, 2016.  The Defendant made the above bonus payment of N2,247,952.67 to the Claimant calculated on a pro rata basis as a gesture of goodwill despite the fact that this was not permitted under the terms of the Sales Incentive Plan and the Claimant was not eligible to be paid commission/bonus in 2016 as, (i) he had not met his target; and (ii) he would no longer be in the employment of the Defendant in December 2016 when the bonus would accrue and be payable.

 

The Defendant states that the Claimant raised the allegations of racism for the first time through his Lawyer’s letter dated 14th September, 2016. By letter dated 28th September, 2016 Defendant responded to the allegations contained in Claimant’s Lawyer’s letter of 14th September, 2016 and requested the Claimant to provide evidence of the alleged racism to enable the Defendant company respond. Rather than substantiating the allegations of racism, the Claimant instituted this action and raised a number of new alleged racist acts in his Statement of Facts which were not raised in his Lawyer’s letter.  The Defendant states that the acts complained of by the Claimant do not constitute racial discrimination under the law and/or that the alleged acts breached Claimant’s fundamental human rights and/or that the Claimant suffered damages as a result of such acts.

 

The Defendant states that it is not in breach in any manner whatsoever of The Guideline and Procedures for the Release of Staff in the Nigerian Oil and Gas Industry, Labour Law And International Best Practices. That the DPR Guidelines was made pursuant to Regulation 15A of the Petroleum (Drilling and Production) (Amendment) Regulations 1988 which has been declared null and void by the Nigerian Supreme Court and the Defendant is not obliged to comply with the Guidelines. Further and in the alternative, that the Claimant is not privy to the contract between the DPR and the Defendant and cannot in law sue or maintain an action on the basis of the DPR Guidelines.

 

SUBMISSION ON BEHALF OF THE DEFENDANT

The Defendant in its Final Written Address raised the following issues for determination:

  1. Whether the termination of the Claimant’s employment was valid and effective?
  2. Whether the Claimant is entitled to and has proved the monetary claims endorsed in his General Form of Complaint, to wit:
  3. N10,000,000.00 outstanding commission;
  4. $3,706.62 unpaid medical bill;
  5. N21,350,000.00 cost of use of Claimant’s vehicle;
  6. N5,000,000.00 general and exemplary damages;
  7. N1, 000,000.00 cost of instituting the suit.

 

Issue 1 – Whether the termination of the Claimant’s employment was valid and effective?

The Defendant notes that the crux of the Claimant’s case is not that his employment was wrongly terminated; rather that the termination of his employment by the Defendant was done in bad faith, tainted with racism and contrary to the Department of Petroleum Resources Guidelines and Procedures for the Release of Staff in the Nigerian Oil and Gas Industry, Labour Law and International best practices.  Defendant argues that the termination of the Claimant’s employment was both contractually valid and legally unassailable.  That, where an employee claims that his contract of employment is wrongfully or unlawfully terminated, he has to plead the contract of employment and direct the court’s attention to the portion that was breached by his employer – Ekeagwu v. The Nigerian Army [2010] LPELR-1076 (SC); [2010] 16 NWLR 419.    Defendant notes that although a reason was given by the Defendant for the termination of the Claimant’s employment, the Claimant did not dispute or challenge the veracity of the reason adduced by the Defendant for the termination of his employment in its Statement of Defence. Therefore, the Claimant is deemed to have admitted that his employment was terminated owing to the bad business climate of the Defendant’s business and for failure of the Defendant to meet his sales target. Defendant argues that this is consistent with the settled position of the law – “ party that does not lead evidence is deemed to have accepted as true and correct the evidence led in proof of the contents of the other party’s pleadings; since there is nothing on the other side to weigh in his favour.” Defendant submits that the grounds upon which the Claimant attempts to invalidate his termination is not stipulated in his contract of employment and are accordingly irrelevant to the contractual relationship between the parties.

 

On the allegation that the termination is in bad faith, Defendant submits that a cardinal principle which the Courts in Nigeria have over the years established in relation to dismissal or termination of contract of employment is that an employer is entitled to terminate an employee without cause provided that the termination is in accordance with the terms of the contract. Further, the motive which compels an employer to terminate a contract of employment of an employee is irrelevant. Consequently, the exercise of a right to terminate a contract of employment by a master cannot be vitiated by proof of malice or improper motive.  It referred to the case of Fakuade v. OAUTH where the Court held in the following terms:

A master can terminate the employment of his servant at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of their contract. The Motive, which impels the master to terminate a contract of employment with his servant, is irrelevant. Consequently, the exercise of a right to terminate a contract of employment by a master cannot be vitiated by proof of malice or improper motive.

It referred also, to the decision of this Court in Kingsley v. Daewoo Nig. Ltd & Anor (2013) 33 NLLR (Pt. 97) 557 NICN which it said succinctly lent credence to the above decision of the apex court as follows:

It is not in the place of a trial court to ascribe any motive in the decision taken by an employer on the termination of an employee’s contract of employment.

Defendant submits that while it disputes that its termination of the Claimant was actuated by bad faith, nevertheless, the implication of the above decisions of our courts is that it is irrelevant whether the Claimant’s termination was actuated by bad faith in so far as the Defendant terminated the contract in line with the contract of employment.

 

On the allegation of racism, the Defendant argues that the Claimant alleged that he was discriminated against not by the Defendant but by the Company’s Country Manager, who is not joined in this suit. It argues that none of the alleged acts of racism relate to the Defendant or any policy or practice of the Defendant. Rather, they are acts attributable to Mr. Sanjev Sjarmmar and it is not the case of the Claimant that Mr. Shammar’s actions were within his scope of authority or was authorized or approved by the Defendant.

 

Defendant argues that the Claimant failed to prove that the Defendant discriminated against him directly or indirectly. There is no evidence of Defendant’s policies that exclude or give preference to certain individuals just because they belong to a particular group. There is also no evidence of the existence in the Defendant of apparently neutral norms and practices which have disproportionate effect on one or more identifiable groups without justification.

 

Defendant notes that the first time the Claimant made the allegation of racial discrimination was through his Solicitor’s letter written to the Defendant on 14th September, 2016 – Exhibit D5·

 

On the termination of the Claimant’s contract of employment by the Defendant being contrary to the Department of Petroleum Resources 2015 Guidelines and Procedures for the Release of Staff in Nigerian Oil and Gas Industry, Defendant argues that the fact that the DPR Guidelines was made pursuant to a dead law which has been struck down by the Court of Appeal and Supreme Court; the fact that the Claimant failed to prove that the Defendant is subject to the DPR Guidelines 2015; and the fact that the Claimant failed to show that the Guidelines was applicable to his contract of employment render Claimant’s claim nugatory.  It refers to the cases of Shell Petroleum Development Co v. Lawson Jack (1998) 4 N.W.L.R. (Pt. 545) @ 249; Chukwumah v. Shell Petroleum Development Co. (1993)4 NWLR (Pt.289)512 and Shell Petroleum Development Co. v. Nwawka (2001) 10 NWLR (Pt. 720)..

 

Defendant submits that the Supreme Court having declared Regulation 15A null and void and of no effect, it would be tantamount to executive lawlessness for the Minister to issue the extant DPR Guidelines pursuant to Regulations 15A and this Honourable Court is not obliged to sanction such illegality.

 

Defendant further argues that the DPR Guidelines only apply to the holder of an oil mining lease, licence or permit issued by the Department of Petroleum Resources (DPR) under the Petroleum Act or any person registered to provide services in relation thereto; and that Defendant duly denied having such a permit without the Claimant proving otherwise.

 

Defendant also argues that the Claimant failed to show that the DPR Guidelines formed part of his Contract of Employment, neither in his pleadings nor in his evidence. It argues that this failure renders Claimant’s allegation of non-compliance with those Guidelines untenable.   Defendant finally urges this Court to find and hold that the Claimant failed woefully, both as a matter of pleading and evidence, to prove its allegation that the Defendant did not comply with the DPR Guidelines.

 

On the purported termination of the Claimant’s contract of employment by the Defendant being contrary to labour law, Defendant contends that since the Claimant did not dispute the validity of the termination of his employment; and that, despite alleging, in passing, that the termination is illegal and contrary to labour law, the Claimant did not place any fact in its pleadings before the court to show the aspect of labour law that was breached and/ or the way and manner of the breach.

 

On the termination of the Claimant’s employment being contrary to International Best Practices, Defendant contends that what amounts to good or international best practice in Labour or industrial relations is a question of fact and is required to be pleaded and proved by the party alleging their existence and that no fact has been pleaded and proved by the Claimant showing Defendant’s breach of international best practices – Oyo State v. Alhaji Apapa & Ors.(2008)11 NLLR) (Part 29) 284)

 

Issue 2 – Whether the Claimant is entitled to all the monetary reliefs sought in his General Form of Complaint:

 

On claim of 10,000,000.00 for alleged outstanding Commission due to the Claimant from the NPDC contract, Defendant submits that for the Claimant to satisfy the requirements of pleading specially and proving strictly the claim of N10,000,000.00 for unpaid commission Claimant must specifically plead: (a) how the N10,000,000.00 was arrived at. The Claimant must plead specifically the exact document or contract that confer the entitlement to the claimed commission and provide a mathematical breakdown to enable the court to decipher the basis for the calculation; (b) Claimant must lead credible evidence to show (i) the value of the NPDC job he brought in; (ii) the total amount of money that has been paid by NPDC to the Defendant; (iii) the calculation matrix that shows how Claimant’s commission is computed. It submits that the Claimant failed to meet the above threshold in his pleadings and evidence. Further Defendant submits that the Claimant failed to file a Reply to the Defendant’s Statement of Defence and as such, is deemed to have admitted the facts asserted by the Defendant that the Defendant made a bonus payment of N2,247,952.67 to the Claimant calculated on a pro rata basis as a gesture of goodwill despite the fact that this was not permitted under the terms of the Sales Incentive Plan and the Claimant was not eligible to be paid commission/bonus in 2016 as (i) he had not met his target; and (ii) he would no longer be in the employment of the Defendant in December 2016 when the bonus would accrue and be payable.  Defendant submits that the failure of the Claimant to establish his entitlement to the Claimed commission allegedly accruing from the NPDC project is fatal.

 

On the claim of US$3,706.62 being unpaid medical bill incurred by the Claimant in Colorado USA, Defendant argues that the Claimant failed to demonstrate that the claim formed part of his contract of employment; and that there is nowhere in the Claimant’s Statement of Facts where facts relating to unpaid medical bill was pleaded.

 

On the Claim of N21, 350,000.00 being the cost of the use of his vehicle for the total of 854 days at the cost of N30,000.00 per day, Defendant submits that the Claimant’s contract of employment has no provision for vehicle/transport allowance.

On claim of N5,000,000.00 general and exemplary damages for stress and health challenges sustained by the Claimant while working for the Company, Defendant submits that Claimant did not plead or lead evidence of the nature of the health challenges he allegedly suffered. The Claimant also did not plead or furnish any medical report or certificate to substantiate the stress or health challenges he allegedly suffered. Defendant also argues that the claim of N1,000,000.00 as cost of litigation lacks merit as it is not specifically pleaded and strictly proved by the Claimant.

 

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant in his Final Written Address raised the following issues for determination:

  1. Is the Claimant entitled to payment for the use of his car for the Defendant’s business?
  2. Is the Claimant entitled to be reimbursed for the medical bill he incurred while doing the Defendant’s business in the Defendant’s premises in Colorado USA
  3. Is ignorance of the Department of Petroleum Resources Guidelines and Procedures for the release of Staff in the Oil & Gas Industry a defence for its violation?
  4. Is the Claimant entitled to general damages and cost of this action?

 

Claimant argued issues A and B together and submit that he is entitled to be paid for use of his car and medical bill incurred while in the active service of the Defendant.  He referred to the case of Kaydee Ventures Ltd. v. Min, FCT (2010) 7 NWLR (PTl192) where it was held that practice/customs in the industry shall be binding on parties as consideration had passed from the Claimant to the Defendant as he was diligently performing his duties and the Defendant enjoyed the advantage of the Claimant’s performance but refused/reneged in being responsible for the Claimant’s treatment in Colorado when the Claimant was rushed to hospital from the Defendant’s site.  He argued that no reasonable employer would expect a staff who fell ill while performing his duties to personally pay his medical bill.

 

On Issue C, Claimant argues that ignorance of the law is not an excuse’ and that assuming the DPR Guidelines were not incorporated in the Contract, the Guidelines still remain a term of the contract being implied by statute.

 

Claimant argues that the principle of supremacy of the contract of employment in a master/servant relationship is a common law principle, and that where there is an express legislation covering a particular area, common law ceases to have jurisdiction over that area – Patkun Industries Ltd. Niger Shoes Manufacturing Company Nig. Ltd [1998] LPELR-2906 (SC) and Harka Air Services Nig. Ltd v, Keazor (2011) LPELR-1353 (SC).

 

Claimant further argues that the employment in the industry is an employment with statutory flavour and is taken to be above the ordinary common law master/servant relationships as they are governed by statute not the contract of employment simpliciter as held in Longe v. First Bank [2006] 3 NWLR (Pt. 976) 228 and Imolame V. WAEC (1992) 3 NSCC 374@ 383.

 

On issue D, Claimant submits that he is entitled to be paid legal fee as the Claimant has exhibited the receipt of his legal Solicitors in this case. He submits that unless for good reasons a successful party may not be deprived of his costs – Sowemimo JSC in Obayagbona v. Obazee (1972) 5 SC 247; (1972) 5 S. C. (Reprint) 159 and Chijioke v. Soetan (2006) 11 NWLR Part 990, 179 pages 217-218.

 

DEFENDANT’S REPLY ON POINTS OF LAW

 

In response to new issues raised by Claimant, Defendant stated that in the course of summarising evidence, the Claimant purports that certain pieces of fact/evidence were uncontroverted when the facts and evidence before the court shows otherwise. He argued that Defendant clearly joined issues with the Claimant on his claim for use of his private car and for his medical bill.  Defendant argues that having joined issues with the Claimant, the onus is on the Clamant to satisfy the court by cogent and credible evidence that he is entitled to the reliefs claimed.  Defendant also argued that Claimant’s evidence that he was discriminated against in the non-provision of official car, was not corroborated by the Defendant’s witness as argued by the Claimant.

 

On the alleged custom or industry practice for reimbursement of use of his car and for medical expenses, Defendant submits that the Claimant did not plead it and that it is not the case of the Claimant that his claim is based on custom of the trade or industry practice. Defendant submits that any fact or evidence not pleaded goes to no issue.

 

On whether there is an implied contract to pay medical bill, Defendant submits that the Claimant did not plead it, and it is not the case of the Claimant that his claim is based on implied contract.  Defendant submits that evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded or discountenanced by the court.

 

On the alleged ignorance of the DPR Guidelines, Defendant submits that nowhere in the submissions of the Defendant did it raise the issue of ignorance of the DPR Guidelines. Defendant argues that if the DPR Guidelines was not incorporated into the Claimant’s contract of employment it cannot be implied into the contract. It argues that the Claimant’s employment is not employment with statutory flavour and there is no legal basis for implying the Guidelines into the contract. He states that the cases of Oguniyi v. Hon. Minister of the FCT; Gbamboye v. University of Ilorin; Akanbi v. Alao; Agbe-Davies v. LSDPC; Patkum Industries Ltd. v. Nigeria Shoes Manufacturing Co. Ltd and Harka Air Services Nig. Ltd v. Keazor cited by the Claimant are not applicable to the circumstances of this case not being based on contracts of employment. It argues that the foundation and basis of the DPR Guidelines having been struck down by the Court of Appeal and Supreme Court) in Shell Petroleum Development Co v. Lawson Jack (1998) 4 N.W.L.R. (Pt. 545) @ 249; Chukwumah v. Shell Petroleum Development Co. (1993)4 NWLR (Pt.289)512 and Shell Petroleum Development Co. v. Nwawka (2001) 10 NWLR (Pt. 720), it cannot be relied on.

 

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set the following issues down for determination:

  1. What is the status of the Department of Petroleum Resources Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, in relation to Claimant’s employment?
  2. Whether the Claimant is entitled to his Claims.

The Claimant relied heavily on the Department of Petroleum Resources Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry as founding his first Relief.  He purports that his termination is contrary to the above stated Guidelines.  As deciphered from the cases of both parties, and from Exhibit C3 (The Guidelines), the Department of Petroleum Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry is made pursuant to Regulation 15A of the Petroleum (Drilling and Productions) Regulation of 1969, made Pursuant to Section 9 of the Petroleum Act, Cap P10 LFN 2004.  It is the case of the Claimant that the said Guidelines regulates his employment and stipulates procedure for his disengagement.  The Defendant, on the other hand, states that the Guidelines is made pursuant to a Law that has been struck down by the Court of Appeal and the Supreme Court, and submits that the cases show the position of the appellate courts that the Guidelines, not forming part of the Claimants contract, cannot be the basis of challenge to the authority of the Employer to terminate his employee.

Defendant’s Counsel argued that Claimant’s reliance on the DPR Guidelines suffer a couple of fatal shortcomings:  the first is that the Guidelines was made pursuant to a dead law which has been struck down by the Court of Appeal and Supreme Court; second the fact that the Claimant failed to prove that the Defendant is subject to the DPR Guidelines 2015; and third, the fact that the Claimant failed to show that the Guidelines was applicable to his contract of employment. He referred to the cases of Shell Petroleum Development Co v. Lawson Jack (1998) 4 N.W.L.R. (Pt. 545) @ 249; Chukwumah v. Shell Petroleum Development Co. (1993)4 NWLR (Pt.289)512 and Shell Petroleum Development Co. v. Nwawka (2001) 10 NWLR (Pt. 72T.  The cases of Shell Petroleum Development Co. Nwawka and Chukwumah v. Shell Petroleum Development Co state that the principle that a Guideline as the one relied on cannot operate to affect the contractual relationship.  Pats-Acholonu JCA (As he then was) stated that:

There is privity of contract between the 1st Appellant and the 1st Respondent, so in construing any written contract between these two, the 7th Defendant is an odd man out and its directive though praise worthy for what it intends to achieve for the society and the nation in general cannot in my view affect the relationship between the 1st Appellant and the 1st Respondent.

However, I must note that nowhere in any of the cases referred to, is the DPR referred to as a dead law, as alleged by the Defendant.  Howbeit, the Claimant did not respond to the issues raised by Defendant, on the status of the DPR in relation to the contractual relationship of the parties in this suit.  I took a close consideration of exhibit C4, which is the Guidelines referred to by Claimant.  The full title of the Guidelines is:

 

GUIDELINE AND PROCEDURE FOR THE RELEASE OF STAFF IN THE NIGERIAN OIL AND GAS INDUSTRY MADE PURSUANT TO REGULATION 15A OF THE PETROLEUM (DRILLING AND PRODUCTION) REGULATIONS OF 1969, MADE PURSUANT TO SECTION 9 OF THE PETROLEUM ACT CAP. P10 LFN, 2004.

 

The Preamble (paragraph 1.2) provides those subject to the Guidelines as:

The holder of an oil mining lease, licence or permit issued under the Petroleum Act 1969 or under regulations made thereunder or any person registered to provide any services in relation thereto, shall not remove any worker from his employment except in accordance with Guidelines as may be specified from time to time by the Minister.

Claimant in his Pleadings described the Defendant as:

The Defendant is a company engaged in the business of selling metering equipment and solutions in Nigeria, Dubai and other countries.  The Defendant also carries out business in Nigeria’s Oil and Gas industry and had a permit from the Department of Petroleum (DPR) of NNPC.

The Claimant did show by evidence, if and how the Defendant falls under the Guidelines either as a holder of an oil mining lease, licence or permit issued under the Petroleum Act or under regulations made thereunder.  It is trite that he who asserts has the onus to prove; therefore, in the absence of any evidence showing that the Defendant falls within the operation of the Guidelines, it will be difficult for this Court to Declare that the purported termination of the Claimant, was contrary to the Department of Petroleum Resources Guidelines and Procedures for the Release of Staff in the Nigerian Oil and Gas Industry.  Claimant argues that his employment is governed by statute without further showing how it came to be, and how it applied to his contract of employment.  I therefore resolve issue one raised by the Court by holding that there is no evidence to show that the DPR Guidelines applied to the Defendant and by extension, regulated Claimant’s contract of employment.  In fact, Claimant during cross examination stated that he did not know if the DPR was incorporated into his contract of employment.

 

The 2nd issue raised by the Court is whether Claimant is entitled to his claim.  The finding on issue one resolves a part of Claimant first Relief requesting for a Declaration that the purported termination of the Claimant by the Defendant was contrary to the Department of Petroleum Resources Guidelines and Procedures for the Release of Staff in the Nigerian Oil and Gas Industry.  Relief one further seeks a Declaration that the termination of the Claimant was in bad faith and tainted with racism.

 

Racism refers to prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior (English Oxford Dictionary https://en.oxforddictionaries.com/definition/racism).  Claimant argues that Defendant’s Career Page states that Emerson’s equal opportunity employment policy assures that there will be no discrimination or harassment against an employee or applicant on the grounds of race, color, religion, sex, sexual orientation, age, disability, national origin, veteran status or any other factor considered unlawful by applicable laws and regulation. Allegations of racial discrimination, like any other fact asserted, has to be proved.  Claimant stated a list of treatment meted against him by Sanjeev Sharma but led no evidence to show that any of the purported acts were done to him on grounds of his race.  There is no evidence to prove that the alleged acts of:

  • Targeting for removal,
  • Lack of cooperation
  • Lack of payment of 2011 sales incentive
  • Lack of support by Indians in Africa Oilfield Services Orwell,
  • Threats by Mr. Sanjeev
  • Lies spread against him, etc. were committed against him on grounds of his race.

Claimant further alleged that his termination was done in bad faith.  The issue of bad faith was not canvassed in the pleadings, nor was any evidence led in that respect.  In the circumstance, I find the issue of bad faith as having been abandoned.  Both parties tendered Claimant’s contract of employment (exhibit C1 & D1) which provides for the terms and conditions of employment of the Claimant.  Claimant did not assert that his contract was breached in any way.  Claimant did not also state, cite or refer to the Labour Laws and international best practices which were contravened by his termination.

 

On the whole, and based on the above findings, I hold that Claimant has not established his entitlement to his first Relief.  I therefore decline it.

Claimant’s 2nd Relief is for an Order directing the Defendant to pay the sum of N10,000,000.00 (Ten Million Naira Only) being outstanding commission due to the Claimant. In respect to this relief, Claimant led evidence that:

He was still meeting his sales target and was able to bring in NPDC job worth $77,000,000 (Seventy Seven Million Dollars Only) out of which $32,000,000 was paid in 2014 to the Defendant in respect of which accomplishment the Claimant was given an award. He was able to bring in another $7,039,000 (Seven Million and Thirty Nine Thousand Dollars) out of the outstanding $45M. This contributed to the $13M that was netted amidst the falling oil price in 2015. The claimant’s efforts were only surpassed by Saudi Arabia.  On the eve of the termination of his contract on the 23rd August 2016, the sum of $10M was paid to the Defendant as variations to the sum $32M booked in 2014 by NPDC.

In response to this, Defendant referred to the offer letter (exhibit C1) provision on bonus.  It provides:

Bonus: During the first year of service and provided the company is in a sound financial position and at the Directors’ discretion you will be paid a pro-rata bonus, thereafter you will participate in the company’s Sales Incentive Programme (SIP). The on-target incentive for this year is One (1) month of salary less statutory deductions. The bonus is paid annually in December. Should you cease employment with the company, this bonus or a portion thereof, shall not be due to you.

Defendant states that it duly paid Claimant his severance package and outstanding expenses as follows:

One month’s gross salary in lieu of notice                 –            N2,247,952.67

FY16 Leave Balance                                                  –               N531,334.26

Gross salary from 1st – 24th September, 2016             –            N1,062,668.53

Advance                                                                      –             (N500,000.00)

FY16 SEIP CP                                                           –           N2,247,952.67

Defendant further stated that:

The Defendant made the above bonus payment of N2,247,952.67 to the Claimant calculated on a pro rata basis as a gesture of goodwill despite the fact that this was not permitted under the terms of the Sales Incentive Plan and the Claimant was not eligible to be paid commission/bonus in 2016 as, (i) he had not met his target; and (ii) he would no longer be in the employment of the Defendant in December 2016 when the bonus would accrue and be payable.

These assertions by Defendant were not countered by Claimant, nor did Claimant show how he came about the sum claimed.  This Relief is declined as Claimant has failed to prove his entitlement to it.

 

Relief 3 seeks $3,706.62 (Three Thousand Seven Hundred and Six Dollars, Sixty Two Cents) being unpaid medical bill incurred by the Claimant in the Defendant’s premises in Colorado USA. I have gone through Claimant’s pleadings and evidence and do not find any averments or proof of the entitlement to the medical bill.  The only mention of the medical bill is in the Claimant’s Relief.  Having failed to plead or lead evidence in proof of this head of Relief, it is deemed abandoned.  In the case of Moumah v. Enterprise Bank Ltd. (2015) LPELR-24832(CA), it was held by the Court of Appeal that:

The claim of the appellant was highlighted above and the record of appeal reveals that the Respondent did not call evidence in defence of the claim of the Appellant. It is settled that it does not mean that the claim should succeed automatically as the claimant must still establish the claim by credible evidence. What lack of evidence in support of pleadings mean is that the pleadings of the Respondent stand abandoned, see the case of U.B.N Plc v. Ayodare & Sons (Nig) Ltd (2007) 13 NWLR (Pt 1052) 567 where the apex court held thus;

It is settled law that where a party to an action fails to testify in support of facts in his pleadings, those facts are deemed abandoned.

The issue of medical bill was again referred to, after appearing in the claim, by Counsel in his written address where he alleged that Claimant proved that while on an official trip to the United States of America with the Defendant’s client, he fell ill and was rushed to the hospital in Colorado but the Defendant callously refused to pay his medical bill.  It has been held that Counsel’s address is not evidence and no fine speech in an address can make up for lack of evidence to prove or establish a fact or else disprove and demolish a point in issue. See Bfi Group Corporation v. Bureau of Public Enterprises (2012) LPELR-9339(SC) and Niger construction Ltd. v. Okugbeni (1987) 4 NWLR (pt. 67) 738 at page 792.” Per FABIYI, J.S.C.  Based on the above, I decline to grant Claimant’s 3rd Relief.

In Claimant’s 4th Relief, he seeks N21,350,000 (Twenty One Million, Three Hundred and Fifty Thousand Naira Only) being the cost of the use of his vehicle for the total of 854 days at the cost of N30,000.00 per day.  Claimant, in his evidence states that:

The Claimant was made to use his personal vehicle for official duties and despite the Defendant’s policy of paying for the use and maintenance, the Defendant refused/neglected to pay the Claimant for the daily use of the vehicle thereby incurring a debt of N21, 350,000.00 (Twenty One Million, Three Hundred and Fifty Thousand Naira Only) being the cost of the use of Claimant’s vehicle for the total of 854 days at the cost of N30,000.00 per day payable to the Claimant.

The Defendant refused/neglected to give the Claimant an official car until the wear and tear of using the Claimant’s car finally damaged the car beyond repairs.

The Claimant has been requesting for this payment for use of his car for official duties from the Defendant continuously but the Defendant has refused/neglected to pay the Claimant.

The documents constituting Claimant’s contract of employment –exhibits C1 and C10, did not in anywhere provide for vehicle/transport allowance.  In cross examination, Claimant said, “It is not in my written contract that I should be paid transport allowance”.  In re-examination, Claimant equally stated that, “there is no document that says if I use my vehicle, I should not be paid”. It therefore stands, since the issue required to be proved is Claimant’s entitlement to refund for the use of his car that Claimant has not proved how he came to be so entitled; and how he arrived at the figure.  Though Claimant sought to rely on practice/custom, he led no evidence to establish the existence of such practice/custom in the defendant or in the industry.  In the light of this, this Relief also fails.

 

Reliefs 5 for general and exemplary damages; and Relief 6 for cost of instituting this suit, invariably fail also; in the light of the holding above.  Therefore, the entire suit fails.

 

I make no order as to cost.

 

Judgment is entered accordingly.

 

 

…………………………………….

Hon. Justice Elizabeth A. Oji PhD

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