IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MARCH 20, 2018
SUIT NO. NICN/LA/626/2014
BETWEEN
1. Mrs Bessie Udhedhe Ozughalu
2. Mr Jonathan Kenechuku Ozughalu
(Suing as the Administratrix and Administrator of the
Estate of Late Engr. Jonathan Kenechuku Ozughalu)
Claimants
AND
Bureau Veritas Nigeria Limited
Defendant
REPRESENTATION
Mr Kayode Sofola SAN, with Adam Wahab, Opeyemi Bello, Miss Adesuwa Isokpan and Miss Tobiloba Adebanjo, for the claimants.
Nduka Ikeyi, with Kingsley Amaefule, U. S. Ogbuagu, Abdullateef Abdul, Chukwuebuka Ndibe, and Miss Feyusayo Ogunmola, for the defendant.
JUDGMENT
1. By a complaint and the accompanying statement of facts filed on 24th December 2014, the claimant is claiming against the defendant for the following reliefs:
(a) A declaration that both the Naira and the United States Dollar components constituted the gross salary of Engineer Jonathan Kenechukwu Ozughalu (the deceased).
(b) A declaration that the deceased is entitled to 5 (five) times of the United States Dollar component of his annual gross salary as benefit on the Group Personal Accident Insurance Policy.
(c) A declaration that the deceased is entitled to 42 months of the United States Dollar component of his gross salary as benefit on the Group Personal Accident Insurance Policy.
(d) A declaration that the claimants, being the personal representatives and next of kin of the deceased, are entitled to receive the benefits of both the Group Life Assurance Scheme and Group Personal Accident Insurance Policy.
(e) An order of this Court directing the defendant to pay the claimants the sum of USD203,400 (Two Hundred and Three Thousand, Four Hundred United States Dollar) being the outstanding death benefit on the Group Life Assurance in respect of the United States Dollar component of the deceased gross salary.
(f) An order of this Court directing the defendant to pay the claimants the sum of USD142,380 (One Hundred and Forty-Two Thousand, Three Hundred and Eighty United States Dollar) being the outstanding death benefit on the Group Personal Accident Insurance Policy in respect of the United States Dollar component of the deceased gross salary.
(g) Interest on the said sums at the rate of 21% from January 2011 to the date of judgment and at the rate of 12% from the date of judgment till the judgment sum is fully liquidated.
(h) Cost of the litigation.
2. The defendant entered appearance and filed its statement of defence, list of witness, witness statement on oath, list of documents and copies of the documents; to which the claimants filed a reply and notice to produce. The claimant sought for and obtained leave (granted on 5th October 2016) to file a list of additional witness and the additional witness’ statement on oath. At the trial, the claimants called two witnesses. The 1st claimant testified for the claimants as CW1, and Jonathan Nwora, a retired Marine engineer, testified as CW2. The defendant called one witness, Mr Nneoyi Arikpo, a Marine Surveyor with the defendant, who testified as DW. At the close of trial, parties exchanged their final written addresses. The defendant’s final written address was filed on 27th July 2017, while the claimants’ was filed on 14th November 2017. The defendant’s reply on points of law was filed on 22nd November 2017.
THE CASE OF THE CLAIMANTS
3. To the claimants, they instituted this action in their capacity as personal representatives of Late Engr. Jonathan Kenechukwu Ozughalu (the deceased), predicating their locus standi in the Letters of Administration dated 17th March 2011 and issued by the High Court of Lagos State. The deceased was an employee of the defendant immediately before his death. That this case arose from the claimants’ grievance with the manner in which the defendant computed the death benefits of the deceased, who died whilst in the active employment of the defendant. That the base used by the defendant in the computation of the death benefits was unfair and unjust having been done contrary to the conditions of service which regulates the relationship between the deceased and the defendant. That the defendant employed the deceased by an ‘Offer of Employment’ letter dated 3rd July 1996 as a Marine Engineer/Surveyor and he remained in the defendant’s employment until his death on 16th of May 2010. That under the deceased’s employment contract, his salary was initially paid in Naira until later on when the United States Dollars (USD) component was introduced to the package; his salary was thus comprised of both Naira and USD components until his death in 2010.
4. The claimants went on that in fulfillment of its obligations under the conditions of service, which is an agreement between the defendant and Petroleum and Natural Gas Association of Nigeria (PENGASSAN), which the deceased was a member of, the defendant took out a Group Life Assurance Scheme (the ‘Life Assurance Policy’) and a Combined Workmen’s Compensation/Group Personal Accident Policy (the ‘Accident Insurance Policy’) which applied to some of the employees, including the deceased. That the benefits under these insurance policies were supposed to be computed on the basis of the deceased’s gross salary. That rather than considering the payment in USD as part of the gross salary, the defendant used only the Naira component of the deceased’s salary in the computation of the death benefits. That despite the claimants’ appeals, requests and demands for the outstanding death benefits on the USD component of the deceased’s salary, the defendant failed, refused and neglected to pay the said outstanding death benefits, hence this action.
THE CASE OF THE DEFENDANT
5. To the defendant, by virtue of an employment contract dated 3rd July 1996, the deceased was employed by the defendant as a marine engineer until his death on 16th May 2010. That under the deceased’s employment contract, his salary was denominated in Naira. However, he was also paid several allowances (including a special allowance in USD), which were introduced by the defendant at the defendant’s discretion; and was increased, reduced, and even discontinued at the defendant’s pleasure during the period of the deceased’s employment. That the defendant paid all of the deceased’s salaries up to the time of his death. That in fulfillment of its obligations under the Pension Reform Act, the defendant took out the Group Life Assurance Scheme (the ‘Assurance Policy’) with Leadway Assurance Company Plc (‘Leadway’), which applied to specific employees, including the deceased. That the claimant also took out a Combined Workmen’s Compensation/Group Personal Accident Policy (the ‘Accident Insurance Policy’) with Equity Assurance Plc (‘Equity Assurance’). That upon the deceased’s demise on 16th May 2010, Leadway and Equity Assurance computed the deceased’s benefits under the said policies and paid the sum of N14,773,200.00 and N12,305,391.14 respectively to the deceased’s beneficiaries (the ‘Insurance Payout’). However, that the claimants (who are the deceased’s wife and son respectively) subsequently wrote various letters to the defendant wherein they contended that the deceased’s death benefits had not been paid in full. They claimed that the deceased’s monthly salary had both Naira and USD components and that the deceased was paid N246,220 and USD3,390 as his monthly salary. They also claimed that the Insurance Payout was only in respect of the Naira component of the deceased’s salary; and demanded for the payment of the USD portion. However, the defendant denied the claimants’ claims. hence this suit.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant first raised a preliminary point i.e. that Exhibits C6(a) to C6(e), copies of the defendant’s pay slips, payment credit advice and a statement of account of the deceased’s banking account with Sterling Bank Plc, are incompetent, inadmissible and are liable to be discountenanced by this Court and expunged as part of the claimant’s evidence in this suit. To the defendant, these exhibits contravene section 84(4) of the Evidence Act 2011; as such, the said documents are incompetent and ought to be disregarded by this Court and expunged from the Court’s record. That Exhibits C6(a) to C6(d), which are pay slips and a printout of payment advice, are computer generated documents that ought to be certified in accordance with section 84 of the Evidence Act 2011, referring to Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534 SC, where the Supreme Court laid down the conditions for admitting computer-generated evidence. That in view of the failure of the claimants to file the appropriate certificate in respect of the exhibits, the exhibits ought to be expunged as evidence from the record of this Court.
7. The defendant proceeded that Exhibit C6(e) contravenes section 90(e) of the Evidence Act and so is incompetent and is liable to be discountenanced by this Court and expunged as evidence from the record of the Court. The defendant’s view is premised on the fact that whilst Exhibit C6(e) is an extract from a banker’s book (which is defined by section 258 of the Evidence Act 2011 as including a ledger, day books, cash books and account books and all other books used in banking business), the claimants failed to comply with the strict provisions of the section 90(e) before placing reliance on the document. That Exhibit C6(e) being a statement of account from Sterling Bank Plc comes within the definition of banker’s book under the Evidence Act, relying on FRN v. Fani-Kayode [2010] 14 NWLR (Pt. 1214) 481, 498 and Unity Life & Fire Insurance Company v. International Bank of West Africa Ltd [2001] 7 NWLR (Pt. 713) 610,501 – 502. That it is trite that an extract from a banker’s book can only be tendered upon fulfillment of the conditions stated in section 90(e) of the Evidence Act. That in the instant case, the claimants failed to comply with any of the provisions of section 90(e) of the Evidence Act. That there is no evidence that an officer of Sterling Bank Plc authenticated the document in the manner prescribed therein in section 90(e) of the Act; or examined the copy with the original entry. The defendant then submitted that Exhibit C6(e) is not admissible and ought to be expunged as evidence from the record of this Court, urging the Court to so hold.
8. The defendant went on to submit 6 issues for determination, namely:
(a) Whether the deceased was entitled to payments of a portion of his monthly salary in USD at the time of his death in May 2010.
(b) Whether the claimants can rely on the terms and conditions of the contract of employment for CW2 i.e. Mr Jonathan Nwora in support of their claims in this suit.
(c) Whether the defendant is liable to pay claims made pursuant to or arising from the Group Life Insurance Policy and the Group Personal Policy (the ‘Insurance Policies’) to the claimants.
(d) Assuming (without conceding) that the defendant was liable to make payment to the claimants on the Insurance Policies, whether the bases for the computation of the payment on the Insurance Policies would include any USD payment as to entitle the claimants to receive USD payments under the Insurance Policies.
(e) Whether the claimants are entitled to pre-judgment interest and interest on the judgment sum.
(f) Whether the claimants are entitled to the ‘costs of litigation’.
9. On issue (a), the defendant submitted that at the time of the deceased’s death, his salary was solely denominated in Naira and did not have a USD component. That the USD payments which were made to the deceased at various times during his employment with the defendant constituted special allowances, and were made at the defendant’s discretion; as such, the USD payments did not form part of his employment contract with the defendant. To the defendant, its contention on this issue is premised on the following pertinent points:
(i) The deceased’s employment contract with the defendant was denominated in Naira and not USD. By paragraph 6 of CW1’s written statement on oath, Exhibit C2, the offer of employment, governed the deceased’s employment. Exhibit C2 provided that the deceased’s salary would be in Naira, partly in Naira and USD, referring to page 2, paragraph 4 of Exhibit C2. The reference by the claimant to Exhibit C5 (the purported salary increment letter dated 20 April 2005) is feeble and the claimant did not lead any cogent evidence to show that the terms of the deceased’s employment were varied to provide for payment of salary in USD, referring to section 128(1) of the Evidence Act 2011 and Layade v. Panalpina World Transport Ltd [1996] 6 NWLR (Pt. 456) 544 at 588. That the claimants did not put before the Court (the burden being on them) anything to indicate the existence of a “distinct subsequent oral agreement” to vary Exhibit C2 as enjoined by the provision to section 128(1) of the Evidence Act 2011, referring to Ekwunife v. Wayne [1989] LPELR-1104(SC), Okorie v. Unakalamba & anor [2013] LPELR-22508(CA). That the defendant consistently payed and the deceased consistently toke his monthly salary in only Naira up till the months immediately preceding his death, referring to Exhibits D6, D7 and D8 i.e. the deceased’s pay slips for January, February and March 2010 respectively, something that was in consonance with the deceased’s employment contract, citing Suit Number NICN/LA/427/2012 Mr. Godwin Agbone v. Nulec Industries Limited (unreported judgment delivered on 2nd February 2014), which held that it is a notorious fact that salaries are in the main paid and evidenced vide pay slips.
(ii) The payments made to the deceased in USD were made at the defendant’s discretion and did not form part of his salary. A community reading of Exhibit C2 i.e. the letter of employment and Exhibits D1, D2, D3, D4, D5, as well as the conduct of the parties (facts relating to which were deposed to in DW’s witness statement on oath) demonstrates that the USD payments were a discretionary payment, and did not form part of the deceased’s monthly salary. In summary, they show that the defendant had at various times exercised its discretion by reducing (Exhibit D3), suspending (Exhibit D4) and reintroducing the USD payments (Exhibit D5), which will certainly not have been the case if it were part of the salary of the deceased such that it inured to him as of right, referring to paragraphs 7, 8,9, 10, 11, 12 and 13 of DW’s witness statement where the DW deposed to the fact (which were not controverted by the claimants). That the claimants’ feeble attempt to explain away the defendant’s discontinuation of the USD payment in paragraph 2(c) of their reply cannot stand as they failed to produce any evidence showing that the deceased protested the suspension or reduction of the USD special allowance, referring to section 9 of the Evidence Act 2011.
(iii) Exhibit C5 did not vary or amend Exhibit C2 such that part of the deceased’s monthly salary would be paid in USD. Exhibit C5 is limited in effect to the enhancement of the monies payable to the deceased. It did not generally amend the deceased’s contract of employment with the defendant and did not state that the USD allowance would become part of the deceased’s monthly salary so as to entitle him to it as of right as he was to the components of his gross salary provided for in Exhibit C2. Also, Exhibit C5 did not provide that the USD allowance would form part of the bases for calculating the deceased’s retirement benefits. That if the Defendant had intended to achieve any of the said effects by Exhibit C5, it would have stated so in clear terms as it did in Exhibit D13, which was earlier in time and specifically referenced in Exhibit C2. Particularly, Exhibit C5 failed to reference, incorporate or specifically amend the terms of Exhibit C2; and Exhibit C2 did not contemplate the making or production of any subsequent document that would make part of the deceased’s salary payable in USD. Exhibit C5 cannot, therefore, be relied upon as having altered the terms of Exhibit C2 to provide for the payment of part of the deceased’s salary in USD, citing Collins Iwuoha v. Nigerian Railway Corporation [1997] LPELR-1570 (SC). Since Exhibit C5 does not also reference Exhibit C2, the logical conclusion is that Exhibit C5 is unrelated to Exhibit C2. It does not form part of Exhibit C2 and the claimants cannot rely on same as a basis for their claims in the instant suit.
(iv) It is illegal for the deceased and defendant to have denominated any part of the deceased’s compensation, including allowances, in USD, citing section 15 of the Central Bank of Nigeria (Establishment) Act Cap C4 LFN 2004, which provides that the unit of currency in Nigeria shall be the Naira. Since, the legal tender in Nigeria is the Naira (see section 20(1) of the CBN Act), it will, therefore, be illegal for the defendant and the deceased to contract in any currency other than the Naira. Further, section 20(5) of the CBN Act makes it illegal for any person to insist on receiving payment in Nigeria in any currency other than Naira. This position was reiterated by the Central Bank of Nigeria (CBN) circulars, namely, “Currency Substitution and Dollarisation of The Nigerian Economy” (dated 17th April 2015 with reference No BSD/DIR/GENILAB/08/013) and “Currency Substitution and Dollarisation of The Nigerian Economy” (dated 21st May 2015 with reference No BSD/DIR/GEN/LAB/08/024) (both of which are instruments of which this Court is entitled to take judicial notice under section 122 of the Evidence Act, or alternatively facts proof of which is not required under section 124 of the Evidence Act). The circulars specifically confirm that it is illegal for the price of a contract or service to be denominated in a foreign currency i.e. currency of obligation or to be paid in any currency other than Naira, where such contract or service is to be performed in Nigeria between Nigerian parties, and or for anyone to insist on receiving payment in any currency other than the Naira in Nigeria. Thus where the claimants insist on (a) the existence of a contract between the deceased and the defendant for the payment of the alleged outstanding benefits in USD, (b) receipt of payment in USD, by not asking for payment in the equivalent value of the USD claim in Naira in this suit, then (i) the contract (whether in relation to the salaries, allowances, or benefits) is illegal for having been made in violation of the CBN Act, and or (ii) the demand for the performance thereof by the claimants by way of payment in USD is illegal, for which reason the contract (even if not illegal as made) has become illegal by virtue of the requested mode of performance. As a rule, an illegal contract is void and, therefore, not enforceable against any of the parties, citing Altimate Inv. Ltd v. Castle & Cubicles Ltd [2008] All FWLR (Pt. 417) 124 at 130, Soyinka v. Oni & ors [2011] LPELR-4096(CA); and Ekwunife v. Wayne (West Africa) Limited [1989] LPELR-1104(SC), which held that no court has the jurisdiction to enforce an illegal contract, and that once the court is aware of the illegality, it has a duty to stop the case and dismiss the claimant for being void and unenforceable. The Court is urged to hold in the alternative that it is illegal for the defendant and the deceased to have denominated any part of the deceased’s salaries, allowances or benefits in USD 16 or other foreign currency, and or for the claimants to demand payment of the deceased benefits in USD from the defendant.
10. Issue (b) is whether the claimants can rely on the terms and conditions of CW2’s contract of employment as a basis for their claims. That during the trial, the claimants sought to rely on the terms and conditions of the employment contract of the CW2 i.e. Mr. Jonathan Nwora, whom they claimed had worked with the deceased, as a basis for their claim. The claimants also seem to rely on the terms and conditions of DW’s employment contract with the defendant in support of their case in suggesting that DW, being junior to the deceased, could not have been earning a higher salary than the deceased. To the defendant, evidence of the deceased’s salary as appearing on his monthly pay slips is conclusive on the question of the amount of the deceased’s salary during his employment with the defendant. Furthermore, that the claimants cannot rely on the contract of a third party. That in determining the entitlements of the deceased under the terms of his employment with the defendant, the claimants cannot rely on the terms and conditions of the employment of a third party since employment contracts are personal to each employee, citing Suit No. NICN/LA/l0/2011 Ademulegun Aderemi & 15 ors v. Wema Bank Plc (unreported judgment delivered on 16th July 2014), Bossa v. Julius Berger Plc [2005] 15 NWLR (Pt. 948) 409 at 429 and CCB. (Nig.) Plc v. Rose [1998] 4 NWLR (Pt. 544) 37. Thus, that any claim regarding the rights or entitlements of the deceased must be based strictly on the terms and conditions of his contract of employment, and not the rights and entitlement of CW2; the claimants must swim or sink with the proven terms of the deceased’s employment contract unaided by any purported terms of the employment contract of CW2 or DW. The defendant urged the Court to note that the claimants have not made a case for unfair labour practice to warrant a comparison of the deceased’s situation with those of CW2 and DW, citing Ademulegun (supra). That parties are bound by there pleadings; and the Court cannot rewrite the contract of the parties for them.
11. Issue (c) is whether the defendant is liable to pay claims made pursuant to or arising from the Group Life Insurance Policy and the Group Personal Policy to the claimants. To the defendant, it is not an insurance company and is not liable to pay claims made pursuant to or arising from the Group Life Assurance Scheme (the “Assurance Policy”) or the Combined Workmen Compensation/Group Personal Accident Insurance Policy (the “Accident Insurance Policy”), (together, the “Insurance Policies”) to the claimants. That it is the insurers (Leadway and Equity Assurance respectively) who are liable to pay claims made on or arising from the Insurance Policies (if any) to the claimant. That the claimants’ principal claims are for the payment of the USD portion of the claims made on or arising from the Insurance Policies. That this is premised on the claimants’ erroneous view that the defendant failed to pay the deceased’s death benefits in full. That the claimants contend that by the terms of the deceased’s employment contract, his monthly salary was denominated in both Naira and USD i.e. N246,220 and USD3,390 as at the time of his death in May 2010. They claim that the defendant only paid the deceased’s death benefits whilst it failed to pay the benefits on the USD component of the salary.
12. To the defendant, Leadway, not the defendant, is liable to pay the outstanding benefits on the Assurance Policy (if any) since the policy is an insurance policy, referring to the definition of the term ‘insurer’ in the Blacks’ Law Dictionary, 8th Edition, and sections 69 and 70 of the Insurance Act 2003 (the “Insurance Act”) which put the liability for payment of insurance benefits under an insurance policy to the beneficiaries thereunder on the insurer. That under the Assurance Policy, Leadway is the insurer whilst the deceased is the beneficiary; the defendant is merely the insured and its obligation under the Assurance Policy is limited to payment of the requisite premium and reporting the occurrence of the insured risk. That the liability of the insurer (and not the insured) to settle the issue of payments arising from life insurance policies was recognised in Akene v. British American Insurance Co. (Nig.) Ltd unreported Suit No. UCH/37171 (High Court of the Midwestern State) cited in Casebook on Insurance Law in Nigeria by Dr Omogbai Omo-Eboh, published by West African Book Publishers Limited. Therefore, there is no legal basis for the instant suit which seeks to compel the defendant to make insurance payments to the claimants. That although the process of claiming benefits under the Assurance Policy is initiated by the insured notifying the insurer of the occurrence of the insured event i.e. the death of the deceased in this case, the processing of the benefits for the deceased is managed/supervised by the trustees of the Assurance Policy within the defendant. The said trustees are persons elected by the employees of the defendant who are covered by the Assurance Policy, to act for their individual and or collective interest in matters relating to the Assurance Policy. These trustees (and not the defendant) decide how the Assurance Policy is administered with respect to any of the covered employees. They approve payment of benefits to individual covered employees or their beneficiaries as the case may be, before such payment is made.
13. That upon the deceased’s death in April 2010, the defendant notified Leadway of the death and Leadway processed and paid the benefits due on the deceased’s death under the Assurance Policy (the “Assurance Policy Claim”) to the claimants, working with the trustees. That it was Leadway that computed and paid the deceased’s benefits under the Assurance Policy. That for the purpose of the payment of the deceased’s benefits as aforesaid, Leadway dealt with the Insurance Broker, who in turn dealt with the claimants (as beneficiaries of the deceased) through the defendant. That in the course of processing the Assurance Policy claim, the Insurance Broker wrote a letter dated 7th October 2010 forwarding Leadway’s claim discharge form for N14,773,200 to the defendant. The trustees of the Assurance Policy in the defendant were required to execute and return the claim discharge form as authority to Leadway to pay the deceased’s benefits, and they promptly did so. That Leadway Assurance consequently promptly paid N14,773,200.00 to the claimants as the benefit due to the deceased under the Assurance Policy. Accordingly, that if there was any error in the computation (for whatever reason or in whatever way) of the claims payable to the claimants as the benefit due to the deceased under the Assurance Policy, the error must be attributable to either the trustees or Leadway or both; and the defendant can neither be held liable for any breach of trust by the trustees or breach of the contract of insurance by Leadway. The defendant urged the Court to note that (a) the obligation of the defendant in regard to the Assurance Policy is to take out and maintain the policy (see paragraph 50 of the Employee Handbook), and that (b) the case of the claimants is not that the defendant (i) failed to take out the Assurance Policy or (ii) failed to pay any premium under the Assurance Policy or otherwise breached any material term thereof for which Leadway avoided liability on that basis. In fact, that Leadway accepted liability and made payment. That the suit of the claimants against the defendant for any alleged balance is therefore most misconceived, urging Court to so hold.
14. The defendant went on that Equity Assurance is liable to pay the outstanding benefits on the Accident Insurance Policy (if any). That the defendant is not liable to pay the claimants any alleged outstanding benefits on the Accident Insurance Policy (“Accident Policy”); and this action can only be properly maintained against Equity Assurance. That Exhibit C1 i.e. the Letter of Employment did not require the defendant to take out the Accident Insurance Policy in favour of the deceased; or to include the deceased in the Accident Insurance Policy. Nevertheless, the defendant included the deceased among those of its employees for whom it took out the Accident Insurance Policy; the inclusion of the deceased in the Accident Policy was a matter of privilege and did not create any right in the deceased. That having merely exercised discretion to convey a privilege on the deceased, the defendant did not thereby assume any legal obligation, nor did the deceased (and his estate) acquire any right thereby against the defendant. That the structure of the Accident Policy was such that while Equity Assurance was the insurer, the defendant was the insured, and the deceased (among others) was the beneficiary. That although the process of claiming benefits under the Accident Policy is initiated by the insured notifying the insurer of the occurrence of the insured event, the processing of the benefits for the deceased is managed/supervised by the trustees of the scheme within the defendant in the same manner as the Assurance Policy. That usually, the same trustees that managed the Assurance Policy also managed the Accident Policy. That for the purpose of the payment of the deceased’s benefits as aforesaid, Equity Assurance dealt with the Insurance Broker i.e. Hogg Robinson Nigeria Limited, who in turn dealt with the beneficiaries through the defendant. That on 9th November 2010, Equity Assurance wrote Exhibit D11 to the Insurance Broker indicating its computation of the deceased’s benefits under the Accident Insurance Policy and attaching Exhibit D12 i.e. a discharge voucher for the computed sum, which they required to be executed by the trustees of the scheme and returned to Equity Assurance as authority for payment to be made to the beneficiaries. That after obtaining the requisite authority of the trustees, Equity Assurance paid N10,341,240 to the claimants as the benefit due to the deceased under the Accident Insurance Policy. The defendant then urged the Court to hold that this suit of the claimants is misconceived.
15. Issue (d) is assuming (without conceding) that the defendant was liable to make payment to the claimants on the Insurance Policies, whether the bases for the computation of the payment on the Insurance Policies would include any USD payment as to entitle the defendants to receive USD payments under the Insurance Policies. To the defendant, the claimants would still not be entitled to the payment of any portion of the claims arising from the Insurance Policies in USD given that at the time of the deceased’s death, his monthly salary was solely denominated in Naira and did not have a USD component for reasons given when issue (a) as addressed.
16. Issue (e) is whether the claimants are entitled to pre-judgment interest and or interest on the judgment sum. To the defendant, if this Court dismisses the claimants’ monetary claims, then this relief must necessarily fail; for in the absence of a judgment sum being awarded to the claimants, their entitlement to “interest on the judgment sum” will not arise. Alternatively, that the claimants have not shown that they are entitled to pre-judgment interest at 21% or at any other rate, whether by their pleadings or by their evidence, citing Nitel Trustees Ltd v. Syndicated Inv. Holdings Ltd [2014] 6 KLR (Pt. 351) 2837 at 2849, Henkel Chern Ltd v. A.G. Ferrero & Co. [2003] 4 NWLR (Pt. 810) 306, Petgas Res. Ltd v. Mbanefo [2007] 6 NWLR (Pt. 1031) 545 at 558 – 559 and Jambo v. Governor of Rivers State [2007] 17 NWLR (Pt. l062) 198 at 217. The defendant then submitted that the claimant is not entitled to pre-judgment interest, even in the unlikely event that the Court awards any monetary payment to them, urging the Court to so hold and to refuse the relief accordingly.
17. Issue (f) is whether the claimants are entitled to “costs of the litigation”. To the defendant, the “cost of litigation” is synonymous with the “attorney’s or solicitor’s fee”. Accordingly, the defendant contended that under Nigerian law, a claim for cost of prosecution of a suit cannot be granted because it is against public policy so to do, citing Guinness (Nig.) Plc v. Nwoke [2000] 15 NWLR (Pt. 689) 135 at 150. Notwithstanding this, that assuming without conceding that a party’s solicitor’s fee was capable of being transferred to another party, the defendant should not be liable to the claimants. That it goes without saying that the claim for legal fees is a claim for special damages, which must be specifically landed and strictly proved by the claimants, citing Arisons Ltd v Mil. Gov. Ogun State [2009] 6 KLR (Pt. 268)1483 SC at 1501. Accordingly, that it is not sufficient in the present case for the claimants to simply pray for the “cost of litigation”. They ought to have gone further to state the specific items in respect of which they expended the money claimed, to enable the Court and the defendant to see that they are items related to the litigation. That where any part of it is payment made on quantum meruit, the claimants are obligated to indicate the various components of such part of the legal services rendered for which payments were made, referring to Savannah Bank Plc v. Opanubi [2004] 7 KLR (Pt. 184 – 186) 2103 at 2121. In any case, that the amount claimed as “cost of litigation” must be stipulated in the pleadings and evidence led in support thereof, since it is an item of special damages. That the claimants failed to so stipulate the amount and or to lead any evidence in respect thereof. That the claimants are, therefore, not entitled to this relief, urging the Court to so hold. In cnclusion, the defendant urged the Court to refuse the claims of the claimant and dismiss this action with substantial costs.
THE SUBMISSIONS OF THE CLAIMANTS
18. In their submissions, the claimants argued that contrary to the submissions of the defendant, the insurance contracts were between the insurance companies as the insurers and the defendant as the insured person with no direct relationship between the insurance companies and the deceased; and, therefore, the deceased cannot lay any claim against the insurance companies. That the defendant took out the insurance policies in its name for the benefit of its employees, and is expected to remit the benefits received under those insurance policies to the employees. In this circumstance, that the role of the defendant in the insurance relationship is akin to the relationship between the unit holders and the fund manager on the one side, and the fund manager and the company in which the pooled funds were invested on the other side. That the insurance companies computed the death benefits based on the information supplied to it by the defendant. It is also the argument of the claimants that the employment letter is not the only document governing the relationship between the defendant and the deceased, as wrongly argued by the defendant. That the Staff Handbook, which was tendered by the defendant in this case, states that the subsequent documents issued by the defendant to its employee shall be taken into consideration in the determination of the terms of the relationship between the defendant and its employees; ass such the USD was part of the total package of the deceased as contained in the letter issued to the deceased.
19. To the claimants, from the pleadings and the proceedings at the trial the following facts are not in dispute:
(a) The deceased died on 16th May 2010, and was until his demise an employee of the defendant.
(b) The deceased was paid both in Naira and USD, and both components were paid until his death in May 2010.
(c) The defendant had an obligation under the conditions of service to hold in favour of its employees the Life Assurance Policy and the Accident Insurance Policy.
However, that the parties do not agree that the monthly gross salary of the deceased comprised of both Naira and USD components, the contention of the claimants being that the defendant paid the deceased both Naira and USD components as monthly gross salary. That it was established at the trial that the letter that provided for the USD component as part of the monthly gross salary was never revised before the demise of the deceased. That in order to establish that the payment in USD was not a discretionary payment as argued by the defendant, the claimants established at trial that CW2 got his retirement benefits from the defendant under the same conditions of service in both Naira and USD components of his gross salary. That it is pertinent to note that CW2 stated in his evidence, which was not discredited under cross-examination, that he and the deceased were the only staff of the defendant who earned in both Naira and USD due to the nature of their jobs as marine engineers, which was both on-shore and off-shore.
20. On the argument of the defendant as to the admissibility of Exhibits C6(a) to C6(e), the claimants submitted that these exhibits are not computer generated evidence requiring certification. To the claimants, Exhibits C6(a) – C6(d) are documents handed over to the deceased by the defendant after payment of salaries; they were not produced by the deceased. That the deceased and the claimants do not have an idea of how the documents were produced or generated by the defendants. That payment slips are usually given to employees in printed form, and the payment slips in this matter actually originated from the defendant, and is evidence of what the defendant gave the deceased. That section 84(4) of the Evidence Act only applies to a party who intends to tender a document he generated from a computer. The section seeks to ensure that the document was properly generated by the use of a computer system. This provision does not, however, apply to a party who did not generate the document from the computer. That if any party is to comply with section 84(4), it should be the defendant who produced and handed over the documents to the deceased. Moreover, that this Court is vested with the power under section 12(2)(b) of the National Industrial Court (NIC) Act 2006 and endorsed by Order 5 Rule 6(2)(b) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to depart from the provisions of the Evidence Act in the interest of justice, urging the Court to hold that this instance qualifies to be a deserving case where departure from the Evidence Act is necessary. To the claimants, it is noteworthy that the 2017 Civil Procedure Rules emphasizes the specialized nature of this Court as a specialized court, which will not in all cases adopt the practice and procedure of regular courts; and this is evident in the way and manner evidence is tendered in this Court. Furthermore, that the 2017 Civil Procedure Rules also adds other deserving instances where departure from the Evidence Act will be justified. These instances are fairness, equity and fair-play. That it would be against the principles of fair-play, fairness and equity to use the provision of section 84(4) against the claimants and the deceased who did not himself produce or generate these documents. In any event, that our laws are instruments of social engineering and reforms, and the courts will and ought not to allow the law to be used as instruments of technicalities to defeat the cause of justice, citing Psychiatric Hospitals Management Board v. Edosa [2001] LPELR–SC.163/1995, Ibaku & ors v. Ebini & ors [2009] LPELR-CA/A/EP/288A/08 and Bajoga v. Government, FRN [2007] All FWLR (Pt. 394) 273 at 299. The claimants then urged the Court in the spirit of equity and fairness to discountenance the defendant’s argument on this point and hold that the Exhibits C6(a) – C6(d) are admissible and resist the defendant’s attempt in persuading the Court to expunge the exhibits as evidence in this matter.
21. On the admissibility of Exhibit C6(e), the claimants submitted that the purpose of section 90(e) of the Evidence Act is to ensure that the extracts from the banker’s book really and truly emanate from the bank. It is in furtherance of this purpose that the section requires an officer of that bank to certify that the entries copied: were made at the time of making one of the ordinary books of the bank; were made in the usual and ordinary course of business; and the copy has been compared with the original entry and it is correct. That Exhibit C6(e) was authenticated by Sterling Bank with its stamp and signature of its staff clearly impressed on it. To the claimants then, this authentication is sufficient certification to prove that the document really and truly emanated from Sterling Bank, and is the correct version of bank’s record of transactions that occurred on the salary account of the deceased. The claimants then submitted for reasons already given as to Exhibits C6(a) to C6(d) that this instance is one of the deserving instances where departure from the Evidence Act is justifiable; and for these additional reasons: the purpose of Exhibit C6(e) is to prove the last USD component paid by the defendant to the deceased; it is not to prove that the deceased’s salary consisted of Naira and USD; Exhibit C5, the conditions of service and the Staff Employee Handbook had proved that the deceased’s salary had both Naira and USD; and it is, therefore, in the interest of justice, equity, fairness and fair-play not to expunge Exhibit C6(e).
22. The claimants proceeded to submit four issues for determination:
(a) Whether the defendant is bound by the terms of the Conditions of Service dated 1st December 2009 (Exhibit C7) as it relates to the employment relationship between itself and the deceased.
(b) Considering all the exhibits and oral evidence before this Honourable Court, whether the gross salary of the deceased consisted of both Naira and USD components.
(c) Having regard to circumstances of this case, whether the claimants are entitled to the reliefs sought for.
(d) Whether the Employment Contract between the defendant and the deceased is illegal on ground of payment in Naira and USD.
23. On issue (a), the claimants submitted that the conditions of service, Exhibit C7 is a form of collective bargaining agreement usually negotiated by a trade union, which regulates the relationship between a company and members of the trade union who are employees of that company, citing Order 1 Rule 10 of the National Industrial Court (Civil Procedure) Rules, 2017, which recognizes collective bargaining and defines it. That the Conditions of Service (COS), as the name suggests, sets out the working conditions (such as working hours, bonus, leave, retirement and death benefits) of the deceased and other eligible employees of the defendant. That the COS was executed by the defendant and PENGASSAN of which the deceased was a member. That by virtue of the membership, the deceased was entitled to take the benefit of the COS, and the defendant is bound to honour the terms therein. That the effect of the COS on the parties to it is clearly stated in clause 2. That it was established at the trial that the deceased was an employee of the defendant, a Senior Staff and a member of PENGASSAN, the effect of which is that the deceased’s employment was covered under the COS. It is also proved that the defendant was a signatory to the COS, which also makes it bound by the COS, an important document in respect to the employment relationship between the deceased and the defendant, which should be read together with the letter of employment as both documents form part of the employment relationship between the defendant and the deceased.
24. Having submitted that the defendant is bound by the COS, the claimants referred to relevant causes of in the COS such as clauses 5.6 on Group Life Assurance and 6.4 on Group Personal Accident Insurance/Industrial Accident, and then submitted that the deceased should benefit from the provisions as he was confirmed as an employee of the defendant upon satisfactory completion of the probationary period, and he died during his employment with the defendant. That the deceased as a beneficiary is entitled to five (5) times the annual Gross Salary at death while in service. However, that upon his demise, he was only paid five (5) times of a part of the annual Gross Salary which is the Naira component of the Gross Salary. That the defendant failed to honour the provisions of the COS. That the clauses which are contained in the COS before this Court are plain and clear, and should be given their plain meaning, citing Anason Farms Ltd v. NAL Merchant Bank Limited [1994] 3 NWLR (Pt. 331), CCB Nig. Plc v Ozobu [1998] 3 NWLR (Pt. 541) and Brewtech Nig. Ltd v. Akinnawo & anor [2016] LPELR-CA/L/764/09.
25. The claimants agreed with the defendant that the defendant is not an insurance company which is expected to pay any benefit under the insurance schemes. In the same vein, that there is no insurance contract between the deceased and the insurance companies. That the defendant’s submission that the claim for death benefit should be against the insurance companies will, therefore, be wrong, unfounded and baseless as there is no insurance or any other contractual relationship between the deceased and the insurance companies. That applying the doctrine of privity in insurance contracts meant that though a policy is taken out by a person to cover his liabilities to third parties, and though the normal operation of a liability policy is to benefit the third party to whom a liability is established, in the event that the liability occurs, the third party as stranger to the contract between the insured and insurer cannot sue directly on the contract to enforce it against the insurer (The Law of Insurance Contracts in Nigeria by Dr Omogbai Omo-Eboh, published by West African Book Publishers Limited at page 423), citing New India Insurance Co. Ltd v. Odubanjo, Ladipo and Abiodun [1971] 1 NCLR 363.
26. The defendant’s counsel had cited Akene v. British American Insurance Co. (Nig.) Ltd unreported Suit No. UCH/37/71 (High Court of Midwestern State) to the effect that the insurer is liable to pay the benefit under a life insurance policy directly to a third party. To the claimants, the facts of this case are clearly distinguishable from the instant case. In the cited case, the insurer under a life insurance policy expressly agreed to pay over the benefit under the policy to a third party on the death of the life insured, the deceased insured is in a position of a trustee and the third party beneficiary is entitled to call upon the insurer to pay the insurance money to him, and upon their failure to do so he can sue the insurer directly as a beneficiary. In the instant case, there was no form of agreement between the insurer and the defendant (insured) to pay the benefit under the policy to the third party (deceased); therefore, the insurer is not liable to the deceased. That the defendant failed to consider that the insurance contract was between the defendant and the insurance companies wherein the defendant was the insured party. That the role of the defendant as the insured party in the insurance scheme was for the benefit of the deceased and other eligible employees. That there is an expectation on the part of the eligible employees that the defendant would take out insurance in accordance with the Conditions of Service, which is based on the annual gross salary. On the flip side, that there is an assumption on the part of the insurance companies that the information supplied by the defendant is the true and fair view of the gross salary of the employees.
27. That flowing from the above, the insurance companies could only compute the death benefits based on the information supplied to it by the defendant. The insurance companies could not be expected to go beyond the mountain to determine the actual annual gross salary of the deceased; its computation would be constrained by the information made available by the defendant. That the relevant question however is this: what is the fate of an employee who is affected by a deliberate error in the computation of death benefit due to the wrong information supplied by the defendant to the insurance companies? The claimants answered that the only option for the employee is to sue the defendant for the breach of contract. That this is exactly what the personal representatives of the deceased have done by this action. The claimants referred to Exhibits D9, D10, D11 and D12 and then submitted that the exhibits were all addressed to the defendant in its capacity as the insured party; they were not addressed to the deceased because there was no relationship between the insurance companies and the deceased. That since this action is not founded on the insurance contract, the claimants cannot make any claim against the insurance companies; rather, this action is founded on the Conditions of Service, and the only proper party against which a claim can be properly made is the defendant. That the defendant will, therefore, be liable to pay to the claimants the outstanding due on the Conditions of Service. That it is trite law that the court considers the statement of claim and writ of summons in determining the case, referring to Okonkwo v. Okechukwu [2012] LPELR-15354(CA).
28. Issue (b) is whether the gross salary of the deceased consisted of both Naira and USD components. To the claimants, a definition of “gross salary” may assist in the determination of this issue. That an online platform (http://www.netsalarycalculator.co.uk/definition-of-gross-salary/) defines gross salary as “the total income before any deductions are removed from that amount. This total income is usually described as an annual salary and it is the total amount an employee will receive for work completed before tax or national contributions are deducted”. From this definition, the claimants submitted that the following points are relevant to gross salary: it is the total income paid by an employer to his employee for a work done during a particular period; it is the income due to an employee before any deduction is made; it includes the basic salary and other allowances such as transport and housing; and the appellation given by the employer to characterize the allowance is immaterial and will not change the nature of the allowance from being part of the gross salary. That the emphasis on what constitutes gross salary is crucial to this case because this is the point of conflict between the parties. It is the claimants’ position that that the deceased’s gross salary consisted of both Naira and USD.
29. The claimants agreed with the defendant that the “Offer of Employment” is a document under which payments terms are set out; and that it did not state the deceased’s remuneration in USD. However, that the defendant did not consider relevant provision of the defendant’s Employment Handbook (Exhibit D14), which it pleaded, on remuneration of employees; otherwise it would not have held that wrong position, referring to clause 11 of Exhibit D14, which states that “The pay package is set out in Offer Letter or as subsequently revised in writing”. In a similar vein, clause 4.6 of the COS tilled Payment of Salaries states that: “Remuneration payable to Employees shall be set out in the Employee’s letter of appointment and in such other notices as may be issued by the Company from time to time”. The claimants then asked: is there any written notice which varies the payment terms stated in the offer of employment? They answered in the affirmative. That Exhibit C5, the defendant’s letter notifying the deceased of increment in salary, had varied and introduced new element to the deceased’s payment structure, drawing attention to the first paragraph of Exhibit C5, which states that the N200,000.00 (representing the Naira component) and USD3,360 (representing the USD component) are part of the deceased’s gross monthly remuneration. To the claimants, the offer of employment should be read together with the defendant’s letter dated 20th April 2005 (Exhibit C5) to determine the payment structure of the deceased, citing REAN Ltd v. Aswani Textiles Ind. [1991] 2 NWLR (Pt. 176) 639. That the defendant attempted to establish and indeed argued that the payment in USD was not part of gross salary by Exhibit D13. That the Exhibit D13 is earlier in time than Exhibit C5, and for this reason, Exhibit D13 could not have varied the contents of Exhibit C5. That what this means is that the defendant has not adduced any evidence before this Court that the deceased’s salary was not a combination of Naira and USD components. That the defendant had failed to show any evidence as to the discontinuance of the USD payment. That it is trite and elementary that he who asserts must prove his assertion, citing Jallo Ltd v. Owoniboys Tech. Serv. Ltd [1995] 4 NWLR (Pt. 391) 534, Odiete v. Okotie [1972] 6 SC 83 and Akinfosile v. Ijose [1960] SCNLR 447. That the claimants asserted and have proved that the deceased’s gross salary consisted of both Naira and USD by the reason adduced above; and the claimants asserted and had proved that during the employment of the deceased with the defendant, the deceased’s salary was paid both in Naira and USD.
30. In terms of CW2’s evidence and Exhibit C5, the claimants submitted that in a bid to further prove that the USD payments were part of the gross salary, and not a discretionary payment, they called CW2 (Engr. Jonathan Nwora), a former employee of the defendant. That CW2 had similar employment contract with the deceased with respect to payment structure (they both had Naira and USD as components in their salary structure). He gave evidence that upon his retirement from the defendant company, he was initially paid his retirement benefits based on the Naira component of his salary but he protested and the retirement benefit was based on both Naira and USD components according to the COS. That it is instructive to note that CW2 remained unshaken in the witness box and his testimony was not discredited under cross-examination, urging the Court to place considerable probative value on the testimony of CW2 in the evaluation of the evidence of the parties, relying on Broadline Ent. Ltd. v, Monterey Maritime Corp. [1995] NWLR (Pt.417) 1 and Omoregbe v. Lawani [1980] 3 – 4 SC 108 at 117. The claimants then urged the Court to discountenance the argument of the defendant on this issue as being misconceived.
31. On DW’s testimony, the claimants submitted that it supports their case. That the notable points in the cross-examination of the defendant’s sole witness are as follows: DW confirmed that he was a junior marine surveyor to the deceased; he joined the defendant company about eight (8) years after the deceased joined the defendant; the nature of the job of a marine surveyor may require him to work onshore and offshore; in the oil and gas industry, some marine surveyors are paid both in Naira and USD; the deceased’s monthly gross salary as at the time of his death was N246,220, while his (DW’s) monthly gross salary was N330,000. That based on these facts, one will be tempted to ask whether a junior marine surveyor could earn a salary higher than that of a senior marine surveyor. The claimants then submitted that this could only be answered in the negative. On this basis, that DW’s gross salary cannot be higher than the deceased’s gross salary. That the USD component of the deceased’s gross salary covered up for the difference between the two salaries and that makes the deceased’s gross salary higher that than of DW. That the irresistible inference that can be drawn from the above facts is that the deceased’s salary was paid in both Naira and USD denominations as stated in the claimants’ statement of facts.
32. Issue (c) is whether the claimants are entitled to the reliefs sought for. Here, the claimants submitted that the act complained of is a breach of contract on the part the defendant. The breach is material and the method by which justice could be done in the peculiar facts and circumstance of this case is by grant of the declaratory reliefs sought. That the present case is a case that deserves the grant of a declaratory order on the strength of the evidence adduced by the claimants. Furthermore, that the claimants have established on the preponderance of evidence their entitlement to the reliefs sought. It is the further submission of the claimants that they are entitled to the declaratory reliefs, citing Okoh v. The Nigerian Navy [2007] Vol. 25 WRN 46 at 66. That declaratory reliefs cannot be granted on the basis of admission or default of pleadings; it is available only when the party seeking such declaratory reliefs has established his entitlement to such reliefs, citing Bulet Int’l (Nig) Ltd & anor v. Olaniyi & anor [2017] LPELR-42475(SC) and Ndu v. Unudike properties Ltd [2008] 10 NWLR (Pt. 1094) 24 at 29. The claimants then adopted their arguments under the issue (b) and submitted that they are entitled to the declarations as well as the consequential pecuniary reliefs sought.
33. Additionally, that they are entitled to the interest claimed, citing Ekwunife v. Wayne (WA) Ltd [1989] 5 NWLR (Pt. 122). That trust relationship is a principle of equity. That the relationship between the defendant and the deceased can be likened to a trust relationship where the defendant is the trustee of the Life Assurance Policy and the Accident Insurance Policy and the deceased was the beneficiary of the insurance policies. That the defendant is in breach of the trust relationship by not paying the entirety of the death benefit of the deceased to his heirs. That entitlement to interest on the outstanding death benefits on the Life Assurance Policy and the Accident Insurance Policy in respect of the USD component of the deceased’s gross salary is based on the breach of the fiduciary relationship between the defendant and the deceased. In view of this breach of fiduciary relationship, that the claimants are entitled to the award of pre-judgment interest on the principal sums claimed.
34. Issue (d) is whether the Employment Contract between the defendant and the deceased is illegal on ground of payment in Naira and USD. To the claimants, it is too late for the defendant to make a case of illegality of a contract it has benefited from in order to evade its obligation under the said contract. That the principles of equity will not allow any party to use the law and the courts to perpetuate fraud and evade obligations under a contract. That the Nigerian courts are vested with the powers to observe and ensure observance of the principles of equity. That the defendant’s attitude is that of a person who has taken benefits of a transaction but now resorts to legal technicality to avoid liability. Equity will not allow that. The claimants continued that the defendant failed to plead illegality as a defence as required by law and the Rules in its statement of defence, as such the defence of illegality would not avail the defendant in the instant case, citing Ekwunife v. Wayne (WA) Limited (supra), where the Supreme Court held that where a contract is not ex facie illegal and the question of illegality depends on a number of facts probabilities or possibilities or contingencies to be hammered out by evidence and forensic logic, the general rule is that illegality must be raised in the pleadings. Also referred to is AIC Ltd v. NPC [2005] 1 NWLR (Pt. 937) 584. That failure to plead illegality in the pleading and raising it in the final address amounts to springing surprise, which is frowned upon by our courts. Also, that it is trite law that facts not pleaded and evidence not led cannot give rise to any issue worthy of judicial consideration, citing Geneva v. Afribank Nigeria Plc [2013] LPELR-20662(SC).
35. The claimants went on that the Supreme Court has emphasized the point that a party will not be allowed to benefit from his wrong doing. That the defendant having benefited from the alleged illegal contract is estopped from denying the legality of the contract, citing Solanke v. Abed [1962] 1 All NLR 230 and BMNL v. Ola IIemobola Ltd [2007] All FWLR (Pt. 379) 1340 at 1380 as well as Ibekwe v. Maduka [1995] 4 NWLR (Pt. 392), which held thus: “Apart from the principle of law involved, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. No court of law will allow a person to benefit from his own wrong doing”; and Oilfield Supply Centre Ltd v. Johnson [1987] 2 NWLR (Pt. 58) 625 and Adedeji v. National Bank of Nigeria Ltd [1989] 1 NWLR (Pt. 96) 212. Furthermore, that DW admitted during cross-examination that deployment of marine surveyor to on-shore and off-shore locations is a normal practice in the oil & gas industry; and because of this special working condition, some companies pay their marine surveyors in both local and foreign currencies. To the claimants, DW’s testimony that some companies pay USD should be considered in the light of other evidence before the Court, referring to Exhibit C5, wherein the defendant stated payment in USD as part of gross salary of the deceased. That it, therefore, means that the defendant is among the companies that pay their marine surveyors in both local and foreign currencies for working in on-shore and off-shore locations. The claimants then submitted that for all these reasons, the defendant cannot validly raise the defence of illegality. The claimants concluded by urging the Court to grant all their reliefs.
THE DEFENDANT’S REPLY ON POINTS OF LAW
36. To the defendant, the new points made in the claimants’ address that call for response are as follows:
(a) Section 84(4) of the Evidence Act 2011 applies to a party tendering a document he generated from a computer, not to a party who did not generate the document himself.
(b) The Court should depart from the provisions of sections 84(4) and 90(e) of the Evidence Act (which require Exhibits C6(a) – C6(d) to be certified as computer generated evidence and Exhibit C6(e) to be authenticated respectively) in the interest of justice, fairness, equity and fair play.
(c) The collective bargaining agreement i.e. Exhibit C7, “CBA”) made between PENGASSAN and the defendant is binding on the defendant which signed same and Jonathan Kenechukwu Ozughalu (the “deceased”) as a member of PENGASSAN (and by extension the administrators of his estate) can sue defendant on it.
(d) There is no privity of contract between the deceased and the insurers to entitle the former to sue the insurers in respect of his benefits because he is a third party to the insurance contracts.
(e) The action is not based on the insurance contracts but rather on the CBA, so the proper party to be sued by the claimants is the defendant and not the insurance companies.
(f) Gross salary is defined by an online platform to mean total income paid by employer to an employee for work done during a particular period and it includes allowances by whatever name called. This definition should be applied for all purposes in this case.
(g) Exhibit C5 being later in time than Exhibit D13 overrides Exhibit D13 on the point of whether the USD component is part of the gross salary of the deceased.
(h) To hold that USD component which was being paid to the deceased is not part of his gross salary would mean that DW (a junior marine engineer) was earning more than the deceased (a senior marine engineer).
(i) The defendant is the trustee of the insurance policies for the benefit of the deceased and is in breach of the trust by not paying the entirety of the benefits therefrom to the claimants.
(j) It is too late to make a case of illegality having benefited from the contract with the deceased.
37. The defendant took points (a) and (b) together. On point (a), the defendant submitted that the argument of the claimants is wholly misconceived.That the true position of the law is that the requirement to adduce evidence in respect of the manner of production of any computer-generated document, and the state of the computer that generated it before such document can be admitted in evidence, applies irrespective of whether the person seeking to rely on the document is the person that generated it or not. Indeed, that in most cases, such documents are not generated by the person that seeks to rely on them. That it is in recognition of this fact that section 84(4) of the Evidence Act permits a certificate to be used as such evidence so as to dispense with the necessity of calling the person that generated the document to testify that the conditions in section 84(2) of the Evidence Act were satisfied in relation to the document. However, that the certificate is only one way of “showing that the conditions were satisfied in relation to a document” for the purpose of its admissibility. Apart from tendering a certificate, that a party seeking to rely on the document can avail himself of any of the facilities under our procedural law to secure the giving of the relevant evidence in respect of the document. That the Court should note that the provision of section 84(1) of the Evidence Act merely provides that a person that seeks to rely on “a statement contained in a document produced by a computer” can satisfy the admissibility requirement for such statement “if it is shown that the conditions” in section 84(2) were satisfied in relation to the document and the computer, citing Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534; [2012] LPELR-9817(SC), which held that the person seeking to rely on the document is required to call evidence to show that the conditions in section 84(2) of the Evidence Act were satisfied in relation to the document and the computer, not necessarily to tender a certificate.
38. Furthermore, that the evidence (even if takes the form of a certificate in terms of section 84(4) of the Evidence Act) does not need to come from the actual person that generated it. Hence, section 84(4)(b)(i) of the Evidence Act permits a certificate purporting to have been signed by “a person occupying a responsible position in relation to the operation of” the computer to be admissible as such evidence. That it is obvious from the foregoing provision that it suffices for the evidence (whether in the form of certificate or not) to come from a person that occupied a “responsible position” in relation to the operation of the computer. That it follows, therefore, that what is required of the evidence is that, like every other piece of evidence, it should be direct. That the whole purpose of section 84 is to as much as possible ensure that such documents are authentic and unaffected by any of the numerous vices that may affect the functioning of a computer with the result that data produced therefrom becomes unreliable. That it, therefore, applies to all parties seeking to rely on computer-generated documents, whether or not they are the ones that generated the documents from the computer. All such party needs to do is to “show” by evidence (whether by himself or by any relevant third party and whether oral evidence or documentary) that the conditions in section 84(2) of the Evidence Act were satisfied in relation to the document and the computer, urging the Court to so hold.
40. On point (b), the defendant submitted that in as much as the provision of sections 84 and 90( e) of the Evidence Act are meant to guarantee the authenticity of documents tendered in evidence, they are the very instruments by which the Court attains “justice, fairness, equity and fair play” in the adjudication of matters before it. They cannot seriously be said to be mere technicalities or antithetical to “justice, fairness, equity and fair play” such that the Court will need to depart from those provisions to attain “justice, fairness, equity and fair play”. That authenticity is fundamental to every document tendered in evidence. Hence section 84 of the Evidence Act stipulates conditions that must be satisfied before any document of the class covered by the provision may be presumed authentic and admitted in evidence in proof of the contents thereof. That it is also for this reason that section 90(e) of the Evidence Act stipulates conditions that must be satisfied before any document of the class covered by the provision may be presumed authentic and admitted in evidence in proof of the contents thereof, citing Melwani v. Five Star Industries Limited [2002] LPELR-1858(SC). On the whole, the defendant submitted that an insistence on the application sections 84(1) and 90(e) of the Evidence Act is not a matter of technicality at all; it is rather an insistence on the observance of the proper method or avenue for searching for “justice, fairness, equity and fair play”, urging the Court to so hold.
41. Regarding point (c) i.e. whether the collective bargaining agreement is binding, the defendant submitted that the claimants misconceived the law applicable to the circumstances of this case. That it is pertinent to note that the CBA was not incorporated into the deceased’s Letter of Offer of Employment dated 3rd July 1996 i.e. Exhibit C2 during his employment and up to the time of his demise. The effect thereof is that the CBA is not binding on the defendant and unenforceable with respect to the deceased as claimed by the claimants. That the law at the time material to this suit i.e. 1996 through to 2010 is that collective agreements are gentlemen’s agreements and so are binding in honour only. That they are extra-legal documents totally devoid of sanctions, a product of trade unionists’ pressure, referring to UBN v. Edet [1993] 4 NWLR (Pt. 287) 288, Nwajagu v. BAI Co. (Nig.) Ltd [2000] 14 NWLR (Pt. 687) 356 and Rector, Kwara Poly v. Adefila [2007] 15 NWLR (Pt. 1056) 42.
42. That assuming without conceding that the CBA is enforceable, then it is only enforceable by the parties thereto. That collective agreements do not give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, referring to Osagie v. New Nigeria Bank Plc [2005] All FWLR (Pt. 257) 1488 at 1510 and UBN v. Edet (supra, at 291). To the defendant, it is mindful that since the promulgation of the Constitution (Third Alteration) Act 2010, this Court has been tending towards enforcing international best practices and international labour standards by virtue of section 254C(1)(f) and (h) of the 1999 Constitution. But that the claimants did not plead or prove any fact to show that it is international best practice or international labour standard for collective bargaining agreements to be enforceable, and be enforceable by individual employees against their employers. In any case, that it is trite that the substantive law applicable to an action is the law at the time the cause of action arose and not the law when the matter was brought to court, citing Olaniyi v. Aroyehun [1991] 5 NWLR (Pt. 194) 652. Therefore, the defendant submitted that the CBA is not enforceable, and that even if it were, in the absence of any evidence by the claimants that the CBA was adopted as forming part of the terms of his employment, the claimants cannot sue upon its terms, urging the Court to so hold.
43. For point (d) i.e. whether there is privity of contract between the deceased and the insurers as to entitle the deceased sue the insurers, the defendant submitted that contrary to the claimants’ arguments the deceased is not a third party to the insurance contracts; rather he is the insured. Indeed that the “insured” is the person whose death triggers payment liability (for life insurance) or whose accident triggers payment liability (for accident insurance). That the Blacks’ Law Dictionary, 8th Edition defines the term “insured” as “A person who is covered or protected by an insurance policy – Also termed ‘assured’”. On the other hand, that it defines the term “policy holder” as “One who owns an insurance policy, regardless of whether that person is the insured party”. That New India Assurance Company Limited v. Odubanjo & ors [1971] 1 NCLR 363; [1972] LPELR-1983(SC) cited by the claimants on the basis of which they argued that the deceased was a third party to the insurance policies is actually against them because it is obvious from the passage quoted that the third party under reference in that case is a person other than the “insured” or the “assured”. That in the instant case, the deceased is the “insured” in respect of the Accident Insurance Policy, and the “assured” in respect of the Life Assurance Policy. That the defendant is merely the “policy holder” in both cases. That being the insured, the deceased (or the administrators of his estate, such as the claimants) can sue upon the insurance policies (both the Accident Insurance Policy and the Life Assurance Policy). Indeed, section 70(1) of Insurance Act 2003 creates privity between the deceased as the insured (including the administrators of his estate) and the insurer. That it follows that the deceased is not a third party to the insurance contracts; rather he is the insured, urging the Court to so hold.
44. In terms of point (e) i.e. the action not being based on the Assurance Policy but rather on the CBA for which the proper party to be sued by the claimants is the defendant and not the insurance companies, the defendant submitted that this point is a case of the claimants approbating and reprobating, which is not allowed in law. That it is pertinent to note that the claimants by their suit seek to receive benefits of the life insurance policies, in this case the Group Life Assurance Policy taken out under the CBA. Indeed, that there is no action in the suit if it is not about the insurance policies: and if it is so that the action is not based on the insurance, then the claimants cannot enforce the provisions of the CBA; only PENGASSAN can enforce it on his behalf. Furthermore, even if the claimants can sue on the CBA (which is not even enforceable), the extent of defendant’s obligation is limited to taking out the insurance policies and paying the premiums thereunder; it clearly does not extend to payment of benefits thereunder, referring to section 69 of the Insurance Act. That this suit is also not a complaint by the claimants against the defendant that the defendant failed in its duty to obtain the appropriate insurance covers for the benefit of the deceased as mandated by the CBA, nor is it a complaint that the defendant did not instruct the insurers to pay the benefits due to the deceased (assuming without conceding that the defendant had such obligation under the scheme of the policies). That it is rather a complaint that the defendant did not pay the terminal benefits due to the deceased in accordance with the Assurance Policy by omitting to pay the USD component of the deceased’s benefits. That it is trite that parties are bound by their pleadings and the case they brought to court; and that any evidence or argument that is not founded on the pleadings of the parties goes to no issue, referring to Nwokorobia v. Nwogu [2009] 5 KLR (Pt. 267) 1303. That it is, therefore, too late in the day for the claimants to seek to “amend” the basis of their claim in this suit.
45. As to point (f) i.e. gross salary meaning total income paid by employer to an employee for work done during a particular period and includes allowances by whatever name called, which meaning should be applied for all purposes in this case, the defendant submitted that the reference and reliance on an online platform definition of gross salary is wholly misconceived and unnecessary in view of the provisions of the Pension Reform Act, the enabling Act for the Group Life Assurance Policy, which is the crux of this suit. That section 120 of the Pension Reform Act defines annual total emolument in relation to the Group Life Insurance Policy to mean the gross emoluments of an employee. The monthly emoluments which make up the annual total is also defined in section 120 of the Pension Reform Act to mean total emoluments as may be defined in the employee’s contract of employment (in this case, Exhibit C2), but shall not be less than a total sum of basic salary, housing allowance and transport allowance. That in the circumstances the Court cannot rely on an online platform definition in the face of the clear provisions of the law, the duty being on the courts of law to declare and interpret the law and not otherwise, citing Eperokun & ors v. Unilag [1986] LPELR-1150(SC).
46. Point (g) is that Exhibit C5 being later in time than Exhibit D13 overrides Exhibit D13 on the point of whether the USD component is part of the gross salary of the deceased. To the defendant, the question of one document overriding the other does not arise between Exhibit C5 and Exhibit D13. That Exhibit D13 is in agreement with Exhibit C5 on the point that USD component is part of the gross salary of the deceased. That the two documents make out the point that the deceased is paid USD as part of his remuneration. However, Exhibit D13 stipulates that the USD component shall not count as part of the gross salary for purpose of computing retirement benefits. That Exhibit C5 does not make any statement in this regard much less one that contradicts the position of Exhibit D13. Accordingly, that the Court should construe Exhibits C5 and D13 together to find out the real intention of the parties, citing REAN Limited v. Aswani Textiles Industries Limited [1991] 2 NWLR (Pt. 176) 639 at 663 and Seven-Up Bottling Company Plc v. Ajayi [2007] LPELR-8765(CA).
47. Point (h) is to hold that USD component is not part of the gross salary of the deceased will mean that DW (a Junior Marine Engineer ) was earning more than the deceased (a Senior Marine Engineer). To the defendant, in making this point, the claimants have failed to appreciate the issue herein. That the issue is not whether any USD payments were being made to the deceased in consequence of his work for the defendant. That both parties are ad idem that such payments were being made. That the question of CW2 (a junior marine engineer) earning more than the deceased (a senior marine engineer), therefore, does not arise; nor will it arise upon a determination that the USD payment being made to the deceased counted as part of his gross salary for purposes of the computation of his retirement benefit. That salary or remuneration for work is different and distinct from retirement benefit. That an employee is free to agree with his employer for any mix in his total remuneration package. Whilst some may agree to take more as salary and less in his retirement benefit, others may agree to take less as salary and more in his retirement benefit. That it is trite that employment contracts are personal to each employee. That even the International Labour Organisation (ILO) recognizes and endorses the partial payment of salaries in the form of allowances in kind. Article 4( 1) of the Protection of Wages Convention, 1949 (No. 95) provides that National laws or regulations, collective agreements, or arbitration awards may authorize partial payment of wages in the form of allowances in kind in industries in which such payment is customary. That the deceased was certainly earning more than DW when his USD payments are taken into account. But even if it were not so, the deceased was earning what he bargained for; and that unless in regard to claims that bother on discrimination, evidence of the terms of employment of one employee are irrelevant in determining the terms of employment of another employee. That the claimants, however, have not fought this suit on the basis of discrimination. The defendant urged the Court to discountenance the claimants’ argument on this point.
48. Point (i) is the defendant is the trustee of the Life Assurance Policy for the benefit of the deceased and is in breach of the trust by not paying the entirety of the death benefits of the deceased to the claimants. To the defendant, this point is wholly misconceived and ought to be discountenanced by the Court for the reason (as earlier noted) that that the deceased is not a third party to the Life Assurance Policy. He is the insured whilst the defendant is merely the policy holder. That assuming the claimants had made out the basis for the Court to impose a resulting trust in this circumstance (which they have not), the defendant cannot be deemed a resulting trustee of an express trust with named trustees. Accordingly, that the defendant is not in anyway analogous to a trustee in relation to the deceased with respect to the insurance contracts, urging the Court to so hold.
49. Point (j) is it is too late to make a case of illegality having benefited from the contract with the deceased. To the defendant, in making this point, the claimants also argued that the defendant failed to plead the defence of illegality and, therefore, the case of illegality now being made goes to no issue. That the claimants relied on Ekwunife v. Wayne [1989] 5 NWLR (Pt. 122). It is the defendant’s contention that the claimants’ submission herewith only represents the general rule. That where, however, there is ex facie illegality, it need not be pleaded, relying on Corporate Ideal Insurance Ltd v. Ajaokuta Steel Company Ltd & ors [2014] LPELR-22255(SC). Also that the illegality complained of in the suit is ex facie. That the law is that a claim is ex-facie tainted with illegality, where what the Court is being called upon to entertain is illegal and in breach of specific statute or law, citing Oguntuwase v. Jegede [2015] LPELR-24826(CA).
50. On the point of it being too late to make a case of illegality because the defendant has benefitted from the contract with the deceased, the defendant submitted that this point is wholly misconceived. That illegality of a contract goes to the issue of the jurisdiction of a court called upon to enforce the contract, citing Ekwunife v. Wayne (West Africa) Limited [1989] LPELR-1104(SC)). That it is trite that a point of jurisdiction can be raised at any time; it can even be raised for the first time on appeal, citing SLB Consortium Ltd v. NNPC [2011] 4 KLR (Pt. 295) 1085 at 1094. That it is also the law that parties cannot by consent confer jurisdiction on a Court. Furthermore, a Court can raise the point of its jurisdiction suo motu and has a duty to so do when it appears to it that it lacks jurisdiction. That the question then is: if the defendant is barred from raising the point because it allegedly benefited from the contract, is the Court also barred from so doing? The defendant hen urged the Court to discountenance the cases of Solanke v. Abed [1962] 1 All NLR 230 and BNML v. Ola Ilemobola Ltd [2007] All FWLR (Pt. 379) 1340 at 1380 as they are not applicable to the facts of this case and to hold that the case of illegality has been properly made in the circumstances of the suit. In conclusion, the defendant urged the Court to discountenance all the arguments and submissions of the claimants as unfounded in law.
COURT’S DECISION
51. The claims of the claimants are essentially for special damages. Their case is that they were underpaid what was due to them in virtue of the death of Engineer Jonathan Kenechukwu Ozughalu (deceased) who died while in the employment of the defendant. The claimants would accordingly be able to claim only of they can situate the right of the deceased in terms of his contract of employment with the defendant. Of course, the burden of proof lies with the claimants since they are ones alleging. At the trial, the Court had informed the parties that all objections should be taken in the final written addresses. The defendant had first stated that it would object to the witness deposition of 24th December 2014 of CW1, where it is indicated that the witness swore to the statement on oath. At trial, CW1 had taken the oath on affirmation. The defendant indicated that it will give its reasons in the final written address; and the Court then directed that parties are accordingly to address the court on the said objection in their respective final written addresses. However, in their final written address, the defendant said nothing of this objection. I take it, therefore, that the defendant has abandoned the objection. I so hold.
52. The defendant had also indicated to the Court that they will be objecting to the admissibility of Exhibits C6(a) to C6(e). Exhibits C6(a) to C6(c) are pay slips; Exhibit C6(d) is payment credit advise from National Westminster Bank London in terms of the GBP account of the deceased; and Exhibit C6(e) a statement of account of the Estate of Jonathan Ozughalu from Sterling Bank. It is these exhibits that the defendant objected to.The argument of the defendant is that Exhibits C6(a) to C6(d) offend section 84(4) of the Evidence Act 2011, while Exhibit C6(e) offends section 90(e) of same Act. The reaction of the defendant is that these exhibits were given to the claimants. They did not generate them; as such, the talk of them certifying it should not even arise. And even it does arise, in the interest of justice this Court should under section 12(2)(b) of the NIC Act 2006 dispense with the provisions of the Evidence Act calling for the said certification.
53. I agree with the claimants that this is one case where the interest of justice dictates that these pieces of exhibits be allowed and the Evidence Act be accordingly departed from. To start with, the argument of the defendant is not that these documents are fake or not authentic; it is simply that they are not certified and brought in accordance with the dictates of the Evidence Act. The defendant argued, citing Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534; [2012] LPELR-9817(SC), that certification can be in writing or orally. The mere fact that it can be oral or written means that it has been watered down; as such, once a document’s authenticity is not in issue, this Court can under section 12(2)(b) of the NIC Act 2006, and in the interest of justice, dispense with the requirement of certification. Although not cited by any of the parties, I am not unmindful of SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013, the judgment of which was delivered on 21st December 2016, a case in dealing with the issue of admissibility of public documents (not exactly the case in the instant suit) held that section 12(2) of the NIC Act cannot operate to encumber the provisions of the Evidence Act 2011 since the Evidence Act 2011 is a later Act to the NIC Act 2006. In Honourable Justice Bassey Tambu Ebuta v. NJC & 3 ors unreported Suit No. NICN/LA/ABJ/2016 the judgment of which was delivered on 13th July 2017 paragraphs 74 and 75, I distinguished SEC v. Abilo Uboboso on a number of grounds chief amongst which is that the provision of section 4(2)(b) of the Interpretation Act Cap I23 LFN 2004, to the effect that where an enactment is repealed and another enactment is substituted for it, any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment, was not drawn to the Court of Appeal. Also not pointed out to the Court of Appeal is the fact that section 12(2) of the NIC Act 2006 is not delimited by time or date; it uses the phrase “Evidence Act”, not “Evidence Act 1990 or 2004”.
54. I note the stamp, signature and date of Sterling Bank itself on Exhibit C6(e) showing that the document actually came from Sterling Bank. I need to make a very pertinent point here especially as it relates to section 90(e) of the Evidence Act 2011 dealing with how secondary evidence of entries in a banker’s book can become admissible. These provisions relating to entries in a banker’s book were made in the era when the said banker’s book was one and could not just be taken out of the bank. Today’s banking world especially in this era of technology where internet banking means that statements of account are sent to emails and phone numbers of bank account holders each time a transaction is undertaken, it will be foolhardy to remain fixated or dogmatic or old-fashioned about a copy of the entry in a banker’s book meeting the requirements of section 90(e) of the Evidence Act before it becomes admissible. It was the Supreme Court that as far back as 1969 stated in Esso West Africa Inc. v. T. Oyagbola [1969] 1 NMLR 194 at 198 (restated in Yesufu v. African Continental Bank Ltd [1976] 4 SC 1 at 16 and by the Court of Appeal in Trade Bank Plc v. Chami [2003] 13 NWLR (Pt. 836) 158 at 216) that “he law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer”. The requirement of certification under section 84(4) of the Evidence Act and satisfying the requirements of section 90(e) of same Act in the circumstances of this case, places an unusual burden on the claimants, persons who cannot by any stretch of imagination be said to have generated Exhibits C6(a) to C6(e), as to meet the harsh and technical requirements of the Evidence Act. I agree with the claimants that in the interest of justice, more so as the defendant is not saying the documents are fake (Exhibits C6(a) to C6(c), the pay slips actually came form the defendant), the rules of the Evidence Act should be departed from; and I so find and hold. Exhibits C6(a) to C6(e) are hereby admitted. I so hold.
55. There is also the issue of the claimants’ reliance on Exhibit C7, described by the claimants as a form of collective bargaining agreement usually negotiated by a trade union, which regulates the relationship between a company and members of the trade union who are employees of that company. A look at Exhibit C7 itself shows that by clause 1.1 it is an agreement made on 1st December 2009 between Bureau Veritas Nigeria Limited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN). This effectively makes Exhibit C7 a collective agreement as defined under section 54(1) of the NIC Act 2006; and I so find and hold. This being the case, the question that arises is whether the claimants can rely on it in this suit. The parties treated this issue as one of the bindingness of Exhibit C7 on the deceased and the defendant. The claimants can only rely on Exhibit C7 if the deceased is shown to have been a member of PENGASSAN when he was in the employment of the defendant. This Court has in several cases shown what a senior staff (PENGASSAN is a trade union for senior staff and the deceased was a senior staff of the defendant) must prove in order to benefit from a collective agreement. It is that he must plead and prove by concrete evidence membership of the trade union in issue; and that the admission of an employer to that effect is not even enough. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016 and Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017. Incidentally, these case law authorities did away with similar arguments raised by the defendant in the instant case as to a collective agreement being binding in honour only or that it was not incorporated into a contract of employment or that there is no privity between the parties, etc. I need not repeat those points here.
56. A look at the statement of facts and the reply to the statement of defence will show that there is no pleading whatsoever that the deceased was a member of PENGASSAN when he was in the employment of the defendant. The evidence of CW2 in paragraph 2 of his deposition of 15th February 2016 that he and the deceased “were both members of the Petroleum and Natural Gas Association (PENGASSAN)” is one without any pleading. The law is that evidence without pleading goes to no issue. See Geneva v. Afribank Nigeria Plc [2013] LPELR-20662(SC) cited by the claimants, though on a different issue they were addressing i.e. illegality of denominating payment of salary in USD. As The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129 puts it, evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. Accordingly, the submission of the claimants’ counsel that the conditions of service was executed by the defendant and PENGASSAN of which the deceased was a member, and that by virtue of his membership of PENGASSAN, the deceased was entitled to take the benefit of the conditions of service, and the defendant is bound to honour the terms therein, in terms of the fact of the deceased being a member of PENGASSAN, cannot stand or be sustained. Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC) held that a counsel’s submission, no matter how brilliant, is certainly not a substitute for credible evidence. Adam v. Shaibu & ors [2016] LPELR-40179(CA) on its part held that no matter how brilliant a written or oral address by counsel may be attractive, that cannot take the place of solid evidence before the Court. His Lordship Tur, JCA has a word of advice for trial Judges in Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA): that a trial Judge should not embark on a voyage seeking to repair the damage caused by counsel in failing to plead material facts necessary to obtain judgment in the temple of justice since Courts are not carpenter’s workshops where Judges toil to mend defects in pleadings.
57. Even Exhibits C6(a) to C6(c), pay slips of the deceased, show, under deductions, that deductions for union dues was nil indicating that the deceased did not pay trade union dues and so cannot be held to have been a member of any trade union. Now, Habu v. NUT Taraba State [2005] 4 FWLR (Pt. 283) 646 held that deduction from salaries and wages as check-off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker. This is not the case as regards the deceased. The point is that even if the claimants had pleaded that the deceased was a member of PENGASSAN and the only evidence before the Court was CW2’s deposition that he and the deceased were members of PENGASSAN, the fact that the deceased’s pay slips show a nil deduction for trade union dues would signify that the trade union membership of the deceased has still not been proved. The oral testimony of CW2 is not sufficient proof of the fact of trade union membership of the deceased were entitlements are claimed. Like this Court pointed out in the earlier cases I cited, what is required is concrete documentary proof of the membership of the trade union in issue. Even when the employer relies on a collective agreement to confer a benefit on the employee, that act without more cannot confer on an employee membership of the trade union that entered into the collective agreement with the employer. See Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017, which further held that an employer cannot confer membership of a trade union on an employee. What all of this, therefore, means is that the deceased, not having proved that he is a member of PENGASSAN could not have relied on Exhibit C7 for any claim; a fortiori, the claimants cannot do same in the instant case. I so find and hold.
58. The claimants made it clear in their submission that since their action is not founded on the insurance contract, the claimants cannot make any claim against the insurance companies; rather, their action is founded on the conditions of service, and the only proper party against which a claim can be properly made is the defendant. And that the defendant will, therefore, be liable to pay to the claimants the outstanding due on the conditions of service. By this submission, the claimants hinge their case on the conditions of service, Exhibit C7. Since I have held that the claimants cannot rely on Exhibit C7 given that the deceased’s membership of PENGASSAN has not been established, the claimants cannot be said to have a case premised on Exhibit C7. The claimants will have to look to other documents to prove their case; and here clauses 48 and 50 of Exhibit D14 dealing with staff retirement benefit scheme and group life assurance come in handy. Exhibit D14 is the Company Handbook applicable to all staff without distinction including the deceased.
59. Given the submissions of the defendant, it must be resolved what documents constituted the contract of employment of the deceased in order to situate the claims of the claimants in the instant suit. By Ladipo v. Chevron (Nig) Ltd [2005] 1 NWLR (Pt. 907) 277 CA, what document contains the terms of contract of employment or service is a question of fact. The Court of Appeal went on that where more than a single document provides for the terms, such document must be construed jointly in order to have the correct and total account of what the terms of the contract are. that once the terms are ascertained, it becomes mandatory for the Court to ensure that the parties to the contract have enjoyed their freedom of contract. The sanctity of such a contract would only be enforced if questions in respect thereof are resolved by giving effect to the terms contained in the document(s) which constitute the contract. What this case decided, therefore, is that more than one document can constitute the contract of employment.
60. The defendant argued that the deceased’s employment contract was denominated in Naira, not USD and that the payments made to the deceased in USD were made at the defendant’s discretion and did not form part of his monthly salary, referring to Annexures D1 to D5 (same as Exhibit D13). Annexure D1 dated 22nd January 1998 is titled, “Special Allowance” and states that the claimant will be paid a monthly special allowance of USD1,000 into the claimant’s off-shore account. Annexure D2 then proceeded to annul and replace letter Ref: 97/415GL/PON dated 31st December 1997. This letter of 31st December 1997 was not tendered before the Court. Exhibit D3 dated 25th January 2000 reduced the special allowances by USD1,000 given the poor results of the Marine Department; but it proceeded to state that the measure is merely temporary awaiting upward renewal in the fortunes of the Marine Department. Annexure D4 dated 30th May 2001 is also titled “Special Allowance”. It states that auditors advised that the payment of special allowance be discontinued on legal grounds. The said legal grounds were not indicated or disclosed. However, it went on to state that the special allowance will now be paid in Naira at a fixed rate of N240,000.00 per month. It concluded with the words: “An amendment to your contract will be effected and will be provided to you”. Annexure D5/D13 dated 6th July 2001 is titled, “Amendment to Contract of Employment”. It starts off by stating that the monthly payment of USD2,000 will continue but will not form part of the retirement plan; and in addition, a monthly allowance of N120,000.00, which will form part of the retirement plan, will be paid with effect from 1st July 2001. That depending on the claimant’s departmental performance, the arrears of January to June of the sum of USD6,000 will be paid to the claimant at the end of the year. That, instead of the monthly allowance of USD3,000, the claimant will receive USD2,000 plus N120,000 per month as special allowance. Annexure D5/D13 concluded by stating that “this letter forms part of your contract of employment and supersedes any other letters or memos in connection with this subject matter”.
61. With particularly Annexures D4 and D5/D13, can it really be said, as the defendant argues, that the payment of USD was not part of the deceased’s contract of employment and that the deceased’s salary was denominated only in Naira? To the extent that Annexure D4 stated that an amendment to the deceased’s contract will be effected and Annexure D5/D13 is titled “Amendment to Contract of Employment” and concludes that the letter forms part of the deceased’s contract of employment which supersedes any other letters or memos on the subject matter, it must be that they form part of the contract of employment of the deceased; and I so find and hold. Lest it be forgotten, clause 11 of defendant’s Company Handbook (Exhibit D14) states that “the pay package is set out in Offer Letter or as subsequently revised in writing”. Annexures D4 and D5/D13 are such revision in writing; and I so find and hold. The contrary depositions in paragraphs 7 to 14 of DW’s statement on oath cannot take away this true import of especially Annexures D4 and D5/D13; I so hold. Ladipo v. Chevron (Nig) Ltd held that more than one document can constitute the contract of employment. And in Ondo State University v. Folayan [1994] 7 NWLR (Pt. 354) SC, it was held that where there are several documents forming the conditions of service of an employee, all the documents must be read together. The instant case is a classic example. The special allowance (especially the USD component thereof) was part of the deceased’s salary. It may have started off as a discretionary payment which the defendant made to the deceased, the payment of which and the amount of which were dependent on the defendant’s assessment of its fortunes, but by especially Annexures D4 and D5/D13, the defendant categorically made the special allowance a part of the deceased’s salary as well as a part of the contract of employment of the deceased. Even when the defendant subsequently issued Exhibit C5 dated 20th April 2005, wherein the deceased’s monthly gross salary was increased to N200,000.00 and USD3,360, it effectively formed part of the deceased’s contract of employment in terms of the payment of salary. I so find and hold.
62. I must strongly state here that it is within an employer’s power to increase salary; and where this happens, it forms without more part of the terms and conditions of service of the employee whose salary has been increased. It is unnecessary that the clause specifically providing for salary in the contract of employment must be specifically amended to reflect the new salary package before it forms part of the contract of employment. I indicated earlier that clause 11 of defendant’s Company Handbook (Exhibit D14) allows revision of the pay package so long as it is in writing. I do not accordingly agree with the argument of the defendant that Exhibit C5 must reference, incorporate or specifically amend Exhibit C2 before it can form the terms of employment of the deceased. Ladipo v. Chevron (Nig) Ltd, like I pointed out severally, is very clear that what documents constitute a contract of employment is a question of fact and more than one document can constitute the contract of employment; which documents by Ondo State University v. Folayan must be read together. Exhibit C5 is quite explicit when it stated that “Following the review of your salary, the management is pleased to increase your gross monthly remuneration as under…This increase has retrospective effect from January 01 2005”. Here, the defendant did not leave the deceased in doubt that a term of his contract of employment i.e. that on salary/remuneration has been altered. It is accordingly my finding and holding that Annexures D1 to D5/D13, D14 and Exhibit C5 all form part of the contract of employment and hence part of the terms and conditions of the said contract of the deceased.
63. It is the testimony of DW and hence argument of the defendant that Annexures D5 and D6, a pay slip in 2010, restricted Exhibit C5. Under cross-examination, DW affirmed that as at April 20, 2005 per Exhibit C5, the salary of Late Jonathan Ozughalu had a Naira and US Dollar component. DW was then shown Exhibit D5; and read out the first paragraph, which states that the USD2,000 monthly pay will not form part of the retirement plan. DW went on to reject the idea that it is only Exhibit D5 that he relied on as qualifying or restricting the scope of Exhibit C5. Continuing, DW testified that he did not see any letter, which restricts Exhibit C5; but that Annexure D6 (pay slip) in 2010 did that i.e. restrict Exhibit C5. However, DW acknowledged that the account currency on Exhibit C6(e) is US Dollar. DW then read out the last entry of 20 May 2010 on Exhibit C6(e); and acknowledged that by that entry, the defendant paid the claimant USD3,390.00 but that it was discretional. When asked whether the word discretional can be found in Annexure C6(e) in terms of the last entry he read out, DW answered in the negative. DW proceeded to acknowledge that the last month Late Jonathan Ozughalu stayed with the defendant was May 2010; and that the last entry on Exhibit C6(e) was the last payment Late Jonathan Ozughalu received from the company.
64. Now, Annexure D5/D13 is dated 6th July 2001, while Exhibit C5 is dated April 20, 2005; as such the question of Annexure D5/D13 qualifying Exhibit C5 does not arise as the latter is later in time. And the true import of Annexure D5/D13 is considered below. Annexure D6 is a pay slip of 24/01/2010, while Exhibit C6(e) is dated October 24, 2014 and shows the transfer of USD3,390 by the defendant into the USD domiciliary account of the Estate of Jonathan Ozughalu, the value date being 20-May-2010. Exhibit C6(e) is later in time to Annexure D6. In none of these documents, and as acknowledged by DW, is it indicated that the payment of USD3,390 to the deceased by the defendant is discretional. I do not accordingly find any merit in the argument of the defendant that it paid the USD component of the deceased’s salary as a favour to the deceased or in its absolute discretion. The payment of USD3,390 to the deceased by the defendant was not accordingly done discretionally by the defendant, but as a contractual obligation of the defendant to the deceased. I so find and hold.
65. Now the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is generally shown by reference to the instrument granting it i.e. the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties, the conditions of service governing the relationship of the employer and his/her employer or the circular or letter through which the entitlement is communicated. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, Otunba Gabriel Oladipo Abijo v. Promasidor (Nigeria) Limited unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2016, Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, unreported Suit No. NIC/12/2000 the judgment of which was delivered on 30th March 2006, Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 the judgment of which was delivered on 8th May 2007, Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor unreported Suit No. NIC/1/2007 delivered on July 4, 2007 and Oyo State v. Alhaji Apapa & ors [2008] 11 NLLR (Pt. 29) 284. Exhibit C5 and Annexures D1 to D5/D13 all fit the bill here.
66. Before addressing the issue whether the claimants proved their case, I need to resolve the point raised by the defendant that having to denominate part of the deceased’s salary in USD is illegal and so the claimants cannot make the claims they presently make in the instant suit. The defendant referred to section 15 of the Central Bank of Nigeria (Establishment) Act Cap C4 LFN 2004, which provides that the unit of currency in Nigeria shall be the Naira. To the defendant, since the legal tender in Nigeria is the Naira (see section 20(1) of the CBN Act), it will, therefore, be illegal for the defendant and the deceased to contract in any currency other than the Naira. Also, that section 20(5) of the CBN Act makes it illegal for any person to insist on receiving payment in Nigeria in any currency other than Naira. I must right away state here that the deceased did not insist that his salary be paid in USD; it was the defendant who offered to so pay. I note, however, that the defendant’s argument is that the claimants having filed this suit are thereby insisting that they be paid in USD, thus offending the CBN Act.
67. The actual basis upon which the defendant brands as illegal the denomination of part of the deceased’s salary in USD are two CBN circulars, namely: “Currency Substitution and Dollarisation of The Nigerian Economy” (dated 17th April 2015 with reference No BSD/DIR/GENILAB/08/013) and “Currency Substitution and Dollarisation of The Nigerian Economy” (dated 21st May 2015 with reference No BSD/DIR/GEN/LAB/08/024). Unfortunately, these two circulars were not frontloaded by the defendant. The defendant simply submitted that this Court can take judicial notice of the said circulars; or that the facts they contain require no proof. A Court can only take judicial notice of facts that are notorious, but more importantly that are known to the Court itself. I cannot lay claim to knowing the contents of these circulars. And once I cannot lay claims to knowing the facts contained in the said circulars, I cannot take judicial notice of them or make any order that they do not require any proof. In Global Soap & Detergent Ind. Ltd v. NAFDAC [2011] LPELR-4202(CA), relying on Amaechi v. INEC [2008] 5 NWLR (Pt. 1080) 227 at 364 – 365, Omidiora v. FCSC [2008] All FWLR (Pt. 415) 1807 at 1822 and Idris v. ANPP [2008] 8 NWLR (Pt. 1088) 1 at 155, West, JCA stated thus:
Judicial notice is defined to refer to facts which a judge is called upon to receive and act upon either from his general knowledge of them or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer. It also refers to such facts which a court mandatorily takes as proved by the operation of law…
Accordingly, I cannot take judicial notice of the CBN circulars referred to by the defendant since I do not know their contents; neither can I hold that the facts contained therein require no proof. On the contrary, I hold that having not frontloaded the said circulars, the facts contained in them not being before the Court means that the argument of the defendant in their regard goes to no issue; and I so find and hold.
68. I must state that sections 15 and 20(5) of the CBN cited by the defendant do not state that denominating salary in USD is illegal. If anything, there is case law authority in which a memorandum of understanding, MOU, (much lower I think in status than a contract agreement in the real sense of the word) allowing for taxation to be in the currency of transaction (even where the taxing statutes denominate taxation to be in Naira) was not only held to be valid and legal, but it had the effect of an MOU altering the clear provisions of statutory law (the taxing statutes). See Shell Petroleum Development Company of Nigeria Limited v. FBIR [1996] 8 NWLR 256 SC. This being the case, it cannot be that denominating part of the salary of the deceased in USD by then defendant has been proved by the same defendant to be illegal. The argument of the defendant in that regard is accordingly rejected and dismissed.
69. The defendant made an issue of the testimony of CW2 to the effect that he and the deceased got their salary in both Naira and USD. The argument of the defendant here is that the claimants cannot base their claim on the entitlement of another but on the deceased’s, and that the case of the claimants is not one built on unfair labour practice as to call for comparison. The argument of the defendant would be sustainable only if the claimants did not establish their case as to the entitlement of the deceased as of right to payment in both Naira and USD. I already held that payment in Naira and USD was part of the terms of the contract of employment of the deceased; as such the question of the claimants basing their claims on the entitlements of CW2 or DW does not arise at all. The evidence as to the position of CW2 and DW in this context is merely to reinforce the right of the deceased to the fact that his contract was after all not unique to him alone. The claimants do not accordingly base their claim on unfair labour practice as they have already established the deceased’s right to payment in Naira and USD given the exhibits they tendered. I so find and hold.
70. The defendant had argued that Exhibit D13 (same as D5) stipulates that the USD component shall not count as part of the gross salary for purpose of computing retirement benefits. That Exhibit C5 does not make any statement in this regard much less one that contradicts the position of Exhibit D13/D5. In truth, Exhibit D13/D5 provides that “the monthly payment of USD2,000 will be continued [but this] will not form part of the retirement plan”. Clause 48 of Exhibit D14 makes provision for staff retirement benefit scheme where with effect form January 2001, AIICO Insurance Plc was appointed to manage the same referred to in clause 47 under the Deposit Administration and Group Life Assurance insurance policies. Clause 47 dealing with retirement age provides that staff shall retire on their 60th birthday or by early retirement after putting in at least 8 years of service in accordance with the Deposit Administration (Retirement Benefit Scheme) in operation in the company. Clause 49 goes on to make provision for only Deposit Administration. Clearly, a combined reading of these provisions shows that the Deposit Administration (Retirement Benefit Scheme) is different from the Group Life Assurance. So when Exhibit D13/D5 talked of USD2,000 not forming part of the retirement plan, it is the Deposit Administration (Retirement Benefit Scheme) that it envisaged since this is the scheme requiring a percentage contribution from both an employee and the employer. The argument of the defendant in this regard is accordingly not sustainable and so is hereby rejected.
71. It is the contention of the defendant that Leadway, not the defendant, is liable to pay the outstanding benefits on the Assurance Policy (if any) since the policy is an insurance policy. That under the Assurance Policy, Leadway is the insurer whilst the deceased is the beneficiary; the defendant is merely the insured and its obligation under the Assurance Policy is limited to payment of the requisite premium and reporting the occurrence of the insured risk. The defendant relied on section 70(1) of the Insurance Act. Under this provision, however, the duty to claim for the insurance in writing is the insured’s, the defendant in the instant case, given that it acknowledged that it is the insured. The defendant also acknowledged that the structure of the Accident Policy was such that while Equity Assurance was the insurer, the defendant was the insured, and the deceased (among others) was the beneficiary. The problem with the defendant’s argument is that the privity rule would deny a beneficiary of an insurance policy the right to sue the insurance company as case law authorities in Nigeria seem to suggest. See, for instance, Unity Life & Fire Ins. Co. v. Ladega & ors [1994] LPELR-13916(CA), which held that in so far as the common law doctrine relates to a contract of Insurance (in Nigeria) the decision of the Supreme Court in Andrew O. Ajufor v. Christopher Ajabor & ors [1978] 6 – 7 SC 39 at 52 is instructive. There the Supreme Court said thus:
Even if it were established that an identifiable person i.e. the 3rd defendant took up the policy of Insurance (Exhibits G & H) with the appellant, we are satisfied that a third party such as the respondent could not sue the appellant ab-initio. This must be so as there would be no privity of contract between the parties and even if such a right were conferred by a statute such as section 10 of the Motor Vehicles (Third Party) Insurance Act, Cap. 126 Laws of the Federation of Nigeria, it would still be inappropriate to bring in the insurer as a party, except, perhaps, by way of third party proceedings based on contract of indemnity if any. See Post Office v. Norwhich Union Fire Insurance Society Ltd [1967] 1 All ER 577…
See also New India Assurance Co. Ltd v. Odubanjo & ors [1971] LPELR-1983(SC).
72. In relying on section 70(1) of the Insurance Act, the defendant did not address its mind to section 69(1) and (6), which provides thus:
(1) Where –
(a) civil proceedings are taken in court in respect of any claim relating to any risk required to be insured against under this Act or any other law; and
(b) a judgment is obtained against the person insured then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to this section pay to the person entitled to the benefit of such judgment the sum payable (including costs and interest sum) not later than 30 days from the date of delivery of the judgment.
(6) In the case of claims arising from life insurance policies, it shall be sufficient for the insurer to make any payment due to the policy to the beneficiary named in the policy document.
The point that needs to be stressed here is that section 69(1) of the Insurance Act contemplates that a judgment against the insured must first be obtained before the responsibility of the insurer as to payment can arise; although subsections (2) to (5) circumscribe the occasions that the insurer can make the said payment. What this signifies is that it is imperative that the lability of the insured be first established before any talk of the responsibility as to payment of the insurer can arise. Section 69(6), however, appears to waive the circumscribed occasions of subsections (2) to (5). So once the liability of the insured is established, in the case of claims arising from life insurance policies as is the instant case, the insurer is then duty bound to make payment under section 69(6). The duty to request for payment is of course that of the insured.
73. I shall now proceed to consider whether the claimants have proved the reliefs they claim. Relief (a) is for “a declaration that both the Naira and the United States Dollar components constituted the gross salary of Engineer Jonathan Kenechukwu Ozughalu (the deceased)”. I held that Exhibit C5 was part of the terms of the deceased’s employment contract. Documentary evidence is the best evidence. See Agbareh v. Mimra [2008] All FWLR (Pt. 409) 559 at 563 and 584, and Attorney-General, Bendel State v. United Bank for Africa Ltd [1986] 4 NWLR (Pt. 37) 547. Exhibit C5 in stating that “following the review of your salary, the management is pleased to increase your gross monthly remuneration as under: NGN200,000.00 [and] USD3,360.00” the breakdown of which “will be reflected in you pay-slip for the month of April 2005” with the increment having retrospective effect from 1st January 2005, what we have is that the gross monthly salary of the deceased was denominated in Naira and USD. I so find and hold. Relief (a) has accordingly been proved and so is grantable.
74. Relief (b) is for “a declaration that the deceased is entitled to 5 (five) times of the United States Dollar component of his annual gross salary as benefit on the Group Life Assurance Scheme”. The claim for this relief is provided for by clause 50 of Exhibit D14. Although clause 50(c) make provision for six years gross salary, the claimants are only claiming for 5 years gross salary. A Court of law can only grant as much as claimed, not more than what is claimed. This is because a court of law is bound by the prayers or claims sought before it; it cannot grant a claim or a prayer not sought. See Akinrimisi v. Maerks Nig Ltd & anor [2013] LPELR-20179(SC). As the Supreme Court additionally puts it in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
Relief (b) has accordingly been proved and so is grantable’ and I so grant it.
75. Relief (c) is for “a declaration that the deceased is entitled to 42 months of the United States Dollar component of his gross salary as benefit on the Group Personal Accident Insurance Policy”. The requirement of an employer taking up compulsory insurance for workers against injury or death is provided for in section 40 of the Workmen’s Compensation Act Cap 470 LFN 1990, the law applicable when the deceased died. Paragraph 4 of CW1’s deposition states that the deceased had an accident on 9th April 2010 in the course of his employment and dies on 16th May 2010. The defendant, however, in paragraph 2 of the statement of defence puts the date of death as 16th April 2010. Accordingly, both parties are agreed on the fact of death but not on the date of death. Clause 44 of Exhibit D14 enjoins the defendant to take up Group Personal Accident Insurance Policy for staff, although only permanent disability, total temporary disability and medical expenses are covered. The argument of the defendant that Exhibit C1 i.e. the Letter of Employment did not require the defendant to take out the Accident Insurance Policy in favour of the deceased, or to include the deceased in the Accident Insurance Policy; nevertheless, the defendant included the deceased among those of its employees for whom it took out the Accident Insurance Policy, which inclusion was a matter of privilege and did not create any right in the deceased, goes to no issue. Even if there is no obligation to take up an accident insurance policy, which is clearly not the case given the Workmen’s Compensation Act, the then applicable law, once an employer takes it out, an entitlement immediately inures thereby. Exhibit C8 is thus the Combined Workmen’s Compensation/Group Personal Accident Policy of the defendant defined in it as the insured and has date of inception as 1st January 2008 with Policy No. WCA64/2/005093/A. It applies to any employee in the defendant’s (insured’s) immediate service who dies or sustains personal injury by accident or disease arising out of and in the course of his employment by the defendant. In the event of death, Exhibit 8 provides a maximum of 42 months’ earnings as what is payable. See paragraph 22 of the deposition of CW1 of 24th December 2014. This aside, Exhibit C8 sufficiently shows an entitlement in terms of relief (c), which I hold has been proved. Relief (c) is accordingly grantable; and I so grant it.
76. Relief (d) is for “a declaration that the claimants, being the personal representatives and next of kin of the deceased, are entitled to receive the benefits of both the Group Life Assurance Scheme and Group Personal Accident Insurance Policy”. The Group Personal Accident Insurance Policy is hinged on the Workmen’s Compensation Decree 1987 i.e Cap 470 LFN 1990, which in section 4 provides that the 42 months earnings shall be the amount of compensation payable in the event of death; and by section 11(1) the compensation is payable to dependants in the event of death. “Dependants” by section 41(1) of Cap 470 LFN 1990 includes members of the family of a workman; and member of the family includes spouse and child, which the claimants respectively are. This means that by this law coupled with Exhibit C1, the Letter of Administration granted to the claimants, the claimants as personal representatives and next of kin of the deceased are entitled to receive the benefits of the Group Personal Accident Insurance Policy; and I so find and hold. As for the Group Life Assurance Scheme, clause 50(c) of Exhibit D14 provides that “benefit is six years gross salary at death while in service, payable to the next of kin of the deceased and in case of permanent disability to staff”. The claimants are the next of kin of the deceased in virtue of Exhibit C1. They are accordingly the one entitled to receive the benefits of the Group Life Assurance Scheme; and I so find and hold. All of this means that relief (d) has been proved and so is grantable; and I so grant it.
77. Relief (e) is for “an order of this Court directing the defendant to pay the claimants the sum of USD203,400 (Two Hundred and Three Thousand, Four Hundred United States Dollar) being the outstanding death benefit on the Group Life Assurance in respect of the United States Dollar component of the deceased gross salary”. Clause 50(b) of Exhibit D14 provides that the insurance policy covers all kinds of death; and by clause 50(c), the benefit payable is six years gross salary at death. I already held that the gross salary of the deceased is composed of a Naira and USD component. The case of the claimants is that the Naira component was paid, but not the USD component. This case is, therefore, the claim for the USD component. However, despite clause 50(c) of Exhibit D14, what the claimant is asking for is only is USD203,400, which is 5 (five) times of the USD component of the deceased’s annual gross salary at USD3,390.00 per month. Exhibit C6(d) puts the USD monthly special allowance for October 2009 at USD3,390.00. Having granted relief (b), and since the claimants are only asking for this monthly sum for 5 years, not 6 years as enjoined under clause 50(c) of Exhibit D14, and a court of law cannot give more than a claimant asks for, I hold that the claim for relief (e) has been proved and so is grantable; and I so grant it.
78. Relief (f) is for “an order of this Court directing the defendant to pay the claimants the sum of USD142,380 (One Hundred and Forty-Two Thousand, Three Hundred and Eighty United States Dollar) being the outstanding death benefit on the Group Personal Accident Insurance Policy in respect of the United States Dollar component of the deceased gross salary. I indicated earlier that Exhibit 8 provides a maximum of 42 months’ earnings as what is payable. If USD3,390.00 is multiplied by 42 months, what we have is USD142,380.00. Having granted relief (c), relief (f) has accordingly been proved and so is equally grantable; and I so grant it.
79. Relief (g) is for “interest on the said sums at the rate of 21% from January 2011 to the date of judgment and at the rate of 12% from the date of judgment till the judgment sum is fully liquidated”. This Court does not grant pre-judgment interest. See Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC. Relief (g) to the extent that it claims for pre-judgment interest accordingly fails and so is dismissed.
80. Relief (h) is for cost of the litigation. Cost follows events, but it is entirely at the discretion of the Court. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC).
81. On the whole, and for the avoidance of doubt, the claimants’ case succeeds in terms of the following declarations and orders:
(1) It is hereby declared that both the Naira and the United States Dollar components constituted the gross salary of Engineer Jonathan Kenechukwu Ozughalu (the deceased).
(2) It is hereby declared that the deceased is entitled to 5 (five) times of the United States Dollar component of his annual gross salary as benefit on the Group Personal Accident Insurance Policy.
(3) It is hereby declared that the deceased is entitled to 42 months of the United States Dollar component of his gross salary as benefit on the Group Personal Accident Insurance Policy.
(4) It is hereby declared that the claimants, being the personal representatives and next of kin of the deceased, are entitled to receive the benefits of both the Group Life Assurance Scheme and Group Personal Accident Insurance Policy.
(5) It is hereby ordered that the defendant shall pay to the claimants the sum of USD203,400 (Two Hundred and Three Thousand, Four Hundred United States Dollar) being the outstanding death benefit on the Group Life Assurance in respect of the United States Dollar component of the deceased gross salary.
(6) It is hereby ordered that the defendant shall pay to the claimants the sum of USD142,380 (One Hundred and Forty-Two Thousand, Three Hundred and Eighty United States Dollar) being the outstanding death benefit on the Group Personal Accident Insurance Policy in respect of the United States Dollar component of the deceased gross salary.
(7) Cost of this suit is put at Fifty Thousand Naira (N50,000.00) only payable by the defendant to the claimants.
(8) All sums payable under this judgment are to be paid within 30 days of this judgment, failing which they shall attract 10% interest per annum until fully paid.
82. Judgment is entered accordingly.
.……………………………………
Hon. Justice B. B. Kanyip, PhD
