MR DEBO O. ENILOLOBO V. NIGERIAN PETROLEUM DEVELOPMENT COMPANY (NPDC) & ANOR
(2013)LCN/6719(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2013
CA/B/123/2011
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
MR DEBO O. ENILOLOBO Appellant(s)
AND
1. NIGERIAN PETROLEUM DEVELOPMENT COMPANY (NPDC)
2. NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) Respondent(s)
RATIO
WHETHER OR NOT IT IS EVERY ERROR IN A JUDGEMENT THAT CAN CAUSE A REVERSAL OF THE DECISION
Even if we agree that the learned trial judge was wrong not to have pronounced on the complaint of the appellant, it is not every error in a judgment that will cause a reversal of the decision. An error will lead to a reversal only where it has caused miscarriage of justice. See Bayol v. Ahemba (1999) 10 NWLR Pt. 623 Pg.381, (1999) 7 SC Pt. 1 Pg.92. PER OGUNWUMIJU, J.C.A
HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Adamu Hobon of the Federal High Court, Benin City delivered on 29th June, 2010. The facts leading to this appeal are as follows:
The Plaintiff now Appellant in this appeal was employed as Graduate Trainee (Geophysics) by the 2nd Defendant via a letter of employment dated 27/5/2002. He was posted to the 1st Defendant a subsidiary of the 2nd Defendant after his appointment. He was subsequently transferred by the 1st Defendant to the Nigerian Agip Exploration Limited (hereafter called NAE) on 22/5/2004 to work as a Secondee pursuant to a Secondment Agreement which the 1st Defendant had with NAE. The Plaintiff later disengaged from the service of the Defendants on 7/9/2007 and was paid the sum of N3, 111,495.51 as his terminal benefit. However, the Plaintiff claimed that the Secondment allowance (being the sum of US $465, 000) to which he was entitled as a Secondee under the 1st Defendants Secondment Agreement with the NAE, was excluded from his terminal benefit and was never paid by the 1st Defendant despite repeated demands for same.
Hence the Plaintiff, pursuant to Or. 3 r 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009, instituted an action by an Originating Summons dated 25/7/2009 against the Defendants and submitted the following questions for determination by the court:
1. Whether the Plaintiff is entitled to be paid Secondment allowance taking into cognisance the terms of the Secondment agreement i.e. EXHIBIT C with Nigerian Agip Exploration Limited, the company to which the plaintiff was seconded by the Defendants?
2. Whether the Defendants are not in clear breach of the terms of the said Secondment agreement i.e. EXHIBIT C dated the 20th Day of May 2008, but made effective from 5th day of April 2004 as well as the Provisions of the Defendants CORPORATE POLICY & PROCEDURE GUIDE made pursuant to Section 10 of the NNPC ACT, LFN 2004 when they refused/failed to pay the Plaintiff his Secondment allowance upon the completion of his tenure with the Nigerian Agip Exploration Limited?
3. Whether the Defendants were right to have excluded the secondment allowance from the computation of the plaintiff’s retirement benefits and other entitlements due to him upon his disengagement from the service of the Defendants?
4. Whether the Defendants were right to have willfully withheld the said allowance even after several demands by internal memo by the team leader dated the 3rd day of March 2006 i.e. Exhibit G and a reminding memo from the Manager to the Human Resources dated 6th day of October 2007 respectively recommending payment?
5. Whether the Defendants are justified both in law and in Equity by continuing to keep the sum of $2, 048, 000.00 (Two Million and Forty Eight Thousand US dollars) in their account without making necessary disbursement to all the Secondees including the Plaintiff who are the ultimate beneficiaries having regard to the Provisions of Clauses 6.8 and 13.1 of Exhibit C, Section 45.3 & 45.3.1 of the Defendants Personnel Policy and Procedune as well as Paragraphs 5.0 and 6.0 of Exhibit H, i.e., the Interim Reports of the Committee on NPDC Secondee Remuneration (CNSR)- Ascertainment and payment?
6. Whether the Defendants are not liable in law and in Equity to pay Damages to the Plaintiff for their failure to pay the said allowance even after Nigeria Agip Exploration Limited has paid same into the 2nd Defendants 1st bank of Nigeria Abuja Main Branch office since the 29th day of July 2008 with a debit Note, reference number 1202/20080729 as well as for keeping same illegally in the said account with number 1412900045702 from the 28th day of July, 2008?
The Plaintiff then prayed the court for the following reliefs:
1. A DECLARATION that the Defendants continued refusal to pay the plaintiff the sum of $465, 000.00 (Four Hundred and Sixty five Thousand US Dollars) being his Secondment allowance Pursuant to the terms of Exhibits C-K after disengagement is wrong, illegal, null & void.
2. AN ORDER of this Honourable Court mandating or otherwise compelling the Defendants to pay all outstanding amounts relating to the Secondment allowance to Mr. Debo Enilolobo, the Plaintiff in this matter.
3. A DECLARATION that the Defendants by their conduct, particularly, their willful refusal to pay the said sum to the Plaintiff has occasioned a great loss of income to the Plaintiff knowing fully well that the Nigerian Agip Exploration Limited has paid the said sum into the 2nd Defendants 1st Bank of Nigeria Abuja Main Branch account since 28th day of July, 2008.
4. A DECLARATION that the said refusal to pay the Plaintiff constitute an infraction and total violation of the Nigerian National Petroleum Corporation Act, the Corporate Policy and Procedure Guide made pursuant to Section 10 of the 1st Schedule to the Act as well as the terms of the Secondment Agreement dated the 20th Day of May 2008 but made effective from the 5th day of May 2004 by virtue of Clause 13.1 of the said Agreement.
5. AN ORDER of Injunction restraining the Defendants whether by themselves or through their subsidiaries, agents, assigns, privies, personal representatives or any other person acting through them or pursuant to their instructions, directives/authority/power or under their consent from withdrawing from the said sum of $2, 048, 000.00 (Two Million and Forty Eight Thousand US dollars) paid into the 1st Defendant’s Account with 1st bank with No 1412900045702 at the Abuja Main Branch or further transacting on the said account pending the hearing and determination of this suit.
6. The sum of N5, 000, 000.00 (Five Million Naira) as General Damages against the Defendants jointly and severally for their wrongful Act as well as a breach of Contract / trust by illegally withholding the sum of $2, 048, 000.00 (Two Million and forty Eight Thousand US dollars) paid by the Nigerian Agip Exploration Limited in their account without disbursing same to all the beneficiaries including the Plaintiff.
7. The Sum of $465, 000.00 (Four Hundred and Sixty five Thousand US Dollars) as Special Damages against the Defendants being the amount the Plaintiff is entitled to be paid by virtue of the terms of the Secondment Agreement i.e. Exhibit C, Section 45.3, 45.3.1 of the Defendants Personnel Policy & Procedure Guide, as well as the content of the interim report of the Committee set up by the Defendants.
Both parties led evidence by way of affidavit and counter affidavit with copious exhibits in proof of their case. The Defendants during the trial contended that there was nothing in the Secondment agreement which entitles the Plaintiff to payment of any Secondment allowance. At the end of trial, the learned trial judge in a considered judgment answered questions 1 and 2 in the negative, determined questions 3, 4, 5 and 6 in the affirmative and dismissed the Plaintiffs case. Dissatisfied with the judgment, the Plaintiff has brought this appeal against the 1st and 2nd Defendants as 1st and 2nd Respondents respectively in this appeal by a notice of appeal filed on 2/8/2010.
The Appellant in the Appellant’s Brief settled by Mr. A.M Kotoye raised the following issues for determination by this court:
1. Whether or not the Lower Court properly evaluated the evidence before it in arriving at its decision that the Defendants/Respondents had no ‘clear cut policy’ on entitlements payable to their Joint Venture projects in their Conditions of Service, consequent upon which the suit herein was dismissed. (Grounds 1 & 2 of the Notice of Appeal).
2. Whether or not the failure of the Lower Court in first considering and resolving the complaint of the Plaintiff/Appellant in respect of certain paragraphs of the Defendants /Respondents Counter affidavit as violating provisions of Sections 86 and 87 of the Evidence Act, before relying on same to arrive at its decision, such failure has worked injustice on the Plaintiff/Appellant. (Ground 3 of the Notice of Appeal)
The Respondents in their Respondents’ Brief settled by Mr. P.O Osemwenkha Esq. also raised 2 issues for determination as follows:
1. Whether the lower Court properly evaluated the evidence before it in arriving at its finding that there was no clear cut policy on the payment of ‘secondment allowance’ claimed by the Appellant. (Grounds 1 & 2)
2. Whether the failure to specifically pronounce on the complaint made by the Appellant against certain paragraphs of the Respondents counter-affidavit in opposition to his Originating Summons occasioned any miscarriage of justice (Ground 3)
The issues formulated are the same. However the 1st issue which is the gravamen of this appeal as formulated by the appellant seems to be at large since the specific issue in contention is the non-payment of secondment allowance. I will therefore adopt the more precise issues as couched by the Respondents’ counsel
ISSUE ONE
Whether the lower Court properly evaluated the evidence before it in arriving at its finding that there was no clear cut policy on the payment of ‘secondment allowance’ claimed by the Appellant’ (Grounds 1 & 2)
On this issue, the Appellant’s counsel, MR. A.M KOTOYE contended that there is in existence a policy of the Respondents which requires them to pay the Appellant his secondment allowance for working with NAE. This policy, counsel submitted, is deducible from Exhibit N (the Corporate Procedure and Policy Guide, CPPG of the latter) and Exhibit C (the Secondment Agreement dated 20th May 2008) and is also evidenced by the act of the Respondents in other situations in respect of other Secondees.
Appellant’s counsel contended that the contract of service between the Appellant and the 2nd Respondent is governed by Exhibit A (Letter of Employment) and Exhibit N, hence for the purpose of this appeal, Exhibit A has to be read together with Exhibit N and the 1st Respondent is bound by both exhibits. Counsel submitted that the Appellant having been seconded by the 1st Respondent to NAE under Exhibit C in the performance of the Joint Venture contract between both entities, Exhibit C is also applicable to him. Counsel submitted that under the provision of Exhibits A, C and N, the Appellant worked with the NAE for 775 days at a rate of $600 per day. However, upon his disengagement on 7/7/2007, the Respondents omitted to compute and pay him the secondment allowance/entitlement in the severance pay. Counsel submitted that in the light of the foregoing, the trial court’s finding that only “Exhibit A governs the conditions of service between the Plaintiff and the 2nd Defendant” is wrong.
Appellant’s counsel contended that the learned trial judge’s conclusion that there is no specific policy of the Respondents on payment of secondees allowance is wrong considering the facts of this case and the content of these documents and it misled the court to answer all the questions submitted before it for determination in the manner it did.
Counsel contended that in interpreting the provisions of Exhibit N, the words therein should be given their ordinary natural meanings. He cited the case of NNPC v. Ojo (2005) 22 WRN Pg. 77 at Pg. 114 and Francis Arinze v. First Bank (2004) 5 SC Pt. 1 Pg. 160 at 170. Counsel submitted that in the instant case, the trial court failed to give the provisions of Exhibit N their natural ordinary meanings and effect.
Counsel argued that the Respondents in Exhibit C (the Secondment agreement), provided for the management/administration of the Appellant as Secondee and specifically made provisions regarding his entitlement in clause 6.8 thus:
“NPDC shall be responsible for fully compensating each of the Secondees in accordance with their contracts of employment with NPDC and the standard Personnel policies and procedures of NPDC…”
Clause 9.1
“NAE shall for the services rendered by the Secondees pursuant to this Agreement, pay NPDC the charges as contained in Annex 2. The said charges shall cover NPDC’s entire costs of providing the Secondees including without limitation payment of all taxes and charges levied by any governmental authority in connection with the secondment and the services provided by the Secondees under this Agreement (including but not limited to any amount required to be deducted by NAE pursuant to clause 8.2 above)”
Counsel further stated that Annex 2 headed “ALL INCLUSIVE FEES APPLICABLE TO SECONDEES” shows that the fees due to the Appellant (a Geophysicist Junior category), is $500.00 per day.
Appellant’s Counsel submitted that the Respondents had thus by these provisions of Exhibit C, modified the contract of service existing between the 2nd Respondents and the Appellant vide Exhibits A and N. Counsel contended that it is clear that these provisions of Exhibit C were specifically provided in respect of Secondees because NAE did not want the Appellant to enjoy the same terms governing its staff.
Counsel submitted that from the above provision, the Respondents under Clause 6.8 was “responsible for fully compensating” the Appellant while working with NAE and further undertook to indemnify NAE for any breach of contract which the Appellant might have against it. Counsel urged the court to give the words “compensating” in Clause 6.8, “charge” and “cost” in Clause 9.1 and “Fees” in Annex 2 their ordinary natural dictionary meanings. Counsel cited Adegbite v. College of Medicine, University of Lagos (1973) 5 SC (Reprint) p. 106 and Sule v. Nigerian Cotton Board (1985) 6 SC Pg. 62 where the court held that to construe the relationship between parties to a contract, the court is confined to the plain words and meaning derivable from the provisions containing the rights and obligations of parties. Counsel stated that if the ordinary meanings of these provisions are given to them in this case, the Appellant is entitled to 500 USD per day as Secondee.
Counsel argued that though the word “Allowance” is not used in Exhibits C, A and N, it is defined in the Oxford Advance Learner’s Dictionary 7th Edition Pg. 38 as “1. an amount of money that is given to somebody regularly or for a particular purpose… 3. An amount of money that can be earned or received before you start paying tax…”
Counsel submitted that from the above definition of Allowance, its non use should not rob the Appellant of his rights to it under the contract of Service with the Respondents. Counsel submitted that from the foregoing submissions, contrary to the trial court’s conclusion, Exhibit C is clearly a Secondee administration Agreement within the meaning of Clause 45.3 of Exhibit N referred to above. He urged this court to review the decision of the trial Court on the questions submitted for its determination by the Appellant.
Counsel urged the Court to answer questions 1 and 2 in the affirmative based on the above submissions. Counsel stated that there was evidence before the lower court that NAE had paid the sum of $2, 048, 000 to the Respondents in favour of the Appellant and other Secondees. Counsel argued that the Respondents were in the circumstances obliged to pay same over to the Appellant under Clause 45.3.1 of Exhibit N. Counsel argued that this is moreso since there was evidence that the Respondents had in similar situation and based on their policy as contained in Exhibit N paid some of their other staff seconded to Ocean Energy Limited such Secondee allowance.
Counsel further stated that the trial court had in response to the 3rd question held that
“in the absence of any clear cut policy on the secondment allowance… or any separate administration agreement for plaintiff-secondee the Defendants were right to have excluded the secondment allowance from the computation of the plaintiffs retirement benefit”.
Counsel submitted that this finding was neither supported by the facts of this case nor a wholesome reading of the document before the trial court.
Policy he stated is defined according to Oxford Advanced Learner’s Dictionary 7th Edition page 1122 as “a plan of action agreed or chosen by a Political Party, business etc”. Counsel contended that from the above submissions, the Respondents definitely had a plan of action in respect of the secondment of the Appellant and his colleagues to NAE. Counsel contended that this is further confirmed by the 1st Respondents Internal Memorandum dated 12th January, 2005-Exhibit J. He stated that the deposition of the Appellant as to the existence of a policy of the Respondents in this regard was also not challenged. Counsel referred the court to paragraph 2 and the 2nd to the last paragraph of Exhibit J which is an Internal Memorandum from the 1st Respondent’s EDS to the 1st Respondent’s Managing Director. Counsel stated that the 1st Respondent’s Managing Directors endorsement on same read:
“(3) MD NPDC
Approved.
This has stayed too long to resolve. If the NNPC policy changes it will override this.
SGD
31/1/5”
Counsel submitted that the above endorsement on Exhibit J is proof that the Respondents have a policy on payment of entitlements to its secondees and that they were entitled to such payments even if it was higher than what the 2nd Respondent was paying them. Counsel stated that at all material times, the 2nd Respondent did not allege a change in their policy. Counsel referred to Exhibit G which is an internal memorandum written by the Appellant and other secondees to the 1st defendant and Exhibit H which is the “Interim Report of the Committee on NPDC Secondee Remuneration Ascertainment and Payment” to prove that the 2nd Respondent had a policy on payment to its seconded staff. Clause 1.2 of Exhibit H provides:
“The secondees were enumerated and payments made based on the terms and conditions of service of NNPC and also in line with PSC Agreements and JOA signed with the operators. But NPDC Management had observed that, differences exist with respect of remuneration and payments of secondees’ entitlements and therefore a committee to establish uniform procedure on treatment and payment of remuneration for NPDC’s staff on secondment was set up…”
Counsel submitted that Exhibit H does not justify the conclusion of the lower court as it shows that there exists a clear cut policy. Counsel argued that notwithstanding the fact that the 2nd Respondent as stated in Exhibit H can change its policy at any time, Exhibit H cannot override the provision of Exhibits C and N. Counsel stated that by its answer to Question 3, the trial court had thereby assisted the Respondent to evade its contractual obligation to the Appellant. Counsel urged the court not to confirm this answer. Counsel cited the case of Kaydee Ventures Limited v. The Honourable Minister of Federal Capital Territory (2010) 7 SCM Pg. 120 at 144-145 to the effect that both parties and the court are bound by the terms of the contract between parties.
Counsel urged the court to review the decisions of the trial court as it had failed to go into the wordings of the documents placed before it and his findings do not reflect the content of these documents. Counsel cited Omoniyi v. UBA (2001) FWLR Pt. 63 Pg. 54; Akio Abey v. Chief Fubara Alex (1999) 12 SC pt. 11 Pg. 72 at 77; Ezekweseli v. Agbapuonwu (2003) 4 SC pt. 1 pg. 33; Onisaodu v. Elewuju (2006) 7 SC Pt. 11 Pg. 45 at 57; Obi Eze v. A.G Rivers State (2002) FWLR Pt. 89 Pg. 1109 at 1127. Counsel argued that the lower court by failing in this duty based its judgment on irrelevant matters. Counsel cited Udenwa v. Uzuegbu (2003) 34 WRN pg. 1, (2003) 13 NWLR pt. 836 pg. 136 at 143; Ukatta v. Ndinaze (1997) 4 NWLR pt. 499 pg. 276. Counsel submitted that in the circumstances, this court can re-evaluate such evidence because the trial court’s evaluation was not proper evaluation and does not conform with the principle in Mogaji v. Odofin (1978) 4 SC 91, 93-95 and Chief Omojuwa v. Mr. Adenikinju (1986) CA pt. 11 pg.79.
Counsel argued that since the instant case deals with documentary evidence, the issue of trial court’s observation of the demeanour of witnesses does not arise. Counsel referred to section 15 of the court of Appeal Act and Or. 4 r 1 of the Court of Appeal rules, 2007. He also cited Agagu v. Mimiko (2010) 32 WRN Pf. 16 at 88 – 89; Inakoju v. Adeleke (2007) 1 SC Pt 1 Pg 1 at 214. Counsel therefore urged the Court to review the case and hold that the judgment of the lower Court is perverse and a miscarriage of justice.
In response to this issue, Respondents’ counsel, MR P.O OSEMWENKHA ESQ. argued that the Appellant’s case at the trial court was heavily based on Exhibits C and N. Counsel contended that however, Exhibit C (Secondment Agreement) does not expressly or impliedly provide for the payment of any secondment allowance to the Appellant.
Counsel noted that Exhibit C empowered the 1st Respondent to assign its competent professionals to NAE for the efficient performance of their joint petroleum operations. Counsel stated that under clauses 6.1, 6.8, 9.1 and 9.2 of Exhibit C, the 1st Respondent is to be paid for such service in accordance with Annex 2 referred to above. Counsel stated that it is not in dispute that the Appellant was at all material time, a full staff of the 2nd Respondent whose full salaries and allowances save the said “secondment allowance” had been paid by the 2nd Respondent.
Respondents’ Counsel contended that the 1st two questions raised by the Appellant in his Originating Summons as to whether he is entitled to be paid the secondment allowance or whether the Respondents are not in breach of Exhibit C by not paying him the said allowance also shows clearly that his case is hinged on the construction of clauses 6.1, 6.8 and 9.1. Counsel submitted that in the instant case, the Appellant wrongly construed the meaning and intent of the abovementioned clauses and that the court should not be concerned with his erroneous interpretation of same but give its actual meaning to it as the Court cannot rewrite a contract for the parties. Counsel cited Yadis (Nig) Ltd v. G.NIC Ltd (2007) 14 NWLR pt. 1055 Pg. 507 at 608-610 and Ladipo v. Chevron (Nig) Ltd (2005) 1 NWLR Pt 907 Pg 277 at 289.
Respondents’ Counsel submitted that contrary to the Appellants contention, he is not entitled to $600 per day for the 775 days during which he worked with NAE. Counsel argued that in this kind of case, the court ought to undertake a holistic appraisal of the contents of Exhibits N and C in determining whether the Appellant’s case is justified. Counsel cited Shell Petroleum Development Co. v. Lawson-Jack (1998) 4 NWLR Pt 545 Pg 249 at 271.
Counsel argued that paragraph 45.3 of Exhibit N states as follows:
“Except otherwise specified by a separate Secondee Administration Agreement, Secondees shall be subject to the Conditions of Service and benefits applicable in the JVC to which they are seconded”
Counsel submitted that by a literal interpretation of this provision, the use of the word “except” portends that Secondees would only be subject to the conditions of service in the Joint Venture Company (JVC) to which they are seconded if no contrary provision is made in respect thereof in the Secondment agreement. Counsel noted that paragraph 6.1 of Exhibit C provides:
“6.1 Each secondee shall remain in all respects as employee of NPDC in accordance with such secondees terms and conditions of employment” and shall not be considered an employee of NAE. NPDC shall remain responsible for such seondee’s employment matters including, but not limited to salaries…”
Counsel submitted that from the above provision, the conditions of service and benefit applicable to staff of NAE is not applicable to the Appellant. Counsel further submitted that paragraph 6.8 of Exhibit C referred to above gives credence to the fact that only the Respondents’ condition of service which provides for payment of salaries and allowance (excluding the so-called secondment allowance) regulated the Appellant’s contract with the Respondents. Counsel argued that the Appellant having admittedly collected his salaries and allowance, he is entitled to nothing more and the Court should so hold. He stated that since Exhibit C has provided that the Respondent is to be solely responsible for the compensation and remuneration of the Appellant as stated in the proviso to paragraph 45.3 of Exhibit N, paragraph 45.3 cannot ground the Appellant’s claim. Counsel cited the case of Union Bank of Nigeria v. Sax (Nig) Ltd (1994) 8 NWLR pt 361 Pg 150 at 165 where Adio JSC held:
“When a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. Furthermore, the general rule is that when the words of any instrument are free from ambiguity in themselves and when the circumstances of the case have not created any doubt or difficulty as to the proper application of the words to claimants under the instrument or the subject-matter to which the instrument relates, such an instrument is always construed according to the strict” plain and common meaning of the words themselves… it is not the business of the court to make a contract for the parties or rewrite the one which they have made. See Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9.”
Counsel stated that paragraph 45.3.1 of Exhibit N which reads:
“the salaries payable to seconded staff will be those applicable in the JVC to which they are seconded…”
should be read together with paragraph 45.3 above. Counsel contended that assuming without conceding that the salaries and allowances of NAE is to be applicable to the Appellant, he had failed to adduce evidence showing the salaries being earned by NAE’s staff. Counsel stated that rather, the Appellant wanted the court to estimate his salary based on that earned by Respondents’ staff seconded to Ocean Energy Limited, an entirely different company without even tendering the contract between the 1st Respondent and Ocean Energy as evidence that the terms of 1st Respondent’s contracts Ocean Energy and NAE are the same. Counsel submitted that a Court cannot speculate on evidence that is not on record. He cited George v. UBA (1972) 8-9 SC Pg.264 at 280.
Counsel contended that in the entire provision of Annexure 2 titled “ALL INCLUSIVE FEES APPLICABLE TO SECONDEES”, no reference was made to $600 as being for secondment allowance for secondees. Counsel contended that the said sum represented fees to be paid to NPDC for rendering services by its employees seconded to NAE and covered among others: salaries, deductions, incentives, taxes, payroll burdens and benefits, accommodation and living allowances and related expenses during business travel etc. and urged the Court to so hold.
Counsel contended that Exhibit G is proof of this fact. In Exhibit G, the Appellant and his colleagues urged the Respondents to adopt the ocean energy modality of “…deduction of all emoluments paid to the Secondees by NPDC from the Secondment rate paid by NAE and the difference be shared in ratio of 50:50 between the Secondees and the company NPDC”.
Counsel argued that since the fees paid under Annexure 2 included salaries and allowances, and the Appellant had been paid his full salaries and allowance, then he has no authority under Exhibit C to claim any secondment allowance. Counsel submitted that it would be absurd and antithetical to reason for the Appellant having collected all his salaries and allowance from the Respondents to turn around and claim a bogus secondment allowance not provided for in his Conditions of Service. Counsel reiterated that a holistic appraisal of all the Exhibits mentioned above would lead to the conclusion that the Appellant’s claim is devoid of merit.
Respondents’ counsel further contended that Exhibits G, H and J attached by the Appellant to prove his case rather support the finding of the lower Court that there was no policy on the payment of secondee allowance.
Counsel contended that Exhibit G, an internal memorandum addressed by the leader of the Appellant’s group of Secondees states:
“At this juncture, it is pertinent to point out that OPL244 JOA did not state specifically the modality for compensating NPDC’s secondees but rather stated that Agip (NAE) will pay all the inclusive seondment rate/tariff to NNPC/NPDC coffers while NPDC will work out the modality for compensating its secondees in accordance with its Corporate Policies and Guidelines… In view of the above, we therefore wish to solicit that the Ocean Energy modality of payment, which has already been approved by NNPC corporate, be applied for our case…”
Counsel submitted that it is evident from this excerpt that there was no policy for the payment of secondment hence the agitation for a review of the existing policy. Counsel contended that Exhibit G is therefore an admission against the interest of the Appellant which supports the defence of the Respondents. Counsel urged this court to so hold. He cited Onisaodu v. Elewuju (2006) 13 NWLR Pt. 998 Pg.517 at 532.
Counsel also submitted that Exhibit H which is said to be an interim report of the committee on NPDC secondees remuneration is an undated and unsigned document which has no legal value. Counsel urged this court to disregard the said exhibit and the argument of Appellant’s counsel thereto. Counsel cited Omega Bank Nig. PLC v. O.B.C Ltd (2005) 8 NWLR Pt. 928 547 at 576 and Ojo v. Adejobi (1978) 3 SC Pg. 65 at 165. Counsel argued that should the Court disagree with this submission, there was nothing on record to show that the recommendation and/or proposal as contained in paragraphs 5.0 and 7.0 of Exhibit H were approved by the management of the 1st Respondent. Hence, it is of no legal efficacy.
Counsel in respect of Exhibit J submitted that it has no bearing whatsoever on the 1st Respondent’s staff seconded to NAE. Counsel further submitted that the said Exhibit shows clearly that the contract is silent on remuneration of secondees. Counsel concluded that Exhibit J is of no assistance to the court in construing the contract between the Appellant and the Respondents since it has not been proved that the terms of the contract with NAE is the same with that which the 1st Respondent made with Ocean Energy. He contended that counsel led no evidence to show what his colleagues seconded to Ocean Energy were earning to enable the court determine the difference. Exhibit J, he contended must be read in conjunction with Clauses 6.1 and 6.8 of Exhibit C which excludes the applicability NAE’S condition of service on the Appellant. Counsel submitted that from the above clauses, the Appellant at all material time was a staff of the 2nd Respondent and the fact that he was seconded to NAE conferred no additional status on him to entitle him to earn more than what was provided in his condition of service. Counsel further submitted that it is trite that extrinsic evidence cannot be admitted to add to, vary, subtract or contradict the terms of a written agreement and that this was what the Appellant sought to do in this case. Counsel cited Baliol Nig. Ltd v. Nafcon Nig. Ltd. (2010) 16 NWLR Pt. 1220 Pg. 619 at 633.
Counsel submitted that the combined effect of Exhibits C. G and H completely debunked the Appellant’s claim. Counsel submitted that the burden of proving the existence of a term of an agreement rests squarely on the party asserting such a term and that failure to establish this vital term which existence is sin qua non to the successful prosecution of a case, makes such case liable to be dismissed. Counsel submitted that Appellant’s action in the circumstances was rightly dismissed by the court below. Counsel cited Olalege v. Afro Continental Ltd. (1996) 7 NWLR Pt. 458 Pg. 29 at 46; Oyefolu v. Sodiq (2009) 1 WRN Pg.52 at 75
Respondents’ counsel also submitted that the Appellant is not privy to the contract between the 1st Respondent and NAE. He submitted that it is trite that a party who is not privy to a contract cannot sue to enforce same even if it was made for his benefit. Counsel cited Dunlop Pneumatic Tyre co. Ltd v. Selfridge Ltd (1915) A.C 847 at 853.
The trial court had held as follows on Pg. 348-349 of the record:
“In the instant case all the documents adduced before the Court none specifically referred to “SECONDMENT ALLOWANCE FOR SECONDEES” on which the Plaintiffs claim is founded, particularly; Exhibit “C”‘… Exhibit “A”… Exhibit “N”… Exhibit “G”… As it is, it appears there is no clear cut policy of the Defendants on the Secondees allowance which forms part of the conditions of service… Until when the management form the policy it will become part of the conditions of service and enforceable in law, otherwise not”.
I have looked at all the exhibits attached by both parties to their affidavits at the trial court. Clause 9.1 of Exhibit C the secondment agreement between Nigeria Agip Exploration Ltd. (NAE) and the NPDC states as follows:
“NAE shall, for the services rendered by the Secondee(s) pursuant to this Agreement, Pay NPDC the charges as contained in Annex 2. The said charges shall cover NPDC’s entire costs of providing the Secondees including without limitation payment of all taxes and charges levied by any governmental authority in connection with the secondment and the services provided by the secondees under this Agreement (including but not limited to any amount required to be deducted by NAE pursuant to Clause 8.2 above) .”
For clarity it is important to set out verbatim the relevant portions Annexture 2 referred to in clause 9.1 of Exhibit C. It is on P9.29 of the record.
“ALL INCLUSIVE FEES APPLICABLE TO SECONDEES
(USS/Working Day)
Qualification/Experience Junior Senior
Geophysicist 600 800
Geologist 600 800
Reservoir Engineer 720 960
Drilling Engineer 600 800
Project Engineer 720 960
Accountant 540 720
HSE Specialist 540 720
The rates stated above include but are not limited to:
Salary;
Deductions;
Incentives;
Taxes;
Payroll burdens and benefits;
Accommodation and living allowances and related expenses, except lodging expenses during business travels;
Transportation (vehicle rental and all moving expenses) except business travel expenses; Meals if not in the canteen indicated by NAE;
Insurance policy;
Medical assistance and Insurance;
Retirements funds payments;
All benefits as per NPDC internal policy;”
Appellant had stated in his brief that he is by virtue of Clauses 6.8, 9.1 and Annexure 2 of Exhibit C entitled to be paid $600 per day for the period of his secondment. A close scrutiny of clause 9.1 referred to above and 10.1 of Exhibit C states that:
“Within thirty (30) days after the end of each calendar month, NPDC shall invoice NAE in respect of the Secondees, the applicable charges under Annex 2 relevant to such month…”
Exhibit N, the Corporate Policy and Procedure Guide, not only contains the Respondents’ mission statement, vision and core values, it contains ample provisions in respect of the Respondents’ staff who are seconded to work with their Joint Venture Partners. In Clause 45.3 headed “SECONDEES AND JVC’S CONDITION OF SERVICE” as follows:
“Except otherwise specified by a separate Secondee Administration Agreement, Secondees shall be subject to the Conditions of Service and benefits applicable in the JVC to which they are seconded”
While Clause 45.3.1 headed “SALARIES AND BENEFITS” provides as follows:
“The salaries payable to seconded staff will be those applicable in the JVC to which they are seconded. However, when assigned, the JVC pays to the NNPC then NNPC pays them”
By the combined effect of the provisions of Clauses 45.0, 45.1, 45.3 and 45.3.1 of Exhibit N, it is clear that the Appellant while on secondment, is entitled to enjoy the same conditions of service and salary available to staff of the NAE of equal rank save in cases where the contrary is provided for in a separate agreement between the Respondents and NAE. Where the said salary is assigned to the Respondents, it is to be paid by NAE to the Respondents while latter ought to pay same to the Appellant.
It is clear to me, that contrary to the claim of the Appellant, there is nothing in the secondment agreement that indicates a special allowance for his secondment. The agreement between his primary employers NNPC/NPDC and the NAE where he was seconded is that NAE shall pay NNPC/NPDC for the services rendered by the secondee (pursuant to Exhibit C) to it. The rates set out in Annexture 2 include salary to be paid by NAE to the secondee through NNPC/NPDC (his primary employer).
For me, Exhibit J which the Appellant had waved as his smoking gun provided a solution to the interpretation of the agreement between the parties. The appellant had deliberately drawn our attention to the endorsement on exhibit J without emphasising the contents of exhibit J which was ostensibly approved by NPDC/NNPC management. I will set the full content of Exhibit J below. It is on Pg. 45 of the record.
Internal Memorandum
“To: MD Ref.: NPDC/EDS/06.16
From: EDS Date: January 12, 2005
RE: REMUNERATION OF NPDC STAFF SECONDED TO OCEAN ENERGY
Please refer to the series of correspondences between Ocean Energy and NNPC over the remuneration of NPDC staff seconded to Ocean Energy in October 2003 and find attached a copy of the relevant portion of the JOA concerning secondees to the operating company. (Please see Appendix ‘A’ attached).
However, since the contract is silent on the remuneration of the secondees, GED E & P sought the opinion in GED CS on this (find copy of memo attached as Appendix ‘B’), who in turn advised that they earn benefits attached to the positions they occupy in the company of secondment, if it is higher than their substantive benefits in NNPC.
Attached herewith are the details of the secondees substantive earnings in NNPC as against what Ocean Energy is offering. The Ocean Energy offer is higher. (Find attached, Appendix ‘C’).
I agree with GED E & P’s advice and therefore recommend that Messrs Egbuna, Bariwei and Adeniji be allowed to earn what OCEAN Energy is offering them. This is more so because it compares favourable against what their counterparts in Ocean Energy are earning. Attached is a copy of salaries of existing staff of Ocean Energy as Appendix ‘D’.
You may wish to seek GED E & P’s approval for the above recommendation.
(Sgd)
J.I. Phillips”
I do not think the contents of the above letter supports the claim that secondee staff to Ocean Energy was enjoying a different and separate allowance as secondee different from their normal salaries and allowances. What was approved in Exhibit J by the management of NNPC/NPDC is that where the substantive earning of a secondee in NPDC/NNPC is less than what is offered by the establishment to which he is seconded and his counterparts in the other company doing the same work would be earning higher in terms of remuneration and allowances, NNPC/NPDC should approve the payment to such secondees the higher and better renumeration in their secondary place of employment. Afterall, the money is sent from the secondary place of employment to the primary place of employment for payment to the said secondees. I do not see how the peculiar and singular issue treated and approved in Exhibit J can be stretched to mean that while on secondment, the applicant is entitled to standard salary and allowances remitted by NAE to NPDC for payment to him and he is also entitled to another payment which he called “secondee allowance”.
The Appellant relied on paragraphs 22, 23, 24 of his affidavit in support of the originating summons. He also relied on Exhibits G, H and J respectively. Exhibit H which is on Pg. 38-44 of the record is the “Interim report of the committee on NPDC secondee renumeration (CNRS) ascertainment and payment”. The objective of the committee is as stated on paragraph L.2 of the report on Pg. 39 of the record.
“1.2 NPDC STAFF ON SECONDMENT
To achieve one of the key objectives of developing the human capital base with the right competencies to actualize the vision of NPDC, NPDC staff were seconded to some of the aforementioned participating interest ventures, e.g. Ocean Energy and Agip Exploration.
The secondees were enumerated and payments made based on the terms and conditions of service of NNPC and also in line with PSC Agreements and JOA signed with the Operators. But NPDC Management had observed that, differences exists with respect of remuneration and payments of secondees’s entitlements and therefore a committee to establish uniform procedure on the treatment and payment of remuneration for NPDC’s staff on secondment was setup”.
I have thoroughly perused Exhibit H and there is nothing in it that substantiates the appellant’s claim in paragraph 23 of his affidavit that there was a recommendation that he and other people on secondment be paid their allowances immediately. All it contained on Pg. 42 of the record is a “proposed remuneration payment to NPDC secondees” which was made by the committee to standardise the salaries and allowances of all secondees in various joint venture projects.
None of Exhibits G, H and J support the contention of the appellant that there was in place a policy to pay a separate “secondee allowance” to seconded staff of NNPC/NPDC. I have to agree with the learned trial judge that until there is a policy of the NNPC/NPDC on secondment allowance, there cannot be a valid claim. The claim must be based on certain facts and figures deducible from certain policy clearly set out by the appellant’s primary employers and as agreed to by the secondary employer. None of the exhibits attached to the affidavit in support of the originating summons can support the claim of the appellant that he was entitled to a separate and special secondment allowance. This issue is resolved against the appellant.
ISSUE TWO
Whether the failure to specifically pronounce on the complaint made by the Appellant against certain paragraphs of the Respondent’s counter-affidavit in opposition to his Originating Summons occasioned any miscarriage of justice (Ground 3)
On this issue, Appellant’s counsel contended that paragraphs 6, 7, 8, 10, 11, 12, 15, 17, 18, 19 and 20 of the Respondents’ counter affidavit as contained on pg. 308-310 of the record offend Sections 86 – 89 of the Evidence Act Cap E14 laws of the Federation of Nigeria, 2004 are therefore liable to be struck out.
Counsel submitted that the law generally requires the Respondents to, where they intended to controvert the Appellant’s deposition, state their own story in opposition and not to makes conclusions in their counter affidavit. Counsel contended that the Respondents’ counter affidavit contain conclusions because for them to have deposed that “paragraphs 2, 4, 6, 10, 15 – 29(a)-(e), 30, 31, 32 and 33 of the Plaintiff’s affidavit are false in all material particulars” it means the deponent had tested the veracity or otherwise of the said deposition by forensic examination or documentary evidence and concluded that they are false. Counsel cited Mrs. Adebola Oluwode v. Cooperative Bank and 2 Ors (2008) 13 WRN Pg. 58 at 77 and Bamaiyi v. State (2001) 4SC Pt. 1 Pg.8 at 32, (2001) SCM Pg. 20.
Counsel submitted that in applying the above authority, paragraphs 5, 10, 11 and 18 of the Respondents’ counter are conclusions, paragraphs 7, 8, 10, 11, 12, 13, 14 and 15 contain arguments and paragraph 21 is both an argument and a conclusion. Counsel submitted that the counter affidavit is thus an abuse of court process and was not supported by documentary evidence. Counsel argued that if the lower court had granted their prayer and struck out the said paragraphs of the counter affidavit, what is left could not counter the case of the Appellant. Counsel urged the court to resolve this issue in favour of the Appellant.
In response to this issue, the Respondents’ counsel argued that Appellant’s contention on this point is a non-issue. He stated that the facts deposed to by junior counsel in the office of the Respondents’ lawyers were facts within his knowledge garnered from Respondents’ staff and a welter of documents as evident from the face of the counter affidavit. He stated that a perusal of the challenged paragraphs shows that they relate to non- contentious issues which can be deduced from the Exhibits attached to the Originating summons.
Counsel submitted that a party is entitled in law to specifically deny depositions in an affidavit otherwise, he will be deemed to have admitted same. Counsel cited Egbuna v. Egbuna (1989) 2 NWLR Pt 106 P9.773 at 777.
Counsel pointed out that the Originating Summons used by counsel to commence his suit is only applicable where there is no dispute as to questions of fact but there is need for construction and interpretation of documents. He stated that contentious issues are commenced by writ of summons. Counsel submitted that hence, the affidavit evidence deposed to by parties in this case were not material to the resolution of the issues before the court. Counsel cited Or. 3 r 6 of the Federal High Court (Civil procedure) Rules 2009; National Bank of Nigeria & Anor v. Alakija (1978) 9 SC pg. 59 at 71; and Akibu v. Race Auto Ltd (2000) 14 NWLR Pt. 686 Pg.190 at 203-206.
Counsel submitted that the fact of Bamaiyi v. State (supra) cited by Appellant’s counsel is clearly distinguishable from the instant case. Counsel stated that Bamaiyi v. State concerns an application for bail in a murder trial which the State’s counsel opposed by way of counter affidavit. Counsel argued that the fact in that case were thus highly contentious and was dependent on affidavit evidence only as against this case which involves the construction of documents placed before the court.
Counsel further submitted that a trial court is not bound to address every frivolous issue raised by parties. Counsel submitted that the issue of the Respondents’ counter affidavit violating the Evidence Act was one which would have had no positive impact on the resolution of the real issues before the court. Counsel cited Nwaeseh v. Nwaeseh (2000) 3 NWLR Pt. 649 Pg. 391 at 402.
Counsel urged the court to answer this issue in the negative and dismiss the appeal with substantial cost.
Let me say that the first objection raised by the Appellant to the counter affidavit of the Respondent is that it was deposed to by counsel in chambers who did not state the source of his information and who is thus liable to be subjected to cross-examination. That is as may be. There is nothing stopping counsel from swearing to affidavit in relation to the facts of a case. The practice is actively discouraged as it renders the counsel on record liable to be cross-examined with all the attendant inconveniences when counsel should concentrate on the primary assignment of prosecuting the cause of his client. Making oneself liable to be cross examined while it detracts one from the job at hand is not irregular.
The second objection is that paragraphs 6-20 of the counter-affidavit contained extraneous facts and conclusions contrary to S.87 of the Evidence Act.
I will consider the objection to paragraph 6. Paragraph 6 states as follows:-
“That paragraphs 2, 4, 6, 10, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29(a)-(c), 30, 31, 92 and 33 of the Plaintiff’s Affidavit are false in all material particulars.”
I cannot see any objection that can be raised to the stark wordings of that paragraph. Procedural laws allow that in pleadings and evidence (the latter is what a counter-affidavit is) general traverse can be made to the assertions or depositions of an opponent. Paragraph 6 is merely a general traverse to the specified paragraphs of the Appellant’s affidavit. I cannot also agree that the other paragraphs of the counter affidavit are defective for being conclusions. A statement of the way you see your own side of the story cannot be defective and be tagged a “conclusion”.
I have to agree whole heartedly with Respondent’s counsel that issue two is not only frivolous, it is a non-issue. Sometimes a judge has to ignore the unnecessary dust raised by a party which can obscure the real issues in controversy in order to properly address the issues in contention between the parties. The learned trial judge was right not to allow himself to be diverted by irrelevant issues. See Nwaeseh v. Nwaeseh (2000) 3 NWLR Pt. 649 Pg. 391. Even if all the paragraphs of the Respondent’s affidavit had been considered defective, the onus was still on the Appellant to prove by his affidavit his claims in the originating summons. It is interesting to note that in paragraphs 12, 14, 18 and 19 of the counter affidavit, the Respondents did not refer to ANY document (in fact no exhibit was attached to the counter affidavit) therefore the paragraphs being challenged did not introduce new material that could have adversely affected the case of the appellant.
Even if we agree that the learned trial judge was wrong not to have pronounced on the complaint of the appellant, it is not every error in a judgment that will cause a reversal of the decision. An error will lead to a reversal only where it has caused miscarriage of justice. See Bayol v. Ahemba (1999) 10 NWLR Pt. 623 Pg.381, (1999) 7 SC Pt. 1 Pg.92.I have to agree with learned Respondent’s counsel that the failure to pronounce on the complaint of the appellant against certain paragraphs in the Respondents counter affidavit in opposition to his originating summons is a non issue and did not occasion any miscarriage of justice in view of the fact that the case was essentially fought on the construction and interpretation of the documents exhibited by the Appellant in his originating summons.
Having resolved both issues against the Appellant, the appeal is dismissed. The judgment of the Federal High Court in Suit No. FHC/B/CS/175/09 is hereby affirmed by me. I make an order of N50, 000.00 costs to the Respondents against the Appellant.
SIDI DAUDA BAGE, J.C.A: I had the honour of reading in draft the lead Judgment just delivered by my learned brother Hon. Justice H.M. Ogunwumiju JCA. I entirely agree with all the reasonings and the conclusion reached, hence I do not have anything more useful to add. The appeal is unmeritorious, and also dismissed by me. I abide with the order as to costs contained in the lead Judgment.
TOM SHAIBU YAKUBU, J.C.A: I had read before now the judgment of this court, just delivered by my Lord, HELEN M. OGUNWUMIJU, JCA, who dealt exhaustively with all the issues in this appeal, to my fullest satisfaction. I therefore agree that the appeal be dismissed, as lacking in merits and it is so dismissed.
I, abide by the order as to costs, contained in the lead judgment, accordingly.
Appearances
A.M. KOTOYEFor Appellant
AND
P.O. OSEMWENKHAFor Respondent
