Mrs Iboro E. Asuquo -VS- Grafen Intergrated Oil Field Services Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE

DATE: 30^TH OCTOBER, 2019 SUIT NO: NICN/UY/19/2016

BETWEEN

MRS IBORO EKANEM ASUQUO ……………………………. CLAIMANT

AND

GRAFEN INTEGRATED OIL FIELD SERVICES LTD ….. DEFENDANT

REPRESENTATION

FIDELIS A. ITESHI Esq. for the Claimant

CHINELO OGBOKE Esq. for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a Complaint dated and filed 22^nd August, 2016 asking for the following reliefs:

A DECLARATION that the Claimant remains an employee of the Defendant until her contract of employment is validly terminated in line with her conditions of employment

A DECLARATION that the Claimant remaining in the Defendant’s employment is entitled to be provided with work and to be paid her salaries and allowances as at when due

AN ORDER mandating the Defendant to pay to the Claimant all her arrears of salaries and allowances at the rate of N523,253.76 (Five Hundred and Twenty Three Thousand Two Hundred and Fifty Three Naira Seventy Six Kobo) with effect from 5^th March, 2014 and continuously so until the determination of this suit and thereafter until the Claimant’s employment with the Defendant comes to an end.

N10,000,000.00 (Ten Million Naira) general damages for breach of the Defendant’s obligation to provide work for the Claimant

SUMMARY OF FACTS

According to the Claimant, she was offered employment by the Defendant as Logistic Co-ordinator effective 5^th March, 2014 vide the letter of employment dated 3^rd March, 2014. She was thereafter posted to resume duty at Mobil Producing Nigeria Unlimited on 5^th March, 2014 as stipulated in her letter of employment. On resuming duty, she was sent for a training in Vessel Tracking System CCC Operator Course between 12^th to 13^th March, 2014. By the nature of her employment, she does two weeks at work and two weeks off work. On returning to work on 3^rd April, 2014 after her normal two weeks off, the Claimant was denied access to her workplace at Mobil Producing Unlimited without any explanation. Rather, she was asked to refer back to her employer, Grafen Integrated Oil Field Services Ltd, the Defendant herein. On getting back to her employer (Defendant), the Managing Director informed her there was an error when effecting her change of name and the company would get back to her after rectifying the error. From that time till date, there has been no communication from the Defendant on the status of her employment. This has resulted in the nature of reliefs sought by the Claimant.

On the part of the Defendant, she stated in her statement of defence filed 28^th September, 2016 that the Claimant’s employment was to take effect from the 5^th of March, 2014 but on the 4^th of March, 2014, the employment was cancelled. The Claimant was not posted anywhere nor did she resume work with the Defendant. The routine induction usually conducted for new recruits was not conducted for the Claimant due to the cancellation of her employment. The Visitor’s Pass relied upon by Claimant has nothing to do with the Defendant as same is merely a Visitor’s Pass which does not reflect the name of Grafen, that is the Defendant. The training alleged by the Claimant was not by the Defendant but by Delta Afrik Engineering Limited, another contractor to Mobil Unlimited. Defendant therefore concluded that the Claimant is not entitled to the reliefs sought.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 14^th of March, 2017 to which the Claimant herself testified as CW1. She adopted her witness statement on oath, tendered documents admitted as exhibits and she was cross examined subsequently. Thereafter, Claimant closed her case on 24^th April, 2018.

On the part of the Defendant, she opened her defence on 24^th September, 2018 by calling one Johnson Edoho who testified on behalf of Defendant as DW1. He adopted his witness statement on oath and tendered documents admitted in evidence as Exhibits D1 and D2. Subsequently, he was cross examined. Defendant thereafter closed her defence.

Thereafter, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

DEFENDANT’S FINAL WRITTEN ADDRESS

In Defendant’s final written address dated 18^th October, 2018 and filed 22^nd October, 2018, Learned Counsel to Defendant formulated two (2) issues for determination:

Whether the Claimant is an employee of the Defendant

Whether the Claimant is entitled to her reliefs

ARGUMENT

ON ISSUE 1 & 2

Learned Counsel, while arguing issue 1 and 2 together submitted that civil cases are proved on balance of probabilities. He relied on Ikem V. Vidah Packaging Ltd (2011) All FWLR (Pt. 601) 1476 Ratio 11; Section 136 of the Evidence Act 2011. That in the case herein, Claimant did not file a reply to Defendant’s Statement of Defence. In this vein, Claimant would be deemed to have admitted the averments in Defendant’s Statement of Defence, he relied on Ogunleye V. Oni (1990) 2NWLR (Pt. 135) 745 where the Supreme Court, erBelgore JSC, held:

… all matters not denied in the pleadings whether raised in the statement of claim or statement of defence are taken as admitted. Facts emerging from any pleadings raising new matters and throwing new light on adversary’s averment must be denied. If not denied, they are taken as admitted because there is no element of surprise or embarrassment.

That the Claimant not having denied averments of the Defendant in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of Defendant’s statement of defence should be deemed to have admitted same.

Learned Counsel submitted further that the Claimant’s employment was terminated in accordance with Section 11(1) & (2) of the Labour Act which provides thus:

(1) Either party to a contract of employment can terminate the contract on the expiration of notice given by him to the other party of his intention to do so

(2) The notice to be given for the purposes of the subsection (1) of this section shall:

(a) One day, where the contract has continued for a period of three months or less.

According to Learned Counsel Exhibit D1 properly terminated the contract of employment which was to take effect on 5^th March, 2014. Furthermore, the offer of employment had no effect until the legal procedure provided for in Section 8(1) of the Labour Act is complied. The said section provides:

Every worker who enters into a contract shall be medically examined by a registered medical practitioner at the expense of the employer.

In the case herein, the Claimant was never examined medically because of the termination of her employment; no induction was conducted for her as it is with other employees. Learned Counsel therefore submitted that Claimant was on her own having not fulfilled the legal requirement sequent to her employment.

It is the submission of Learned Counsel that even though the letter of employment reads that Claimant would be deployed to Mobil Producing Nigeria, there is no evidence that she was subsequently deployed. That the case of the Claimant lacks merit and same should be dismissed.

He therefore urged the Court to so hold.

CLAIMANT’S FINAL WRITTEN ADDRESS

On receipt of Defendant’s final written address, Learned Counsel to Claimant filed their final written address dated and filed 5^th March, 2019 adopting the two (2) issues formulated by the Defendant’s Counsel, that is:

Whether the Claimant is an employee of the Defendant

Whether the Claimant is entitled to her reliefs

ARGUMENT

ON ISSUE 1: Whether the Claimant is an employee of the Defendant

Learned Counsel to Claimant submitted that just like every other contract, a contract of employment is complete once there is an offer and acceptance with the intention to create legal relationship. That in the case of Benue Cement Company Plc V. Sky Inspection Nigeria Ltd (2002) 17 NWLR (Pt. 795) 93,the Court of Appeal held:

An offer is an expression expressed or implied byone person or group of persons; or by agents on his behalf made to another of his willingness to be bound to a contract with that other person on terms either certain or capable of being rendered certain. The offer should be communicated to the other party in order that his acceptance may constitute a contract and may be revoked at any time before it has been accepted, provided that the revocation is communicated to the offeree.

Learned Counsel submitted that in the case herein, Defendant offered employment to the Claimant which she accepted. Having accepted the employment, a binding contract was created between both parties. He urged the Court to so hold. On the position of the Defendant that the employment contract was revoked by the letter dated 4^th March, 2014 purportedly written by the Defendant, Learned Counsel submitted that there is nothing to prove that the letter was received by the Claimant. The said letter, having not be communicated to the Claimant, same cannot be said to have revoked the employment. He relied on Benue Cement Company (supra).

On the position of the Defendant that Claimant did not file a reply to their statement of defence, Learned Counsel submitted that there was nothing said in the said statement of defence worth responding to, the Claimant having made out her case clearly in her Statement of Facts.

ON ISSUE 2: Whether the Claimant is entitled to her reliefs

Learned Counsel to Claimant submitted that Claimant has shown that she was offered employment which she accepted; she resumed work and worked for two weeks and, after her two weeks leave, on resumption, she was denied to her place of duty and directed to see the Defendant who asked her to be patient until an error in her name is rectified. Since that time till date, the Defendant has failed to provide work for the Claimant. It is the duty of the employer to provide work for the employee. He referred Court to Section17 of the Labour Act, 2004.

It is the submission of Learned Counsel that the failure of the Defendant to provide work for the Claimant has seriously affected her growth, development and general wellbeing as well as her ability to secure a new job, bearing in mind that her employment with the Defendant still subsists. He relied on Malik V. Bank of Credit & Commerce Int. SA (1997) 3 All ER P.1 where the Court held:

Employees must take care not to damage their employees’ future employment prospects by harsh and oppressive behavior or by any other form of conduct is unacceptable today as failing below the standards set by the implied trust and confidence in them.

He therefore urged the Court to grant the Claimant’s relief on damages and to also hold that the Claimant’s case succeeds alongside all the reliefs and also grant same.

COURT

Having gone through the case of the Claimant, Defendant’s defence, evidence adduced in this case and the submissions of Counsel to the Claimant and Counsel to the Defendant, this Court has distilled a sole issue for determination, to wit:

Whether given the circumstances, the Claimant has proved her case to be entitled to the reliefs sought.

Generally, it is the duty of the Claimant who alleges employment relationship to lead evidence in support of same. See NIMASA V. Obey (2014) 2 WRN P. 83 @ 92 R. 9. In the case herein, in proof of the allegation that she was employed by the Defendant, Claimant tendered Exhibit C1 (a photocopy of her letter of employment dated 3^rd March, 2014 to which the Defendant tendered the original copy which was admitted in evidence as Exhibit D2); she tendered Exhibit C2 (which by its look is not a card but a leaflet captioned Mobil Producing Nig. Unltd. Security Department. Visitor’s Pass. Every other information as to name of visitor, address, person to visit, purpose of visit etc are to be filed in with pen); she tendered Exhibit C3 which she termed Duty Roster in her pleading but by the very look of it, it is titled Daily Activity Report of 16-03-14 (It does not have the name of the maker, no signature, no certification by the issuing authority); she tendered Exhibit C4 which according to her is a certificate of attending the Vessel Tracking System Training which has the name of DELTA AFRIK, OCEANIA and EXXON MOBIL at the top. From all the documents mentioned above, besides Exhibit C1 which is the employment letter of the Claimant, this Court wishes to state that under any other circumstances, a person who is not an employee of the Defendant can be a visitor to the premises of Mobil Unltd and, in addition to getting Exhibit C2 tendered by the Claimant, get a card tagged Visitor Pass to which the person can wear around throughout the visiting time. Therefore, it cannot serve as a basis that Defendant actually employed the Claimant, and I so hold. Furthermore, Exhibit C3 which the Claimant tagged as Roster is not a document this Honourable Court as a Court of justice can attach any weight to as it does not bear the name of the maker, no signature and no certification by whatsoever or whosever authority issued it. It is at best a worthless document, and I so hold. On Exhibit C4, this Court wishes to state that on the face of it, any person outside the employment of the Defendant could have attended the training. Therefore, it cannot serve as a basis for the Claimant to say she was employed by the Defendant, and I so hold.

From the evaluation of the documents above, the only document that speaks to the Court as a temple of justice that employment relationship exists/existed between the Claimant and the Defendant is Exhibit C1 which is the employment letter of the Claimant.

The Defendant did not deny the existence of Exhibit C1. As a matter of fact, they tendered Exhibit D2 which is the original copy of the letter of employment to corroborate Exhibit C1 which is the photocopy of the employment letter. However, the point of divergence between the Claimant and the Defendant is that whereas the Claimant alleged that she resumed work at Mobil Unltd as stated in the employment letter on the 5^th of March, 2014; proceeded on two weeks off thereafter and resumed at her duty post on 3^rd April, 2014 only to be denied access, Defendant stated that there was another letter, Exhibit D1, cancelling the employment before the effective date of 5^th March, 2014. The said letter is dated 4^th March, 2014. The position of the Claimant is that she never received such a letter. This raises the issue of none-receipt which by its very nature casts doubt on whether the document was in existence the time the Defendant is alleging it was in existence. Generally, when it is alleged that a document was delivered to a person who in turn denies receiving such document, the decision of the Court in Agbaje V.Fashola(2008) 6 NWLR (pt. 1082) pages 90 @ 142, Parsa A – D comes to mind. In the said case, the Court held that the party alleging service is expected to prove service through any of the following:

Dispatch book indicating receipt; or
Evidence of dispatch by Registered post;
Evidence of witness, credible enough that the person was
served with the document.

In the case herein, Defendant did not lead evidence to prove any of the means by which Exhibit D1 (a letter dated 4^th March, 2014 purportedly canceling the earlier offer of employment to the Claimant) was served on the Claimant. Given the circumstances, this Court is hard put to hold that the letter was actually served on the Claimant. Consequently, Exhibit D1, if ever it existed, only existed in the realm of the Defendant, and I so hold.

The foregoing will take us back to the employment letter of the Claimant. It is apposite to reproduce the content of the employment letter. It reads:

OFFER OF EMPLOYMENT

We are pleased to offer you employment as Logistics Co-ordinator in our establishment effective March 5, 2015

You will be required to work for any of our client companies as the need arises and thus be deployed to different locations as may be operationally possible. You will be deployed to Mobil Producing Nigeria for the duration of the contract. Please, note that your services can be withdrawn should your performance fall below Client’s Company’s requirement or for any other reason as may be notified by our Client Company before the specified period.

Your basic salary is N323,784.26 (Three Hundred and Twenty Three Thousand Seven Hundred and Eighty Four Naira, Twenty Six Kobo) per month. All other allowances shall be contained in the Collective Bargaining Agreement.

Also be informed that a one month notice or one month salary in lieu of notice will be required on both parties upon termination of appointment or resignation.

Please sign below to signify your acceptance.

From the pleadings of the Claimant that she was denied access at Mobil Unlimited and told to report back to her employer on 3^rd April, 2014 and comparing same with the Defendant’s pleadings that the appointment of the Claimant was terminated on the 4^th of March, 2014, a date before her appointment was to be effective, the conclusion the Court can draw from all of these is that all the events that took place are not remote or far from the 5^th of March, 2014, the effective date of the employment of the Claimant as stated in Exhibit D2 which is the employment letter of the Claimant. The point here is that whether there was actual cancellation of the employment on the 4^th of March, 2014 as alleged by the Defendant or whether there was actual directive for the Claimant to report back to her employer by Mobil Unlimited on the 3^rd of April, 2014 to which her employer told her there was error in her change of name and as such the company will get back to her, all the events took place, on one hand, close to and prior 5^th March, 2014, and close to/after 5^th March, 2014. The Court will look critically at these two periods to determine the merit of this case.

Now, accordingto the Defendant, in the introduction to their final written address, they stated that Claimant was not posted to anywhere to work, the routine of induction conducted for all staff of Defendant on resumption of duty was not conducted for her. In response to this, Learned Counsel to Claimant posited that Defendant never pleaded these in their Statement of Defence. Granted, the Claimant is correct that the Defendant never pleaded any of these in their Statement of Defence, and they cannot use their written address in place of pleadings. See SMOOTH V. SMOOTH (2015) LPELR-25732(CA). However, given the porous case of the Claimant in that she has nothing to show for her employment besides the employment letter, perhaps if she had led evidence on valid resumption of duty, valid posting and valid induction by the Defendant, her case would have been more water-tight than it is presently. That said, in the absence of pleadings in this regard, this Court wishes to state that as a labour Court, there are settled principles, laws, practice and procedure of employment which the Court has taken judicial notice of and it does not require pleadings or written addresses to give an informed opinion on same. One of such procedures is proper profiling of newly employed individual in big companies like the Defendant and such employment being on probation at the earlier stage. In the case of the Claimant herein, there was no time of probation period stated. However, the trite law is that in the absence of same, the Court can infer reasonable time as the probation period. In formal setting, the least probation period the Court has taken judicial notice of is 3 months. Applying same to the Claimant herein, if her story is anything to believe, then as at 3^rd April, 2014, she was, at best, still on probation. The settled law on employees who are still on probation is that the employer can fire them anytime without notice. In this regard, if the Claimant was fired any time before the end of three months of her employment, no notice is required before she can be fired.

In Master-Servant employment, even though the Claimant is getting to know of the termination of his/her employment for the first time on the filling of Defendant Statement of Defence, the Court will still deem the employment terminated. All the Court can do to savage the circumstances is to award damages accordingly to mitigate whatever the Claimant has suffered. In the same vein, even if the Claimant did not work for up to a month, the Court could still find that the Claimant is entitled to a measure of compensation as a result of the hope the letter of employment ignited. Such hope, having being dashed unceremoniously, destroyed every castle built in the air by the Claimant on the ground that she then had a job, a good job at that. Therefore, any inconvenience suffered as a result of any angel of darkness bringing bad news to her entitles and qualifies her to be compensated with damages to bring light to the darkness caused by the angel of darkness.

From the series of events that took place between 3^rd March, 2014 to 3^rd April, 2014 as narrated by the Claimant and the Defendant, and from the analysis of the Court given above, the only conclusion the Court can draw is that no contractual relationship existed between the Claimant and Defendant beyond the letter of employment dated 4^th March, 2014. Therefore, the sins of the Defendant is that they issued a letter of employment to the Claimant which ended up not serving its purpose. For raising the hope of the Claimant and making it end in false hope, this Court is minded to award the sum of N1,000,000.00 (One Million Naira) as damages in favour of the Claimant.

Judgment sum to be paid within 30 days of this judgment.

Judgment is entered accordingly.

…………………………………..

HON. JUSTICE M.N ESOWE