MR. J. A. ADEMOYE & ORS. v. NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY (NIMASA) & ORS (2013)

MR. J. A. ADEMOYE & ORS. v. NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY (NIMASA) & ORS

(2013)LCN/6234(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of May, 2013

CA/L/178/2008

JUSTICES:

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. MR. J. A. ADEMOYE
2. MR. C. K. NMERENINI
3. MR. S. YUSUF
4. MR. K. AJAYI – Appellant(s)

AND

1. NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY (NIMASA)
2. THE MINISTRY OF TRANSPORT
3. THE HON. MINISTER FOR TRANSPORT – Respondent(s)

RATIO

DEFINITION OF AN ADMISSION

An admission is an express or implied concession by a person of the truth of an alleged act; it is presumed that no man would declare anything against himself unless if is true – see Eigbe v. N.U.T. (2008) 5 NWLR (Pt. 1081) 604. PER AUGIE, J.C.A.

WHETHER OR NOT A PARTY MAY RELY ON HIS OPPONENT’S ADMISSION AS AN ADMISSION AGAINST INTEREST TO DEFEAT HIS OPPONENT’S CLAIM

AMINA ADAMU AUGIE, J.C.A. (Delivering the leading Judgment): The Appellants commenced an action by way of Originating Summons at the Federal High Court, Lagos “for themselves and on behalf of Tally Clerks and Security Men registered with Dock Labour Board in 1989″Â Â against the Joint Dock Labour Industrial Council. The lower Court was asked to determine –
“WHETHER the Defendant can validly order the Plaintiffs to be registered by the Dock Labour Employment/Contractors in view of provision of the Nigerian Dock Labour Decree No.37 of 1999 especially Section 2, 16 and 34.”
They also prayed the Federal High Court for the following reliefs –
1. A DECLARATION that the Plaintiffs are bona fide registered dock workers under the Management of the Defendants in accordance with the provisions of the Nigerian Dock Labour Decree No.37 of 1999.
2. A DECLARATION that the decision of the Defendant requiring the Plaintiffs to be registered by the Dock Labour Employment/Contractors is illegal, null and void as it violates Section 2 of the Nigerian Dock Labour Decree No.37 of 1999.
3. An INJUNCTION restraining the Defendant, its officials, agents, privies, etc.,from compelling the Plaintiffs to be registered by Dock Labour Employment/Contractors.
The said Dock Labour Industrial Council filed a Memorandum of Appearance, Counter Affidavit to the Originating Summons, and an Application praying for –
1. An Order striking out the suit and/or dismissing this suit against the Defendant as the Plaintiffs have no locus standi to institute the action.
AND/OR ALTERNATIVELY
2. An Order directing that pleadings be filed in this suit by all the parties and evidence be adduced in proof thereof.
The lower Court granted the alternative prayer, and ordered for pleadings, which the parties filed and exchanged. The Appellants prayed for an order of interlocutory injunction that was granted by the lower Court on 23/7/2003.
The Appellants later filed an Application dated 13/2/2004 for the following –
1. An order granting leave to substitute the 1st Defendant/Respondent (Joint Dock Labour Industrial Council) with Joint Maritime Labour Industrial Council”.
2. An Order granting leave to join the Federal Ministry of Transport and Hon. Minister for Transport as Co-Defendants in this suit.
3. An Order granting leave to the Applicants to amend their Writ of Summons and Statement of Claim.
The lower Court granted the Application on 16/2/2004, and the Appellants filed their Amended Writ of Summons and Statement of Claim on 17/2/2004.
They sought the following reliefs in their Amended Statement of Claim –
1. A DECLARATION that (they) are bona fide registered dock workers under the management of the (Respondents) in accordance with the provisions of the Maritime Labour Act of 2003.
2. A DECLARATION that (they) as employees of the (Respondents) in the pool at the Nigerian Port, Apapa, Lagos are entitled to medical services welfare scheme, pension, gratuity and other retirement benefits as enjoyed by their colleagues in the Civil Service of the Federation.
3. AN ORDER – directing the (Respondents) to pay (them) (Dock workers Nigerian Port, Apapa, Lagos) their pension, gratuity and other retirement benefits forthwith.
Trial commenced on 15/11/2004. The 2nd Appellant testified on behalf of the Appellants as PW1 and he also tendered the following documentary evidence –
1. Exhibit A – Letter dated 31/3/92 from Ikenna Nzimiro to Engr. Musa B; Sheriff
2. Exhibit B – Letter dated 30/4/92 from F. O. Williams to Prof. Ikenna Nzimiro
3. Exhibit C – Letter dated 7/4/93 from Prof. Ikenna Nzimiro to Chief Francis Ellah
4. Exhibit D – Letter dated 22/1/93 from G. O. Loma to Prof. Ikenna Nzimiro
5. Exhibit E – Letter dated 31/3/95 from Prof. Ikenna Nzimiro to the Deputy Director, Ministry of Labour, Ports Division, enclosing Memo from the Hon. Minister Uba Ahmed, Federal Ministry of Labour and Productivity, Federal Secretariat Complex, Ikoyi, Lagos.
The Appellants’ case is that while in service the National Ports Authority (NPA) paid their salaries to Stevedoring Contractors, who pay to the dock workers. They were not paid benefits or gratuity, and later discovered in 1992 that their colleagues in the NPA retired with pensions and gratuity, so they employed the services of Prof. Ikenna Nzimiro, a Management Consultant, who was in the Advisory Board of the Babangida’s Administration in Labour matters. He took up their matter, and wrote letters to Ministers of Labour and Productivity then. Exhibit A, dated 31/3/92, is addressed to Alhaji Engr. Musa B. Sheriff; it reads-
“My dear Minister,
I sent an urgent letter to you through a friend in connection with the payment of the pool Men – Tally Clerks and Security men which we discussed during your appearance with your men at PAC Budget Hearing at Dodan Barracks. The issue arose from the question I asked about those workers. As I reported in my memo to PAC –
“The Hon. Minster’s response -was a brief summary of the ineffectiveness of the Board and the horrible action of the former President of the Union in collusion with some officials of the Board who were supposed to protect the interest of the workers. This led – to the dissolution of the Board and the setting up of a port Division in the Ministry itself so that the wrongs of yester years would be corrected and the interest of the workers properly caterer for so that Social Justice, the corner stone of this Administration, should prevail.”
So PAC is already aware that you understand the issue and that action would be taken accordingly. Later, we met after the launching of the book on Alhaji Aliyu Mohammed and you assured me that the workers would be paid as was the case with the workers in the Ministry of science and Technologv,in February, I sent you another reminder, as I have mentioned, and I had no longer any doubt in my mind that this would be accomplished. (They) were at my office at Oguta complaining that the demand has not been signed which, if signed it would mean agreement to pay. After this it would be gazetted and the workers would be informed on the date they would be paid, Hon. Minister, it is very agonizing to the workers and myself in particular that this issue is still lingering till now. Are you sure that your officials are not playing the usual game hoping that when you leave the issue would again be swept under the carpet. That has been the case in the past. My confidence in you is not in doubt, and it would be embarrassing for me to raise this issue before Mr. President. I feel very bitter why we cannot have mercy for people who have served this nation particularly in that sector that involve security and protection of the Nation’s shipping image. I count so dearly on you and I am certain that before the middle of this April, the workers would smile and you will get their blessing which will reflect on your family. Please help. I congratulate you for your activities in the Ministry.
They prove that you realize that labour creates wealth.
Sincerely yours. Ikenna Nzimiro”.
Exhibit B, dated 30/4/92, is a reply to Prof. Nzimiro, and it reads as follows –
Payment of Retirement Benefits to Dockworkers
“I am directed to acknowledge receipt of your letters… dated 8/2/1992 and 31/3/1992… on the above mentioned subject. The Hon. Minister shares your concern about the plight of dockworkers, but he believes that some confusion has crept into the discussion. Consequently, he has requested me to find out when it would be convenient for you to come to Lagos so that the problem can be tackled once and for all. I should be grateful for an early response, Sir. Yours faithfully,
F. O. Williams, Director of Employment & Wages for Honourable Minister”.
Exhibit C, dated 7/4/93, is addressed to Chief Francis Ellah; it reads as follows –
“Thanks for the sympathetic decision you reached yesterday. I addressed representatives of the workers, they are grateful to you. But they prefer to wait till the scheme is normalized so that they enjoy their benefits in toto. They have reached this decision because of their firm belief that everything would be completed when you are on seat. Thanks for your action. PROF. IKENNA NZIMIRA”.
Exhibit D, dated 22/1/93, is addressed to Prof. Nzimiro; it reads as follows –
Further to our letter… of 30/4/92 on the above subject, I am directed to inform you that this Ministry shares your concern for the welfare of Dockworkers and wishes to assure you that the matter is being examined in all its ramifications. G. O. LOMA, Director of Employment & Wages for Secretary for Labour & Productivity”.
Exhibit E, dated 31/3/95, is a Memo headed “PAYMENT OF COMPENSATION TO THE TALLY AND SECURITY MEN”, addressed to a then new Minister-Uba Ahmed, wherein Prof Nzimiro detailed the sorry plight of the Appellants, and all that transpired before he came on board. The letter reads as follows –
“I welcome you to your new post which is strategic to the existence of any nation. Human labour produces wealth and in this society, the need to emphasis the dictum is vital. Reason, the welfare of the Workers is equated lo the level of their productivity for they work in the factories, mines, ports, electricity, petroleum, aviation and railway etc. For over thirty-one years a group of worker known as Tally Clerks and Security Men were brought into the Ministry as a pool. Over the years officials of the Ministry marginalized these workers and in 1982; 250 of them who had slaved all the years and were denied their entitlements began to agitate to be paid their compensation so that they leave the services. The officials used administrative fiat and obstructed their case. Under the leadership of Hon. Minister Bunu Sherif Musa the issue was brought to the notice of the Presidential Advisory Committee (PAC) of the Babanginda era. He appeared before the PAC panel and all issues were resolved in favour of the payment of compensation to these workers. The machinery for the payment was begun before he left office. Secretary Senator Ellah inherited the case and further approved that money be found to pay them. The working out of the entitlements was not conclusive as there was not sufficient fund at that time. So the issue was raised with the last Minister Dr. Ogbemudia and he again instituted Mr. Fasanya and Mrs. Okoronkwo to find the money to pay the workers. In the meeting held with Mr. Fasanya and two of the leaders of the tally workers, he assured them that the decision to pay is irrevocable. That immediately the money is available, that their entitlements would be worked out and each person paid promptly. The money is now available for their payment but there is a sort of confusion purposely being created by some Heads of the Ministry to dump these workers with other workers who are not in the same category with them.
(1) Note that their case started in 1964.
(2) Note that three successive Ministers have treated their case separately and therefore any attempt, at this stage to delay the payment would be contrary to the agreement reached between them and the Ministry.
(3) Note also that an agreement was reached between the representatives of the Dock Workers Union and the National Dock Labour Board in February 1980. That the Tally Clerks and Security were under the Ministry of Labour pool and were categorized separately from the other workers.
(4) Note that the benefit resulting from this agreement were denied these worker. Based on this and years of neglect they then took upon themselves to request that they be paid compensation benefit. This has been approved by the successive three Ministries.
I pray that you instruct the official’s to effect those decision. Since this issue nine of their workers have died.
I appeal to you to end this matter for I consider it a cardinal sin against Allah to deprive labourer of their wages. Such a sin cannot be forgiven in this world nor in the world to come. I wish you a successful tenure. But be careful not to be pushed for they will answer you “Yes Minister” only for a nonchalant Minister to realize that he is not the boss but his Yes Officials”.
The Appellants closed their case on 2/6/2005. The 1st Respondent brought an Application dated 16/11/2005 to file its Statement of Defence out of time, and the lower Court granted it on 21/11/05. The 1st Respondent called one witness – Salihu Bashir Hong, the Principal Labour Officer of the Joint Maritime Labour Council, who testified as DW1 on the same day. He tendered the following –
1. Exhibit F-Fi- Two sets of Forms Headed Joint Dock Labour Industrial Council
2. Exhibit G – Nigerian Dock Labour Decree No.37 of 1999
3. Exhibit H – Disengagement Form for Casual Dock Workers
Under cross-examination, a letter dated 11/10/2001, which he had written to the Appellants’ solicitors, was admitted through him as Exhibit J; and it reads –
“During the meeting held between the Joint Dock Labour Industrial Council and the Tally Clerk/Security men on the 19/09/2001 at the JODLIC Conference Room, Plaintiffs agreed to withdraw the Court case against JODLIC, while the Council on the other agreed to renew their old registration certificate as demanded by the Plaintiffs. In view of this development, both parties have finally agreed and resolved their differences, that the matter be settled out of Court, we hope you would file your notice of discontinuance before the next adjourned date”.
Apparently, the 1st Respondent was vested with power to register all persons between the ages of 18 and 35, who want to work as dock workers, and they carried out the registration in August to October 2000. Those that fell outside the age bracket of 18 to 35 were issued with disengagement forms because they were no longer eligible to work as dock workers. The Plaintiffs, who were outside the age bracket, did not comply with the disengagement formalities.
At the close of trial, learned counsel addressed the lower Court, and in his Judgment delivered on 6/6/2007, the learned trial Judge, Olomojobi, J. held inter alia that the correspondences written by and to Prof. Ikenna Nzimiro – Exhibits A to E, “are not relevant to the point in issue” because Prof. Nzimiro –
“… was writing about compensation for the dock workers. The Plaintiffs’ claim is on pension, welfare scheme, gratuity and other entitlement benefits enjoyed by civil servants. Before the Plaintiffs can succeed on the aforestated claim, relevant documents wherein their entitlements are stated, such as their conditions of their employment must be produced before this Court.”
At the end of the day, the learned trial Judge found as follows –
– That the plaintiffs are NOT bona fide registered dock workers under the management and control of the Defendants in accordance with the provisions of the Maritime Labour Act of 1999 as amended by the Maritime Labour Act of 2003.
– That the plaintiffs are NOT employees of the Defendants in the pool at the Nigerian Port, Apapa, Lagos. And as such, they are NOT entitled to pension, and gratuity and other benefits as enjoyed by the Civil Servants in the Service of the Federal Rep. of Nigeria.
And as such, the claim for the plaintiffs fails. This being so, this suit will be and the same is hereby dismissed”. (Highlights mine)
Dissatisfied with the Judgment, the Appellants appealed to this court with a Notice of Appeal containing three Grounds of Appeal, and the 1st Respondent therein was the JOINT MARITIME LABOUR INDUSTRIAL COUNCIL However, the Respondents later filed an Application dated 1/4/2010 in this Court for an – “Order substituting the name of the 1st Respondent with NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY [NIMASA]”. The Application that was granted on 7/4/11 became necessary because the 1st Respondent herein and the defunct National Maritime Authority NMA were merged to form NIMASA.
Be that as it may, parties filed their respective Briefs of Arguments, and in the Appellants’ Brief prepared by Solomon Kehinde, Esq., it was submitted that the Issues that call for determination in this appeal are as follows –
1. WHETHER the trial Court was right to have held that the Appellants are not registered dock workers.
2. WHETHER the trial Court was right to have held that the Appellants ought to have produced documents to show their conditions of employment before their claim on pension, welfare, entitlement, benefits could succeed.
The Respondents adopted the Appellant’s Issues in their own Brief settled by Andrew M. Malgwi, Esq. However, they raised a preliminary issue, and urged us to strike out Ground 3 of the Grounds of Appeal because it was abandoned.
The Appellants filed a Reply Brief wherein they submitted that “a cursory look at the argument contained in issue one, will reveal that issue 1 incorporated argument in respect of Grounds 1 and 3”, and citing Adelusola v. Akinde (2004) 12 NWLR (Pt.887) 295 and Kinfau v. Kinfau (2006) 6 NWLR (pt.975) 200, we were urged to discountenance the Respondent’s argument.
In my view, the Respondent’s preliminary issue is a mere observation, and nothing earthshaking. Issue 1 as formulated is realty quite encompassing; the question of whether the Appellants are registered dock workers or not is the root of the other findings of the lower Court, so it is crucial to this appeal.
The said issue 1 is hinged on the lower Court’s conclusion as follows –
“In his testimony, PW1 said that he and other Plaintiffs were registered by the National Labour Board. The testimony appears to be in line with the averment at paragraph 9 of the amended statement of claim. But the witness did not go further to produce any document in support of his testimony and the averment in the Statement of Claim that he and other workers were actually registered by the National Labour Board, Evidence are expected to support pleadings. And as such, the main issue in contention as averred in paragraph 8 of the Statement of Claim is that the Plaintiff and other dockworkers were registered by ,the National Labour Board. Since the Plaintiff has failed to produce evidence in support of his pleadings, this Court is not in a position to accept that they were so registered. …Since there is nothing to support the fact of registration of the Plaintiffs as registered dock workers under the management of the Defendants, the declaratory relief sought in leg one of the Plaintiffs claims cannot be granted and the some is hereby dismissed.”
The Appellants contend that it is wrong because the Respondents admitted in Exhibit J that they were registered by the former Board. Thy argued that facts admitted need no further proof, citing Olagunju v. Oyeniran (1996) 6 NWLR (pt.455) 127 SC; that there is no law that says employment can only be valid if backed up with employment letter, citing Obafemi Awolowo University v. Onabanjo (1991) 5 NWLR (Pt. 193) 549; and that their prior registration was confirmed by DW1, who is also the maker of Exhibit “J”, and his testimony constitutes admission of fact, which by virtue of Section 75 of the Evidence Act needs no further proof. They also referred us Exhibit H and submitted that –
“It is not in dispute that (they) worked with the Respondent in various offices across the Federation and it is also not in dispute that the Respondents, disengaged (them). …The burden of proof… lies on the Respondent to demonstrate to the Court by way of documentary evidence that Stevedoring contractors actually employed (them). …The absence of any evidence in this regard is fatal to the Respondents’ case. Furthermore, the Respondents through DW1 have admitted …that (they) were registered by the former National Board, but the Respondents’ bone of contention is that (they) were disengaged because they fell outside 18 – 35 years provided by the National Dock Labour Decree when their re-registration exercise was carried out”…
They further cited Section 16 of the Nigerian Dock Labour Decree 1999, and submitted that the Respondents have no right to insist on fresh registration.
We were therefore urged to hold that they are registered Dock Workers.
However, the Respondents referred us to Sections 2(1)(a), 16 & 34 of the Nigerian Dock Labour Act, and evidence of DW1, and submitted that the lower Court was right to hold that the Appellants were not registered because –
(i) the New Nigerian Dock Labour Act, which was enacted to, bring sanity to dock activities at Nigerian Ports, now stipulated an age bracket of 18 – 35 years for all active dock workers in Nigeria;
(ii) those former dock workers who fell outside the above age bracket, of which all the Appellants herein fell into that category, were issued with disengagement forms to register them and to enable them benefit from the terminal benefits now provided for under Section 21 of the Act as they were no longer eligible to work as dock workers.
(iii) The Appellants herein failed to submit their disengagement forms and benefit forms from the registration and disengagement process.
The Respondents also argued that the fact that the Appellants were registered dock workers under the previous Dock Labour Board does not automatically mean that their status must and cannot be reviewed by the 1st Respondent in the performance of its statutory duties; that the Dock Labour Act clearly and unequivocally gives the 1st Respondent power to registered ALL Dock workers and did not exempt old dock workers like the Appellants from the process; that instead of providing evidence to show that they were eligible to be registered under the New Act, which they are not, the Appellants filed this suit to compel the 1st Respondent to register them contrary to Section 16(2)(b) of the Act; that their heavy reliance on Exhibit “J” is clearly misconceived as it was made by the 1st Respondent to the Appellant’s counsel after the suit was instituted and while parties were trying to settled the matter out of Court; that a cursory look at Exhibit “J” will show that the magnanimous offer by the 1st Respondent to register them was conditional upon their withdrawal of the said suit; that the reference to Section 75 of the Evidence Act, etc., is clearly misconceived as the offer made in Exhibit “J” is not an admission; and that Sections 2(1)(a), 16, 17, 19 and 20 of the Dock Labour Act are mandatory or obligatory and cannot be ignored, citing C.C.C.T & C.S. Ltd. v. Ekpo (2008) ALL FWLR (Pt.418) 198.
Furthermore, that the uniform forms they issued was to streamline the registration process of all the dock workers and the dock labour employers; that it is the responsibility of dock labour employers to deal with dock workers directly and provide for them in accordance with the Act; and that since the Appellants failed and/or refused to comply with the registration process, they are not registered under any of the dock labour employers, and did not avail themselves of the disengagement procedures provided by the 1st Respondent in the performance of its statutory duties. We were urged to hold accordingly.
The Appellants countered in their Reply Brief that their case at the lower court was that having been registered under the National Dock Labour Board; they should be treated as retirees under the new Act. They further argued that the new Act does not specifically provide for the issuance of disengagement form to those above 35, and the principle Expressio unius est exclusion alterios therefore applies here; and that assuming without conceding that they were supposed to fill disengagement forms, this Court has wider discretion to order that the Respondents issue the forms to them as they cannot be denied their terminal benefits on administrative ground, citing Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797, where the Supreme Court held as follows –
“Judicial discretion means the exercise of Judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law. It also means a Court’s power to act or not to act when a litigant is entitled to demand the act as a matter of right.”
This Issue hinges on the question of whether the registration of the Appellants, as dock workers, is an admitted fact or not. An admission is an express or implied concession by a person of the truth of an alleged act; it is presumed that no man would declare anything against himself unless if is true – see Eigbe v. N.U.T. (2008) 5 NWLR (Pt. 1081) 604.

A party may rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim – see Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148 SC and Onisaodu v. Elewuju (2006) 13 NWLR (Pt, 998) 517 SC, where the Supreme Court held that –
“When evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent can take advantage of that evidence to strengthen his case, if it is consistent with, and corroborates his case…”
See also Odutola v. Papersack (Nig.) Ltd. (2006) 11 – 12 SC 60, where it held –
“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it”.
In this case, the Appellants averred in paragraph 8 of their pleadings that –
“they were registered by the National Labour Board by virtue of the National Dock Labour Act 1990”. The Respondents denied this averment in paragraph 4 of their pleadings, and in finding for the Respondents, the lower Court held that the 2nd Appellant as PW1 – “did not go further to produce any document in support of his testimony and the averment in the Statement of Claim that he and other workers were actually registered by the National Labour Board”.
The Appellants’ position is that the answer is in Exhibit J made by DW1, and tendered through him under cross-examination. It is their contention that his testimony “amounts to admission especially in view of Exhibit J wherein the 1st Respondent agreed to renew (their) old registration Certificate”, and “constitutes an admission of fact by virtue of Section 75 on the Evidence Act”. The said Section 75 of the Evidence Act, 1990, application herein, provides that –
“No fact need to be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission”.
The Respondents contend that the reference to Section 75 of the Evidence Act – “is clearly misconceived as the offer made in Exhibit “J” is no admission of the registration of the Appellants under the New Dock Labour Act”. But the import of the Appellants’ argument is that the use of the were “renew” in the Exhibit J amounts to an admission that they were registered by the former Board as the word “renew” means “to change something that is old and replace it with something new of the same kind” – see Oxford Advanced Learner’s Dictionary. DW1 did not deny making the Exhibit J, wherein he clearly stated that during a meeting with JODLIC, the Appellants agreed to withdraw their case against it, while the Council agreed to renew the Appellants’ old registration certificates.
Under cross-examination, he replied as follows –
“I have seen the letter written by me to the Plaintiff counsel… From this letter the docks workers were registered by the former National Dock Labour Board…”
There it is straight from the horse’s mouth – DW1 admitted that the Appellants were registered by the former Board. It is an admitted fact, and the law is that what is admitted does not require evidential proof- see Obimaimi Brok & Stone (Nig.) Ltd v. ACB Ltd. (1992) 3 NWLR (Pt. 229) 100, Ndayako & Ors. Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 18 and Ogbiri v. N.A.O.C. Ltd. (2010) 14 NWLR (Pt. 1213) 208, where this Court per Eko, JCA, aptly observed that –
“Facts admitted need no further proof. They are taken as established by virtue of Section 75 of the Evidence Act… Admitted facts are the strongest evidence available at the trial. See Igwe v. ACB Plc. (1999) 6 NWLR (Pt.605) 1 at 11”.
The next question is whether they required a renewal of their registration? The answer is obviously NO because the repeal of the enactment under which they were registered by the former National Dock Labour Board preserved their registration by the repealed enactment pursuant to Section 6 (1) (b) & (c) of the Interpretation Act, which says that – “the repeal of an enactment shall not –
(b) Affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) Affect any right, privilege, obligation or liability accrued or incurred under the enactment.”
So, they were not required to go through a fresh registration exercise under Section 16 of the new enactment – The Nigerian Dock Labour Decree 1999, now re-enacted as the Nigerian Dock Labour Act, which provides as follows –
(1) An application for registration as a dock worker shall be in such form as may be prescribed by the Board, from time to time, and shall be accompanied with…
(a) Two passport photograph of the applicant;
(b) A medical certificate of fitness issued to the Applicant by a medical practitioner;
(c) One copy of the Applicant’s birth certificate or statutory declaration of age.
(2) Notwithstanding the provisions of subsection (1) of this section, an applicant seeking registration as a dock worker under this Act shall satisfy the Board that;
(a) He is a person of proven integrity;
(b) He is between 18-35 years of age;
(c) He has not been convicted of any criminal offence in Nigeria or in any other country.
The Appellants asked us to take a detailed look at this provision and observe that – “it males no room for re-registration as canvassed by the Respondents”, and their argument makes a lot of sense. The said Section 16 of Decree No.37 of 1999 (now Act) certainly made no room for re-registration. It did say that –
an application for registration as a dock worker shall be in such form as may be prescribed by the Board from time to time, which means that the conditions for registration could change from time to time but that does not mean that a dock worker already registered thereby ceases to be a registered dock worker; he could be disengaged but not de-registered. The Appellants’ assertion that the Respondents have no right to insist on fresh registration is quite correct. Obviously, the lower Court was wrong to conclude that the Appellants were not registered dock workers. Issue 1 is resolved in favour of the Appellants.
Issue 2 questions whether the lower Court was right to hold that they ought to have produced documents to show their conditions of employment. The Appellants submitted that to answer this question, recourse must be had to Sections 1 – and 3 of the Decree No.13 of 1979 that was in force when they were employed, and submitted there is no provision therein to the effect that they will be issued with letters of employment containing conditions of service; and that “all that the law requires of them is their registration, which entitles them to be dock workers, which has not been disputed by the Respondents”.
They also referred us to Sections 11(c), 25(3) and 42(1) of the Nigerian Maritime Labour Act 2003 and the testimony of the Respondent’s witness on their employment, submitted that the 1st Respondents is duty bound by the combined effect of Sections 11 (c) and 42 (1) of the said Nigerian Maritime Labour Act, to pay their pensions and welfare scheme, since the statutory functions, rights, interest and liabilities has been vested in the 1st Respondent.
They also referred us to Exhibit J and Exhibits A, B, C, D and E, the letters exchanged between their consultant and the Federal Government, and submitted that the lower Court’s finding that they “are not bona fide registered dock workers under the management and control of the Defendant in accordance with the provisions of the Maritime Labour Act, 1999 as amended by the Maritime Labour Act 2003”, is totally perverse; and that the claim of the Respondent that the stevedores were their employers cannot be justified.
On their own part, the Respondents referred us to Section 131,132 and 136(1) of the Evidence Act 2011 and the following cases on burden of proof – Ogiale v. S.P.D.C.N. Ltd. (1997) 1 NWLR (Pt.480) 148, Adegoke v. Adibi (1992) 5 NWLR (PT. 242) 411, Jiaza v. Bamgbose (1999) 7 NWLR (PT. 610) 182, Uzokwe v. Dansy Ind. Nig. Ltd. (2002) 2 NWLR (Pt. 752) 528 and C.C.C.T & C.S Ltd. v. Ekpo (supra), and submitted that the duty of proving their conditions of employment rests on the Appellants but they failed to discharge that duty.
They further argued that Decree No.13 of 1979 was repealed by Decree No.37 of 1999 and subsequently repealed by the Nigerian Dock Labour Act, so, it has no legal life and cannot be cited as if it still exists, and if it must be cited, must be cited as a repealed law, which has no life to influence an argument, citing Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 636, NEPA v. Atukpor (2001) 1 NWLR (Pt. 693) 96; that the 1st Respondent is mandated to carry out its functions in accordance with the Act that created it and not the repealed law; that the Appellants cannot expect whatever conditions of employment they had under the repealed law to be automatically applicable under the new law; and that having failed to show that they were employed by the old board, and having failed to register and comply with the disengagement formalities, the Appellants failed to show they were entitled to any pension, welfare etc.
The Appellants countered in their Reply Brief that the lower Court ought to have taken judicial notice of and applied Section 34 of the new Act, which would enable it substitute the National Dock Labour Board under the 1979 Act for the Joint Dock Labour Industrial Council under the New Act, and treat them as retirees who are entitled to gratuities, etc., under the law, citing Section 122 (2) (a) of the Evidence Act and Adetipe v. Amodu & Anor., 1969 NMLR 62; that asking them to further show conditions of employment after proving that they registered by the National Dock Labour Board under the Old Act would amount to asking them to do more than what was required of them by the law; and that the Respondents did not inform the Court that Section 84 of the new Act transferred some responsibilities including payment of pension, gratuity and other retirement benefits from the national Dock Labour Act of 1979 to them.
In my opinion, this Issue is not that complicated and it is easily resolved. Obviously, the relationship between the Appellants and 1st respondent is not strictly one of master and servant for which documentary evidence of their employment and entitlements are strictly necessary to prove the relationship. No doubt, provisions were inserted in the various statutes with the specific aim of protecting dock workers.
Section 3 of Decree No:13 of 1979, clearly states –
“The function of the (National Dock Labour Board) Board shall be:
a. To make provisions for the registration of dock workers and, for this purpose to maintain and keep a register of dock workers. b. To make provision for the training of dock workers and for their welfare, including medical services.
c. To regulate the conditions of service of dock workers and dock labour employers.
d. To establish a pension’s scheme for dock workers.
There are similar provisions in the Nigeria Dock Labour Act 2004 and Nigerian Maritime Labour Act 2003, By Section 34 of the Nigeria Dock Labour Act 2004, the statutory functions, rights, obligations and liabilities of the old Board under which the Appellants were registered were taken over by the 1st Respondent.
Section 11 (c) of the Nigerian Dock Labour Decree No.37 of 1999, re-enacts Section 11 (c) of the Dock Labour Act 1990, and it provides as follows –
“The Council (Joint Dock Labour Industrial Council ETC) shall, from time to time apply the funds at its disposal to –
(a) The payment of pension, welfare scheme and medical expenses of Dock Workers so however, that no payment of any kind under this paragraph shall be made to any person who is in receipt of endowments from the Federal, State or any other paid employment.”
Obviously, the lower Court’s finding that the Appellants were not entitled to pension and other benefits is perverse, when considered along the backdrop of the evidence of DW1 under cross-examination and Section 11 of the said Act.
More so, when it is noted that under the various Laws, there is no provision for letters of employment wherein conditions of service are spelt out – all that is required is registration, which entitles the Appellants to be dock workers.
The Appellants were duly registered dock workers and remained so.
They are consequently entitled to their benefits, pensions and all entitlement.
The end result is that this appeal is allowed in part. The Judgment of the lower Court delivered on 6/6/2007 is set aside with respect to reliefs 1 and 3, and the said reliefs are granted as prayed. No evidence was adduced that the Appellants were employees in the pool at the Nigerian Port. Thus, the decision of the lower Court in respect of relief 2 is upheld. I make no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in advance the lucid judgment of my learned brother, Augie, J.C.A., (PJ) with which I am in full agreement and adopt as my own judgment with nothing useful to add.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, A. A. Augie, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat.
The Appellants were duly registered as dock workers under the National Labour Board. It is fair and just that they be paid their entitlement as provided for by the laws in force at the time of their retirement. It is to be noted that the law at that time differs considerably from the current law. Section 27 (c) of Nigerian Maritime Administration and Safety Agency 2007 provides that the agency shall ensure that dock workers and seafarer employers comply with existing regulations and standards in relation to crewing wages, safety, welfare and training of dock workers and seafarers at ports and on board vessels; and (d) upon notification, investigate disputes relating to the employment of dockworkers and seafarers. The is no room for speculation here as to who is responsible for the wages, safety and welfare of dockworkers. The responsibility rests squarely on dockworkers and seafarer employers, contrary to the position under the old laws.
I agree with my learned brother that the appeal has merit and succeeds in part. I also allow the appeal with respect reliefs 1 and 3. I abide by the consequential orders in the lead judgment.

Appearances

O. K. Salawu, Esq. For Appellant

AND

Andrew Malgwi, Esq., with Miss Onyeama Ndukwe For Respondent