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National Industrial Court

MR. BASOENE D. ELEKIMA & 3ORS VS PORTS & TERMINAL OPERATORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 27TH SEPTEMBER, 2018                SUIT NO: NICN/PHC/183/2013

BETWEEN:

  1. BASOENE D. ELEKIMA
  2. OSEBAH SAMUEL
  3. JOHN EGE
  4. WALTER LAWRENCE                    CLAIMANTS

(For themselves and on behalf of the

 dockworkers in the  Ports & Terminal Operators

 (Nig) Ltd Terminal “A”, Port Harcourt Ports.)

AND

 

PORTS & TERMINAL OPERATORS

(NIG) LTD, TERMINAL “A”                     ————————–    DEFENDANT

 

REPRESENTATION:

 

Uche Ogwudu for the Claimants

  1. O. Chukwuka for the Defendant

 

JUDGMENT

By an Originating Summons dated 27th November, 2013 and filed on 29th November, 2013, the Claimants commenced this suit against the Defendant and submitted these two questions for the determination of the court:

  1. Whether the Defendant has not breached its agreement and covenants to the Claimants arising out of the negotiation for and the terms of the AGREEMENT made between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria (the Defendant and the Claimants) on the minimum standards for the Docklabour Industry.

 

  1. Whether the Defendant is not liable to the Claimants in damages arising out of the default on the part of the Defendant of the covenants and terms of the AGREEMENT aforesaid.

The Claimants therefore claimed the following reliefs:

  1. AN ORDER of specific performance against the Defendant of the Agreement made between the Association of Private Operators of Seaport Terminals (the Defendant) and Maritime Workers Union of Nigeria (the Claimants) on minimum standard for the Docklabour Industry.

 

  1. AN ORDER of specific performance against the Defendant to carry out its part of the agreement and covenants to the Claimants and/or for the payment of the minimum gross wage of Thirty Three Thousand Naira (N33, 000.00) only subject of the Agreement mentioned in prayer 1 above.

 

  1. AND for such further orders as the Court may deem fit to make in the circumstances of this case.

In support of the Originating Summons is an affidavit of 23 paragraphs deposed to by Mr. Basoene Elekima (the 1st Claimant herein) on the 29th of November, 2013. Annexed to the Affidavit are three (3) documents marked as exhibits A, B and C.

In compliance with the Rules of this Court, the Claimants filed along with the Originating Summons a Written Address dated 27th November, 2013 and filed on 29th November, 2013, wherein the following sole issue was submitted for the determination of this court:

Whether the Claimants are entitled to the reliefs claimed in the Originating Summons?

Upon service of the Originating processes on the Defendant, the Defendant filed a Memorandum of Appearance dated 16th January, 2014 and filed on 17th January, 2014, but deemed by order of court on 10th April, 2014.

 

In opposition to the Originating Summons, the Defendant filed 22 paragraphs Counter-Affidavit deposed to by Mrs. Ifeyinwa Johnson (the in-house Solicitor of the Defendant) on 15th April, 2014. Annexed to the Counter-Affidavit are some documents marked as exhibits AA, AB, AC, A2, A3, A4, A5, A6, A7 and A8. The Defendant also filed a Written Address dated and filed on 15th April, 2014 wherein the Defendant identified four (4) Issues for the determination of the court, to wit:

  1. Whether the Claimants are permanent employees of the Defendant having regard to the mode and the letters of employment?

 

  1. Whether it is proper to commence this suit by Originating Summons?

 

  1. Whether a Claimant can validly enforce an agreement against a defendant who is not a party in the agreement?

 

  1. Whether the non adherence to Clause 11 of the 20/05/2008 purported agreement (reached between the Association of Private Operators of Sea Port Terminals and Maritime Workers Union of Nigeria) does not strip the court of its jurisdictional powers to entertain this suit?

The Claimants also filed a Further and Better Affidavit of 29 paragraphs deposed to by Mr. Basoene D. Elekima (the 1st Claimant) on 3rd July 2014. Annexed to the Further and Better Affidavit are documents marked as exhibits ABC, BBC, BB3, BB4, BB5, BB, BB1, BB2, BC1, BC2, BC3, BC4, BC5, BC6, BC7, BC8, BC9, BC10 and BC11. The Claimants also filed a Written Address in support of the Further and Better Affidavit on 3rd July, 2014.

It is pertinent to state that upon being served with the Claimants’ Further and Better Affidavit, the Defendant filed a Further Counter Affidavit of 15 paragraphs deposed to by Glory Njoku (a Litigation Secretary in the Law Firm of Sector Chambers the Defendant’s counsel) together with a supporting Written Address on 12th February, 2015. Another Further Counter-Affidavit of 15 paragraphs in reaction to the Claimants’ Further and Better Affidavit together with a Written Address was filed on 17th February, 2015.

The Claimants filed a Further Further and Better Affidavit of 9 paragraphs deposed to by Mr. Basoene D. Elekima (the 1st Claimant) on 21st of April, 2015. Annexed to the Further Further and Better Affidavit are documents marked as exhibits PN1, PN2, PN3, PN4, PN5,  Q1, Q2, CL, CP, N, P, DU, PS, K3, HR1, HR2, HR3, NJ1 and NJ2. A Written Address was also filed by the Claimants on 21st April, 2015 in support of the Further Further and Better Affidavit. Another Further and Better Affidavit together with annexed documents marked as exhibits ABC, BB1, BB2, BBC, BB3, BB4, BB5, BC1, BC2, BC3, BC4, BC5, BC6, BC7, BC8, BC9, BC10, BC11, BC12, Q1, Q2, CL, CP1, CP2, P, DU, PS, K3, HR1, HR2 and HR3,together with the supporting Written Address was filed on 15th May, 2015.

The Defendant in further response, filed a Reply on Points of Law on the 8th of June, 2015 wherein additional arguments in opposition to the Claimants’ case were canvassed by the Defendant.

The Claimants filed another set of processes including Further and Better Affidavit of 42 paragraphs deposed to by Mr. Basoene D. Elekima (the 1st Claimant) together with some documents marked as exhibits ABC, Q1, Q2, CL, CP1, CP2, BC1, BC2, BB1, BB2, MCJ, BBC, GH1, GH2, BB4, BB5, P, REG1, REG2, REG3, REG4, DU1, DU2, DU3, K3, HR1, HR2 and HR3, with a supporting Written Address on 25th May, 2016.

The Defendant in further response filed another Reply on Points of Law dated and filed on 20th October, 2016.

CLAIMANTS’ CASE.

It is the case of the Claimants that after the concessioning of the Nigerian Ports Authority (NPA) in 2005 to some Private Operators of Seaport Terminals including the Defendant which took over the Port Harcourt Seaport Terminals from HUBSON (Nig) Ltd, they were selected, screened, interviewed and thereafter employed and/or retained by the Defendant while the remaining dockworkers were laid off and paid their severance entitlements.

That in a bid to enhance the welfare and condition of service of all dockworkers in the Nigerian Maritime sector, an agreement (exhibit ‘A’) was reached between the Association of Private Operators of Seaport Terminals (of which the Defendant is a member) and the Maritime Workers Union of Nigeria (of which the Claimants are members) which fixed the gross minimum wage of every dockworker at Thirty Three Thousand Naira (N33, 000) only at entry point on employment.

That since 2008 when the Agreement was made the Defendant has only been paying them according to CARGO TONNAGES which is supposed to be in addition to the gross minimum wage which the Defendant has not been paying them but has been deducting their salaries on CARGO TONNAGES as contributory pension and paying same to TrustFund/Legacy and Leadway Pension thereby leaving them in some cases with a paltry sum of Two Thousand Naira (N2000.00) only as monthly take home after the deductions.

According to the Claimants, the Defendant also refused and/or  neglected to pay  them their other entitlements such as Chemical, Salt, Oil, and Karnel Shafts hazard allowance, provision of medical care, booking of liquid bulk and payment of extra truck bonus, contribution of  Defendant’s 7.5% pension fund contribution, thereby being in complete breach of the terms of the Agreement reached between Association of Private Operators of Seaport Terminals and the Maritime Workers Union of Nigeria on 20th May, 2008.

The Claimants made repeated demands including letters dated 3rd October, 2013 and 24th October, 2013 requesting the Defendant to implement the contents of the Agreement (exhibit ‘A’) all to no avail, thereby necessitating this court action.

DEFENDANT’S CASE

The Defendant’s case on the other hand is that, the Defendant commenced operations on 23rd June, 2006 following the concession process and brought in their own stevedores known as DINABLE ASSOCIATES LTD and sequel to appeal by Hubson (Nig) Ltd, it shared the four vessels it had into two with two given to Dinable Associates Ltd while the other two were given to Hubson (Nig) Ltd. That subsequently, Hubson (Nig) Ltd was disengaged thereby handing over the two barges with Hubson (Nig) Ltd to Dinable Associates Ltd.

That there was no selection of dockworkers as alleged by the Claimants, rather, the Defendant paid off those whose services were no longer needed and employed the Claimants on a temporary basis.

That the Claimants are not permanent staff of the Defendant, but they were selected from a general pool of Dockworkers interviewed, registered and employed by NIMASA. That the Defendant was only mandated by the Rules applicable in the maritime sector to employ the Dockworkers, but the direct employer of the Claimants is NIMASA.

According to the Defendant, the Claimants do not have the authorization of all the Dockworkers in the Defendant to sue for and on their behalf in a representative capacity, and the Defendant apart from not being a party to the Agreement sought to be enforced by the Claimants, the Agreement is applicable only to permanent employees/Dockworkers and not temporary employees as the Claimants herein. That the Claimants being temporary employees are only entitled to be paid based on Cargo Tonnages as by the nature of the Defendant’s operations it does not employ permanent Dockworkers.

To the Defendant since the Agreement is between the Association of Private Operators of Seaport Terminal (which the Defendant is a member) and the Maritime Workers Union of Nigeria (which the Claimants are members), it is only the union that can seek for the enforcement of the said Agreement and not the Claimants. That since the Agreement makes provisions for Collective Bargaining and all negotiations between the Union and the Association was to be made by the National Joint Industrial Council and all grievances were to be taken to the Council, the Claimants failed to first and foremost exhaust the administrative remedies before filing this suit thereby making the suit incompetent and liable to be struck.

According to the Defendant, the 7.5% pension deductions were duly remitted to the TrustFund/Legacy and Leadway Pensions together with the employer’s contributions in line with the provisions of the Pension Act. Also that, there was no agreement between the Claimants and the Defendant concerning bonuses because the Claimants had always been paid on tonnages whereby the more tones lifted, the more money they earned. That adequate medical provisions including a sick bay in the port, fully equipped ambulance and two retainer hospitals were provided to cater for the medical needs of the workers.

That by virtue of the work specifications of the Claimants they neither handled oils and fixing of pipes, lifting and treatment of oil, chemicals nor liquid bulk and the Defendant only pays the Claimants for kernel shafts and salt  handling which are dry cargo operated by grab and therefore measured in tonnages.

According to the Defendant, all temporary Dockworkers in Nigeria including the Claimants are paid on tonnage which favoured them because of the boom in the maritime sector then, but with Government policies which allegedly caused a drop in the number of vessels arriving ports which they can load and offload, they are now complaining  despite the position of the Claimants’ trade union that they are temporary workers to be paid by tonnage and not N33, 000.00 per month as being claimed by the Claimants in this suit.

It is also the case of the Defendant that, aside from the parties in this suit not being parties to the said Agreement thereby making the Claimants ineligible to sue and enforce an Agreement they are strangers to, the Agreement itself is unenforceable as its lifespan was two (2) years from the date of its signing, and since the Agreement was signed in 2008, same expired since 2010 thereby extinguishing the cause of action in this suit.

The Defendant therefore urged the court to dismiss this suit for lacking in merit.

CLAIMANTS’ SUBMISSIONS.

As earlier stated in this judgment, the Claimants formulated one (1) issue for the determination of this court.

While arguing this lone issue, to wit, whether the Claimants are entitled to the reliefs claimed in the Originating Summons, it was submitted that Originating Summons is the appropriate form of commencing this action which borders on the construction of the Agreement between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria on minimum standards for the Docklabour industry. See National Bank of Nigeria V. Alakija (1981) 2 LRN 78, 80-88 and Doherty V. Doherty (1968) NMLR 24.

According to the learned counsel to the Claimants, the Defendant has breached the provisions of clause 1 of the Agreement (exhibit ‘A’), and that in the circumstance of this case, five years is a reasonable time for the Defendant to perform its covenants and obligations under the Agreement but the Defendant despite demands made by the Claimants have failed and neglected in fulfilling its obligations as envisaged by the Agreement.

It was further submitted that, where a party to an agreement is in breach of a fundamental term of such an agreement, such a party will be liable to the other party for damages. That in this case being an employer/employee relationship, it is envisaged that the Claimants would discharge their duties while the Defendant would pay the agreed wages and other entitlements and benefits accruing to the contract of employment. That the Claimants are entitled to damages against the Defendant for the failure to fulfill its covenants enshrined in the Agreement. See Harold Shodipo & Co. V. Daily Times (1972) 7 N.S.C.C. 637 and 639.

According to the learned Claimants’ counsel, the Claimants are also entitled to an order of specific performance of the covenants made by the Defendant because the conditions for making the order of specific performance has been satisfied by the Claimants. Adeniran V. Olagunju (2001) 12 NWLR (Pt. 741) 169 at 188.

The learned Claimants’ counsel therefore, urged the court to resolve this issue in favour of the Claimants and grant the reliefs being sought in this suit.

DEFENDANT’S SUBMISSIONS

The Defendant submitted four (4) issues for the determination of this court, and these are:

  1. Whether the Claimants are permanent employees of the Defendant having regard to the mode and the letters of employment?

 

  1. Whether it is proper to commence this suit by Originating Summons?

 

  1. Whether a Claimant can validly enforce an agreement against a defendant who is not a party in the agreement?

 

  1. Whether the non adherence to Clause 11 of the 20/05/2008 purported agreement (reached between the Association of Private Operators of Sea Port Terminals and Maritime Workers Union of Nigeria) does not strip the court of its jurisdictional powers to entertain this suit?

On issue one (1) learned counsel for the Defendant submitted that by exhibit ‘AA’ annexed to the Defendant’s Counter-Affidavit, it has been established that the Claimants were employed as temporary workers and not permanent workers as being alleged by the Claimants, hence the N33,000.00 minimum wage does not apply to the Claimants. Learned Defendant’s counsel reproduced paragraph 1 of the Agreement and argued that the agreement applies only to permanent workers because they are entitled to the minimum wage at the point of entry  without more. That the principle of Pacta Sunt Servanda applies to this case and the Claimants should be bound by the express provisions of the agreement. See Idoniboye-Obu V. NNPC (2003) F.W.L.R. (Part 146) 822 – 1026.

On issue two (2), it was submitted that this suit was inappropriately commenced by way of Originating Summons instead of Complaint because the Rules of court then ( the National Industrial Court Rules 2007) had no provision for Originating Summons as a form of commencing an action before the court. That the suit has not complied with the Rules of court and therefore liable to be struck out. See MV “Arabella” V. Nigeria Agricultural Insurance Corp (2008) 4 – 5 S.C. (Pt.11) 189 at 204, and Household Utensils Dealer & Anor V. Ifeanyichukwu Ventures Nig. Ltd & Anor. (2005) All FWLR (Pt. 257) 1573.

With regard to issue three (3), it was submitted that, only parties to an agreement or contract can validly enforce same; and a person who is not privy to a contract/agreement cannot be made liable under the contract/agreement. See Borishade V. N.B.N. (2007) 1 NWLR (incomplete citation); and Rector, Kwara Polytechnic V. Adefila (2007) 15 NWLR, 50 (incomplete citation).

According to the Defendant, since neither the Claimants nor the Defendant is a party to the agreement, they are not the proper parties to this suit thereby rendering the suit incompetent.

On issue four (4), it was argued that, since clause 11 of the Agreement clearly provides for arbitration, the issues in contention in this suit ought to have been firstly referred to arbitration before approaching the court.

See Commerce Assurance Ltd V. Alli (1992) 3 NWLR (Pt 232) 710, and Agienoji V. COP, Edo State (2007) 4 NWLR (incomplete citation).

It was therefore submitted that since the Claimants herein neither referred the matter to the NJIC Panel as provided in the Agreement nor exhausted all administrative remedies before filing this suit, the jurisdiction of this court cannot be activated to vest the court with the requisite jurisdiction to entertain this suit.

The court was therefore urged to strike out this suit.

CLAIMANTS’ FURTHER SUBMISSIONS

The Claimants filed a Further and Better Affidavit together with a Written Address on 3rd of July, 2014 wherein they made submissions in response to the Defendant’s arguments. The Claimants stated that they have been the Defendant’s employees since 2008, and they did not sign any contract to the effect that they were contract staff or on temporary employment and that they were not expected to be in temporary employment for several years. That the letters of employment exhibited by the Defendant being photocopies of which foundation was not laid and also not being on the letterhead of the Defendant is not admissible in law.

On the mode of commencing this action, it was argued that the suit was properly initiated relying on the provisions of Order 3 Rule 5A of the 2007 Rules of court, and that the arguments of the Defendant in this regard should be discountenanced.

Regarding the Defendant’s issue three (3), it was submitted that the Defendant is only approbating and reprobating because the Defendant’s Managing Director one Mrs. Lizzy O. Ovbude signed the agreement on the 20th of May, 2008. That since the contract is a Collective Agreement entered into on behalf of the Claimants who are Dockworkers and the Claimants are members of the Maritime Workers Union of Nigeria, they are privy to the contract and can sue to enforce same.

Regarding the Defendant’s issue four (4), it was submitted that, an arbitration clause in an agreement does not oust the jurisdiction of the court, and that either of the parties to the agreement may commence legal proceedings in court before submitting to arbitration. See Harris V. Raynolds (1845) 7 QB 71. That a Defendant who has not taken any step in the proceedings ought to apply to the court for a stay of proceedings to enable the parties go or return to arbitration.

See The Owners of The M. V. Lupex V. Nigeria Overseas Chartering and Shipping Limited (2003) 14 NSCQLR 804, and section 5 of the Arbitration and Conciliation Act. That in the instant case, the Defendant has taken steps in this suit by filing court processes including Counter-Affidavit and Written Address in opposition to the Claimants’ suit.

According to the learned Claimants’ counsel, the document marked Exhibit AB1 pleaded in paragraph 7 of the Defendant’s Counter-Affidavit was made while this suit is pending in court and is therefore not admissible in law. See Samson Owie V. Solomon E. Ighiw (2005) 21 NSCQLR 214; Engr Charles Ugwu V. Senator Ifeanyi Ararume (2007) 37 NSCQLR 1192, and section 83(3) of the Evidence Act, 2011.

It was finally argued by the Claimants that they pleaded in paragraph 2 of the Affidavit in support of the Originating Summons that they have the authority to sue on behalf of the unnamed Claimants; and that even where such authority is absent, it does not vitiate the validity of the suit. Sapo V. Onibire (2010) 42 NSCQR 910 at 913.

DEFENDANT’S FURTHER SUBMISSIONS

The Defendant filed a Further Counter-Affidavit in reaction to the Claimants’ Further and Better Affidavit together with a Written Address on 17th February, 2015, wherein the Defendant in what I may refer to as proliferation of issues identified seven (7) issues for the determination of the court, to wit:

  1. Whether the law regulating the relationship between Dockworkers and their employer recognizes the nomenclature “Permanent Dockworker”. If so whether by the law every trained Dockworker is automatically a permanent Dockworker?

 

  1. Whether the Defendant has the right under the applicable law regulating the parties employment relationship to employ temporary Dockworker; and whether that right was duly exercised in this instant case?

 

 

  1. What (sic) this court ought to attach any serious evidential weight to Exhibits ABC, BBC, BB3, BB4, BB5 and BC1 – BC1 attached to the Claimants’ Further and Better Affidavit?

 

  1. Whether there are local or administrative remedies available to the Claimants before the filing of this suit?

 

  1. Whether the Claimants had shown that it complied with Clause 11 of the Agreement or took the matter to NJIC before filing this suit?

 

  1. Whether a party before the court was entitled to use the media to prosecute the same subject matter which it submitted to the court for adjudication?

 

  1. Whether the Defendant has taken any step in the proceedings such as would be fatal to the Defendant’s objections?

On issue one (1) it was argued that the relationship between the Claimants and the Defendant is regulated by the Nigerian Dock Labour Decree 1999 and the Nigerian Maritime Administration and Safety Agency Act, 2007. That while section 27 of the NIMASA Act empowers NIMASA to register and maintain a register of Dockworkers, Seafarers etc including the training, conduct of examinations and regulation of the certificate of Seafarers and the Conditions of Service of Dockworkers and Seafarers, section 28 of the Nigeria Dock Labour Act provides for a pool for Dockworkers comprising of Permanent Skilled Dockworkers and Casual Dockworkers. That since the Act recognizes the employment of temporary or casual Dockworkers, same should be given its literal and ordinary meaning as there is no ambiguity in the said provisions of the Nigeria Dock Labour Act. See NECO V. Tokode (2011) 5 NWLR (Pt. 1239) 45 at 68 – 69.

On issue two (2) it was submitted relying on the provisions of sections 20(1)(b) and 28(1)(b) of the Nigeria Dock Labour Act that the Defendant herein has the right to employ Dockworkers on temporary basis as is the case of the Claimants in the instant suit. See exhibit ‘AA’ attached to the Defendant’s Counter-Affidavit.

 

With regard to issue three (3) it was argued that, Exhibits ABC, BBC, BB3, BB4, BB5 and BC1 – BC1 attached to the Claimants’ Further and Better Affidavit are not admissible and should be discountenanced by the court because, while exhibit ABC is purported to have been issued in the year 2000, port concession took place in 2006, and that the said exhibits were not issued by the defendant. That the Claimants are not parties to Exhibit CB, the subject matter of this suit, and that it is only the trade union of which the Claimants are members that can enforce the said Agreement.

On issue four (4), learned counsel to the Defendant referred to Article 11 of the Agreement and posited that the Claimants who ought to have exhausted all the administrative remedies before approaching the court failed to do so. That Exhibits BD and BD7 purporting to be minutes of meeting on referral of the issues to the NJIC before filing this suit is not signed and there is nothing to show whether in its heading or body that the minute of meeting is in respect of the meeting of NJIC. The court is therefore being urged to discountenance the exhibits having not been signed. See Sarai V. Haruna (2008) 23 WRN 130 at 143.

It was submitted on issue five (5) that since the Claimants neither took the matter to the Federal Ministry of Labour nor the NJIC before filing this matter in court, they are in breach of Article 11 of the Agreement and therefore not competent to institute this suit.

On issue six (6) it was submitted that, a party before the court is by law not allowed to take any step that will be prejudicial to the outcome of the suit before the court. That the Claimants ought not to have made any publication in the media against the Defendant while the matter is pending before the court.

With regard to issue seven (7) it was submitted that, the Defendant has not taken any step in the proceedings as to be fatal to the objection being raised by the Defendant on the competence of this suit.

It is pertinent to state that, the Claimants filed a Further Further and Better Affidavit of 9 paragraphs together with a supporting Written Address on 21st April, 2015, wherein the Claimants reiterated their submissions that they are not only entitled to the N33, 000.00 minimum wage as provided for in the Agreement because they are permanently trained skilled dockworkers trained and registered by NIMASA, but also that they do not fall into the category of casual dockworkers because some of them have been in the Nigerian Maritime Industry since 1970s till date .

It was further submitted relying on Iwuji V. Federal Commissioner for Establishment (1985) 1 NSCC 580 at 600, that where an employer either fails to indicate whether or not the employment of a temporary worker has been confirmed before the end of the probationary period, the continued retention of the employee in employment shows that the employee has been confirmed.

It was further posited that, Exhibits BB3, BB4, BB5, BC1 – BC11 are relevant and admissible in deciding the issues in controversy in this suit. That the Claimants have established before the court that they are entitled to the N33, 000.00 fixed minimum gross wage and N38,000.00 reviewed fixed minimum gross wage from 1st June, 2008 to 31st December, 2014 and subsequent payment and total compliance by the Defendant with the Agreement. That the Claimants exhausted all administrative remedies before instituting the instant suit before the court, and the Defendant who has taken steps in the proceedings before the court cannot challenge the competence of the suit on the ground that the issues were not referred to arbitration before approaching the court.

May I also state that, the Defendant also filed a process titled ‘Reply on Points of Law to Further and Better Affidavit and Further, Further and Better Affidavit’ wherein is was further submitted that the Claimants’ process known as ‘Further and Better Affidavit’ or Further, Further and Better Affidavit’ is unknown to law and same should be discountenanced by the court as leave of court was not sought and obtained before the filing of the said processes.

The Defendant filed another court process titled, ‘Reply on Points of Law to Claimants Further and Better Affidavit dated and filed on 25/6/2016’ on the 20th of October, 2016, wherein the learned counsel to the Defendant reiterated the earlier submissions regarding the admissibility of documents made during the pendency of this case and the incompetence of the Claimants’ Further and Better Affidavit as it amounts to an alteration of  or an addition to the Originating Summons in this suit without the leave of court.

 

COURT’S DECISION

Having carefully considered the processes, arguments and submissions of counsel in this matter, it is important to first and foremost consider and resolve some of the issues raised by the learned Defendant’s counsel. These issues which repeatedly appeared in the various written submissions filed by the Defendant are that:

  1. The suit was improperly commenced by way of Originating Summons;

 

  1. The Claimants and the Defendant are not parties to the Agreement sought to be enforced by the Claimants in this suit;

 

  1. The Claimants did not exhaust all administrative remedies before filing this suit before the court.

The above issues which are issues 2, 3, and 4 of the Written Address in support of the Defendant’s Counter-Affidavit filed on 15th of April, 2014, were also argued by the Defendant in almost all the written submissions filed by the Defendant in this suit.

It is instructive to note that, the Defendant filed a Notice of Preliminary Objection by way of Motion on Notice dated and filed on 8th May, 2015, wherein the Defendant challenged the jurisdiction of the court and urged the court to strike out the suit for want of jurisdiction. A careful perusal of the said application shows that the grounds are the same as the issues the Defendant has tabled before the court in this suit for determination. For the purpose of clarity, may I reproduce the grounds of the Application as follows:

“AND TAKE FURTHER NOTICE that the grounds for this application are as follows:

  • Neither the Claimants/Respondents nor the Defendant/Applicant is a signatory or party to the agreement of 20/5/2008. Hence proper parties are not before the court in this suit.

 

  • The life span of the agreement which is the foundation of this suit has elapsed since 2010; therefore the cause of action has consequently expired vide Article 8 of the Agreement of 20/5/2008.

 

  • That the Claimants/Respondents have not exhausted Administrative or local remedies to wit:
  • Contrary to Articles 10 and 11 of the Agreement of 20/5/2008, the Claimants/Respondents have filed this suit without first taking the matter before the National Joint Industrial Council for settlement.

 

  • Articles 1(5) (6) and (7) in Part 1 of the Appendix C being the Procedural Agreement between the Association and the Union constituted a further Arbitration Clause and makes it mandatory for the parties or any of the parties to take a dispute between the parties to National Joint Industrial Council’s for settlement.

 

  • Article 11 (a) and (b) in Part 2 of Appendix C of the Procedural Agreement provided that where NJIC is unable to resolve any dispute between the Union and the Association, the issues shall be reduced in writing and referred to the Ministry of Labour for necessary action in accordance with the Trade dispute law. The Claimants have not complied with this Arbitration Clause.

 

  • That parties are bound by the terms of their contract. And obliged to comply with any arbitration agreement reached by them before initiating any legal proceedings.

 

  • That this suit is wrongly commenced by Originating Summons whereas the proper mode ought to be Complaints as per Orders 3 and 5 of the National Industrial Court of Nigeria Rules, 2007.

 

  • That this suit purported to be filed in a representative capacity whereas there is no authorization to the named Claimants suing by the Dockworkers in the Defendant employ to sue on their behalf, neither is there a list of names and signatories of the Dockworkers whom the name Claimants seek to represent.”

Suffice it to state that, this application which was objected to by the Claimants was duly argued on the 24th June, 2015, and the court in a considered Ruling delivered by my learned brother Hon. Justice J. T. Agbadu-Fishim on 5th February, 2016 dismissed the application for lacking in merit.

I can recall that, the Defendant filed an application dated and filed on 5th March, 2018, urging the court to set aside the order dismissing her Notice of Preliminary Objection made on 5th February, 2016 on similar grounds as the grounds stated in the Notice of Preliminary Objection.

This application was equally objected to by the Claimants and the court in its ruling delivered on 24th May, 2018, struck out the application on the ground that the court cannot sit in judgment over the decision of Hon. Justice J. T. Agbadu-Fishim; and that the right of the Defendant lies only on appeal to the appellate court.

Since the Defendant’s issues 2, 3, and 4 in the Written Address in support of the Defendant’s Counter Affidavit filed on 15th April, 2014 are the same as the issues argued in the Applications filed by the Defendant on 8th May, 2015 and 5th March, 2018 which were dismissed/struck out by the court, I do not think the court is in a position to reconsider these issues that have been decided upon by the court. In the circumstance, the Defendant’s issues 2, 3, and 4 are hereby struck out.

In view of the court’s decision striking out the Defendant’s issues 2, 3, and 4, the Defendant is left with only issue one (1) and having looked at the nature of the case I am of the opinion that the sole issue formulated by the Claimants is comprehensive enough and this suit shall therefore be determined on the Claimants’ sole issue which is whether the Claimants are entitled to the reliefs claimed in the Originating Summons?

While the Claimants have argued that they are permanent employees of the Defendant and therefore entitled to the minimum wage of N33, 000.00) and other entitlements as contained in the Agreement between The Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria on minimum standard for the docklabour industry in Nigeria (Exhibit ‘A’), the contention of  the Defendant is in a nutshell that the Claimants are temporary workers and not permanent workers of the defendant to be so entitled to claim under the said Agreement which in any case had a duration of 2 years and had since lapsed in 2010.

Looking at the two (2) questions submitted to the court for interpretation, i.e., whether the Defendant has not breached its agreement and covenants to the Claimants arising out of the negotiation for and the terms of the Agreement made between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria (the Defendant and the Claimants) on the minimum standards for the Docklabour Industry; and whether the Defendant is not liable to the Claimants in damages arising out of the default on the part of the Defendant of the covenants and terms of the AGREEMENT aforesaid, it will be pertinent to first ascertain the status of the Claimants who have sued in a representative capacity representing the Dockworkers in the Defendant’s employ.

This is because, the Claimants who have maintained the position that they are permanent employees of the Defendant having been trained and registered by NIMASA, have the onus or burden to establish the nature of their employment with the Defendant. It is the law that he who asserts must prove. See sections 131, 132, 133 and 134 of the Evidence Act. See also the case of Calabar Central Co-operative Thrift and Credit Society Ltd & Ors. V. Bassey Ebong Ekpo (2008) LPELR-825(SC), where the apex court held thus on who has the burden of proof:

“The law is elementary that the burden of proof is on the party who alleges the affirmative. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, (section 135(1) of the Evidence Act). The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side (section 136 of the Evidence Act). In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (section 137(1) of the Evidence Act.”

In resolving the sole issue distilled for determination in this suit, it is pertinent to recast the Agreement the subject matter of this suit (exhibit ‘A’) for purpose of clarity.

“This Agreement is made this day —————- between Association of Private Operators of Seaport Terminals whose registered office is situate at Shed 6, Lagos Port Complex Apapa, Lagos, c/o ENL Terminal, (hereinafter referred to as the “Association”) which expression shall where the context so admit include its successors in title and assigns on the one part

And

Maritime Workers Union of Nigeria, whose registered office is situate at 119 Osho Drive, Olodi Apapa, Lagos (hereinafter referred to as the “Union”) which expression shall where the context so admit include its successors in title and assigns on the other part.

Where As:

  • That the Association is a registered body with the Corporate Affairs Commission of Nigeria and has the responsibility to operate the Terminals of the sea ports.
  • That the Union is a registered body under the laws of the Federal Republic of Nigeria charged with the management of all branches of the Union under the Maritime sector in Nigeria.
  • That the Association and the Union have agreed to set minimum standards for the Docklabour industry in Nigeria.

NOW IT IS HEREBY AGREED AS FOLLOWS:

  1. That the minimum gross wage for any permanently employed Dockworker shall be Thirty-three Thousand Naira (N33, 000.00) only as entry point on employment. (Underlined by me for emphasis only).
  2. That an increase of Ten percent (10%) percent shall be effected on all General/Bulk Cargo as tabulated in Appendix A attached hereto.
  3. That the unit payment per laden 40’/20’ container shall be One Thousand, One Hundred Naira (N1, 100.00) only and for 40’/20’ empty container, Six Hundred Naira (N600.00) only.
  4. That the Association (Employer) shall contribute in favour of each Dockworker in their employment the statutory 7.5% of each worker’s monthly emolument as Pension fund contribution towards the employee’s retirement fund.
  5. That a new manning and productivity level as agreed by the Association and the Union attached hereto as Appendix B shall replace the existing one.
  6. That all parties have agreed to abide by all safety standards as set from time to time by the relevant agencies.
  7. That a Procedural Agreement and the constitution of the National Joint Industrial Council (NJIC) have been drawn up and accepted by the Association and the Union as authentic document containing the items and modalities for future negotiations between the parties. The Procedural Agreement/the constitution of the National Joint Industrial Council is hereby attached as Appendix C.
  8. That the life span of this agreement shall be two (2) years from the date of its signing.
  9. That in the event of an employer paying higher than the minimum wage, the prevailing wage shall be continued.
  10. That on signing this agreement, an NJIC has automatically been constituted.
  11. That in the case where there is a breach of this agreement, the aggrieved party shall take the matter to the NJIC for settlement.
  12. That this Agreement was facilitated by Nigerian Ports Authority (NPA) and Nigerian Maritime Administration and Safety Agency (NIMASA).
  13. That the parties have agreed to act in good faith.”

It is crystal clear from the Agreement reproduced above that the category of workers meant to benefit from the minimum wage of N33, 000 (Thirty Three Thousand Naira only) is permanent employees of members of the Association of Private Operators of Seaport Terminals of which the Defendant is one. The key words are, “any permanently employed Dockworker.” The words used in the Agreement by the parties are clear and unambiguous and I have no other option than to give the said words their ordinary and simple meaning; which is that only permanent Dockworkers of any member of the Association of Private Operators of Seaport Terminals are entitled to and can benefit from the minimum wage of Thirty Three Thousand Naira Only (N33, 000.00). I so find and hold.

In a bid to establish the relationship between the Claimants and Defendant, the Claimants in paragraphs 1 and 6 of the Affidavit in support of the Originating Summons, deposed that they are employees/workers of the Defendant. I have however gone through the documents annexed to the Originating Summons and no single letter of employment of either the named claimants or any of the claimants was frontloaded before the court. Even when the Claimants filed other processes in response to the processes filed by the Defendant, the Claimants still did not forward to the court any single letter of employment in proof of their case before the court, particularly to establish the claim that they are permanent employees of the Defendant. The only documents with the semblance of letters of employment are letters of regularization of employment dated 14th March, 2016 in the names of Tamunokuro Obudibo and Alabo Sobere Okoh. These documents which were annexed to the Claimants’ Further and Better Affidavit filed on 25th May, 2016 cannot help the case of the Claimants because they are on the letterheads of BUA Ports and Terminals, Terminal B, Port Harcourt. They were not issued by the Defendant in this suit. The other document is a letter of regularization of employment dated 8th April, 2016 issued to one Ani Adebisi Sunday by the Defendant in this suit. The said Ani Adebisi Sunday is neither one of the named Claimants in this suit nor was the said Ani Adebisi Sunday listed anywhere as one of the persons being represented by the Claimants in this suit.

I do not therefore know how the Claimants want to establish this case being an employment or labour case without the basic requirement of producing even a single letter of employment to first and foremost establish their employment relationships with the Defendant and the nature of such relationships.

The best form of establishing employment relationship is through the production of the letter of employment before the court. This legal position was aptly captured by the apex court in the case of Fiicharles Organ & Ors V. Nigeria Liquefied Natural Gas Limited & Anor (2013) LPELR-20942(SC) in the following words:

“The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such document, no employment can be inferred. The employees’ Handbook issued by 1st Respondent is not a substitute for the letter of employment.”

Since the Claimants did not produce a single letter of employment before the court, it is not for this court to infer such employment relationship between them and the Defendant as no court of law acts based on speculations, inference or conjectures.

It is instructive to note that, the Defendant in a bid to show that the Claimants are temporary employees of the Defendant frontloaded along with the Counter Affidavit filed on 15th April, 2014, letters of employment of three (3) of the named Claimants, i.e., Basoene Elekima, John Ege and Samuel Osibah.

May I reproduce the letter of employment of the 1st Defendant for clarity. The contents of the letters are the same except for the different names.

Our Ref. MD/AD/R.1                                                                               10th January, 2008

Basoene Elekima

Thru AGM Operations

PTOL.

 

LETTER OF TEMPORARY APPOINTMENT

Following the recent interview you attended in this company, I am pleased to inform you that you have been offered Temporary Appointment as a Dockworker with effect from 14th January, 2008.

Your salary and allowances will be in line with those obtainable in the company.

This appointment is subject to the following:

  • Satisfactory reference from your previous employers (if any)
  • Certificate of fitness from any government approved hospital/medical centre.

The appointment will be governed by the company’s Conditions of Service and Rules/Regulations put in place by Management.

Please let me have your written acceptance or otherwise by signing the attached ACCEPTANCE FORM.

On acceptance of the offer, you should report to the AGM Operations for further instructions.

Please accept my congratulations.

  1. U. Akojuru

For: Managing Director

 

The law is trite that, the best form of evidence is documentary evidence. See Vincent U. Egharevba V. Dr. Orobor Osagie (2009) LPELR-1044(SC), where the Supreme Court stated the position of the law thus:

“It is now firmly settled that documentary evidence, is the best evidence. It is the best proof of the contents of such document and no oral evidence, will be allowed to discredit or contradict the contents thereof except where fraud is pleaded.”  See also Felicia Akinbisade V. The State (2006) LPELR-342(SC); Peoples Democratic Party & Anor. V. Independent National Electoral Commission & Ors (2008) LPELR-8597(CA; and Universal Trust Bank Nigeria Ltd V. Alhaji Adams Ajagbule & Anor (2005) LPELR-7563(CA).

In the absence of any documentary evidence to the contrary, I shall have no hesitation in agreeing with the evidence produced before the court by the Defendant that the Claimants herein are temporary employees of the Defendant. A claimant who has filed a suit before the court must succeed on the strength of his case and not on any weakness (if any) on the case of the Defendant. Rather than firstly establishing the employment relationship between them and the Defendant, the Claimants forwarded to the court bundles of documents with a view to proving that they are entitled to the agreed minimum wage of N33, 000.00 as contained in the Agreement between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria, forgetting that you cannot put something on nothing and expect it to stand.

Moreover, the case of Iwuji V. Federal Commissioner for Establishment (supra) cited and relied upon by the Claimants in arguing that the continued retention of the Claimants by the Defendant constitutes confirmation of employment is of no moment to this case as the facts and circumstances of the two cases are different. While Iwuji’s case has to do with the Federal Civil Service thereby making the employment one with statutory flavor, the instant case is purely that of master/servant relationship.

It is therefore my humble view that the Claimants not being permanent workers of the Defendant are not entitled to claim for the minimum wage of N33, 000.00 under the Agreement between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria on Minimum Standard for the Docklabour Industry (exhibit ‘A’).

 

The Claimants have failed to establish or prove their case to be entitled to the reliefs being sought from the court. The two (2) questions submitted to the court for interpretation are hereby resolved against the Claimants.

The sole issue identified by the Claimants for determination in this suit is also resolved against the Claimants.

In the final result, the two (2) reliefs being sought from the court by the Claimants are hereby refused.

 

Consequently, the Claimants’ case fails and same is hereby dismissed.

 

Judgment is entered accordingly.

 

I make no order as to costs.

 

 

 

Hon. Justice P. I. Hamman

Judge

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