MRS. GLORY MONDAY GIDEON -VS- BAKER HUGHES INCORPORATED & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 5^th day of December, 2019 SUIT NO: NICN/PHC/77/2017

BETWEEN:

MRS. GLORY MONDAY GIDEON

(For herself and on behalf of the defendants/

beneficiaries of the Estate of MONDAY GIDEON (DECEASED)——––CLAIMANT

AND

BAKER HUGHES INCORPORATED
BAKER HUGHES COMPANY LIMITED ———————–DEFENDANTS

Representations:

George T. Ogara with O. O. Olajide, O.G. Nweke and G.O. Agbo for the Claimant

O.I. Nwanya with Emeka Ozuzu for the Defendant.

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 2^nd of August, 2017 along with verifying affidavit, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial.

The suit was originally before the late Hon. Justice A. Ibrahim before same was transferred to this court sometime in October 2018.

Arising from the statement of fact, the Claimant is claiming jointly and severally against the Defendants the following:

A DECLARATION that the action of the defendants in terminating MONDAY GIDEON Contract of Employment with the defendants by a summary dismissal letter dated 30/03/2016 and titled “NOTICE OF RETIREMENT” is unlawful, wrongful, a breach of the Contract of Employment between the claimant and the defendants and a violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004.

AN ORDER of Court setting aside the summary dismissal letter dated 30/03/2016 titled “NOTICE OF RETIREMENT” issued to MONDAY GIDEON (Deceased) by the defendants for being illegal, a violation of the Contract of Employment between the claimant and the defendants and a violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004 .

The sum of N96,518,145.31k (Ninety Six Million, Five Hundred and Eighteen Thousand, One Hundred and Forty Five Naira, Thirty One Kobo) only being the total amount due to MONDAY GIDEON (Deceased) from the defendant’s voluntary Release Program and the Redundancy package applicable in the defendant’s West Africa Geomarket.

Pre Judgment interest of Twenty – Five percent (25%) per annum on the sum of N96,518,145.31k from 30/03/2016 till Judgment and post Judgment interest of Twenty – Five percent (25%) per annum from date of Judgment till the payment of the said sum.

The sum of USD $2,600.00 (Two Thousand Six Hundred Dollars) only being the one year medical contribution due to MONDAY GIDEON from the defendants Voluntary Release Program policy in the defendants West Africa Geomarket.

Pre Judgment interest of Twenty – Five percent (25%) per annum on the sum of $2,600 USD from 30/03/2016 till Judgment and post – Judgment interest of Twenty – Five percent (25%) per annum from date of Judgment till the payment of the said sum.

The sum of N1, 000,000.00 (One Million Naira) being cost of this Suit.

AN ORDER of Perpetual Injunction restraining the defendants whether by themselves, their servants, workers, receivers, agents or privies from selling, divesting their interest, and transferring the 2^nd and 3^rd defendants to General Electric (GE) or in any manner whatsoever interfering with or dissipating the 2^nd and 3^rd defendants assets for the purpose of denying MONDAY GIDEON (Deceased) the due redundancy package and voluntary release program package.

A DECLARATION that the claimant is entitled to employee Compensation for the death of MONDAY GIDEON in the course of employment as Field Specialist II in the defendants Company under Section 17(1)(a)(a) and 19 of the Employee Compensation Act, 2010.

The sum of N266,056,812.00 (Two Hundred and Sixty Six Million, and Fifty Six Thousand, Eight Hundred and Twelve Naira) being 90% of the total monthly remuneration of MONDAY GIDEON as a Field Specialist V in the defendants Company for claimant’s life time.

AN ORDER of perpetual injunction restraining the defendants whether by themselves, their servants, workers, receivers, agents or privies from selling, divesting their interest and transferring the 2^nd and 3^rd defendants to GENERAL ELECTRIC Co. (GE) or in any manner whatsoever interfering with or dissipating the 2^nd and 3^rd defendants assets for the purpose of denying the claimant employee Compensation benefit due to MONDAY GIDEON (Deceased) as an employee of the defendants.

Reacting to the claims which was originally against three defendants, the 3^rd Defendant who is now the 2^nd Defendant, filed a statement of defence on the 25^th of September, 2017 along with a list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.

Thereafter, the 1^st and 2^nd Defendant filed an amended statement of defence on the 17^th of May, 2019 along with list of witnesses, witness statement on oath and list of documents.

The Claimant then filed a reply to the statement of defence on the 29^th of March, 2019.

Upon the foregoing, trial commenced in the said suit on the 29^th of March, 2019 with the Claimant opening her case. The Claimant called one witness in person of Iniobong Monday Gideon as CW1, who adopted his witness statements on oath marked as C1(a) and C1(b). Through the said CW1, 16 documents were tendered upon which Exhibits C2, C5, C6 and C9 – C17 were admitted under protest while exhibit C3, C4, C7 and C8 were properly admitted in evidence.

Arising from the statement of fact and witness statement on oath, the case of the Claimant is that she is a widow and the wife of Monday Gideon who is deceased and was an employee of the Defendants hence she is bringing this suit for herself and on behalf of dependants/beneficiaries of the Estate of Monday Gideon. Claimant averred that Monday Gideon (deceased) was employed by a Contract of employment dated 01/01/1989 as a Wire line Operator before he entered a further Contract of Employment with the 3^rd (now 2^nd) defendant and by the said Contract of Employment dated 15/10/2009, the Deceased agreed to be bound by the Terms and Conditions of Employment for Staff of the defendants and other policies applicable to the West Africa Geomarket and other Geomarkets. Claimant stated that by the said Contract, it was agreed that the employment of MONDAY GIDEON (Deceased) shall terminate automatically upon the claimant reaching the age of sixty years, but he was not sixty years when the Defendants issued him a letter and Notice of Retirement dated 30/03/2016 wherein, MONDAY GIDEON (Deceased)was informed that his service was no longer needed. Claimant added that prior to the issuance of the notice of redundancy, a Voluntary Release Program for employees of the defendants in the West African Geomarket was scheduled to hold in all the Countries that make up the West Africa Geomarket which included Nigeria, but the Defendants failed to launch same in Nigeria and also failed to pay the Voluntary Release Package (VRP) to Monday Gideon (Deceased) as paid to other workers in Democratic Republic of Congo, Gabon and other Countries in the West Africa Geomarket. Claimant added that the failure to pay the redundancy package led to the involvement of River State Government and Minister of Labour and Productivity. Claimant also added that Monday Gideon suffered an Helicopter accident sometime in 30/6/1998 upon which he developed occasional mental illness and same increased in intensity after he was served with a notice of retirement before he died on the 2/8/2016. Claimant avers that she is 45 years of age and a housewife of the deceased and also has 4 children for him while all of them were dependent on him before he passed away. She stated that she is entitled to 90% of the total monthly remuneration of Monday Gideon (Deceased) throughout her life time estimated to be at least in the next 70 years. The Claimant also averred that the defendants have concluded plans to divest themselves of the control, management and administration of the 2^nd and 3^rd (now 1^st and 2^nd) defendants by selling the 2^nd and 3^rd (now 1^st and 2^nd) defendants to another multinational company, General Electric Co. (GE) to avoid paying employee compensation due to the claimant as the widow and children of Monday Gideon (Deceased) and if the defendants are allowed to sell the 2^nd and 3^rd(now 1^st and 2^nd) defendants to General Electric (GE), the claimant will lose the employee Compensation benefits due to Monday Gideon (Deceased).

Upon cross examination, CW1 posited that he is the son of the deceased while stating that the deceased worked with the Defendant for 26 years and stopped work in 2016. He posited that the deceased had an helicopter accident in 1998 and confirmed that his father worked for a further 18 years after the helicopter crash. He stated that his father died of encephalopathy and collected terminal benefit before he died. He stated that after the helicopter crash he had problem with his eyes and his brain was affected so he could not recognize people well. He added that the deceased went to Mauritania to work and came back with sickness all over his body such that he became weak and could not work again hence his employment was terminated. CW1 posited that the claim for compensation is under the Employee Compensation Act.

Upon the discharge of CW1, the Claimant closed her case while the Defendants adopted their defence in NICN/PHC/65/2017 which was opened by calling one witness in person of Richard Babaoye as DW1 who adopted his witness statement on oath marked as D1. Through the said DW1, 3 documents were tendered and admitted under protest as Exhibit D2(a) – (d), D3 and D4.

Arising from the amended statement of defence and witness statement on oath, the case for the Defendant is that Monday Gideon (Deceased) is not entitled to any Redundancy Package or Voluntary Release Program Policy Package as the latter was a discretionary program which was then proposed by the 2^nd defendant’s affiliates in Gabon, Congo and Cameroon wherein an ex gratia payment was to be made to their employees who voluntarily agreed to be released from employment as a result of the dwindling revenue of the Companies caused by low prices of crude oil in the global oil and gas industry hence the need to cut operational cost and recurrent expenditure. The program was a mere plan in those Countries and was never implemented nor was it ever introduced in Nigeria at all hence, the reliance on the so called Voluntary Release Program (VPR) by claimant is strange as same is not part of nor is it incorporated in the Monday Gideon’s contract of employment with the 2^nd defendant. The Defendants further averred that all due processes as provided under the law were followed in laying off the said Monday Gideon (Deceased) especially as it relates to his final benefits. They added that while the Deceased does not belong to any workers or trade union as it relates to his employment with the 2^nd defendant, the redundancy exercise was exhaustively discussed and negotiated prior to his redundancy. Defendants further stated that Monday Gideon (Deceased) was not part of the meeting with the Minister of Labour as he had been laid off before the meeting and that there was no award which the Claimant can enforce. The Defendants also posit that they were not aware nor informed that Monday Gideon (deceased) developed mental problems at any time during his employment in the 2^nd defendant Company as he returned to work three days after the helicopter crash and added that the deceased Monday Gideon died much after his employment in the 2^nd defendant Company had been duly terminated and whilst the facts relating to his death are touching and unfortunate, they are not attributable to any fault of the 2^nd defendant who had to disengage the said Monday Gideon (Deceased). The Defendants also admitted that the 1^st defendant has merged with the oil services arm of General Electric, a multinational Company incorporated in the United States of America as both Companies are based in the USA. However, the claimant will not lose any of her entitlements against the 2^nd defendant, an independent Nigerian Company, provided such entitlements are genuine and provable with credible evidence in court. The Defendant concluded that the claim for redundancy benefit and compensation under the Employees Compensation Act of 2010 before this court is frivolous, incompetent, misconceived as the Deceased has been paid his full terminal benefits and entitlements by the 2^nd defendant’s Company.

Consequent upon the adoption of the defence in the sister case of NICN/PHC/65/2017, case was adjourned for adoption of final written address.

Consequently, Claimant filed her final written address on the 14^th of October, 2019 and arising therefrom, counsel to the Claimant George T. Ogara Esq. formulated 3 issues for determination to wit:

Whether this Honourable Court has jurisdiction to entertain this Suit arising from and related to the entitlements of a deceased employee (MONDAY GIDEON).
Whether the death of MONDAY GIDEON (deceased) occurred in the course of employment to entitle the claimant to declaratory relief and compensation as a dependant of the deceased employee.
Whether the Claimant has proved that MONDAY GIDEON (Deceased) is entitled to his Voluntary Release Package (VRP) applicable to employees in the Defendants’ West Africa Geomarket arising from the Defendants redundancy exercise.

In arguing issue one, counsel posited that the general rule is that it is only the claims of the Plaintiff as endorsed on the Complaint and Statement of Facts that determines jurisdiction. He cited the case of EGE SHIPPING TRADING INDUSTRY LTD. v. TIGRIS INTERCONTINENTAL CORPORATION (1999) 14 N.W.L.R. (Part 337) page 91, paragraphs E-F ratio 3.

Counsel reproduced the claims in the instant suit and contended that the pertinent question before this court, is whether this Honourable Court have jurisdiction to hear and determine suits arising from claims for entitlements of a deceased employee?

He thereon posited that the answer is in the affirmative and cited Section 254(c)(l)(k) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and Section 7(1)(a)(i)(ii) of the National Industrial Court Act, 2006

He also cited Section 9(1), 12(1)(2)(3) and 17(1)(9) of the Employee Compensation Act, 2010 and submitted that the combined effect of section 254(C)(l)(k) of the Constitution of the Federal Republic 1999 (as amended), section 7(1)(a)(i)(ii) of the National Industrial Court Act, 2006, 9(1), 12(1)(2)(3) and 17(1) of the Employee Compensation Act, 2010 clearly shows that this Honourable Court has jurisdiction to hear and determine claims arising from and incidental to labour and employment of Monday Gideon (Deceased) as an employee of the Defendants. Thus, the issues in the claims relates to the entitlements of the Dependants of the said Monday Gideon (Deceased) as an employee.

Counsel posited that that there are two procedures provided by the Employee Compensation Act, 2010 through which the dependants of a deceased employee can utilize to obtain the entitlements of a deceased employee which are:

“(1) By Application to the Nigeria Social Insurance Trust Fund Board under part II, Sections 4-6 of the Employee Compensation Act.

(2) Filing of action in Court under part III, Section 12(1)(2)(3) of the Employee Compensation Act, 2010.

Counsel submitted that the two procedures stipulated above are mutually exclusive of each other and resort to one of the procedures makes the other procedure unavailable as the dependants of a deceased employee is put to election of the procedure to follow, either NSITF Board or the Court.

He added that the operative word in Section 12(1) of the Employee compensation Act (supra) is “in lieu” which Black’s Law Dictionary, 8^th Edition, page 803 defined as “Instead of or in place of; in exchange; or exchange for”.

He also cited the case of AFRAB CHEM LIMITED v. PHARMACIST OWODUENYI (2014) LPELR – 23613 (CA).

Counsel further cited the case of CHARLES USHAE & 2 ORS. v. COMMISSIONER OF POLICE, CROSS RIVERS STATE COMMAND (2006) ALL F.W.L.R. Part 313 page 86 at page 169 paras. D-E and submitted that the Claimant in this case has a right to elect whether to commence an action at the National Industrial Court of Nigeria or claim compensation from the Nigeria Social Insurance Trust Fund Board.

He added that in the instant case, there is no iota of evidence to show that the Claimant claimed any entitlement from the NSITF Board. Thus, by the doctrine of election of remedies, the Claimant has elected to institute an action before this court and having instituted this action, the claimant can no longer claim any compensation from the Board of NSITF.

Counsel also referred to Order 10 and 11 of the rules of this court and posited that there is no provision in the Employee Compensation Act (supra) which specifically oust the jurisdiction of this Honourable Court to entertain claims of the Dependents of a deceased employee from the employer. He cited the case of JEPH V. NJIKONYE ESQ. v. MTN NIGERIA COMMUNICATIONS LTD. (2008) ALL F.W.L.R. Part 413 page 1343 at page 1368-1369.

In arguing issue two, counsel cited Section 7(1)(2)(a)(b)(c) of the Employee Compensation Act and submitted that from the provisions of the cited section, for the Claimant to successfully claim compensation under the Act, the Claimant must establish the following:

(i)That the deceased is an employee

(ii)That the Defendant was the employer of the deceased employee.

(iii)That the death arose out of or in course of employment.

(iv)That the Claimant is the Dependant of the deceased employee

(v)The Claimant must prove the income of the deceased employee at the time of his death.

Counsel cited the case of MRS. ELIZABETH ANIKE v. SHELL PETROLEUM DEV. CO. NIG. LTD. (2010) LPELR – 11878 (CA).

In addressing whether the Claimant is an employee, counsel cited Section 73 of the Employee Compensation Act and posited that in the instant case, the Claimant pleaded in paragraph 5 and 5(a) of the Statement of Facts that Monday Gideon (Deceased) was employed by the Defendants as a Coordinator/Supervisor. He added that the Claimant also tendered EXHIBIT C5 in proof of the fact that Monday Gideon (Deceased) was an employee of the Defendants and that the Defendants also admitted that the said Monday Gideon (Deceased) was an employee of the Defendants at paragraph 4 of the amended Statement of Defence.

With regards to whether the defendants were the employers of the deceased employee, counsel repeated Section 73 of the Employee Compensation Act and submitted that EXHIBIT C3 clearly show that the Defendants entered into a contract of employment with Monday Gideon (Deceased) and that the Defendants admitted being the employers of the deceased in paragraph 4 of the Amended Statement of Defence.

With regards to whether the death of the deceased employee arose out of and in the course of employment, counsel submitted that the phrase “arising out of employment” ordinarily means as a direct result of the employment of the deceased. He added that an injury or death arises out of an employee’s employment if its occurrence was connected to doing of what formed part of his employment, in other words, for an injury or death of an employee to be said to have arisen out of employment, there must be a link no matter how tiny or weak, between the injury or death and work. He cited Section 7(1) of the Employee’s Compensation Act.

With regards to whether the claimant is the dependant of the deceased employee, counsel cited Section 17(1) and 73 of the Employee Compensation Act and submitted that the claimant is the wife of the deceased employee and has pleaded in paragraph 1(b) of the Statement of Facts that this suit is brought in a representative capacity i.e. for herself and on behalf of the dependants/beneficiaries of the Estate of Monday Gideon (Deceased).

He added that the Claimant pleaded in paragraphs 24, 25, (a)(b)(c)(d)(e) 26 and 27 of the Statement of Facts, the names and age of the dependants of the deceased employee and the fact that the said dependants were wholly dependant on the deceased employee.

Counsel also posited that the Defendants admitted that the deceased employee had dependants at paragraphs 10 and 12 of the Amended Statement of Defence and that what is admitted require no further proof.

With regards to whether the claimant must prove the income of the deceased employee at the time of his death, counsel submitted that the Employee Compensation Act provided a scale of compensation and formula for calculation of compensation in the event of death of an employee in the course of employment and the formula for the calculation of compensation for death of an employee is based on the salary of the deceased employee. Thus, the salary of the deceased employed must be proved for the purpose of the calculation of the compensation to be paid to the dependants.

Counsel cited Section 17(1)(a)(i)(ii)(iii)(iv), (b)(i)(ii)(iii), (c) of the Employee Compensation Act and submitted that the exact monthly remuneration of a deceased employee, and the numbers of dependants are factors to be taken into consideration in the determination of the proper and accurate sum due to the Claimant under the Employee Compensation Act.

Counsel added that the Claimant proved the last salary of the deceased and his dependant and by a communal reading of Section 17(1)(a)(i) and Section 19 of the Employee Compensation Act, the Claimant is entitled to 90% of the total monthly remuneration of the deceased employee for the Claimants lifetime.

Counsel argued further that this Honourable Court has jurisdiction to make binding declaration on the rights of parties as the Claimant claimed a solitary declaratory relief and this Court has powers to make binding declaration of the entitlement of the Claimant as a dependant of the deceased employee. He cited the cases of DR. MICHEAL AYO DANIYAN & ORS. v. ELKENA OBA IYAGUN & 3 ORS. (2002) F.W.L.R. part 120 page 1805 at page 1835 paras C and O. EWARAMI v. AFRICAN CONTINENTAL BANK LTD. (1976) 4 S.C.72 page 78 lines 5.

In arguing issue three, counsel posited that Claimant pleaded and tendered the Voluntary Release Program Policy of the Defendants and the method of calculation of the redundancy benefit in paragraph 19(a)(b)(i)(ii)(iii) of the Statement of Fact.

Counsel also reproduced the claims of monies under the Voluntary Release Program Policy and posited that it is to be noted that the parties to the contract of employment did not agree to any terms in their contract of employment tendered in this Suit as it relates to redundancy. While adding that the Defendants did not deny the claims for redundancy benefits in this suit.

Counsel cited the case of HOTELS & PERSONAL SERVICES SENIOR STAFF ASSOCIATION v. OWENA HOTELS LTD. (unreported) to posit that the right to redundancy payment and to be informed of the extent of the redundancy has to be claimed by the affected workers such as the Claimant.

Counsel also cited Article 13(1) and 14(1) of the ILO Convention on Termination of Employment (c158 of 1982) and Section 20(1)(b) of the Labour Act.

Counsel in addition cited the case of CANMPASSA vs. BENUE CEMENT CO. PLC (2006) 6 N.L.L.R. Part 14, page 19, paragraphs E-G, page 20, paragraphs B-C to contend that an employee who is declared redundant by his employer is entitled to redundancy payments/severance benefit and urged this Honourable Court to so hold.

In addition to the foregoing, counsel contended that the Claimant stated in paragraph 25 of her Statement of Facts that Monday Gideon (Deceased) was only paid two weeks basic as the Redundancy Package/Voluntary Release Package (VRP) and one month basic salary in lieu in a bid to show compliance with the Redundancy Package in the West Africa Geomarket and submitted that the payment made by the Defendants to Monday Gideon (Deceased) is insufficient and inadequate to qualify as redundancy package or benefits under the Defendants policy. Counsel cited the case of PEUGEOT AUTOMOBILE NIGERIA LTD. v. OJE (1997) 11 N.W.L.R. (Pt. 530) page 625.

With regards to exhibits admitted under protest, counsel submitted that the general rule is that a piece of evidence is admissible by the Court if relevant and admissible. He cited the case of HOLLINGTON v. HEWTHERN (1943) K.B. 587, Section 6(a) of the Evidence Act (supra) and added that relevance to issues before the Court is the basis of admissibility.

He argued further that a relevant document must be pleaded before it becomes admissible and in the instant case, the Claimant pleaded Exhibits C2 to C14 in its Statement of Facts and each of the document is relevant and admissible and he urged the Court to so hold.

With regards to exhibits tendered by the Defendants which were admitted under protest, counsel posited that the defendants did not in any paragraph of the Amended Statement of Facts plead any of Exhibits D2(a) to D2
(d) or the facts upon which the said Exhibits are admissible.

He added that the law is that in order that a party may be able to tender a document in evidence, there must have been in the pleading Statement of Facts in respect of that document. Thus, having not pleaded the said Exhibits D2(a) to D2(d) in the Amended Statement of Defence, the Defendants, have failed to put the Claimant on Notice of what the Defendants intends to rely on in proving their defence. He cited the case of OBIMIAME BRICK & STONES NIG. LTD. v. ACB LTD. (1992) 3 SCNJ 1 at page 4.

Counsel posited that Exhibits D2(a) to D2(d) tendered by the Defendants is to the effect that the Defendants paid money to NSITF, however, the pleading as to payment of money, the exact amount, the period of payment and on whose behalf were not pleaded by the Defendants but Exhibits D2(a) to D2(d) are exhibits to prove such unpleaded facts.

Counsel stated that where document or fact pertaining thereto is not pleaded, the document will not be acted upon by the Court. He cited the cases of ALLIED BANK v. AKUBUEZE (1997) 6 N.W.L.R. (Pt. 509) 374 and NNPC v. BOBINSON EDOBOR & ORS. (CA/L/360/99).

The Defendants on their part filed their final written address on the 16^th of October, 2019 and arising therefrom, counsel to the Defendants, O.I. Nwanya Esq. formulated two issues for determination to wit:

Whether the suit of the Claimant in this court is competent having regard to sections 2 (2), section 6, section 12 (1) and section 57 of the Employees’ Compensation Act 2010.
Assuming, without in any way conceding that the claim of the Claimant was competently brought before this honourable court, has the Claimant, by virtue of the facts and evidence before the court or by any other means whatsoever, discharged the burden of proof placed upon her under section 12 (1) & (2) of the Employee Compensation Act 2010 such as would entitle her to the award of her claim.

In arguing issue one, Counsel submitted that the claim of the Claimant in this suit before this court is clearly based on and brought pursuant to the Employee’s Compensation Act, 2010 as the heading of the Claimant’s originating processes exposes this glaring fact. He added that the reliefs sought by the Claimant are also in line with section 17 of the Employees’ Compensation Act and the court is bound by its records. He cited the case of NWOLE V. SKYE BANK (2018) LPELR-46542(CA).

Counsel cited Section 12(1) of the Employees Compensation Act and posited that there are two scenarios or options that are created under the said section.

He posited that the first Scenario/option is that:

An employee or his dependants in the event of injury or death arising out of or in the course of employment may apply to the Nigeria Social Insurance Trust Fund Management Board (NSITF) for compensation as in section 6 of the Act. In this scenario, compensation is paid by NSITF to the employee or his dependants once the injury or death is work-related and without regard as to whether the circumstances that led to the injury or death is attributable to the employer or not.

He added that in this scenario/option, what is applied for is compensation and it is the NSITF not the employer that has the responsibility of paying the compensation and that is why the employer is required under section 33 of Act to make monthly contributions to the Fund created under the Act from which compensation is paid out, if and when necessary.

Counsel posited that the second Scenario/option is that:

An employee or his dependants in the event of injury or death arising out of and in the course of employment may institute an action in damages (in the regular court) against the employer for breach of the employer’s duty of care to the employee or for any other related tort. In this scenario, just as in every other civil action in the court, before damages can be awarded, the employee or his dependants must discharge their evidential burden of proving that the employer is in breach of his duty of care to the employee.

Counsel posited further that in this scenario unlike the first scenario, (1) an action is taken out in (the regular court) by the employee against the employer for “damages”and not for compensation. (2) it is the employer and not the NSITF that pays damages if the employee or his dependants are successful, (3) damages is only awarded by the ‘court’ to the employee or his dependants if and only if the employee proves that the injury or death is work-related and that the circumstances that led to the injury or death is attributable to the employer i.e. that the employer is in breach of his duty of care or negligent as it relates to the employee.

Counsel added that the distinction can also be gleaned from section 12 (3) of the ECA and that the claim for compensation under the Act by the claimant in this suit instead of being made to the NSITF is incompetent, defective and an abuse of the processes of court.

Counsel also cited Section 2 (2), Section 6 and Section 57 of the ECA and Submitted that the literal rule of interpretation of statute is to the effect that the plain and ordinary meaning of words used in drafting the sections and provisions of the statute must be ascribed to it in the interpretation and construction of the statute without modification unless the ascription of such meaning will create an absurd situation. He cited the cases of Fawehinmi v. I.G.P. (2000) 7 NWLR (pt. 665) pg. 481 and Awolowo v. Shagari (1979) 6-9 SC 51.

Counsel added that that where a statute lays down the procedure to be followed in enforcing a right or remedy, that procedure must be strictly followed if the right or remedy is to be enjoyed. He cited the case of AHMED V. ABU & ANOR (2016) LPELR-40261(CA).

Counsel argued further that a suit instituted in contravention of a statutory procedure is incompetent, defective, null and void and of no effect whatsoever and will be struck out as such as the jurisdiction of a court to entertain a matter before it is a very important consideration in the process of litigation. He cited the case of MADUKOLU & ORS v. NKEMDILIM (1962) LPELR-24023(SC)

Counsel also posited that that a combined reading of section 254C (1) (b) of the 1999 Constitution (as amended) and section 55 (4) of the Employees’ Compensation Act, 2010 is to the effect that the National Industrial Court possesses an appellate jurisdiction to entertain appeals from the Nigeria Social Insurance Trust Fund Management Board in matters arising from, connected with and or relating to the Employees’ Compensation Act, 2010.

Counsel also argued that that the mere fact that an employee died while working for an employer does not ipso facto entitle the employee to payment of compensation under the Employees Compensation Act.

In arguing issue two, counsel posited that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. He cited Sections 131(1) and 132 of the Evidence Act, 2011.

Counsel also cited Section 12 (1) of the ECA and submitted thereon that the purport of the section is that a claim for compensation (where the aggrieved is not required to prove the fault or breach of duty of the employer) is at the instance of NSITF Management Board while an action in damages (where the aggrieved is required to prove the fault or breach of duty of the employer) is in the regular courts.

Counsel then added that where an interested person choses to initiate an action in damages in the regular court instead of claiming for compensation from the NSITF Management Board, that person must be able to prove that (1) the employer owes a duty of care to the employee (2) that there has been a breach of that duty by the employer; and (3) Damages.

Counsel contended that in the instant case, there was no expert medical evidence adduced in relation to the cause of death of the deceased Monday Gideon; there was also no expert medical evidence showing the causal connection with the death of Monday Gideon and the job he did for the Defendant Companies. He then submitted that a claim for compensation under the ECA and even under the common law for damages can only be made successfully made where the death of the employee is work-related. He cited section 1 (b) of the ECA, Section 68 (1) & (2) of the Evidence Act and the case of Agbi v. Ogbe [2006] 11 NWLR (Pt. 990) Pg. 65 at 99.

He added that the Claimant cannot be entitled to damages where she has failed to prove a breach of duty of care. He cited the case of NB PLC V. AUDU (2009) LPELR-8863(CA) and contended that in any event, the Claimant is not claiming any damages from the court in this suit and the court is not a Father Christmas.

Counsel also contended that in the course of trial and during cross examination the Claimant stated that he made and signed two statements on oath which he adopted as his evidence in support of this suit while she also confirmed that she has only one signature. Counsel posited that it is however on record that the two statements allegedly made, signed and adopted by the Claimant bears two radically different signatures from the Claimant’s actual signature which was extracted during her cross examination and when this is compared with the signatures on her two statements, it can be seen to be grossly inconsistent with them. Counsel submitted that her adoption of the two statements notwithstanding, the making of the statements or at least one of them cannot lawfully be ascribed to the Claimant. He cited Section 101 of the Evidence Act.

With regards to exhibits tendered by the Claimant, counsel contended that the documents are photocopies and the failure of the Claimant to lay requisite foundation before tendering the said documents renders them incompetent and inadmissible.

Counsel concluded by urging the court to dismiss the suit of the Claimant.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination by this court are to wit:

Whether or not upon a consideration of the provisions of the Employees’ Compensation Act, the reliefs of employee compensation sought by Claimant can be granted by this court.
Whether or not the determination of the employment of Monday Gideon (Deceased) by the Defendants is wrongful, unlawful and liable to be set aside.
Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.

Before resolving the issues for the determination of this suit, it is expedient to address the status of the exhibits admitted under protest in the course of trial in this suit.

With regards to Exhibit C2, C5, C6 and C9 – C17 which were tendered through CW1, counsel to the Defendants contended that the documents are photocopies and that no foundation was laid in tendering them. He cited sections 86 & 89 (C) of the Evidence Act to contend that the documents are inadmissible.

Counsel to the Claimant on his part contended that relevance to the issues before the court is the basis of admissibility and that the documents were pleaded in the statement of fact.

Consequently, I have taken a look at Exhibit C2, C5, C6 and C9 – C17 and find rightly so that the said documents were pleaded in the Claimant’s list of documents with each of the documents referred to in the statement of fact.

While it is indeed trite that that relevancy is what governs admissibility, see OYEBODE & ANOR v. GABRIEL & ORS (2011) LPELR-8693(CA), all the documents tendered and marked as Exhibit C2, C5, C6 and C9 – C17 are considered relevant having been connected to the fact in issue as it relates to the employment of the deceased with the Defendants. However, with regards to the fact that they are photocopies, I reckon that by the general provision of the Evidence Act, an original document is legally regarded as primary evidence while the photocopy tendered is the secondary. In that regard, section 85 of the Evidence Act provides to the effect that the contents of documents may be proved either by primary or by secondary evidence. While section 89 states the circumstance under which the secondary documents can be tendered, the Defendant in the instant case did not lay foundation to establish the circumstance which impels them to tender the photocopy. The failure to lay foundation is however not fatal to admissibility particularly in view of the relevancy of the said documents and same are accordingly admitted in evidence.

With regards to exhibits D2(a) – D2(d) which were tendered and admitted through DW1, counsel to the Claimant contended that the said documents were not pleaded in any of the paragraphs of the statement of defence and they were not frontloaded.

Counsel to the Defendants in response contended that what guides admissibility is relevance.

In view of the foregoing contention, I have taken a look at the said exhibits and find that same are receipts of payments made by the 2^nd Defendant to NSITF between the year 2015 and 2018. I have also taken a look at the statement of fact and witness statement on oath of the DW1 through whom the documents were tendered. Although, counsel to the Defendant stated that the receipts are pleaded in paragraph 18(2) and 23(2) and (3) however, paragraph 18 of the statement of defence and witness statement on oath does not contain any fact relating to receipts issued by NSITF for any transaction whatsoever. Also, I find that the amended statement of defence does not have paragraph 23 while the witness statement on oath which has paragraph 23 says nothing in relation to NSITF receipts.

Consequent upon the foregoing, it is more than clear that the said documents were not pleaded and they were not on the original list of documents tendered before this court. In view of the foregoing, it is trite that facts not pleaded goes to no issue and evidence led in that light ought to be discountenanced. The court reiterated this in the case of APGA & ANOR. V. DANTONG & ORS. (2011) LPELR-9233(CA) when the court held that:

“It is trite law that any evidence led on facts not pleaded would be discountenanced as it goes to no issue. See the case of Hashidu v. Goje (2003) 15 NWLR (Pt. 483) 325 at 379-381.” Per OGUNBIYI, J.C.A. (P. 28, paras. A-B)

In addition to the foregoing, it must be reckoned that if the court is to determine whether a document is relevant for purpose of admissibility, such document must first be pleaded as the court cannot assume its relevance without reference to same in one way or another in the pleadings before the court. The court in STATOIL NIG. LTD. V. INDUCON (NIG.) LTD. & ANOR. (2012) LPELR-7955(CA) posited that “A document is relevant only when it has been pleaded”. Per OGUNWUMIJU, J.C.A. (Pp. 67-68, paras. A-C)

Consequent upon the foregoing, the processes filed by the Defendants are bereft of any fact relating to NSITF receipts and consequently, the relevance of the said receipts cannot be determined for the purpose of admissibility. Therefore, the failure to plead the said documents makes them irrelevant and consequently inadmissible. The said exhibits D2(a) – D2(d) are hereby rejected in evidence and expunged accordingly.

With regards to exhibit D3 and D4, I find that both exhibits before the court are peculiar only to suit NICN/PHC/65/2017 and inapplicable to the instant suit. Hence, all contentions in respect of exhibit D3 and D4 are insignificant for the instant suit and same is accordingly discountenanced.

In addition to the foregoing, I find it apposite to address the contention of counsel to the Defendants to the effect that the CW1 stated that he made and signed two statements on oath which he adopted as his evidence in support of this suit. Counsel posited that it is on record that the two statements allegedly made, signed and adopted by the Claimant bears two radically different signatures. Counsel contended that upon comparing the signature made during cross examination with the signatures on his two statements, it can be seen to be grossly inconsistent with them. Counsel cited section 101 of the Evidence Act.

In view of the foregoing, I must state that in the instant case, CW1 was not made to sign any signature in court and at no point did he state that he has one signature for the court to make an assessment of discrepancies. Consequently, the contention of counsel to the Defendants that the statements on oath of the Claimant as CW1 being incompetent is considered misconceived and accordingly discountenanced.

I then turn to the first issue formulated for the determination of this suit. While it is clear that this suit embodies a claim for employee compensation under the Employees’ Compensation Act, the suit also carries along the issue for the wrongful termination and a claim for redundancy benefit.

Hence, issue one is formulated, firstly in view of the fact that the Claimant headed the processes filed in this suit to be ‘in the matter of Employee Compensation in respect of Monday Gideon (deceased) under the Employees’ Compensation Act, 2010’. Also, relief 9 as sought by the Claimant states clearly that the Claimant wants the Court to declare that she is entitled to compensation for the death of Monday Gideon (deceased) under section 17(1) (a) and (c) and 19 of the Employees’ Compensation Act, 2010, followed by an order for the payment of the said entitlement.

Secondly, issue one is formulated in view of the fact that the Claimant after heading her process to be under the Employees’ Compensation Act and seeking a relief under specific provisions of the same Act, contends through her counsel that the Act gives her two options which are to either apply to the NSITF under sections 4-6 of the Act or to file an action in court under section 12 (1)(2)(3) of the same Act and that the Claimant upon being put on election has chosen to bring an action in court.

Thirdly, the first issue is formulated in view of the contention of the Defendants’ position that the claim for compensation by the Claimant ought to be directed to the Nigeria Social Insurance Trust Fund Management Board as it is the Board that enforces the Act; that the claim ought to have been made within one year, making the present claim statute barred and that this court lacks jurisdiction to entertain the claim as presently constituted.

In view of the foregoing, I find it apposite to start with the contention as to whether this court has the requisite jurisdiction to entertain matters bordering on employee compensation. In this regard, there is no gainsaying that one of the requirements for a court to be clothed with jurisdiction is if the subject matter comes within the jurisdiction of a court. The court in Fashogbon v. Adeogun (No. 1) (2007) All FWLR (Pt. 396) 661 at 678 Paras. B – E (CA) posited that:

“The elements or ingredients for the exercise of jurisdiction by a court include the requirements that:

The subject matter of the case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction;
It is properly constituted as regards numbers and qualification of members of the Bench, and no member is disqualified for one reason or the other;

iii. The case before the court is initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

The three conditions stated above must co-exist before the court can be vested or clothed with proper competence and jurisdiction. See Military Administrator, Benue State v. Abayilo (2001) FWLR (Pt. 45) 602; Attorney-General, Anambra State v. Attorney-General, Federation (1993) 6 NWLR (Pt. 302) 692; Ishola v. Ajiboye (1994) 19 LRCN 35; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.” Per Aboki, JCA.

In view of the foregoing, I have taken a look at the provision of the Constitution of Federal Republic of Nigeria, which is the grund norm and at the same time the highest in hierarchy of all laws in Nigeria and that which establishes the National Industrial Court of Nigeria under section 254A. By section 254C(1) (c), the Constitution provides that:

(1)Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:

relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act,Employees’ Compensation Actor any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws. (underline mine).

The words of the foregoing provision are clear and unambiguous and it is without doubt that this court is clothed with exclusive original jurisdiction to entertain matters relating to, connected with or arising from Employees’ Compensation Act.

That on the one hand, on the other hand, there must be no feature in the case which prevents the court from exercising its jurisdiction. It is this second wing of the condition that requires addressing other factors leading to the formulation of the first issue for determination and same are poignantly in respect of the Claims made by the Claimant in respect of employee compensation.

For sake of clarity, I must state that while this Court has jurisdiction to entertain civil causes and matters related to, connected with or arising from Employees’ Compensation Act, the Act makes specific provision in relation to claims for compensation which the Claimant is seeking and there are specific procedures laid down in the said provision for the claim of compensation if indeed the Claimant expects to get compensation pursuant to the Act.

In this wise, I find it apposite to state that the intention of the lawmakers at the point of enacting the Employees’ Compensation Act as found in the long title of the Act was to “make provisions for compensations for any death, injury, disease or disability arising out of or in the course of employment; and for related matters”.

Section 1(a) of the Act also buttressed the foregoing intention by stating the objective of the Act including to: provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability arising out of or in the course of employment.

In the instant case, the Claimant is claiming for compensation on behalf of herself and dependants of her deceased husband who according to her died on the 2^nd of August, 2016 due to the fact that he was improperly disengaged from the employment of the Defendants on the 15^th of March, 2015.

Consequently, the Claimant brought the claim for compensation under the Act, without recourse to the Nigeria Social Insurance Trust Fund (NSITF) because she considers she has the option to do so. Despite her choice of not applying to the NSITF, the computation of her claim is predicated on the computation stipulated in the Employees’ Compensation Act which is a monthly pay of 90% of N351,927.00. being her deceased husband’s last salary at N316,734.30 multiplied by 70 years to earn the total sum of N266,056,812.00

In addition, through her claims, she wants the court to declare that she is entitled to compensation and that the foregoing total sum be paid to her. She did not specifically state through the order following the declaration that she wants the employer i.e. the Defendants to pay the sum, but she stated through her next and last relief to the effect that she wants the court to make an order of perpetual injunction to restrain the Defendants from dissipating their assets so as not to deny the Claimant of the compensation. In other words, the Claimant intends that the Defendants should pay her the sum of N266,056,812.00 as employee compensation pursuant to the Act.

It is in view of the foregoing that the provision of the Employees’ Compensation Act in relation to payment of compensation becomes paramount in order to determine whether the court can order the Defendants to make payment for compensation to the Claimant pursuant to the provisions of the Act.

Having stated the objective of the Employee Compensation Act, I take cognizance of section 2(2) of the same Act which provides that:

“The Nigeria Social Insurance Trust Fund Management Board (in this Act referred to as “the Board”) shall have power to implement this Act and the Fund established under section 56 of this Act”.

The said, section 56 stipulates that:

“There is established the Employees’ Compensation Fund (in this act referred to as “the fund”) into which shall be credited all moneys, funds or contributions by employers for adequate compensation to employees or their dependents for any death, injury, disability or disease arising out of or in the course of employment”.

The foregoing provisions are clear and unambiguous and deserves no other rule of interpretation other than the literal rule of interpretation which is to the effect that where the words of a statute are clear and unambiguous, the court must give effect to same. The court in ANIMASHAUN & ANOR v. OGUNDIMU & ORS (2015) LPELR-25979(CA) held that:

“The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole”… Per IYIZOBA, J.C.A. (Pp. 8-9, Paras. B-A).

Applying the literal rule of interpretation, the foregoing provision suggests that if a claim for compensation is to be effected and implemented under the Employees’ Compensation Act, it is the Nigeria Social Insurance Trust Fund (NSITF) Management Board that shall have the power to implement the claim. Also, the effect of section 56 is that moneys to be paid as compensation under the said Act must come from the Fund established under the Act.

To buttress the forgoing, the Act stipulates the functions of the said NSITF Management Board under the same Act as section 32 (d) states one of the said functions thus:

“The Board shall:

(d) make all payments of the various compensation or benefits to any person entitled to such compensation or benefit and make all disbursements required to be made out of the Fund established under this Act;”

The effect of the foregoing clearly indicates that all payments to be made from the Fund established under the Act are to be made by the Management Board of the NSITF.

In the instant case, the compensation sought by the Claimant is under section 17(1) (a) and (c) and section 19 as can be clearly seen in the Claimant’s relief 9.

I find it apposite to reproduce the said sections.

Section 17 (1) (a) (c)

(1)Where death results from the injury of an employee, compensation shall be paid to the dependants of the deceased:

(a)where the deceased employee leaves dependants wholly dependent on his earnings a widow or widower-

(i) and two or more children, a monthly payment of a sum equal to 90 per cent of the total monthly remuneration of the employee as at the date of death,

(ii) and one child, a monthly payment of a sum equal to 85 per cent of the total monthly remuneration of the deceased employee as at the date of death,

(iii) without a child who, at the date of death of the employee, is 50 years of age or above, or is an invalid spouse, a monthly payment of a sum equal to 60 per cent of the total monthly remuneration of the deceased employee, and

(iv) who, at the date of the death of the employee is not an invalid spouse, is under the age of 50 years and has no dependent children; a monthly payment of a sum that is equal to the product of the percentage determined by subtracting 1 per cent from 60 per cent for each year for which the age of the dependant, at the date of death of the employee, is under the age of 50 years, and provided that the total percentage shall not be less than 30 Per cent ;

(c) monthly payments to eligible children under this Act shall be made to children up to the age of 21 or until they complete undergraduate studies, whichever comes first;

Section 19:

The Board shall make monthly payments under this Act for the life of the person to whom the payment is to be made, unless a shorter period applies under the provisions of this Act, or as the Board may, from time to time by regulations, specify.

Arising from the foregoing, it is crystal clear that the Act states that it is the Management Board of the NSITF that should make payments based on the computation stated in section 17 of the Act and the said payment is to be made monthly for the life of the person entitled. The Act nowhere mentions that an employer should make the payment.

That said, I must posit that for a person to be entitled to such payment, the person must have complied with the procedure laid down in section 4, 5, 6 of the Act. While section 4 requires the employee or dependant to give notification of the injury or death to the employer, section 5 then obligates the employer in the case of death, to immediately, report the death of an employee arising out of and in the course of employment to the Board and to the local representative of the Board. Section 6 then requires the applicant to fill a form in application for compensation which shall be made on the form prescribed by the Board and shall be signed by the employee or the deceased employee’s dependant and unless an application is filed or a determination is made within one year after the date of death, no compensation shall be payable.

From the foregoing, I must state that section 4, 5, 6 are not distinct or segregated parts of the Act. Rather, they are preconditions to being entitled to compensation under the Act. That is, conditions precedent to the application of the computations stated in section 17 and the monthly payment prescribed in section 19.

That said, I must state that I am not oblivious of the argument of counsel to the Claimant to the effect that section 4,5,6 of the Act creates one mode of obtaining compensation while section 12 creates another mode as an option for the Claimant. It is this contention that impels this court to reproduce and consider the provision of section 12 (1) and (3) of the Employees’ Compensation Act thus:

(1)“The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies”.

(3)”Where the cause of death, injury or disability of an employee is such that an action lies against some person, other than an employer or employee, the injured employee or deceased employee’s dependant may claim compensation or may bring an action and if the employee or dependant elects to claim compensation, the employee or dependant shall do so within 6 months of the occurrence of the injury or death or any longer period, as the Board may, from time to time, determine and an election by the employee or dependant to bring an action in court shall be a bar to claim compensation from the Fund in respect of such injury, disability or death”.

Upon a careful reading of the foregoing, particularly subsection (1), what the provision clearly states is that an employee may choose to seek compensation under the Employees’ Compensation Act as a whole (not a section or portion of it) being a statutory provision for compensation or the employee may seek compensation under any right of action, under any other statute, under an action for breach of duty of care or any other cause of action (which can be regarded as common law action). But once the employee chooses, he or she is precluded from exercising the other. In other words, if an employee chooses to take an action in court for breach of duty of care, in which case he would be seeking for damages, which is another form of compensation, such employee cannot apply for compensation under the Employees’ Compensation Act anymore.

The meaning of ‘in lieu of’ according to Black’s Law Dictionary, Eight edition at page 803 is “instead of or in place of, in exchange or return for”. This suggests that an employee must choose to exercise his right within the provisions of this Act or outside this Act. If such employee is to seek compensation within the provision of this Act then he or she must comply with the provision of this Act in its entirety. The employee cannot institute an action in common law for breach of duty of care and at the same time demand for the payment of compensation as computed under the Employee Compensation Act. An employee cannot choose to be here and there, rather he or she is to be either here or there.

In the instant case, the Claim of the Claimant is neither here, nor there as it is not a claim for breach of duty of care under common law, neither is it a claim to compel the Board of NSITF to pay compensation to the Claimant from the Fund established under the Employees’ Compensation Act upon proving that she has complied with the requirements for payment.

Having said that, I must also clarify the misconception with regards to right of action in court arising from the Employees’ Compensation Act. In this wise, where an employee or the dependant of an employee have applied for compensation under the Employees’ Compensation Act and he or she is not paid the said compensation by the Board of NSITF, such employee or dependant can maintain an action in court against the Board. Also, if the employee or dependants notifies the employer of injury or death and the employer fails to report to the Board of NSITF for the purpose of payment of compensation, then the employee or Dependant can institute an action before this court against such employer under the Act for non-compliance and this Court shall be possessed of jurisdiction to entertain same. It is for such purposes that the National Industrial Court have been clothed with jurisdiction not for the purpose of coming through the backdoor for compensations that is exclusively available through the front doors of NSITF but which have been legitimately claimed and refused. In the instant case, the Claimant did not claim for compensation from the NSITF, rather, what the Claimant is seeking is for the court to command an act which is not contemplated by the entire provision of the Employees’ Compensation Act. That is, to compel the Defendants as the employer of the deceased employee to make payment for a compensation to the Claimant as computed in the Act, an obligation that is of the Board of NSITF to fulfill.

In the light of the foregoing, issue one is resolved to the effect that upon a consideration of the provisions of the Employees’ Compensation Act, the reliefs of employee compensation sought by Claimant cannot be granted by this court as the Defendants are not the appropriate body empowered to make payment of compensation under the Employees’ Compensation Act.

I find it apposite to add that upon the foregoing resolution, the contentions relating to whether the deceased died in the course of employment and whether the claim for employee compensation is statute barred are of no consequence and are accordingly discountenanced in view of the impropriety of the claim being made against the defendant.

I then turn to issue two which is “Whether or not the termination of the employment of Monday Gideon (Deceased) by the Defendants is wrongful, unlawful and liable to be set aside”.

The said issue is formulated bearing in mind the claims of the Claimant urging the court to declare the action of the Defendants in terminating the employment of the Claimant as unlawful, wrongful and a breach of contract of employment.

The highlight of facts relating to the foregoing is that the while the contract of employment issued to the Claimant does not make provision for retirement, the Monday Gideon (deceased) was summarily issued a letter dated 15/03/2016 and titled “Notification of Retirement” and consequent upon which the Claimant was not paid in accordance with the Voluntary Release Program as obtainable in Defendant’s companies situate in other African Countries.

In the light of the foregoing, I must foremost point out the incongruity in the arguments of counsel to the Claimant in the instant suit on the basis that Counsel to the Claimant proffered argument in respect of claim for redundancy while in actual fact Claimant had averred that Monday Gideon (deceased) was issued a letter and notice of retirement. on the part of Counsel to the Defendant, there was no argument whatsoever in respect of either redundancy or retirement. That notwithstanding, I must start by stating clearly that the resolution of issue two is dependent firstly upon determining the nature of employment relationship that existed between the parties. In this regard, the court in FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. MICHAEL (2012) LPELR-20406(CA) restated the three categories of employment thus:

”In N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 at 265 this court enumerated the three categories of employment as follows:

(a) A pure master/servant relationship under the common law.

(b) Employment where the office is held at pleasure.

See also Olaniyan v. Unilag (1985) 2 N.W.L.R. part 9 at page 599 and Shitta-Bay v. F.P.S.C. (1981) 1 S.C. at page 40.” Per FASANMI, J.C.A (Pp. 12-13, paras. E-A)

In the instant case, the Claimant averred that the Defendants employed Monday Gideon (Deceased) via a contract of employment which was tendered as Exhibit C4. The said employer of the Claimant is specifically the 2^nd Defendant, a private limited liability company.

The effect of the contract of employment executed by the Defendants and Monday Gideon (Deceased) makes it irrefutable that the nature of employment existent between both parties was one of master-servant relationship under the common law.

I must also state that one hallmark of master-servant employment is the possibility of the employment relationship coming to an end at the instance of either party as the court in the case of 7UP BOTTLING COMPANY PLC V. AUGUSTUS (2012) LPELR-20873(CA) held that:

“It is established in the instant case that the relationship between the Appellant and the Respondent was that of master and servant. Thus, under the common Law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. So long as he acts within the terms of the employment, his motive for doing so is irrelevant. In any event in case of breach, the employee’s remedy lies in damages calculated on the basis, of what he would have earned for the period of notice agreed for ending the employment. If a contract of employment gives either party to the contract the right to bring the employment to an end with or without notice, the motive which impels either party to lawfully terminate the contract is irrelevant.” Per ABBA AJI, J.C.A (Pp. 20-21, paras. D-A)

I must add that the rationale behind the foregoing is as stated by the court in OBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2013) LPELR-19958(CA) where the court held that:

A court cannot impose or foist an employee on an unwilling employer. See Union Bank Of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664, Ziideeh v Rivers State Civil Service Commission (2007) 3 NWLR (Pt. 1022) 554; (2007) LPELR-3544(SC).”Per IYIZOBA, J.C.A. (P. 26, paras. C-E)

Having said that, I reckon that in the instant case, the contention of the Claimant that the employment of Monday Gideon (Deceased) was wrongfully terminated upon a letter issued to him dated the 15^th of March, 2016.

I have therefore taken a look at the said letter tendered as Exhibit C12 and find that same is titled ‘Notice of Retirement” and the content of the said letter read thus:

15 March 2016

GIDEON MONDAY SAMBO

SAP no. 37370

FIELD SPEC I – WLE

Dear Monday Sambo,

NOTICE OF RETIREMENT

With reference to our recent discussions and in accordance with the relevant clause of your contract of Employment, we can confirm your retirement from Baker Hughes Company Limited with effect from 15 March 2016.

You will be entitled to all benefits in line with Company Policy. These will be communicated to you by your HR representative.

You are requested to leave all Company belongings with your immediate supervisor prior to picking up your full and final benefits cheque from the HR department.

On behalf of the Management and Staff of Baker Hughes Company Limited, I wish to thank you for your support, services and the commitment you have demonstrated throughout your years of service to the Company and wish you a long and happy retirement.

Yours faithfully,

For: BAKER HUGHES COMPANY LIMITED

Signed.

Ato Yankson

HR Manager West Africa Geomarket.

The foregoing letter had an appended document titled ‘Acceptance of Final Benefit’ which was signed by Monday Gideon and witnessed by Goshiy Dawade on the 10^th of March, 2016. The said appended document reads:

ACCEPTANCE OF FINAL BENEFITS

I, Gideon Monday hereby acknowledge receipt of the sum N 5,004,475.63 [Five million and Four Thousand Four Hundred and Seventy Five naira Sixty Three kobo] in full and final settlement of all benefits and entitlements owed to me under my contract of employment with Baker Hughes Nigeria Limited (“the Company”) in respect of my Termination from the Company.

I confirm that the amount as set out above is a full and accurate description of the final settlement due to me under my contract of employment with the Company. I also confirm that I have no further claims against the Company (either in Nigeria or any other territory) and/or any other Baker Hughes entity or affiliate (either in Nigeria or any other territory) on the basis of my employment with the Company and relating to the issue of terminal benefits.

Upon a consideration of the foregoing, it is evidently clear that the employment of Monday Gideon (Deceased) was determined on the basis of retirement rather than being summarily dismissed or declared redundant. The implication of the foregoing is that all the arguments made by counsel to the Claimant in respect of redundancy is of no consequence and same is accordingly discountenanced.

That notwithstanding, it is apposite to consider whether or not the said Monday Gideon (deceased) was validly or wrongfully retired from the employment of the Defendants. In doing so I reckon that the Claimant averred in paragraph 8 of the statement of fact that the Contract of employment of the Monday Gideon (deceased) did not at any time provide for retirement and/or retirement package before the age of 60. Claimant added that the retirement of Monday Gideon before the age of 60 or 35 years in service is not contained in his contract of employment.

It is in this wise that I make an evaluation of the contract of employment tendered as exhibit C3 which in paragraph 3.4 provides for retirement and states that:

Notwithstanding Clauses 3.1,3.2 and 3.3 the Employee’s employment with the Company shall terminate automatically upon the employee reaching the age of sixty (60) unless otherwise agreed by the company.

In view of the foregoing, both parties made no argument as to whether or not the said Monday Gideon (deceased) did not attain the age of 60. However, I reckon that the Claimant tendered a declaration of age of Monday Gideon (deceased) as exhibit C4 wherein Monday Gideon (Deceased) as the declarant stated that he was born on the 29^th of May, 1959.

With regards to the said exhibit C4, I must state that same bears no weight in establishing the fact that the employment of Monday Gideon (deceased) was determined before he turned 60. The said exhibit as a declaration was sworn on the 5^th day of April, 2016 which was almost a month after the said Monday Gideon had been retired and paid his terminal benefit which he had accepted as his full and final benefit upon the knowledge that he was retired on the basis of age.

If for anything at all, the said exhibit C4 is to be considered as a document prepared in contemplation of litigation and same is of no consequence as it lacks evidential value and is tantamount to stealing a match against an opponent. See OLOMO v. APE (2013) LPELR-22327(CA) .

The letter of notice of retirement also informed the said Monday Gideon that the notice of retirement is in reference to the discussions had and in accordance with the relevant clause in his contract of employment. This goes to show that the Monday Gideon (deceased) was put in the know before his retirement and he made no protest whatsoever at the time of the retirement with respect to his age having fully accepted the full and final entitlements under his contract of employment.

In view of the foregoing, the Claimant has failed to establish that the retirement of Monday Gideon by the Defendants was wrongful same having been contemplated by the contract of employment and the requisite entitlements having been paid to Monday Gideon (Deceased).

I must state at this point that I am not oblivious of the contention that the Defendants upon retirement of Monday Gideon (Deceased), failed to pay him certain monies under the Voluntary Release Program. Claimant also posited that Monday Gideon (Deceased) was paid two weeks basic salary as ‘redundancy package’ and one month salary in lieu of notice instead of paying him under the Voluntary Release Program(VRP) that was launched and implemented in other countries.

In this regard, I must foremost reiterate that this court has found that Monday Gideon (deceased) was not declared redundant, rather his employment with the Defendants was determined upon which he was paid terminal benefits along with pay in lieu of notice amongst other entitlements. This was established by Exhibit C9 as tendered by the Claimant.

With regards to claim for payment under the Voluntary Release Program, I must state that same has no connection with the retirement of Monday Gideon as the contract of Employment makes no reference to same under Clause 3.4 of Exhibit C3 and it has not been established to be applicable to the Deceased in this suit.

Consequent upon the foregoing, issue two is resolved against the Claimant and in favour of the Defendants to the effect that the determination of the employment of Monday Gideon (Deceased) by the Defendants is not wrongful, unlawful nor liable to be set aside.

That said, I turn to issue three which touches on the reliefs sought by the Claimant and two of which are declaratory in nature. With regards to the declaratory reliefs, I must posit that the law is settled that a party claiming declaratory relief bears the burden of proving that he is entitled to same and the entitlement does not generally take into account the weakness of the case of the Defendant as the Claimant must succeed on the strength of his own case. In this regard, the court in Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, Para G (SC) held that:

“A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.

Having said that, the first declaratory relief sought by the Claimant is relief 1 which reads: “A DECLARATION that the action of the defendants in terminating the claimants (sic) Contract of Employment of MONDAY GIDEON (DECEASED) with the defendants by a summary dismissal letter dated 30/03/2016(sic) and titled “NOTIFICATION OF RETIREMENT” is unlawful, wrongful, a breach of the Contract of Employment between the claimant and the defendants and a violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004”.

The basis upon which the Claimant urged this Court to grant the said declaratory relief is that Monday Gideon (Deceased) was issued a notice of retirement and same is unlawful, wrongful and a breach of contract of employment.

The contentions arising from the issuance of the notice of retirement has been dealt with while addressing issue two to the effect that the determination of the employment of Monday Gideon (Deceased) by the Defendants is not wrongful, unlawful nor liable to be set aside.

Consequently, there is no basis upon which the declaration sought in relief 1 can be granted and same is accordingly refused.

Relief 2 is for “AN ORDER of Court setting aside the summary dismissal letter dated 30/03/2016 titled “NOTIFICATION OF RETIREMENT” issued to MONDAY GIDEON (DECEASED) by the defendants for being illegal, a violation of the Contract of Employment between the claimant and the defendants and a violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004”.

The foregoing relief is without doubt dependent on relief 1 which has been refused particularly in the face of the fact that the letter of notice of retirement is not a letter of summary dismissal and same is in accordance with the contract of employment. Consequent upon the finding that the Claimant is not entitled to the declaratory relief sought in relief 1, relief 2 which seeks for the setting aside of the notice of retirement is accordingly refused.

Reliefs 3 and 5 are claims related to the sum for which the Claimant contends that Monday Gideon (Deceased) is entitled to upon being issued the notice of retirement. The said reliefs are:

The sum ofN96,518,145.31k (Ninety Six Million, Five Hundred and Eighteen Thousand, One Hundred and Forty Five Naira, Thirty One Kobo) only being the total amount due to MONDAY GIDEON (Deceased) from the defendant’s voluntary Release Program and the Redundancy package applicable in the defendant’s West Africa Geomarket.

5.The sum of USD $2,600.00 (Two Thousand Six Hundred Dollars) only being the one year medical contribution due to MONDAY GIDEON (DECEASED) from the defendants Voluntary Release Program policy in the defendants West Africa Geomarket.

The facts in relation to the foregoing reliefs as posited by the Claimant is that the Defendant failed to implement and pay Monday Gideon (Deceased) Redundancy Package applicable in the Geomarket and entitlements in the Voluntary Release Program (VRP). Claimant added that under the said VRP, Monday Gideon (Deceased) would have been paid N92,883,712.48 (70% of annual gross for 27.26 years completed); N3,534,432.83 by the 9 months gross salary under the Voluntary Release Program Package and the sum of $2,600.00 being the one year medical contribution cost at hand.

In attempt to prove the claim, Claimant tendered several exhibits which includes Exhibit C3 which is the contract of employment dated the 15^th October, 2009 and executed between the Defendant and Monday Gideon (Deceased); Exhibit C5 which is West Africa Geomarket Leadership Announcement dated 30^th November, 2015; Exhibit C10 was the Defendants’ Geomarket Revenue and profit Margin in 2015; exhibit C13 which is the VRP Mandate agreement and Exhibit C12 which is the Notice of Retirement issued to Monday Gideon (Deceased) dated the 15^th of March, 2016.

In reaction to the contention that the Claimant ought to have been paid under the Voluntary Release Program package, the Defendant contended that the Voluntary Release Program was a discretionary program which was then proposed by the 2^nd defendant’s affiliates in Gabon, Congo and Cameroon wherein an ex gratia payment was to be made to their employees who voluntarily agree to be released from employment as a result of the dwindling revenue of the Companies caused by low prices of crude oil in the global oil and gas industry hence the need to cut operational cost and recurrent expenditure. The program was a mere plan in those Countries and was never implemented nor was it ever introduced in Nigeria at all.

It is in view of the foregoing that I have evaluated the evidence placed before this Court by the Claimant. In this regard, I find foremost that while the 2^nd Defendant is a subsidiary Company, other subsidiaries of the parent company are set up as a Geomarket as established by Exhibits C2, C5 and C10. That notwithstanding, Exhibit C3 which is the contract of employment of the Monday Gideon (Deceased) does not contain any term relating to Voluntary Release program and none of the documents tendered by the Claimant establishes the fact that the Defendant is obligated to implement a Voluntary Release Program under which the Defendants are to pay Monday Gideon (Deceased) the computed sums as claimed.

In addition to the foregoing finding, a proper evaluation of the evidence shows that Exhibit C13 is applicable to employees in Congo and not Nigeria, a fact which the Claimant admits. The said Exhibit C13 was addressed to ‘BHI All Congo’ and while it remains doubtful whether the said program was carried out or not, the Voluntary Release Program mentioned in exhibit C13 was planned to be launched on 14^th December, 2015 and was to run from 14^th – 22^nd December, 2015 while Monday Gideon (Deceased) was retired from the Defendants’ employment with effect from the 15^th of March, 2016.

Moreso, the Claimant perceives the payment under the Voluntary Release Program to be for employees whose employments were declared redundant while in the case of Monday Gideon (deceased), he was not declared redundant but retired from employment upon attainment of 60 years of age.

Consequent upon the foregoing, there is no concrete basis upon which the sums claimed in reliefs 3 and 5 can be granted as they have not been sufficiently proved to be an obligation of the Defendants in the event of retirement of Monday Gideon (deceased) and the said reliefs are accordingly refused.

Reliefs 4 and 6 being pre-judgment interest sums put at Twenty – Five percent (25%) per annum are predicated specifically on the sums claimed in reliefs 3 and 5 which have been refused for the considered reasons. Apart from the fact that the Claimant has not placed any proof before the court to establish that there exist an agreement as to accruable interest on the claimed sums, upon the refusal of the said reliefs 3 and 5, it is consequential that the reliefs 4 and 6 as pre-judgment interest will fail and they are accordingly refused.

Relief 8 is for AN ORDER of Perpetual Injunction restraining the defendants whether by themselves, their servants, workers, receivers, agents or privies from selling, divesting their interest, and transferring the 2^nd and 3^rd defendants to General Electric (GE) or in any manner whatsoever interfering with or dissipating the 2^nd and 3^rd defendants assets for the purpose of denying MONDAY GIDEON (DECEASED) the due redundancy package and voluntary release program package.

The foregoing relief was sought based on the averment of the Claimant that 1^st and 2^nd defendants have concluded plans with General Electric Company, U.S.A. to take over the defendants and contends that the merger is to preclude Monday Gideon from being paid his redundancy allowance and Voluntary Release Package.

Although the Claimant did not tender any exhibit in proof of the merger, the Defendants admitted that the 1^st defendant has since merged with the oil services arm of General Electric, a multinational Company incorporated in the United States of America after protracted rigorous negotiations. The Defendants added that both Companies are offshore Companies based in the USA while the 2^nd defendant on the other hand is a Nigerian based oil services Company and the said merger discussions and negotiation between the 1^st defendant and General Electric has nothing to do with the 2^nd defendant.

In view of the foregoing, I must foremost state that “It is well settled that an injunction is not a remedy for a completed act.” Per KEKERE-EKUN, J.C.A (P. 42, paras. E-F) see FRIDAY & ORS V. THE GOVERNOR OF ONDO STATE & ANOR (2012) LPELR-7886(CA). This indicates that there must first be an order setting aside the merger, before the order of perpetual injunction can be made. Although the possibility of making such order is inhibited by the fact that the two companies alleged to have merged are not Nigerian Companies; the 2^nd Defendant which is the Nigerian Company is a subsidiary with a distinct entity and there is no evidence that it is involved in any form of merger whatsoever.

Having said that, it is clear to all and sundry that the Claimant has failed to establish the fact that Monday Gideon (Deceased) is entitled to a Voluntary Release Package upon his retirement which the Defendants are obligated to pay to him. Consequently, there is no basis upon which the perpetual injunction sought can be granted and same is accordingly refused.

Reliefs 9, 10 and 11 are claims predicated on the resolution of issue one formulated by this court. The said issue was resolved to the effect that the claims for employee compensation brought and claimed under the Employees’ Compensation Act against the employer is not grantable. Consequently, the said reliefs are accordingly refused.

Relief 7 is for the sum of N1,000,000.00 (One Million Naira) being cost of this Suit. In this regard, the claim for cost is at the discretion of the court though to be exercised judicially and judiciously. The court in NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) posited with relation to award of cost that:

“The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 and Obayagbona v. Obazee 1972 5 SC p.247” Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).

In the light of the foregoing, it is evidently clear that the Claimant is not the successful party in the instant suit and on that basis, it is the considered view of this court that each party should bear their respective cost. Consequently, relief 7 which is for cost is accordingly refused.

Having considered all the reliefs, it is without a doubt that issue three is resolved against the Claimant and in favour of the Defendant in view of the fact that the Claimant has failed to establish the merit of any the reliefs sought.

In the final analysis, the claims of the Claimant is considered to lack merit and they are consequently dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.