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: 20TH JUNE, 2018 SUIT NO: NICN/PHC/76/2014
BETWEEN:
- FRIDAY NGBADIKE CLAIMANT
AND
GULF MANNING SERVICES (NIGERIA) LIMITED DEFENDANT
REPRESENTATION:
Esther Solomon holding the brief of R. O. Ndugbu for the Claimant
Gamaliel Oko for the Defendant
JUDGMENT
By a Writ of Summons and Statement of Claim dated 1st July, 2010, and filed on 5th July, 2010, the Claimant commenced this suit against the Defendant at the Federal High Court, Port Harcourt Judicial Division. With the coming into effect of the 3rd Alteration Act, the matter was transferred to this court vide Order of the Federal High Court made on 7th of October, 2013.
With the transfer of the suit, parties refiled their processes before this court. The Claimant filed a Complaint together with Statement of Facts, Witness Statement on Oath, List of Documents and List of Witnesses all dated 14th September, 2015 but filed on 15th September, 2015, claiming the following reliefs against the Defendant:
- The sum of $381.00 (Three Hundred and Eighty One US Dollars) monthly from November, 2009 till the employment of the Plaintiff is lawfully terminated.
- The sum of $89,100 (Eighty Nine Thousand, One Hundred US Dollars) being compensation arising from disability of Plaintiff.
Upon service of the Originating Processes on the Defendant, the Defendant filed Memorandum of Appearance, Statement of Defence,Witness Statement on Oath, List of Witnesses and List of Documents all dated and filed on the 5th of October, 2015
Upon receipt of the defendant’s processes, the Claimant filed a Reply to the Statement of Defence and a Further Witness Statement on Oath both dated and filed on 3rd November, 2015.
The matter subsequently proceeded to trial wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 15th of September, 2015 as well as the Further Witness Deposition on Oath made on 3rd November, 2015, and tendered 11 documents which were admitted and marked as exhibits CW1, CW2, CW3A-B, CW4, CW5, CW6, CW7, CW8, CW9A-Q, CW10A-E and CW11A-C. The witness was cross-examined by the defence counsel without being re-examined by the Claimant’s counsel. The Claimant then closed his case and the matter was further adjourned for the Defendant to open its Defence.
The Defendant on the other hand called one witness Martins Nnorom (a crew officer with the defendant) who testified as DW. He adopted the Witness Statement on Oath made on 5th October, 2015, and tendered 11 documents which were admitted and marked as Exhibits DW1, DW2A-B, DW3, DW4, DW5A-E, DW6, DW7A-B, DW8, DW9A-C, DW10 and DW11A-Z. The witness was cross-examined by the learned Claimant’s counsel without being re-examined by the learned Defendant’s counsel.
At the close of the defendant’s case, parties were ordered to file their final written addresses and the case was adjourned to 22nd May, 2018 for adoption of Final Written Addresses.
When the matter came up for hearing on the 22nd of May, 2018, parties adopted their Final Written Addresses respectively. The Defendant’s Final Written Address is dated and filed on 10th April, 2018. The Defendant also filed a Reply on Points of Law to the Claimant’s Final Written Address on 15th of May, 2018 which was equally adopted by the learned counsel for the Defendant. The Claimant’s Final Written Address on the other hand was filed on 3rd May, 2018. With the adoption of the parties’ Final Written Addresses, the suit was adjourned to 20th June, 2018 for judgment.
THE CASE OF THE CLAIMANT:
It is the case of the Claimant that, he was employed by the Defendant in March, 2006, and placed on board a vessel known as LNG Port Harcourt. That at the time of the Claimant’s employment he was not issued with a letter of employment but the Defendant promised to issue the said letter to the Claimant while on board LNG Port Harcourt.
The Claimant alleges that, while on board LNG Port Harcourt enroute Portugal, he sustained injury while carrying an iron door manually and the iron door hit him on his thigh on the 3rd of December, 2008, and he requested for medicare but the officers on board allegedly refused him medical care. That the iron door ought to have been carried by crane and not by hand. That the accident was reported on board and when nothing was done, the Claimant also reported the accident to his Crew Appraisal Rating on 3rd February, 2009.
That upon his return to Nigeria, rather than treating his injury, the Defendant again put him on board the vessel which worsened his condition as a result of which he was taken to a Hospital in Barcelona, Spain for medical attention. And when he returned to Nigeria from Spain, he was off signed on board and went home to bury his mother after informing the management of the Defendant of the injury in writing on 7th February, 2009.
That the Defendant subsequently sent the Claimant to their retained hospital in Warri, Delta State (Capitol Hill Clinic/Hospital) in March, 2009 where he was treated till 24th of July, 2009 when the hospital declared him unfit to carry out his duties on health grounds. The Defendant thereafter referred the Claimant to Lagoon Hospital, Lagos for further treatment in September, 2009 where he reported for treatment but was again referred by Lagoon Hospital Lagos back to Capital Hill Hospital Warri, Delta State for physiotherapy management.
That despite his diligent attendance at the physiotherapy, there was no improvement on his health and he started experiencing sexual dysfunction and the Defendant again asked him to go to Lagos for treatment which he did between 16th and 17th of November, 2009.
The Claimant stated further that, while undergoing treatment in Lagos, he discovered that his salary was stopped by the Defendant since 13th day of November, 2009, and that at the time of his dismissal from the defendant he was an Ordinary Seaman on monthly salary of $816 (Eight Hundred and Sixteen US Dollars) having been promoted to that post on 26th of December, 2008.
That by the provisions of the Collective Bargaining Agreement (CBA) between the Maritime Workers Union and the Defendant which also forms part of his contract of employment, he is entitled to compensation of $89, 100 (Eighty Nine Thousand, One Hundred US Dollars) since he had been declared disabled to continue in the maritime services. That he is allegedly entitled to three months notice of termination of appointment in writing which has not been communicated to him till date, and his monthly basic salary prior to the termination of his employment was $381.00 (Three Hundred and Eighty One US Dollars).
That having not heard from the Defendant, the Claimant instructed his Solicitor, R. O. Ndugbu, Esq. who wrote to the Defendant a demand letter on 2nd June, 2010, to which the Defendant replied vide their letter 17th June, 2010, and forwarded a report from Lagoon Hospitals Lagos dated 2nd December, 2009.
That neither the Defendant nor the authorities of Lagoon Hospital inform him of any report dated 2nd December, 2009, and the said report was allegedly made in anticipation of the present suit. That he was never at any time told to resume work or go for further medical checkup even when the report of the accident was acknowledged in an email sent by one Mr. Thomas David.
The Claimant therefore urged the court to grant the reliefs being sought in this suit.
DEFENDANT’S CASE:
According the Defendant, when the Claimant was employed by the Defendant’s principals he was given an employment letter which he collected and acknowledged the receipt of same before being assigned duties. The Defendant however denied that the Claimant sustained any injury onboard the vessel, and that it is not true that the Claimant asked for ‘medicare’ but was refused by officers on board the vessel as alleged by the Claimant.
To the Defendant, the Claimant abandoned his job and has refused to report to duty till date, and that all crew members of the vessel including the Claimant were properly catered for during voyages. That the Claimant was sent to a hospital in Spain as rightly admitted by the Claimant and he continued to be taken care of by being treated here in Nigeria, including treatments onboard the vessel for illnesses until when he suddenly refused to either visit the clinic for medical checkup or report for work to enable the Defendant certify his medical fitness to continue with his work.
That the Claimant was not dismissed by the Defendant as being alleged; rather, he refused to report to work till date; and has refused to take advantage of all opportunities offered to him to be treated and properly taken care of which would have mitigated the situation, but he rather chose to make frivolous claims against the Defendant. That the alleged injury and any disability did not occur onboard the vessel or at all and he negligently contributed to the alleged injury/disability which in any case the Defendant denied.
According to the Defendant, the Claimant is not entitled to any of the claims and the court should therefore dismiss the suit with substantial cost.
DEFENDANT’S SUBMISSIONS.
The Defendant distilled one issue for determination, to wit: Whether the Plaintiff has proved his case as to be entitled to the judgment of this Honourable Court in his favour.
The Defendant submitted that, the Claimant who admitted under cross-examination that he stopped working in November, 2009 has by his own conduct frustrated his own employment by refusing to report to duty. That the Claimant neither pleaded nor testified that his employment was terminated in November, 2009.
That despite Exhibit DW9A-C being efforts made by the Defendant to get the Claimant report to work, he remained adamant and refused to go back to work. According to the Defendant, at common law, a contract of employment may be terminated by conduct, orally or in writing so long as the intention to terminate the contract is clear. On this submission the Defendant referred the court to the case of Shell Petroleum Development Company of Nigeria Limited V. Mr. Joseph Ifeta (2001) 11 NWLR (Pt. 724) 473 at 490, paras. D – E, where Roland, J.C.A. held thus:
“It should be mentioned that where the contract of employment is terminated in accordance with the terms of the contract, the contract is lawfully terminated and no cause of action arises. Where the contract is terminated by inadequate or without notice or notice not complying with the terms of the contract, the contract is nevertheless terminated.”
That the Claimant’s claim 1 which is not for salary in lieu of notice but for salary ‘from November, 2009 till the employment of the Plaintiff is lawfully terminated’ is confusing since the Claimant stopped work in November, 2009 and can therefore not claim salary for the periods he stopped working.
It was the further submission of the Defendant that, the Claimant did not provide any documentary evidence before the court to support his claim of entitlement of $381.00, and even exhibit CW1 (The Claimant’s contract of employment) did not state the Claimant’s salary as an Ordinary Seaman. The Defendant therefore submits further that, parties are bound by the terms of their contract/agreement and the court has no power to rewrite the parties’ contract/agreement. See Afrotech V. MIA & Sons Limited (2000) 12 SC (Part II) 1 at 15; and Baba V. Nigerian Civil Aviation Training Centre (1991) 5 NWLR (Pt. 192) 388.
The Defendant further argued that since salaries are paid in arrears for work done, the court will not award or order payment of salaries for services not rendered, as doing so will amount to foisting a willing employee on an unwilling employer. See Co-operative Bank Nigeria Limited V. Nwankwo (1993) 4 NWLR (Part 286) 170; Olatunbosun V. NISER Council (1988) 3 NWLR (Part 80) 50; and Adebayo Joseph V. Kwara State Polytechnic (2013) LPELR 21398.
That the Claimant who has the evidential burden of establishing his case before the court has failed to discharge this burden/onus placed on him to prove that he is entitled to the sum of $381.00 (Three Hundred and Eighty One US Dollars) monthly from November, 2009 till the lawful termination of his employment as being claimed in his relief 1 before the court. See Daodu V. UBA Plc (2004) 9 NWLR (Part 878) 276 at 296, and G. Chitex Industries Limited V. Oceanic Bank International (Nigeria) Limited (2005) 14 NWLR (Part 945) 392 at 411.
Regarding the Claimant’s relief 2 for the sum of $89,100 (Eighty Nine Thousand, One Hundred US Dollars) as compensation arising from disability, it was argued by the Defendant that, the iron or steel door which the Claimant claimed he was carrying before he sustained the injury was supposed to be carried by crane, and that it would have been improbable for the Claimant to be able to lift an iron or steel door which was meant to be carried by crane, let alone carrying it.
That a combined reading of exhibits DW3, DW5 and DW8 will show that there was an x-ray examination of the Claimant which he refused to tender before the court because the results do not support the Claimant’s allegation that he sustained injury on his thigh. That since by the second to the last paragraph of Exhibit DW8, the Claimant was still prepared to work onboard the vessel if he was transferred to another section, he cannot claim that he was unfit to work again.
The Defendant reproduced the provisions of Article 24 of Exhibit CW9A-Q, which is a copy of the Collective Bargaining Agreement, and submitted that the disability to be compensated for is the one “as a result of accident” and that nowhere in the pleadings did the Claimant plead that he was involved in any accident which resulted in the alleged injury. And that, there is no nexus between the Claimant and the Collective Bargaining Agreement (exhibit CW9A-Q) as the name of the Claimant is neither in the said exhibit nor has the Claimant established how he came to be entitled to claims under the exhibit.
It was the further submission of the Defendant that, exhibit DW11 shows the importance the Shell Company places on onboard safety and the responsibility placed on individual crew members onboard regarding their individual safety. And the Claimant who was trained ought to have known what is expected of him while onboard a ship and not to keep quite when asked to do anything onboard.
The Defendant therefore urged the court to hold that, the Claimant is not entitled to the sum of $89, 100 on the basis of the Collective Bargaining Agreement (exhibit CW9A-Q) because the said Agreement lapsed on 31st December, 2009, while this case was instituted firstly at the Federal High Court in 2010 before its transfer to this court. That the court should refuse the Claimant’s case and dismiss same.
CLAIMANT’S SUBMISSIONS
The Claimant submitted 7 issues for the determination of this court. To wit:
- Is there a contract of employment between the defendant and the Claimant?
- If the answer to the above question is in the affirmative what are the terms of the contract?
- Was the Claimant injured in an accident in the cause of his employment with the defendant?
- Was the Claimant declared medically unfit to continue in his profession as a seaman as a result of the injury sustained in the course of his employment?
- Was the Claimant’s employment terminated by the defendant for any reason or at all?
- What is the claimant entitled to in his employment till his employment is terminated under the terms of his employment with the defendant?
- If the claimant is declared unfit by virtue of injury from an accident in his employment, what is the claimant entitled to.
On issue 1, it was submitted that, the claimant pleaded that he signed a contract of employment with the defendant but he was yet to collect the said contract when the events that spurred this suit occurred. That before the Federal High Court, the Defendant pleaded and frontloaded the said contract agreement, but when the case was transferred to this court from the Federal High Court, the defendant withheld the contract agreement thereby making the claimant to plead same in the Reply to Statement of Defence which has been admitted as exhibit CW1. That it is the law that what constitutes terms of a contract of service is a question of facts. See Ladipo V. Chevron Nigeria Limited (2005) All FWLR (Part 260) 133 at 142 para. G.
That since the employment letter (exhibit CW1) made reference to the Collective Bargaining Agreement (exhibit CW9A-Q), the said exhibit CW9A-Q (Collective Bargaining Agreement) has been incorporated into the contract of employment by reference and therefore binding on the parties. That CW1 and CW9A-Q being the employment letter and the Collective Bargaining Agreement constitute the contract of employment between the claimant and the defendant. See Texaco Nigeria Plc V. Kehinde (2002) FWLR (Part 94) 143 at 161; ACB Plc V. Nwodka (1996) 4 NWLR (Pt. 443) 470, and Ladipo V. Chevron Nigeria Limited (2005) All FWLR (Part 260) 142, paras. G – H.
On issue 2, it was argued that, by exhibit CW1 the contract was firstly for 12 weeks probationary period, then for 12 months after which it will continue indefinitely subject to termination by either party on not less than 3 months notice given in writing to lapse at the end of the initial period of 12 months or any time thereafter. That Articles 18.2 and 20.1 of exhibit CW9A-Q (the Collective Bargaining Agreement) set out clearly the terms on which the employment of the claimant with the defendant can be terminated. Also that, while Appendix 1 of exhibit CW9A-Q provides for the remuneration of the claimant as $381 being the basic salary of an Ordinary Seaman (OS), Article 24 of exhibit CW9A-Q generally provides for disability of a seafarer.
That an Ordinary Seaman is also referred to as OS which is supported by exhibit CW2 which referred to the rank of the claimant as OS; and even exhibit DW3 confirmed the rank of the claimant as OS.
On issue 3, the Claimant submitted that he has established before this court that he had injury in the course of his employment with the defendant. That the Claimant pleaded and gave testimony of his being injured while carrying an iron door onboard the Defendant’s vessel LNG Port-Harcourt, and supported this by tendering exhibit CW2 (the Crew Performance Appraisal Rating) as well as exhibit CW3 (the hand written incident of accident report written by the Claimant to the Managing Director of the Defendant) and exhibit CW4 (the medical report from Capital Hill Clinic/Hospital). According to the Claimant, these pieces of evidence were neither denied by the Defendant nor impeached at the trial of this case.
It was the further submission of the Claimant that, in civil proceedings 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. And that, even though the burden of proof generally remains with the plaintiff, same can fluctuate with the state of pleadings and the level of fluctuation may at times go to the Defendant, if he has asserted the positive fact therein. See Archibong V. Ita (2004) All FWLR (Part 197) 930 at 950-951, and Olaiya V. Olaiya (2002) FWLR (Pt. 109) 1588.
That the Defendant merely attempted to deny the claimant’s injury but ended up supporting the Claimant’s case by tendering exhibit DW3 (the medical treatment record which shows that the claimant was treated on his muscular right leg; exhibits DW4, DW5 and DW6 which show that the claimant was sent to the hospital for treatment as well as exhibit DW7A-B which indicates in the opening paragraph that the claimant complained of pain and discomfort in the right thigh with difficulty in working since December 2008 when he sustained an injury to the right thigh from a metal door. That a defendant who has not given evidence either in support of his statement of defence or in challenge of the evidence of the plaintiff must be taken to have accepted the facts averred by the plaintiff notwithstanding the general traverse contained in the Statement of Defence. See A. B. U. Zaria V. Molokwu (2004) All FWLR (Part 238), 664 at 681, and Imana V. Robinson (1979) 3 – 4 SC 1.
On the submission by the defendant that the claimant did not call the medical doctor that treated him as a witness, it was argued by the claimant that, the testimony or evidence of the medical doctor was not necessary as same was not an issue at the trial of this case, and that the defendant did not join issues with the claimant on the medical reports from Capital Hill Hospital being relied upon by the claimant in this suit.
Regarding issue 4, it was submitted by the claimant that from exhibit CW5 the claimant was declared medically unfit to work and recommended to be relieved from all duties. That proof of issues in civil proceedings is on preponderance of evidence and where there is no evidence on one side of the scale, the minimum on the other side satisfies the legal requirement. See Mogaji V. Odofin (1978) 4 SC 91.
That since Capital Hill Clinic/Hospital is under retainership for the Defendant the fact of which was admitted by the defendant under cross-examination, the court should accept and act on the reports of the said hospital as same have neither been challenged nor controverted. See Omoroegbe V. Lawani (1980) 3 – 4 SC 108.
According to the Claimant, a defendant who wants the scale of justice to tilt in his favour and avert judgment being given against him must lead credible evidence, and in the instant case, the defendant has failed to lead any evidence to prove the assertions in its pleadings. See Ojomo V. Ijeh (1987) 4 NWLR (Pt. 64) 216, and Omoboriowo V. Ajasin (1984) 1 SC 205.
On issue 5 it was argued by the claimant that, once a contract of service provides for a procedure for the determination of the contract, whether a determination of appointment pursuant to the contract has been carried out would depend on what is provided in the contract.
Ladipo V. Chevron Nigeria Ltd (supra) at 142 para. G; Ibama V. S.P.D. C. (Nig) Ltd. (2005) All FWLR (Part 287) 832 at 843 – 844 paras. G – A. That in the instant suit, from exhibits CW1 and CW9A-Q, the claimant’s contract of employment can only be terminated in the following two ways: either by 3 months’ notice in writing under exhibit CW1 or one month’s written notice if the claimant is in default of his employment obligations under exhibit CW9A-Q. That since there is neither 3 months notice in writing nor one month written notice before the court, the defendant has not complied with the terms of the contract of employment between it and the claimant.
That nowhere did the defendant plead or establish the allegation that the claimant was asked to resume work but he refused as alleged by the defendant; and even if there is such directive and the claimant refused to comply the claimant’s refusal can only amount to a misconduct thereby making Article 20 of exhibit CW9A-Q, particularly 9F applicable to the claimant’s case which will require the defendant to give written notice to the claimant specifying the default on his part.
It was further submitted by the Claimant that the only evidence placed before the court to establish the termination of the claimant’s employment is exhibit CW10 which according to the claimant is neither pleaded nor referred to in the defendant’s evidence. That since the said exhibit CW10 was not pleaded it goes to no issue and the court should expunge same from the records. See Okonkwo V. Cooperative and Commerce Bank (Nig) Plc (2003) FWLR (Part 154) 457 at 491 para. G, and Makinde V. Akinwale (2000) FWLR (Part 25) 1562.
That assuming the court decides to act on exhibit CW10, it is clear that while the said exhibit purported to have terminated the claimant’s employment with effect from 1st October, 2009, the defendant still wrote exhibit DW6 dated 24th November, 2009 to the Medical Director of Lagoon Hospital Lagos requesting for report after treatment of the claimant to enable them revert back to the Captain of his vessel. That even exhibit DW9A-C was made in January, 2010 thereby showing that as at January, 2010, the claimant was still in the employment of the defendant; hence the claimant’s employment was never terminated. That the defendant who asserted the act of the termination of the claimant’s employment has the onus of establishing same, and it has woefully failed to prove the said act of termination. See Mobil Producing Nig. Unlimited V. Asuah (2002) FWLR (Part 107) 1228 para. C.
That a master/servant relationship is one founded on contract and the employer’s right of summary dismissal can only arise from the terms of the contract whether expressly or impliedly, and that the rule that an employer is not bound to follow a proper procedure in summarily dismissing an employee admits of the following exceptions:
- Where the contract itself has made provisions for a particular procedure to be followed before it could be effectively determined.
- Where a statute regulates the appointment and dismissal of a servant, the requirements of the statute must be complied with. In that case, the master/servant relationship has what is known as a ‘statutory flavor.
- Where the employee is a holder of offices involving public function, the rules of natural justice must be complied with in dismissing him. See Jirgbagh V. UBN (2000) FWLR (Part 26) 1790 at 1807 Para. D-E; Federal Civil Service V. Laoye (1989) 45 CAJ 146 and Imoloame V. WAEC (1992) 9 NWLR (Pt. 265) 303.
The Claimant submitted further that, the case of Shell Petroleum Development Company of Nigeria Ltd V. Ifeta (supra) cited and relied upon by the defendant is inapplicable to this case because in the Shell case, there were positive acts of the employer showing termination of the employment as the identity card of the employee was withdrawn, the employee was restricted from accessing the employer’s premises and paid salary in lieu of notice, whereas in the instant case, there is no positive act of the defendant shown from which the act of termination of employment can be drawn. That the act of stopping the claimant’s salary in November, 2009 is not a positive act of terminating the employment because after the salary was stopped the claimant was still treated and accepted as an employee of the defendant as shown in exhibits DW6 and DW9A-C. That with all these, the defendant has not shown that it had terminated the contract of employment in line with the contract agreement.
The Claimant submitted on issue 6 that, by the terms of the contract agreement, where a seafarer is incapacitated due to accident, he shall continue to receive his basic wages until he is either cured or a medical determination is made concerning permanent disability. And by Appendix 1 of exhibit CW9A-Q particularly at 9N, the basic salary of an Ordinary Seaman (OS) was stated as $381 being the amount the claimant is entitled to under the contract of employment.
On issue 7 it was argued that, the Claimant is entitled to compensation of $89, 100 as a person declared unfit by the defendant’s medical doctor as a seafarer due to injury in the course of his employment in line with the Collective Bargaining Agreement (exhibit CW9A-Q).
That the claimant sufficiently pleaded accident as defined in the Black’s Law Dictionary, Seventh Edition at 15. That the defendant’s contention that the claimant cannot claim under exhibit CW9A-Q because same lapsed on 31st December, 2009 is not tenable because the defendant neither pleaded that fact nor lead evidence in that regard. According to the claimant, exhibit CW9A-Q is applicable to this case because all events and facts relevant and which gave rise to this case arose or took place prior to 31st December, 2009. The cause of action according to the claimant arose with respect to the claim for compensation for disability when the claimant was declared medically unfit in May, 2009 as shown in exhibits CW4, CW5, CW6, CW7 and CW8. And concerning the claim for payment of salary till the termination of the employment, the cause of action arose in November, 2009 when the claimant’s salary was stopped. That it is the law that a change in the law after the occurrence of a cause of action is of no relevance and will not be reckoned with. See NEPA V. Atukpor (2000) FWLR (Part 20) 622 at 635 paras C – D and Uwaifo V. A.G. Bendel State (1982) 7 SC 124.
The claimant therefore urges the court to grant his claim as he has been able to establish his case and is entitled to judgment.
It is instructive to note that, the defendant filed a Reply on Points of Law to the Claimant’s Final Written Address on 15th May, 2018, wherein the defendant canvassed additional arguments in respect of this suit.
On the claim by the claimant’s claim for salary, the defendant submitted that, the claimant cannot claim and is not entitled to salary for services he never rendered even if the contract of employment has been unlawfully terminated. See Olatunbosun V. NISER (1988) 1 NSCC VOL. 19, PART 1 AT 1025.
The defendant argued further that, looking at the dates of the employment letter and the Collective Bargaining Agreement, there is nothing to show that the Collective Bargaining Agreement was incorporated in the employment letter as being claimed by the claimant. That since the Collective Bargaining Agreement had lapsed it no longer existed as at the time of filing this suit by the claimant. See Best (Nigeria) Limited V. Blackwood Hodge (Nigeria) Limited (2011) 3 NWLR (Part 1239) 95 at 122 paras. G – H.
It was further argued that, the Collective Bargaining Agreement is a mere ‘gentleman’s agreement’ which cannot give rise to a cause of action referring the court to the cases of Texaco Nigeria Plc V. Alfred G. Adegile Kehinde (2014) 42 NNLR (Part 132) 480 at 520, paras. B-C, and NICN/PHC/07/2017 between Telema Evans Williams & 3 Ors. V. Patrade Nigeria Limited unreported decision of Hon. Justice Ibrahim S. Galadima delivered on 7th March, 2018.
The defendant therefore urged the court to dismiss the claimant’s suit as the claimant is not entitled to any of the reliefs being sought from the court.
COURT’S DECISION
Before venturing into the consideration of the merit of the Claimant’s case, it is pertinent to address the point raised by the Claimant in paragraph 4.39 of his Final Written Address that, nowhere in the pleadings and evidence of the Defendant was exhibit DW10 referred to; hence same should be expunged from the court’s records.
I have carefully examined exhibit DW10 vis-a-vis the Statement of Defence and the Defendant’s Witness Statement on Oath and it is clear that apart from the fact that the document was not pleaded, the Defendant did not also plead facts relating to the said document even though same was among the documents front-loaded by the Defendant. The law is settled that evidence not pleaded but adverted to goes to no issue and not worthy of any consideration; and where an unpleaded document is admitted, it ought to be discountenanced by the court and expunged from the court’s records. See Mr. Enyi O. Chukwuma & Anor V. Deacon Celestine Igwe Nworji & Ors (2011) LPELR-9323(CA).
Another feature of the document noticed by the court is that the said document was not dated. The law is trite that an undated document has no evidential or probative value and same should not be relied upon by the court. See Chief Sunday Effiong & Ors. V. Chief Sunday Kofee Essien & Ors (2014) LPELR-22684(CA).
In the circumstance, I am of the humble view that exhibit DW10 is not worth being relied upon by this court and same is hereby expunged from the court’s records.
The main issue to be considered in this case to my mind is whether the Claimant has established his case to be entitled to the reliefs being sought from the court. In resolving this issue, it is important to note that the Claimant’s employment with the Defendant is clearly not in doubt. Exhibit CW1clearly shows that the Claimant was employed by the Defendant on 28th May, 2006 on LNG Port Harcourt. Exhibit CW1 made reference to Exhibit CW9A-Q which is the Maritime Workers Union of Nigeria ITF Approved CBA, which the Claimant acknowledged receipt of vide Exhibit DW1. With all these documentary evidence I have no hesitation in holding that the Claimant has established the existence of contract of employment relationship between him and the Defendant.
Another point that is not in doubt in this case is whether the Claimant sustained injury while working for the Defendant. The Claimant has argued that while working for the Defendant on board LNG Port Harcourt enroute Portugal, he sustained injury on the 3rd of December, 2008 while carrying an iron door manually and he was hit on his thigh by the iron door. That the said iron door was supposed to be carried by crane and not by hand. In the bid to establish that he was indeed injured while on board the Defendant’s vessel, the Claimant tendered exhibits CW3A-B, CW4, CW5, CW6, CW7, and CW8. Exhibit CW3A-B is the report of the incident dated 7th February, 2009, written by the Claimant and addressed to the General Manager of the Defendant in Port Harcourt, while exhibits CW4, CW5, CW6, CW7, and CW8 are medical records on the treatment of the Claimant. Under cross-examination the Claimant stated that the injury occurred while he was carrying a steel door. The Defendant who denied that the Claimant sustained such injury on board the vessel but that the Claimant was treated for some kind of illness which was not stated however tendered exhibits DW4, DW5A-E, DW6, and DW7A-B which are medical records and medical bills concerning the treatment of the Claimant.
The law is trite that once documentary evidence supports oral evidence, such oral evidence becomes even more credible. See Mrs. Lois Chituru Ukeje & 1 Anor. V. Mrs. Gladys Ada Ukeje (2014) 58 (1) NSCQR 487 at 513, paras. B – E, where RHODES-VIVOUR, JSC, held as follows:
“The Guarantor’s Form is Exhibit 3 and it supports her testimony. Furthermore the respondent was married to a German National. Somewhere along the line her marriage collapsed. In the divorce suit she is referred to as Nee Ukeje. I must observe that the divorce proceedings and guarantor’s Form were in existence well before the death of L.O. Ukeje in 1981. The position of the law is that once documentary evidence supports oral evidence, such oral evidence becomes more credible. The reasoning is premised on the fact and the law that documentary evidence serves as a hanger from which to assess oral testimony. See Kimdey & Ors v. Military Governor of Gongola State & Ors (1988) Vol.19 (pt.1) NSCC p. 827 Omoregbe v. Lawani (1980) 3-4 SC p. 117.”
I do not believe the Defendant that the Claimant was not injured on board the vessel. If he was not so injured as claimed by the Defendant, then what was the Claimant being treated for by the Defendant? It is my humble view that, with the avalanche of documentary evidence and his uncontroverted evidence before the court, the Claimant has established the sustainance of an injury while working for the Defendant on board LNG Port Harcourt. I so find and hold.
The reliefs/claims of the Claimant before the court are basically two (2) and these are:
- The sum of $381.00 (Three Hundred and Eighty One US Dollars) monthly from November, 2009 till the employment of the Plaintiff is lawfully terminated.
- The sum of $89, 100 (Eighty Nine Thousand, One Hundred US Dollars) being compensation arising from disability of Plaintiff.
With regard to the first claim of $381.00 (Three Hundred and Eighty One US Dollars) monthly from November, 2009 till the employment of the Plaintiff is lawfully terminated, the Claimant has contended that, by exhibit CW9A-Q, his salary as an Ordinary Seaman (OS) was indicated as 381 US Dollars. I have examined Exhibit CW9A-Q, particularly at 9N which is page 16 of the exhibit and it is not in doubt that the basic salary of an Ordinary Seaman is 381 US Dollars. This fact too has not been controverted by the Defendant.
Notwithstanding this uncontroverted evidence, the Claimant herein is neither claiming the payment of arrears of salaries nor salary payment in lieu of notice for termination of appointment. The Claimant is simply claiming for the payment of salary from the Month of November, 2009 until the lawful termination of his appointment.
The law has for long been settled that he who asserts must prove that which he asserts in order to succeed in his claim before the court. This principle is in line with the provisions of sections 131, 132, 133 and 134 of the Evidence Act, 2011.
See also the case of Famfa Oil Limited V. Attorney – General of the Federation & Anor. (2003) LPELR-1239(SC), where the Supreme Court reiterated the principle in the following words:
“The decision that the appellant had to prove that he did all he had to do, in the circumstance of this case, is a great error. Therefore, in allowing the appeal and holding that the appellant did not prove that he did all he had to do to take out the Originating Summons is shifting the burden of proof on a wrong party. The evidential principle of who asserts must prove has stayed with us for long that it is too late now to change the rule.”
See also Hilary Farms Ltd & Ors. V. M/V “Mahtra” & Ors (2007) LPELR-1365(SC).
It is therefore my humble view that the Claimant who is neither claiming arrears of salaries nor salary in lieu of notice has the evidential burden (and an onerous one at that), to establish that he is entitled to the sum of 381 US Dollars as basic salary per month from the month of November, 2009 until the lawful termination of his employment with the Defendant.
The Claimant pleaded in paragraph 4 of his Statement of Facts that, after his employment he was placed on board LNG Port Harcourt where he worked until he sustained injury on 3rd December, 2008 which led to his dismissal sometime in November, 2009. In his testimony filed before the court, the Claimant stated in paragraph 4 as follows:
“4 After my employment, I was placed on board LNG Port – Harcourt, where I worked till I sustained injury on 3rd of December, 2008 and eventually purportedly dismissed sometime in November, 2009”
While being cross-examined by the learned counsel for the Defendant, the Claimant stated that he stopped working for the Defendant sometimes in November, 2009.
It is therefore clear from the Claimant’s pleadings and testimony before the court that he stopped working for the Defendant sometimes in November, 2009. And surprisingly, it is the same period the Claimant wants this court to order the Defendant to pay him salaries for.
The law on employment is now trite that, while an employer has the obligation and duty to pay his employee salary as consideration for the employee’s services rendered to the employer, the court will not order payment of salaries for services not rendered. See Mrs. Modupe Aina Kuti V. Nigeria Social Insurance Trust Fund Management Board (2016) 67 NLLR (Pt 240) 426 at 474 Paras. C –D where Hon. Justice J. D. Peters held as follows:
“The special damages claimed here by the Claimant are for salaries and allowances during the period when she had ceased to be employee of the Defendant. It is the position of the law still that the court will not direct or order salaries and allowances to be paid to an employee for services not rendered. To grant the prayer for special damages as claimed will amount to doing just that. This claim has no basis both in law and even equity. The prayer is thus refused and dismissed.”
There is therefore no evidence before the court to establish the facts that the Claimant has been rendering services to the Defendant from November, 2009 upward to be so entitled to this claim. The Claimant, who stated that he stopped going to work from November, 2009 has not shown that he presented himself to the Defendant and the Defendant refused to give him work. He decided to stay away from his place of work and is now urging the court to compel the Defendant to pay him for periods he never worked. Granting this claim will amount to encouraging lassitude or indolence at the work place which no court should do. In any case, the claim is neither supported by law, equity or even public policy. I therefore have no hesitation in refusing this claim as same has not been established or proved by the Claimant. Relief 1 is therefore refused and same is hereby dismissed.
On the second relief/claim which is for the sum of $89, 100 (Eighty Nine Thousand, One Hundred US Dollars) being compensation arising from disability of Plaintiff, I have held earlier in this judgment that the Claimant sustained the injury while working for the Defendant on board LNG Port Harcourt enroute Portugal.
But it is important to note that the Claimant’s claim here is not for compensation for injury sustained but for disability. The question is whether the Claimant has established that he suffered any disability as a result of the injury he sustained.
The Claimant is relying on the provisions of Article 24 of exhibit CW 9A-Q. For the purpose of clarity, the said provisions state as follows:
“Article 24: Disability
24.1 A seafarer who suffers permanent disability as a result of an accident whilst in the employment of the Company regardless of fault, including accidents occurring while travelling to or from the ship, and whose ability to work as a seafarer is reduced as a result thereof, but excluding permanent disability due to willful acts, shall in addition to sick pay, be entitled to compensation according to the provisions of this Agreement.
24.2 The disability suffered by the seafarer shall be determined by a doctor appointed by the Company. If a doctor appointed by or on behalf of the seafarer disagrees with the assessment, a third doctor may be nominated jointly between the Company and the Union and the decision of this doctor shall be final and binding on both parties.
24.3 The company shall provide disability compensation to the seafarer in accordance with APPENDIX 2, with any differences, including less than 10% disability, to be pro rata.
24.4 A seafarer whose disability, in accordance with 24.2 above is assessed at 50% or more shall, for the purpose of this paragraph, be regarded as permanently unfit for further sea service in any capacity and be entitled to 100% compensation. Furthermore, any seafarer assessed at less than 50% disability but certified as permanently unfit for further sea service in any capacity by the Company-nominated doctor, shall also be entitled to 100% compensation. Any disagreement as to the assessment or entitlement shall be resolved in accordance with clause 24.2 above.
24.5 Any payment effected under 24.1 to 24.4 above, shall be without prejudice to any claim for compensation made in law, but may be deducted from any settlement in respect of such claims.”
By Appendix 2, the compensation for disability for Ratings at 100% is put at 89, 100 US Dollars which is what the Claimant is claiming in his second relief before the court.
While the Claimant’s case on this relief/claim is premised on exhibits CW4, CW5, CW7 and CW8, particularly exhibit CW5 which is the medical report of Capital Hill Clinic/Hospital dated 24th July, 2009 addressed to the Defendant’s General Manager advising the Defendant to relieve the Claimant of his duties on medical grounds, the Defendant on the other hand is contending that, the Claimant cannot claim the sum of $89, 100 on the basis of the Collective Bargaining Agreement (exhibit CW9A-Q) because the said Agreement lapsed on 31st December, 2009.
I do not agree with the Defendant that exhibit CW9A-Q does not apply to the Claimant’s case because it had lapsed as at 31st December, 2009. The Claimant’s employment letter exhibit CW1 clearly made reference to Exhibit CW9A-Q in the following terms: “The contract of employment is governed by “Maritime Workers Union of Nigeria ITF APPROVED CBA”. Copy available on request from GMS.” And Exhibit DW 1 is a document tendered by the Defendant acknowledging the receipt of the CBA for 2006/2007 by the Claimant. This clearly shows that the Contract Agreement duly made reference to and incorporated or accommodated the CBA (Exhibit CW9A-Q). The CBA in question i.e. exhibit CW9A-Q covered the periods 1st January, 2008 to 31st December, 2009.
By the averments in the Claimant’s Statement of Facts, his testimony before the court and exhibit CW3A-B, the Claimant sustained the injury on 3rd of December, 2008, which is clearly within the duration of the Collective Bargaining Agreement (exhibit CW9A-Q). The argument of the Defendant that since this suit was first filed at the Federal High Court Port Harcourt Judicial Division in 2010 after the lapse of exhibit CW9A-Q on 31st December, 2009 is of no moment in this case because the cause of action had arisen as at 3rd of December, 2008 when the Claimant sustained the said injury.
Even at that, having looked at the conducts of both the Claimant and the Defendant in this suit, I do not think the Claimant has in anyway helped his case going by his conduct leading to the institution of this suit. The Claimant testified that he was sent to a Hospital in Barcelona, Spain for medical attention. This was further confirmed by the Claimant under cross-examination when he told the court that he underwent medical treatment abroad. When the Claimant returned from Spain, he was again sent to Capital Hill Clinic/Hospital in Warri Delta State in March, 2009 which led to the issuance of the medical report exhibit CW4. The Claimant was again examined at the said hospital on 22nd July, 2009 which led to the issuance of the medical report dated 24th July, 2009 (exhibit CW5) upon which the Claimant is placing heavy reliance on in proof of his claim that he was declared unfit to continue with his duties on medical grounds.
For the purpose of clarity, may I reproduce hereunder exhibit CW5.
CAPITOL HILL
CLINIC/HOSPITAL
24/07/09
The General Manager
Gulf Mining Agency
Plot 193 Woji,
GRA,
Port – Harcourt.
Sir,
Re- Mr. Chukwuweike F. Mgbadike M/Ad.c/32,091/09
Then above named who was last seen by us on 27/02/09 with a 3 months history of thigh pain (right) when he was hit by an iron down while at work.
There we made as assessment of soft tissue injury 2 industrial accident. He has been on treatment all this while to no avail. He was seen again on 22/07/09 for medical check up/fitness test; so as to return to work. We have to call in our orthopaedic surgeon who was also bias in trauma to review. He reviewed and made the same assessment and placed patient on drugs.
Based on clinical findings, we were of the view that he continuing with his present job might aggravate his present state of health and advice that he be relieved of duties on medical grounds.
Thanks.
Yours faithfully,
Dr. Akpoteta Oghenevwogaga
For: Medical Director.
Suffice it to state that, on 10th of August, 2009, the Defendant vide exhibit DW4 referred the Claimant to Lagoon Hospital, Apapa Lagos for medical attention. When the Claimant reported at the Lagoon Hospital Lagos, he requested that he should be referred back to Capitol Hill Hospital Warri, Delta State since according to the Claimant he stayed in Warri. This led to the issuance of Exhibit CW6 from Lagoon Hospital referring the Claimant back to Capital Hill Hospital Warri Delta State for commencement of physiotherapy management. By exhibits CW7 and CW8, the Claimant was again referred back to Lagoon Hospital Lagos by the Capitol Hill Clinic/Hospital Warri, Delta State which led to the further treatment of the Claimant at the said Lagoon Hospital Lagos. Of particular significance in this regard are exhibits DW6 and DW7A-B. Exhibit DW6 is a letter from the Defendant to Lagoon Hospital dated 24th November, 2009 requesting for medical report of the treatment of the Claimant in the said hospital to enable the Defendant revert to the Captain of the Claimant’s vessel.
Sequel to that request, Lagoon Hospitals Lagos issued the letter dated 2nd December, 2009 addressed to the General Manager of the Defendant (exhibit DW7A-B).
May I also reproduce exhibit DW7A-B for better appreciation of the said exhibit.
Lagoon
Hospitals
HYGEIA
2nd December, 2009
The General Manager,
Gulf Manning Services (Nigeria) Limited,
33A Marine Road
Apapa, Lagos.
Dear Sir,
RE: NGBADIKE CHUKWIKE FRIDAY
The above named 42year old presented at this facility on the 10th of August 2009. His complaints were pain and discomfort in the right thigh with difficulty walking since December 2008 when he sustained an injury to the right thigh from a metal door.
However clinical evaluation and imaging studies (MRI) did not reveal anything consistent with his pain. However the MRI of his lumbosacral spine revealed disc prolapsed/herniation at L4/L5 with no evidence of nerve root or neural foraminal compression.
He has been on tabs ibuprofein 400mgb.d. and tabs carbamazepine CR 200mg b.d. on account of the pain.
Since initial presentation he has been reviewed 3 times by the neurologist and 2 times by the orthopedic surgeon. His last orthopedic (and hospital) visit was on the 16th of November and he was advised to resume work from the 23rd of November 2009.
Yours faithfully,
Dr (Mrs) O. O. Ojo
Consultant Neurologist
It is important to state that despite exhibit DW7A-B, the Defendant made further efforts for the Claimant to undergo further neurological review with a certain Professor Danesi at the Lagos University Teaching Hospital (LUTH). This was clearly stated in the last paragraph of Exhibit DW8.
I have equally looked at exhibit DW9A-C, being evidence of correspondences between one Thomas David and Beauty Owuru concerning the Claimant. Despite the fact that the Claimant stopped going to work in November, 2009 and the issuance of exhibit DW7A-B in December, 2009, the Defendant still made frantic efforts to persuade the Claimant to see reason to either return to work or present himself for further medical examination but the Claimant chose not to accept either of the two options. From exhibit DW9A-C, even as at January, 2010, the Defendant was still trying to persuade the Claimant to no avail.
Exhibit DW 9A-C clearly shows that one Beauty Owuru was communicating with the Claimant, and in one of such communications, the Claimant said he had no transport money to travel to Lagos to see Prof. Danesi of the Department of Medicine, College of Medicine, Lagos University Teaching Hospital (LUTH) as appointment had been booked for him to see the said medical personnel. Even when the Defendant offered to book a flight for him from Warri to Lagos he still declined.
As stated earlier in this judgment, the way and manner the Claimant handled the whole saga has not in any way helped his case. For refusing to either report to the Defendant or even see Prof. Danesi of LUTH for the further neurological review even when appointment had been booked for him is to say the least unfortunate and unhelpful in the circumstance of his case. Article 24.2 of the Collective Bargaining Agreement (exhibit CW9A-Q) clearly provides that the disability suffered by the seafarer shall be determined by a doctor appointed by the Defendant; and that if the seafarer’s doctor disagrees with the assessment by the Defendant’s doctor then a third doctor may be nominated jointly between the Defendant and the trade union whose decision shall be final and binding on the parties. The Claimant refused to submit himself for further medical examination by the Defendant’s doctor Prof. Danesi of LUTH and rather chose to hang onto the report of his medical doctor at Capital Hill Hospital Warri. I am of the humble view that the Claimant unfortunately frustrated the performance of his contract of employment by himself. If he did not intend to continue working with the Defendant what stopped him from resigning his appointment with the Defendant and then claim his entitlements. He did not do that. He rather refused to either resume work or present himself for further medical examination. Was he expecting the Defendant to continue to persuade and plead with him till eternity?
In the case of Revenue Mobilization, Allocation and Fiscal Commission V. Units Environmental Sciences Ltd (2010) LPELR-9205(CA), the Court of Appeal held that a contract of employment can be frustrated by the innate inability or illness of one party to perform the contract in the manner anticipated.
Even though the Claimant has submitted medical evidence of his treatment for injury which I have held occurred in the course of his employment with the Defendant, I am not satisfied that he has sufficiently established his case to be entitled to the relief/claim for disability because he has failed to prove that the said injury resulted in his being disabled, coupled with his refusal to submit himself for further detailed medical review by Prof. Danesi of LUTH. I therefore agree with the evidence of DW (Martins Nnorom) when he informed the court under cross-examination that, the Claimant was not laid off on health ground but that he refused to resume work even when he was certified fit by Lagoon Hospital Lagos.
The law is trite that a Plaintiff (in this instance Claimant) must win or succeed on the strength of his case and not to depend on any weakness on the case of his opponent. See the case of Chukwuemeka Anyafulu & 4 Ors. V. Maduegbuna Meka & 5 Ors. (2014) 57 NSCQR, 185 at 216, where the apex Court per Walter Samuel Nkanu Onnoghen, JSC (as he then was) held as follows:
“Also settled law is the principle that a plaintiff must succeed on the strength of his case and not on the weakness of the defence, though in an appropriate case, a plaintiff can rely on the weakness of the defence to establish his claim. Where that exception operates it must be seen clearly that the case of the defence, which constitutes its weakness, supports the facts pleaded by the plaintiff otherwise it is worthless, as same would have no evidential value.”
See also the case of Jovinco Nigeria Limited & Anor V. Mr. Emeka Ibeozimako (2014) LPELR-23599(CA).
I am therefore not satisfied that the Claimant has established this leg of his claim before the court to be entitled to judgment in the sum of $89, 100 for compensation arising from disability, and the second relief/claim is hereby dismissed.
In the final result, I hold that the Claimant’s case is unmeritorious. It accordingly fails, and same is hereby dismissed.
I make no order as to costs.
Judgment is entered accordingly.
Hon. Justice P. I. Hamman
Judge
