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National Industrial Court

Peter Yinkore and 73 Others -VS- Neconde Energy Limited & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: FEBRUARY 12, 2019

 

SUIT NO. NICN/LA/611/2012

 

BETWEEN

Peter Yinkore & 73 ors-                             Claimants

 

AND

  1. Neconde Energy Limited
  2. The Shell Petroleum Development

Company of Nigeria Limited                          –                         Defendants

 

REPRESENTATION

  1. A. Oruma, and with Mr A. A. Osara and Mr O. Nwachukwu, for the claimants.

Gabriel Onojason, with John Ibe, for the 1st defendant.

Kunle Ayorinde, with Olabisi Olajide and O. Anuode, for the 2nd defendant.

 

JUDGMENT

  1. The claimants had commenced this action vide a complaint and statement of facts dated 29th November 2012 with other accompanying originating processes claiming against the defendants jointly and severally as follows:
  • A declaration that the 1st defendant is in breach of the contract of employment entered into with the claimants by failing to pay them their salaries since March 2012 till date.
  • A declaration that the purported letter headed “CESSATION OF EMPLOYMENT” which the 1st defendant asked the claimants to sign before being paid their March 2012 salary is in violation of their contract of employment.
  • An order of court compelling the 1st defendant to pay the claimants all the benefits accruing from the contract of employment, been (sic) salaries, medical benefits, value of status car and grant (to those entitled to it), relocation expenses from Warri (for those affected) and all other emolument from March 2012 until the 31st December 2013 been (sic) the agreed minimum period of two years of continuous employment covered by the agreement entered into.
  • An order on the 1st and 2nd defendants to produce the Sales Purchase Agreement (SPA) over OML 42 between them, which is the foundation of the contract of employment between the claimants and the 1st defendant which contains the benefits accruing to the claimants.
  • An order of court compelling the 2nd defendant to pay to the claimants the Selected Voluntary Severance Package benefits being 14% to 35% of their annual basic salary for the period left unserved up to a maximum of 25 years of their tenure of employment which should continue until they are sixty years old.
  • An order of general damages against both defendants in the sum of Three Hundred and Fifty Million Naira (N350,000,000) per claimant for frustrating the employment of the claimants by the succeeding operator of OML 42, Nigerian Petroleum Development Company Limited (NPDC).
  • An order of general and exemplary damages against both defendants in the sum of Five Hundred Million Naira (N500,000,000) per claimant for misrepresentation and willful deceit.

 

  1. While the claimants filed their complaint and statement of facts at the Registry of this Court, their list of witnesses, witness statement on oath and documents to be relied upon at the trial were filed, deposed to and stamped at the Registry of the Delta State High Court, Ughelli instead of the Registry of this Court.

 

  1. Upon service of the originating processes on her, the 1st defendant through her counsel entered a conditional appearance by filing a conditional memorandum of appearance dated 12th December 2012 and subsequently filed her statement of defence together with the frontloaded processes all dated 25th April 2013. The 2nd defendant also filed its statement of defence dated 4th March 2013 with its accompanying processes.

 

  1. At the trial, Mr Peter Yinkore, the 1st claimant, testified as CW, the sole witness for the 74 claimants. He adopted his statement on oath with the attached documents (Exhibits C1 to C12) as his evidence-in-chief.The 1st defendant on its part called one witness, Uchechi Ananaba, who is the Head, Human Resources Operation of the 1st defendant; he testified as the 1st defendant’s witness. The document attached to 1st defendant’s statement of defence was admitted in evidence and marked Exhibit D1. Exhibit D2 consisting of 74 copies of the claimants’ employment letters was tendered and admitted, despite the objection of the 1st defendant’s counsel, through the 1st defendant’s witness. The 2nd defendant also called one witness, Stephen Ojeh, who is the Employees Relations, Industrial Relations and Employees Communication Manager of the 2nd defendant; he testified as the 2nd defendant’s witness. He tendered Exhibits D3 to D7. I must state that all through the trial, cross-examination was limited to 20 minutes each for all parties. Order 40 Rule 19(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017) states that cross-examination shall be as determined by the Court but shall not be more than 40 minutes. It became necessary to limit each party to only 20 minutes given that this is a 2012 case and the National Judicial Council (NJC) had admonished this Court to conclude as soon as possible pending cases of 5 years and above. From the records, the antecedents of this case will show especially the claimants’ penchant disposition to slow down trial due to incessant motions/applications.

 

  1. At the close of trial, parties filed and served their respective final written addresses. The 1st defendant’s final written address was filed on 5th July 2018. The 2nd defendant’s final written address was filed on 27th July 2018. The claimant filed on 9th October 2018 two separate written addresses respectively in response to the addresses of the 1st and 2nd defendants. The 1st defendant’s reply on points of law was filed on 17th October 2018. And the 2nd defendant’s reply on points of law was filed on 16th October 2018.

 

THE CLAIMANTS’ CASE

  1. To the claimants’ the 1st defendant is a company registered in Nigeria, involved in the business of petroleum production and other businesses, while the 2nd defendant is also a company registered in Nigeria in the business of exploration, drilling and production of crude oil and gas in Nigeria.That the claimants were employees of the 2nd defendant until the 31st December 2011.The 2nd defendant in the course of its business, secured and operates several Oil Mining Licenses (OML) from the Government of Nigeria through the Nigerian National Petroleum Corporation (NNPC). That sometime in the year 2011, the 2nd defendant decided and reached an agreement to sell to the 1st defendant its interest in OML 42, which it operates as a joint venture partner with the NNPC.Pursuant to that agreement, the claimants were selected with 41 others making a total of 115 and divested along with the facility so that they will operate the facility (OML42), for the 1st defendant.That the claimants were guaranteed by the 1st and 2nd defendants of continuous employment for a minimum of two years, at a meeting with the management of the 1st defendant, led by their Chairman Board of directors, Dr Azudialu Ernest and Rev. O. J. Agbarah, the Chief Operating Officer of the 1st defendant, a retired Vice President of the 2nd defendant and the divestment team of the 2nd defendant, in which the claimants were formally introduced to the 1st defendant by the 2nd defendant.That the claimants were wary of being selected to join the 1st defendant. For those who refused, they were assured of no job security from then on by the 2nd defendant. That in the said meeting the Chairman Board of Directors and the Chief Operating Officer of the 1st defendant assured and promised the claimants, that the 1st defendant was a well-established company and not withstanding OML42 which it was acquiring from the 2nd defendant, it has other businesses in which the claimants could be deployed should the need arise. That the 2nd defendant informed the claimants and which was further confirmed by the 1st defendant, that it was part of the Sales Purchase Agreement reached between the 1st and 2nd defendants that there is a guarantee of minimum of two years of continuous employment with the 1st defendant. That it was based on these assurances that the claimants accepted to severe their relationship with the 2nd defendant reluctantly. That in accordance with the terms and conditions of service and collective agreements applicable with the 2nd defendant, the claimants are entitled to receive between 14% to 35% of their annual basic salary, multiplied by the numbers of years of service left unserved till their retirement age of sixty years, up to a maximum of twenty-five (25) years, which is called Selected Voluntary Severance package (SVS).That the 2nd defendant failed to meet this obligation. That till date the SVS has not been paid, instead an exgratia payment was made which was at the 2nd defendant’s discretion.

 

  1. The claimants continued that they took up employment with the 1st defendant and resumed work on 1st January 2012 at Edjeba Housing Estate, a 2nd defendant facility in Warri. The claimants were issued letters of offer of employment.That some of the claimants were relocated to Warri from Lagos and Port Harcourt with their families due to the divestment. That to return to their former locations just after three months is at a huge cost in time, money and inconvenience. That when the claimants started work, it was observed that the 2nd defendant was not able to hand over the operatorship of OML42 to the 1st defendant as agreed by both parties in the Sales Purchase Agreement. That the NNPC decided to withdraw the delegated operatorship of the facility and gave it to its subsidiary Nigeria Petroleum Development Company (NPDC). That at the end of January and February 2012, the 1st defendant failed to pay the claimant’s agreed salaries in full, and as and when due, when the claimants protested they were told that there was an error in computation of the consolidated salaries offered which will be looked into, and they were promised the full payment of all arrears in due course. That the claimants have not been paid their salaries since the month of March 2012 till date.

 

  1. That when claimants called the attention of the 1st defendant to the anomalous situation, they were then informed of the problem of operatorship that the 2nd defendant could not secure for them from NNPC. The NPDC Limited, a subsidiary of NNPC to whom the 2nd defendant handed over the operatorship of OML42, was willing to engage the claimants in her service for the purpose of operating the OML42 facilities seamlessly as they were already physically on site and had reactivated and started producing bullishly at one of the oil fields (Batan) but the defendants declined the request. At a meeting on 10th April 2012, with the Chief Operations Officer and Human Resources leadership team of the 1st defendant, the 1st defendant attempted to distribute a letter titled “Cessation of Employment”, which the claimants refused to accept or sign for. The claimants insisted that there must be discussions and agreement as to terms of termination if there must be any, which must take into account the agreement reached at the time of employment. That the claimants wrote letters and sent e-mails to the defendants, some of which they responded to. The claimants informed Shell branch of PENGASSAN of what was happening.The association raised the issue with the 2nd defendant who responded by a letter dated 2nd April 2012. The claimant’s solicitor, also wrote to the defendants, but they refused to respond to claimants demands in the said letters, hence this action.

 

THE 1ST DEFENDANT’S CASE

  1. To the 1st defendant, the claimants were all employees of the 2nd defendant. The 2nd defendant, a multi-national petroleum company, was the Operator of Oil Mining Lease 42 (OML 42) under a Joint Venture Agreement (JVA) with the Nigerian National Oil Corporation. The 2nd defendant held a 30 percent interest in the JVA. By a Sales Purchase Agreement the 2nd defendant transferred its entire interests in OML 42 to the 1st defendant.Sequel to discussions held with the labour unions to which all its employees (inclusive of the claimants) belonged, an agreement was reached and the claimants accepted the severance of their employments and payment of their terminal benefits. Accordingly, the 2nd defendant computed and paid to each of the claimants their end of service and severance benefits, thus terminating the contracts of employment with all the claimants individually.The 1st defendant vide its letters dated 28th November 2011 (Exhibit D2 Series) offered employments to each of the claimants, which terms were voluntarily accepted without any objection. The 1st defendant subsequently terminated the claimants’ employments and offered to pay to each of them one month’s salary in compliance with their individual letters of employment. The claimants refused the 1st defendant’s said offer of one month’s salary.The claimants in consequence approached this Court seeking, inter alia, an order of court compelling the 1st defendant to pay them all the benefits accruing from the contract of employment, being salaries, medical benefits, value of status car and grant (to those entitled to it), relocation expenses from Warri (for those affected) and all other emolument from March 2012 until the 31st December 2013 being the agreed minimum period of two years of continuous employment covered by the agreement entered into. The 1st defendant’s case is that there is no provision in Exhibit D2 Series entitling the claimants to the reliefs sought, and has accordingly joined issues with the claimants.

 

THE 2ND DEFENDANT’S CASE

  1. The case of the 2nd defendant is two prone: one, there is no evidence in support of the claimants’ case given that their sworn deposition and supporting documents were filed in other the Registry of this Court; and two, the claimants have not disclosed any cause of action against the 2nd defendant since the principal reliefs sight from this Court are against the 1st, not 2nd, defendant.

 

THE 1ST DEFENDANT’S SUBMISSIONS

  1. Before submitting issues for determination, the 1st defendant noted that in the course of cross-examination, the 1st claimant admitted that he deposed to his witness deposition containing his evidence and the Exhibits C1 to C12 at the High Court of Justice, Ughelli, Delta State. That he also admitted that there was no clause guaranteeing the claimants’ two years employment in Exhibit D2 (letters of employment dated 28th November 2018, a fact that was corroborated by the 1st and 2nd defendants’ witnesses respectively). He also admitted that they were employed individually on different roles, job description and each claimant executed a letter of employment containing specific terms of employment to that claimant. He also admitted that they voluntarily accepted letters of employment from the 1st defendant without any objection. He also admitted that his pay-slip was not before the Court. He also admitted that the claimants were not parties to the Sales and Purchase Agreement between the 1st and 2nd defendants.

 

  1. The 1st defendant also noted that during the course of this suit, none of the other claimants testified in this matter despite the fact that they were listed individually as claimants with different terms of employment letters. No evidence was led to substantiate those other claimants’ claims/reliefs sought before this Court. That the 1st claimant did not exhibit any letter of authority or instruction given to him by the remaining 73 claimants to testify on their behalf in this suit. That the suit was commenced in the claimants’ individual capacity and not as a representative suit, neither was it certified as such.

 

  1. The 1st defendant then submitted two issues for determination, namely:
  • Whether in the circumstances of this case and the evidence before this Honourable Court, the claimants’ suit is competent.
  • Whether considering the totality of the evidence before this Honourable Court, the claimants have proved their heads of claims as to entitle the claimants to the reliefs sought.

 

  1. On issue (1), the claimant submitted that considering the totality of the evidence of the 1st claimant before this Court, the claimants’ suit is incompetent and liable to be dismissed in its entirety. Referring to Order 3 Rule 9 of the Rules of this Court as to what shall accompany the complaint, the 1st defendant submitted that a look at the complaint filed by the claimants on 29th November 2012 will show that the complaint and statement of fact were filed on 29th November 2012 at the registry of this Court; the witness statement on oath with the documents to be relied upon at the trial of this suit (with no heading of the Court, suit number or parties) was filed, deposed to and stamped at the registry of the High Court of Delta State that has no affiliation whatsoever with the National Industrial Court (NIC) on 27th November 2012. That it, therefore, means that the claimants’ suit from the beginning was grossly incompetent, defective and in violation of the Rules of Procedure set out by this Court. In other words, the claimants failed to commence this suit properly as required by law. That non-compliance with the mandatory provisions of the Rules of Procedure of this Court by the claimants renders this suit incompetent and liable to be dismissed for want of jurisdictional competence. It also shows that at the period of 27th November 2012 when the witness statement on oath with documents were filed not only were they filed in the wrong Court, they were filed earlier than the date of 29th November 2012 when the Complaint and statement of fact were filed.

 

  1. The 1st defendant referred toOlutola v. Unilorin[2004] 18 NWLR (Pt. 905) 416 at 450, and then submitted that the by reason of the non-compliance with the mandatory provisions of Order 3 Rule 9 of the Rules of this Court, there is a feature in the claimants’ case which prevents this court from exercising its jurisdiction in that the suit was initiated without due of’ process of law which is a condition precedent and sacrosanct to the exercise of this Court’s jurisdiction. That a close look at the complaint filed in this suit will show that it falls short of the requirement of the rules of this Court and as such the suit must be dismissed as there is no basis upon which the Court can hear or even listen to the claimants. That the complaint was not accompanied by a witness statement on oath and documents to be relied upon at the trial of this suit (deposed at the Registry of this Court before a Commissioner for Oaths) as required by the Rules of this Court. That this is a mandatory requirement as the operative word in the Rule is “shall”. The requirement for documents to accompany a complaint as contained in Order 3 Rule 9 of the Rules of this Court is a condition precedent that the claimants must comply with before filing his action in Court and failure to do so has nullified their action against the defendants, citing Kalamu v. Gunrim[2003] 16 NWLR (Pt. 847) 517 and Mokelu v. Federal Commissioner for Works & Housing[1979] 3 SC 35 on the bindingness of the word ‘shall’.

 

  1. That the law is well settled that a court cannot casually assume jurisdiction over a matter when condition precedent are not satisfied or do not appear to have been satisfied, citing Nwabueze v. Okoye[1988] 4 NWLR (Pt. 91) SC 664 at 669. Also that rules of Court of each Court are not made for fun, but are meant to be obeyed, citingNIPOL Ltd v. BIOKV & Investment Property Company Limited[1992] LPELR-2036(SC). Furthermore, that the gross violation of the Rules of this Court by the claimants cannot be treated as an irregularity as the non-compliance with the requirements for the commencement of an action ab initio goes to the root of this entire case of the claimants, citingMacFoy v. UAC[1961] 3All E.R 1160, which held that you cannot place something on nothing and expect it to stay there (ex nihillo nihilo fit), and Mamman v. Hajo[2016] 8 NWLR (Pt. 1515) 411 at 428 – 429. The 1st defendant concluded that there is no valid witness statement on oath before this Court. It, therefore, presupposes that since there is no valid witness statement on oath and documents to be relied upon at the trial of this suit, which can be adopted by the claimants’ witness, no evidence has been led in this matter to prove the claims of the claimants. At best, the claimants have a writ of complaint and only a statement of fact which do not satisfy the requirement of the law as it relates to commencing an action at the NIC.Consequently, that the instant suit is incompetent and ought to be dismissed for non-compliance with the mandatory requirement of the Rules of this Court, which is a condition precedent to its valid commencement.

 

  1. For issue (2), the 1st defendant submitted that considering the totality of evidence led, the claimants failed to prove all their heads of claims. That a look at the claimants’ claims as shown in paragraph 30(c) of their statement of facts dated 29th November 2012 shows that their heads of claims fall under the category of claims called special damages. That special damages must be easily discernible and quantified;it should not rest on a notion which gives rise to speculation, approximation or estimate. It must be specially pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him so as to prepare his defence, citing Warner & Warner International v. Federal Housing Authority[1993] 6 NWLR (Pt. 298) 148 andSPDC Ltd v. Gonzee (Nig) Ltd v. NERDC[2005] 13 NWLR (Pt. 943) 634.That the law further enjoins that a claim for special damages must, to succeed, be proved strictly by the claimant; the person making a claim in special damages must establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the Court that he is entitled to an award under the head and the Court is not entitled to make its own estimate on such an issue. In other words, same cannot be left to conjecture or guess work. Compelling evidence is required to substantiate, authenticate and sustain a claim for special damages. That the term ‘strict proof’ required in special damages simply put implies that the plaintiff who has the advantage of basing his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible, citingImana v. Robinson[1979] 3 SC 1,Nzeribe v. Dave Engineering Co. Ltd [1994] 8 NWLR (Pt. 361) 124 andOdinaka v. Moghalu[1992] 4 NWLR (Pt. 233) 1. That even where special damages appears to be admitted, such does not relieve the claimant claiming it from the requirement of proof with compelling evidence, citingNNPC v. Klifco Nig. Ltd[2011] 10 NWLR (Pt. 1255) 209 andIncar (Nig) Ltd v. Benson Transport Ltd[1975] 3 SC 117. That salaries, allowances and other emoluments are special damages which must be specifically pleaded and strictly proved if they are to be claimed, citingOyetayo v. Zenith Bank[2012] 29 NLLR (Pt. 84) 439 NIC.

 

  1. To the 1st defendant, the claimants listed one head of claim of special damages without any proof of them. Under paragraph 30(c) of their head of claim, they claimed as follows:

An order of court compelling the 1st Defendant to pay the Claimants all the benefits accruing from the Contract of employment, been (sic) salaries, medical benefits, value of status car and grant (to those entitled to it), relocation expenses from Warri (for those affected) and all other emolument from March 2012 until the 31st December 2013 been (sic) the agreed minimum period of two years of continuous employment covered by the agreement entered into.

That the claimants did not explain the basis for this claim and its computation. The particularity of the claims were not even pleaded nor proved. The specific amount due to each of the 74claimants under this head of claim were not specified. These all important elements of the claimants’ claim which ordinarily would have assisted the Court in arriving at a balanced assessment of the claims before it were left to the speculations and estimation of the Court. Nowhere was it pleaded in their statement of fact with particularity. Even during the course of the claimants’ sole witness written deposition on oath (which has been proved to be incompetent), he never led any evidence on these special claims during his oral evidence in Court. As a matter of fact, that from all the documents tendered before this Court (which were part of the witness statement on oath and documents deposed to at the Delta State High Court, Ughelli), the claimants never tendered any document to show that these so called emoluments were part of their conditions of service or entitlements. The document (Exhibit C11) was prepared by the claimants themselves in their lawyers’ chambers. The exhibit (assuming without conceding that it was even valid before the Court) did not comply with sections 84 of the Evidence Act in that being a document produced by a computer, there was no certificate of compliance prepared in line with section 84(4) of the Evidence Act identifying the document and describing the manner in which it was produced, the device used in producing the document and the basis of the source of the information. Furthermore, no foundation was laid as to the source of Exhibit C11 and the tendering of a photocopy document which was not addressed to anyone including the 1st defendant, referring to Omisore v. Aregbosola[2015] 15 NWLR (Pt. 1482)205 at 295. That by this, the claimants cannot be said to have discharged the burden of proof placed on them by section 131 of the Evidence Act 2011; as such this head of claim must fail and liable to be dismissed, citing Stirling Civil Engineering (Nig) Ltd v. Yahaya[2005] 11 NWLR (Pt. 935) 181; [2005] LPELR-3118(SC),Odofin v. Agu[1992] 3 NWLR (Pt. 229)350 andOkolo v. Dakolo[2006] 14 NWLR (Pt. 1000) 401.

 

  1. The 1st defendant went on that the document which regulates the relationship between an employer and employee is the contract of employment and no more because in a contract of employment parties are bound by the terms of the contract particularly where the terms of the contract are clear and unambiguous, citingUBN Plc v. Soares[2012] 29 NLLR (Pt. 84.) 329 CA. That the general rule is that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, citing section 128(1) of the Evidence Act 2011,Olaoye v. Balogun[1990] 5 NWLR (Pt. 148) 24 andUBN v. Ozigi[1994] 3 NWLR (Pt. 333) 385. That in the instant case, all the averments of CW as to the existence of certain oral assurances given to them during the course of their employment (assuming it was proved that those assurances were made to them) is inadmissible because it constitutes extrinsic evidence intended to be used to contradict the letter of employment (Exhibit D2).

 

  1. In any event, that CW under cross-examination claimed to have heard about the 1st defendant for the 1st time on 22nd or 23rd December 2011 only to claim in another breath that he had a meeting with the Chairman and Chief Operating Officers of the 1st defendant on 19th December 2011. That he claimed to have been promised two years employment but on oath admitted that there was no place in his letter of employment he was guaranteed any two years employment. That he claimed in paragraph 19 of his deposition that the 1st defendant failed to pay salaries in full as and when due but did not lead evidence as to how much was paid, what was outstanding. As a matter of fact, that he did not tender his pay-slip before this Court and did not lay any evidence to substantiate this false assertion which was controverted by the 1st defendant’s witness in her witness statement on oath.

 

  1. Continuing, the 1st defendant submitted that its witness testified at the trial to the effect that it was NOT TRUE that the 1st defendant could have employed the claimants with assurances that were not contained in their terms of employment. That the 1st claimant voluntarily signed the employment letter and returned it within the stipulated time frame without any conditions attached. The 1st defendant also placed reliance on paragraphs 6, 7, 8, 9, 10, 11, 14, 16 and 17 of its witness statement on oath dated 6th June 2018, which were not controverted by the claimants by way of filing a reply to the defence of the 1st defendant or by filing an additional or further witness statement on oath. That it is a general proposition of law that where an adverse party fails to counter a fact asserted by a party such facts would be admitted and used against the party who fails to counter same, citingJoshua Akintaro v. AG & Commissioner for Justice[2015] LPELR-41739(CA),Daniel Aghogho v. Bernard Okumagba[2014] LPELR-22855(CA) and IBWA v. Imano Nigeria Ltd[2001] FWLR (Pt. 44) at 421. That in the instant case, the claimants failed to counter the facts and assertions in the 1st defendant’s statement of defence. That the natural consequence is that the facts alleged by the 1st defendant are deemed admitted and would be relied upon by the Court against the claimants.

 

  1. Furthermore, that oral evidence is inadmissible either to add to or to subtract from the contents of a document, citingBongo v. Gov., Adamawa State[2013] 2 NWLR (Pt. 1339) 403. Therefore, that this Court should discountenance all the assertions of the claimants that other assurances outside their clear terms of employment contract were made to them to the effect that that they are guaranteed two years employment or that there was any shortfall in the computation of their salaries. That Courts are not allowed to make or re-write agreements between the parties or to change their agreement as made. That where a document is clear and the wordings of any agreement are free from ambiguity in themselves, the only duty of the Court is to interpret those clauses written in contractual document in their simple and ordinary grammatical meaning, citingAfrican Reinsurance Corp. v. Fantaye[1986] 1 NWLR (Pt. 14) 113; and then urging the Court to hold that it is only the letter of employment that governs the contractual relationship between the parties during the pendency of the claimants’ employment with the 1st defendant and nothing else.

 

  1. The 1st defendant went on that CW’s reliance on Exhibit D8 (an email purportedly sent to him with an attachment titled Q & A whilst he was still in the employment of the 2nd defendant) is of no moment and does not form part of the contract of his employment with the 1st defendant. As a matter of fact, that the document did not emanate from the 1st defendant. That the said Exhibit D8 did not comply with section 84 of the Evidence Act being a document produced by a computer. There was no certificate of compliance in line with section 84(4) produced by CW as mandatorily required by the Evidence Act and restated in Kubor v. Dickson[2013] All FWLR (Pt. 676) 392 at 439 andDickson v. Sylva &ors[2016] LPELR- 41257(SC).That Exhibit D8 was even denied by the 2nd defendant’s witness in his cross-examination. It is thus the 1st defendant’s submission that the 1st claimant cannot renege from document signed by him neither can he come up with the late, belated argument and an afterthought that there was a promise made guaranteeing him two years employment.

 

  1. on the claim for the production of the Sales and Purchase Agreement Between the 1st and 2nd defendants, the 1st defendant submitted that the claimants are not privy to the Sales and Purchase Agreement and so lack the locus standi to seek this relief which is not grantable in law. That the defendants pleaded the special defence of privity of contract as it relates to this document, citing KSO Allied Products Ltd v. Kofo Trading Co. Ltd[1996] 3 NWLR (Pt. 436) 244 at 263 andBM Ltd v. Woermann-Line &anor[2009] 5-6 SC (Pt. II) 123 at 145; [2009] 13 NWLR (Pt. 1157) 149 at 180. That only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or make him liable upon it. Moreover, that the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract, citingNegbenebor v. Negbencbor[1971] 1 All NLR 210,Ikpeazu v. ACB Ltd[1965] NMLR 374 andMakwe v. Nwukor[2001] 14 NWLR (Pt. 733) 356 at 376. That since CW even admitted under cross-examination that the claimants are not parties to the Sales and Purchase Agreement, the Court should hold that there is no privity of contract between the claimants and the defendants as regards the Sales and Purchase Agreement and as such refuse the prayers under paragraph 30(d) of the statement of facts.

 

  1. Regarding the claims of declaratory reliefs asper paragraph 30(a) – (b) of the statement of facts, the 1st defendant submitted that CW failed to establish how they are entitled to such reliefs to the satisfaction of the Court. That a declaratory relief merely declares the rights of the parties and is dormant; beyond that it has no force of execution, citingWAEC v. Oshionebo[2006] 12 NWLR (Pt. 994) 264 at 274 andAbariowei &ors v. Weiwei &ors[2018] LPELR-44183(CA). That a party seeking declaratory relief must satisfy the Court by cogent and proven evidence that he is entitled to such declaration. It cannot be proved halfway. In other words, declaratory reliefs are not given just for the asking, citingOyebode and anor v. Awe &ors[2011] LPELR-4372(CA). Furthermore, that a declaratory relief cannot be granted without oral evidence, citingConoil Plc v. ITF Governing Council &anor[2013] LPELR-22472(CA). That in the instant case, the claimants have not led any cogent and credible evidence to show that they are entitled to the reliefs sought. That out of the 74 claimants who purportedly sued in their individual capacities, only one deposed to(an incompetent) written witness statement on oath alleging the circumstances that constitute breach of or a violation of the terms of his letter of employment by the 1st defendant;the rest of the 73 claimants did not show up in court or testify in this matter which is a vital requirement of the law in the grant of a declaratory relief. Similarly, that none of the other 73 claimants brought any documentary evidence that is cogent and credible to buttress and substantiate their individual claims for declaratory relief. That even the 1st claimant who testified relied on a defective witness statement on oath and exhibits. That even under cross-examination, he never led any cogent and credible evidence to substantiate his wild allegations so as to persuade this Court to grant the reliefs under paragraph 30(a) – (b); as such the claimants failed to discharge the burden placed on them.These heads of claim must, therefore, fail; urging the Court to so hold.

 

  1. It is further submission of the 1st defendant that a declaratory relief is granted to a party only on the strength of his evidence before the Court, not on the weakness of the defence. That being an equitable relief, it is one in which the Court determines the right of the parties without making any orders or awarding damages or ordering that anything be done, usually to address issues of controversies between the parties, citingDongari &ors v. Saanun[2013] LPELR-22084(CA) andAgu &anor v. Nwogu &ors[2017] LPELR-42136(CA).

 

  1. The 1st defendant continued that in the realm of master and servant relationship, even though ten or more persons are given employment the same day under the same condition of service, the contract of employment is personal and domestic. That in the event of a breach, the persons do not have a collective right to sue or be represented in the suit collectively, citingCCB (Nig) v. Rose[1998] 4 NWLR (Pt. 544) 37 andBossa v. Julius Berger Plc[2005] 15 NWLR (Pt. 948) 409. That in the instant action, the action being damages for alleged breach of contract of employment, the interest of each of the claimants is tied to his or her contract of employment with the defendants. The terms of their contract are different from each other and are personal; the cadre of each of the claimant is different from another; their entitlements based on their salary structure are different; the balance of their claims based on their total emolument is different from one another. Each signed a separate and independent contract with the defendants. That action in a representative capacity did not, therefore, arise in the circumstances of the instant case. That the claimants have not shown in their pleadings and evidence before this Court that they have any common interest as each of the claimants were engaged individually with different assigned roles, different cadre, location, ages, and pay structure by the defendants. That the law is that each of the claimants is expected to prove his head of claim to the satisfaction of this Court individually which the claimants failed in doing. Only the 1st claimant out of the 74 attempted to testify and even at that, he also failed in that his witness statement on oath was deposed to outside the Registry and not before the Commissioner for Oaths of the NIC as required by law. As a matter of fact, that none of the 74claimants led any evidence in support of their case before this Court.

 

  1. To the 1st defendant, assuming without conceding that the 1st claimant was authorized by the other claimants to sue on their behalf, the fact of that authorization was not pleaded neither was it shown in this Court. That the authorisation to sue or to defend in such a representative capacity is to be given by the other persons interested to sue. In other words, the authorisation for a person to sue on behalf of others must be given by the other persons interested in suing. If the authorisation does not come from the other persons interested to sue, the action must not stand, citingArowolo v. Adimula[1991] 8 NWLR (Pt. 212) 753 at 767.That in order to establish the fact of authorization to sue or defend in a representative capacity, there must be evidence of clear and definite authorization given by the persons to be represented in the suit, Okujie v. Akwido[2001] 3 NWLR (Pt. 700) 261. That the 1st claimant did not exhibit any clear and definite authorization given by the other claimants and no evidence was led in that regard. That the claim before this Court is personal and each of the claimants are mandatorily required to individually prove their claims before this Court which was not done.

 

  1. On this point, the 1st defendant concluded that its sole witness in her adopted witness statement on oath specifically mentioned (in paragraph 23) the names of some of the claimants who have even collected their March 2012 salary and voluntarily executed discharge letters in favour of the 1st defendant, referring to Exhibit D1. That none of theseclaimants came to rebut that testimony or claim during the course of the proceedings and no attempt was even made by counsel to the claimants to discredit the evidence of the witness, urging the Court to accept the evidence and testimony of the 1st defendant’s witness as unchallenged.

 

  1. On the claim for damages, the claimants claimed under paragraph 30(f) of their statement of facts for general damages in the sum of N350,000,000 per claimant against the defendants allegedly for frustrating their employment with the succeeding Operator of OML 42, NPDC. The defendants denied this assertion. To the 1st defendants, the claimants failed to substantiate this head of claim with any cogent and credible facts. The claimants failed to show how they applied to NPDC for job placements and the defendants frustrated their job aspiration. The claimants also failed to plead the particulars of the frustrations alleged. As a matter of fact, the claimants did not even plead or show anywhere in their statement of facts that the 1st defendant is a recruiting agency for NPDC. That the 1st defendant is not a shareholder in NPDC nor does it control the affairs of NPDC and never was any request made to the 1st defendant either by NPDC or anyone to employ the claimants and so could not have declined same, more so as the claimants are not the property of the 1st defendant. The 1st defendant further stated that it is not its responsibility to solicit employment for the claimants. It is thus the 1st defendant’s submission that the award of general damages are presumed to have accrued from the wrong complained of or presumed to flow from the immediate, direct and proximate result of the wrong complained of. That aplaintiff can only be obliged with the discretionary powers of the Court if from the evidence adduced by him the relief(s) he claimed is actually proved by cogent and credible evidence. In other words, without proof of the relief, the Court is beret of the discretionary power to presume that general damages accrued and award same, citingGTB v. Abidoun[2017] LPELR-42551(CA).

 

  1. Furthermore, that the law frowns at double compensation and will not allow a litigant who made claims for specific losses suffered by him to add another figure under the head of general damages, citingEziani v. Ejidike[1964] 1 All NLR 402 andOnaga v. Micho & Co[1961] 2 SCNLR 101. That in contract, it is damages simpliciter for loss arising from breach;the loss must be real, not speculative or imagined, citingBarau v. Cubitt (Nig) Ltd[1990] 5 NWLR (Pt. 152) 630.That an employee who complains that he was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. That it is not the duty of the employer who is a defendant to an action brought by the employee to prove any such breach, citingWAEC v. Oshionebo (supra). That in the instant case, the claimants have not established any breach of contract on the part of the 1st defendant for which they are entitled to any compensation; rather, from the 1st defendant’s own evidence and admissions, it was clear that the claimants’ employments were determined in line with their individual terms of employment as far back as March 2012, a fact which has not been refuted by any of the 74claimants.

 

  1. For the claim for exemplary damages, the claimants claimed under paragraph 30(g) of their statement of facts for exemplary damages in the sum of N500,000,000 per claimant against the defendants’ alleged willful misrepresentation and deceit. That the claimants did not plead any fact whatsoever or give any evidence in support of these deliberate or willful false assertions before this Court. They did not state facts or circumstances or particularize the acts of the defendants that constitute the alleged misrepresentations and deceits. That the law is that it is the pleadings of the parties that define their respective cases presented by the parties because litigation is fought on pleading of the parties. That the law is also trite that pleadings, however strong and convincing the averments may be without evidence in proof thereof, go to no issue. Evidence is required to be led to prove the facts relied on by the party or to sustain allegations raised in the pleadings except those facts admitted by the adverse party, citingUBA v. Astra Buildings (WA) Ltd[2010] 41 NSCQR (Pt. 2) 1016 andBuhari v. Obasanjo [2005] 2 NWLR (Pt. 910)241. That it follows, therefore, that pleadings do not constitute evidence and where such pleading is not supported by evidence either oral or documentary, it is deemed to have been abandoned, citingNewbreed Organisation Ltd v. Erhomosele [2006] 5 NWLR (Pt. 974) 499 andEzeanali v. Attah [2004] 2 SCNJ 200.That in the instant case, the claimants are deemed to have abandoned this head of claim and all the other heads of claims on which there was no evidence in support including those under paragraph 30(a) -(g) of their statement of facts.

 

  1. To the 1st defendant, in a claim for exemplary damages, the party to the suit must show or establish by credible evidence that the injury or loss he suffered was due to the malicious act of the party against whom he is claiming the exemplary damages. That the conduct of the defendant must be high handed, insolvent, vindictive or malicious showing contempt of the plaintiff’s right or disregard of every principle which actuated the conduct of a gentleman. citingSonuga &anor v. Minister, FCT, Abuja &anor[2010] LPELR-19789 (CA) andFBN Plc&ors v. AG Federation &ors[2013] LPELR-20152(CA). That in the instant case, the claimants neither by their pleadings nor oral testimony of their sole witness demonstrated or categorized the acts of the defendants that were outrageously reprehensible. They have not established any fact that shows any breach of their rights that will entitle them to any remedy before this Court let alone general and exemplary damages. Accordingly, that before there would be a grant of exemplary damages as a relief, it must be claimed and successfully proved by cogent and compelling evidence, citing Odogu v. AG Federation &ors[1996] 6 NWLR (Pt. 456) 508; [1996] LPELR-2228(SC). That the claimant did not proved by cogent and credible evidence how each of the claimants is entitled to the award of the sum of N500,000,000. That the claimants also did not particularize the constituents that make up the said sum of N500,000,000 and the basis for the claim. That this claim is founded on nothing and must fail in its entirety. In any event, that the claim for exemplary damages by the claimants did not meet the test for such an award as laid down in Allied Bank of Nigeria Ltd v. Akabueze[1997] 6 NWLR (Pt. 509) 374; [1997] LPELR-429(SC) and Chief FRA Williams v. Daily Times of Nigeria[1990] 1 NWLR (Pt. 124) 1 at 30 – 31 i.e. it is awarded in any of three cases: for oppressive, arbitrary or unconstitutional action by the servants of the Government;where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and where exemplary damages are expressly provided by statute. The 1st defendant then submitted that the claimants have not discharged the burden placed on them; their claim is accordingly unsubstantiated, spurious and speculative, and so liable to be dismissed.

 

  1. Regarding the status of a solicitor’s letter, the 1st defendant submitted that the solicitor’s letter cannot be proof of an entitlement or proof of anything other than a demand made for the claims at the claimant’s instructions;it cannot be used as proof of the content therein, citingOyetayo v. Zenith Bank (supra); Severinsen v. EMTS Ltd[2012] 27 NLLR (Pt. 78) 374 NIC. That the weight and the probative value to be attached to the claimants’ solicitor’s letter dated 23rd April 2012 (Exhibit C9) as proof of the claimant’s claim is suspect. That the said Exhibit C9 is not worthy of consideration by this Court for the following reasons: it was part of the documents allegedly stamped at the High Court of Ughelli, Delta State, a place outside the Registry of and the jurisdiction of this Court; it was not even stamped by the Commissioner for Oaths of the National Industrial Court; no foundation was laid as to the reason for the tendering of the photocopy in gross violation of the provisions of the Evidence Act; and it cannot be used as proof of the entitlement of the claimants’ claims before this Court. It, therefore, goes to no issue, urging the Court to discountenance for that purpose.

 

  1. The 1st defendant proceeded to object to certain exhibits tendered i.e. Exhibit C8 (letter of cessation of employment from the 1st defendant); Exhibit C4 (Email dated 23rd February2012); Exhibit C5 (Email dated 6th April 2012); Exhibit C6 (Email dated 12th April 2012); and Exhibit D8 (Email dated 17th May 2011). That all of these documents failed the mandatory provisions of the Rules of this Court and the Evidence Act. That Exhibit C8 was denied by the 1st defendant’s witness during her cross-examination. In her testimony, she testified that the so called Exhibit C8 was not addressed to anyone and was not acknowledged. The signature on that document cannot be confirmed and as such she doubted the authenticity of that document.That the so called Exhibit C8 was part of the documents stamped at the High Court of Ughelli, Delta State outside the Registry, and the jurisdiction of this Court; it was also not stamped by the Commissioner for Oaths of this Court in accordance with the Rules of this Court.

 

  1. To the 1st defendant, Exhibits C4 toC6 and D8 (all emails) did not comply with section 84 of the Evidence Act being documents produced by a computer. That there was no certificate of compliance in line with section 84(4) produced by CW as mandatorily required by the Evidence Act and restated in Kubor v. Dickson (supra) andDickson v. Sylva &ors (supra). That it is the law that where such inadmissible document was admitted at the trial, the Court had the duty to discountenance or expunge it at the stage of writing its judgment, citingShanu v. Afribank Nig. Plc[2002] 17 NWLR (Pt. 795) 185 at 221 – 222.

 

  1. The 1st defendant concluded that because the claimants failed to prove their case, the proper order to make is one of dismissal of the case, citingUnion Bank v. Ozigi[1994] 3 NWLR (Pt. 333) 385 and Mba v. Mba[2013] LPELR-21206(CA). That the Court is not a Father Christmas, citing Unijos v. Ikegwuoha[2013] 9 NWLR (Pt. 1360) 478; [2013] LPELR- 20233(SC). That the claimants’ case is based on speculations, presumptions, assumptions and figment of their imagination with no foundational basis; and conjecture or speculation has no place in the system of laws operating in Nigeria, citingACB Plc v. Emostrade Ltd[2002] 8 NWLR (Pt. 770) 501,urging the Court to refuse all the claims of the claimants.

 

THE 2ND DEFENDANT’S SUBMISSIONS

  1. The 2nd defendant first submitted that the law is that a claimant must succeed on the strength of his or her claim and not rely on the weakness of the defendant’s case, citingAlhaji Lawani Atoyebi v. Governor of Oyo State [1994] 5 NWLR (Pt. 344) 290 at 306. The 2nd defendant then submitted two issues for determination, namely:
  • Whether there is any admissible oral evidence from the claimants’ sole witness, Mr Yinkore Peter, before this Honourable Court to support the claimants’ claims.
  • Whether the claimants have proved their case to sustain any claim whatsoever against the 2nd defendant in this case.

 

  1. On issue (i), the 2nd defendant reiterated the submissions of the 1st defendant as to the processes of the claimants filed at the High Court of Justice, Ughello in Delta State. The 2nd defendant referred the Court to its considered ruling of 25th February 2014 in respect of whether or not, the claimants can use an affidavit filed in the High Court of Justice, Ughelli in this Court. That the Court held at page 9 of the said ruling that the affidavit sworn to at the High Court of Justice, Ughelli was not valid and incompetent to be used in this Court. That the Court’s position was supported by Dr. Onujaba v. Fatimah Idris [2012] 2 NWLR (Pt. 1284) 285 at 306. Also that Order 2 Rule 2(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (the NICN Rule 2017) clearly states all the processes to be filed in the NIC Registry of the State that have jurisdiction. That one of the processes mentioned in that section of the Rules is witness statement on oath, citing Order 2 Rule 2(3)(a)(vii) of the NICN Rules 2017. That the statement on oath referred to in Order 2 Rule 2(3)(a)(vii) of the NICN Rules 2017 is the oral evidence sworn to before the Commissioner for Oath of this Court while affidavit evidence is also the same thing like the statement on oath. That going by this Court’s ruling, the statement on oath sworn to at the High Court of Justice, Ughelli for use in this Court is invalid and incompetent, urging the Court to strike out CW’s statement of oath sworn to at the High Court of Justice, Ughelli for being invalid and incompetent. That what the claimants should have done after this Court’sruling of 25th February 2014 was to appeal that aspect of the ruling declaring the affidavit evidence filed at the Ughelli High Court as invalid and incompetent. On the other hand, the claimants are also at liberty to re-file the statement on oath of the claimants’ sole witness in the NIC, Lagos. That once there is no valid and competent statement on oath before this Court then the claimants’ pleadings cannot be supported by any evidence because averments in pleadings cannot take the place of evidence, citing Jukok Int’l Limited v. Diamond Bank Plc [2016] 6 NWLR (Pt. 1507) 55 at 104, Asika v. Atuanya [2013] 14 NWLR (Pt. 1375) 510 at 530,Oyegun v. Nzeribe [2010] 7 NWLR (Pt. 1194) 577 at 593, 595-596 and 600 and Eastern Breweries Plc Awo Omamma & 2 ors v. Henry Nwokoro [2012] 14 NWLR (Pt. 1321) 488 at 508. That there is, no valid and competent oral evidence before the Court as required by law, urgingthe Court to so hold.

 

  1. Regarding issue (ii) i.e whether the claimants proved their case, the 2nd defendant submitted that the law is that any party who wishes the Court to believe in the existence of a particular fact has a duty to prove that fact, citingAgwaramgbo v. Idumogu [2008] 5 NWLR (Pt. 1081) 564 at 572. Also that parties are bound by their respective pleadings placed before the Court and for the parties to succeed on the strength of their respective pleadings, cogent and credible evidence must be led in support of the said pleadings; otherwise the party who fails to lead cogent and credible evidence in support of his or her pleadings must fail, citingMustapha Arije v. Alhaji W. Arije [2011] 13 NWLR (Pt. 1264) 265 at 291 and Samuel Isheno v. Julius Berger [2008] 6 NWLR (Pt. 1084) 582 at 602. The 2nd defendant then took the claimants’ reliefs one after the other.

 

  1. For reliefs (a), (b), (c) and (d) that the claimants are directly claim against the 1st defendant, not the 2nd defendant. In particular, that relief (d) is not specifically against the 2nd defendant but jointly against the two defendants. That in that relief, the claimants stated that the OML 42 is the foundation of the contract of employment between the claimants and the 1st defendant. That the Court may note that the claimants admitted that OML42 was the foundation of their dispute with the 1st defendant. That if OML42 is the foundation of the contract of employment between the claimants and the 1st defendant then why are the claimants dragging the name of the 2nd defendant to a document the 2nd defendant was not a party to for the purposes of the claimants’ employment with the 1st defendant. Relief (e) is the only specific relief against the 2nd defendant; but in response to that specific relief, the claimants had voluntarily accepted Exhibit D2 dated 28th November 2011 from the 1st defendant. That the question is whether the claimants who had been paid off by the 2nd defendant whilst they voluntarily accepted the offer of employment from the 1st defendant can lawfully come back to the 2nd defendant after they have been paid off and they have voluntarily accepted another employment from the 1st defendant.

 

  1. On relief (vi), the 2nd defendant submitted that the principal reliefs are the payment of the claimants’ full entitlements by the 1st defendant. Therefore, any damages from the action or inaction of the 1st defendant can only be visited on the 1st defendant and not the 2nd defendant. That the Courts have been enjoined to focus on the principal reliefs and not the ancillary reliefs, citingAgbule v. WR & P Co Limited [2013] 6 NWLR (Pt. 1350) 31 at 318 and 350. That the claimants have not proved the damages they suffered by non-payment of their final entitlements by the 1st defendant. The law is that a party must succeed on the strength of his or her case and not on the weakness of the other side case, citingAG Cross Rivers v. A. G. Federation [2012] 16 NWLR (Pt. 1327) 425 at 487. That there is nothing before the Court to show how the 2nd defendant caused any damages suffered by the claimants and the law is that where damages are claimed there must be evidence in proof of such damages, citingUnited Bank for Africa Plc. v. Honourable Iboro Ekanem [2010] 2 NWLR (Pt. 1177) 181 at 196 andBuhari v. Independent National Electoral Commission [2008] 19 NWLR (Pt. 1120) 246 at 354. The 2nd defendant summed up by urging the Court to award substantial cost against the claimants in favour of the 2nd defendant.

 

THE CLAIMANTS’ SUBMISSIONS

  1. The claimants responded differently to the submissions of the defendants.

 

Submissions in Response to the 1st Defendant

  1. In response to the 1st defendant’s submissions, the claimants submitted five issues for determination, namely:
  • Whether the 1st defendant can determine the employment relationship with the claimants without obtaining the approval of the Minister of Petroleum.
  • Whether the letter of cessation violates the contract of employment between the claimants and the 1st defendant by withholding claimant’s salaries until they accept the 1st defendant’s demand.
  • Whether the 1st defendant was in breach of the contract of employment.
  • Whether the 1st defendant has determined the contract of employment of the claimants.
  • Whether the salaries paid by the 1st defendant, for the months of January and February were in accordance with the contract of employment.

 

  1. To the claimants, their main contention is that their employment with the 1st defendant is covered by Ministerial directive PI:5061/B/V.2/181 of 6th February 1997 or Regulation 15A of The Petroleum Drilling and Production Amendment Regulations 1988, which was made pursuant to statutory power conferred on the Minister of Petroleum which stipulates that: “All companies operating in the petroleum industry should apply for official approval of the Honourable Minister before releasing any Nigerian staff from their employment”. That the 1st defendant has not applied for, nor received the official approval of the Minister, and until it does that, the claimants remain employees of the 1st defendant and are, therefore, entitled to receive their salaries and other benefits of the employment till their contract is validly terminated, as was decided in the judgment of this Court in Suit No. NIC/9/2004 Petroleum and Natural Gas Senior Staff Association of Nigeria v. Schlumberger Anadrill Nigeria Limited, delivered on 18th September 2007, where a full panel of this Court interpreted, implemented and gave effect to the said directive. In the circumstance, that the 1st defendant has acted unlawfully, citingIdufueko v. Pfizer Products Limited &anor [2014] 5-7 MJSC 100 at 123. That in this case, the 1st defendant failed to adhere to the regulation made under statutory empowerment, that the approval of the Minster of Petroleum resources be obtained before Nigerian workers in the oil industry are released from employment.

 

  1. The claimants went on that the letter of cessation of employment (Exhibit C8) as shown by the evidence was introduced to the claimants on the 10th April 2012, and its purpose was to initiate a process to bring to an end the contract of employment between the claimants and the 1st defendant, with retrospective effect.It stated as follows: “You would therefore be receiving the payment of your March salary on your acknowledgement of receipt and acceptance of this payment as full and final settlement of all your entitlements and discharge of all outstanding obligations from the company to you, without any further claim or recourse to us”.To the claimants, this was an offer which was susceptible to acceptance or rejection; upon receipt and acceptance, it will be binding, but upon rejection it has no effect. That based on the rejection of the request to discharge the 1st defendant from the contract of employment, as pleaded in paragraph 23 of the statement of facts, and admitted in paragraph 27 of their statement of defence, the claimants remain employees of the 1st defendant and as such are entitled to their salaries and other entitlements from the 1st defendant, for the minimum period of two years or until the contract is validly determined.

 

  1. That the 1st defendant, on the refusal of the claimants to discharge them from the employment contract, without determining the contract of employment the 1st defendant proceeded to lockout the claimants from work and has withhold their salaries and other entitlements till date. That this is in breach of the said contract, for which the Court should provide a remedy. In response to paragraphs 23 and 26 of 1st defendant’s statement of defence, paragraphs 2.4 and 5.56 of the 1st defendant’s address, the claimants submitted that the 1st defendant has not determined the contract of employment of the claimants, by putting them on notice, just as it gave them a written offer of employment (Exhibit D2), which they also accepted in writing. That in order to determine their employment, there must be written notice. That the onus is on 1st defendant to tender evidence in support of this assertion, which it has failed to do, something that is fatal to their defence.

 

  1. The claimants continued that the 1st defendant in paragraphs 1.2, 5.1, 5.3 and 5.4 of their written address and the first issue it set for determination had contended that the evidence/claim of the claimants is incompetent as the witness statement on oath and documents to be relied upon at the trial (sic) this suit was filed, deposed to and stamped at the Registry of the Delta State High Court, Ughelli instead of the Registry of this Court. That while it is true that the witness statement on oath was deposed to at Ughelli and the documents to be relied upon at the trial were attached as exhibits to the witness statement on oath, as well as the list of the documents to be relied upon at the trial, the said witness statement on oath, with the documents to be relied on and list of witness, were eventually filed with the complaint and statement of facts at the registry of this Court. That the 1st defendant predicated their argument on the provisions of Order 3 Rule 9 of the 2017 Rules of the National Industrial Court (NIC), whereas this action was filed under the 2007 Rules then applicable in NIC and the practice direction, 2012. That Order 3 Rule 9 of the 2017 Rules does not apply. That attention should be drawn to Order 3 Rule 9 of the 2007 Rules which will reveal that it does not provide for what should accompany a complaint; rather it talks of matters transferred from other High Courts. That the objection raised by the 1st defendant on the competence of the claimants’ suit are an afterthought and are too late in the day, as Order 5 Rules 1 and 2 of the 2007 Rules states as follows: “failure to comply with any of these Rules may be translated as irregularity and the Court may give any direction as it thinks fit”. That in the instant case, upon being served with the processes, the 1st defendant entered a conditional appearance and did not file any application to set aside the written statement on oath of the 1st claimant, Peter Yinkore; rather the 1st defendant filed their statement of defence. That by Order 5 Rule 2 of the 2007 Rules, once a party is aware of any irregularity in the commencement of an action he is enjoined to file an application by summons or motion to challenge the irregularity and such challenge has to be made within a reasonable time and before he takes any fresh step in the matter. That in the instant case he has taken steps and has thus waived his right to complain, citingEzeemo v. Oyakhire[1985] 1 NWLR (Pt. 2) 195 andKanssen Nig Ltd v. Savannah Bank[1995] 9 NWLR (Pt. 420) 439.

 

  1. To the claimants, they complied with the requirements of Order 3 Rule 4(iv) of the 2007 Rules of Court (which was the applicable rules when the action was filed). All that the Rules require is that a witness statement on oath be filed along with the originating processes, it did not specify where it will be deposed to, so long as it is deposed to before an official that is competent to administer oath and filed in the Court, it is competent. Order 3 Rule 7 of the Court Rules, stipulates “that where a claimant fails to comply with rule 2, 3, 4 or 5 of this order as the case maybe, his or her originating process will not be accepted for filling by the registry.” That if the processes are accepted then the action is competent.

 

  1. Without conceding that the rules were not complied with, the claimants submitted that this objection has been overtaken by the 1st defendant taking further steps in the matter. That upon entering conditional appearance, the 1st defendant ought to have immediately raised the issue of the incompetence of the complaint/witness statement on oath, citingKisari Investment Limited &ors v. La-Terminal Co. Limited[2001] 16 NWLR (Pt. 739) 381: “A party cannot take advantage of an irregularity he has adopted and acquiesced”. That a cardinal rule of litigation is not to spring surprises on the other party or lay ambush for the adversary or approbate and reprobate. It cannot lie in their mouth more or less at the address stage to object to a witness statement on oath to which they have responded, by filing their own testimony on oath, allowed it to be adopted during the trial without objection and witness cross-examined there on.

 

  1. Furthermore, without conceding that there was any defect, that in the witness statement on oath deposed to at the Ughelli High Court registry and filed in the registry of this Court on the 29th November 2012 along with the complaint and statement of facts, such defect, if there was any, was cured by the oath deposed to by CW before this Honourable Court on 5th June 2018 when he adopted same as his evidence in this matter. That the submissions of the 1st defendant in so far as it relates to a written statement on oath that was subsequently adopted in evidence on oath at the trial is misconceived as you cannot equate a written statement on oath with an affidavit as the 1st defendant’s counsel has done in their arguments, urging the Court to discountenance his submission as it is not a correct statement of the law as the only way facts in a written statement on oath can be jettisoned is by cross-examination. That it is wrong to equate a witness statement on oath with an affidavit, citingOkpa v. Irek &anor [2012] LPELR-8033 and Etene v. Nyong &ors [2011] LPELR-9261 and Udeagha v. Omegara [2010] 11 NWLR (Pt. 1204) 168 at 195.

 

  1. That in the instant case, the written testimony of the 1st claimant was adopted in open court on the 5th June 2018. The counsel to the 1st defendant cross-examined the witness on his written statement. He did not raise the issues he is now raising. That on the authorities, the witness statement of CW after cross-examination became evidence before the Court; any procedural inadequacy in the witness statement on the above cited authorities was cured by its adoption in open court and cross-examination. That the Court can, therefore, make use of the witness statement as evidence properly before the Court and proceed to evaluate same as to its probative value;it is in that process of evaluation that the Court can now decide whether the evidence was discredited or damaged under cross-examination and in that event the Court may jettison the witness statement. That the 1st defendant did not discredit or damage the testimony of CW during cross-examination, and so the Court is urged to treat the witness statement as evidence properly before the Court, given in support of the pleadings and refuse to jettison the statement on oath as is being urged by the defendant. Accordingly, that the Court should discountenance the submissions of the 1st defendant since a written statement on oath on the authorities is not an affidavit and hold that the claimants led admissible oral evidence from the claimants’ sole witness, Mr Peter Yinkore, before this Court to support the claimants’ claims and resolve this issue in favour of the claimants. That the witness statement on oath is not a condition precedent to filling of a complaint, they should accompany each other; where they don’t, the processes will be rejected by the registry.Furthermore, that the rules of Court are a guide to doing justice, citingThe Shell Petroleum Development Company of Nigeria limited &ors v. Agbara &ors [2016] 35 WRN 85 at 132 andAssociated Discount House Ltd v. Amalgamated Trustees Ltd[2006] All FWLR (Pt. 1008) 320. That the objection on the competence of the written statement on oath by the 1st defendant in their final written address is improper as it was not made by summons or motion as prescribed by Order 5 Rule 2(2) of the 2007 Rules which is the same as the 2017 Rules. That the law is settled that were a law or rule of Court prescribes a particular method in doing of an act no other method can be used, citingRaymond Dangtoe v. Civil Service Commission of Plateau State[2001] 19 WRN 125 at 147, urging the Court to discountenance the 1st defendant’s argument predicated on non-compliance with the mode of commencement of this action.

 

  1. The claimants went on that the submission of the 1st defendant in paragraph 5.10 that non-compliance in the requirement in the commencement of an action abinitio goes to the root of the entire case of the claimant does not depict the correct position of the law as provided in Order 5 Rule 1 of the 2007 Rules viz, “failure to comply with any of these Rules may be treated as an irregularity and the Court may give any direction as it thinks fit”.That such failure is a mere procedural issue and not a substantial error, as to affect the validity or competence of the suit as has been canvassed by the 1st defendant. That there is a difference between jurisdiction over subject matter and procedure jurisdiction; procedural jurisdiction can be waived or acquiesced by the affected party. That where the wrong procedure is adopted in commencing a suit and no objection to the procedure was timeously raised by the opposing party, the proceeding based on such wrong procedure is valid.

 

  1. In response to the second issue raised by the 1st defendant, the claimants submitted that the undisputed evidence (Exhibit D2) clearly establishes that there was a contract of employment between the claimants and the 1st defendant, based on the offer, which the claimants accepted. That the 1st paragraph of Exhibit C8 states thus: “we refer to your employment with Neconde Energy Limited (the “company”) following its acquisition of 45 interest in OML 42 and the subsequent arrangement with Shell Petroleum Development Company (SPDC) to take on its staff for a period of 2 years”. That for better appreciation of the import of this provision, clause 14 of Exhibit C1 titled“Q&A for Asset Divestment 2011” states: “what employment and career development guarantee do I have with the new company? Ans; while we do not know the details of the contract terms offered by the new company, as part of the sales agreement there is a guarantee of minimum two years continuous employment. If your employment is terminated for any reason, other than case of gross misconduct/negligence within the two years period your new employer will pay you exgratia for loss of office, a rate equivalent to what Shell would have paid you at the time you would have disengaged from Shell”.That DW2 under cross-examination admitted that Exhibit D8 was from the 2nd defendant to the 1st claimant but his attempt to raise doubt as to the attachment to the email flies against the clear wordings of the e-mail itself.

 

  1. The claimants then urged the Court to find and hold that from the pleadings and the evidence Exhibit C1 was forwarded to the claimants by the 2nd defendant.Also that the Court should find and hold that Exhibit C1 contains the terms and conditions of transfer under which the 2nd defendant transferred the services of the claimants from the 2nd defendant to the 1st defendant. That a calm reading of the clauses in Exhibit C1 particularly clauses 13 and 14 together with Exhibit C8 reveals that there was an .agreement which was also contained in the Sales Agreement between the 1st and 2nd defendants guaranteeing them a minimum of 2years continuous employment by the 1st defendant. That from the pleadings and evidence particularly Exhibit C8 it is clear that 1st defendant is in breach of the agreement to engage the claimants for a continuous period of 2years.

 

  1. The claimants also argued that the contract of employment was for a minimum period of two years. That though this term is not stated in the letter of offer of employment, it can be deduced by reading together Exhibit C1 (the Q & A) and Exhibit C8 (the cessation letter). That all the terms of a contract may not be contained in the contract document, but the additional terms can be determined by the context, relying on AG, Rivers State v. Akwa-Ibom State[2011] SCM 1, Adams O. Idufueko v. Pfizer Products Limited &anor [2014] 5-7 MJSC 100 at 120 and section 128(1)(b) of the Evidence Act. To the claimants, that the subsection permits the admissibility of oral evidence to prove the existence of documentary evidence is one of the exceptions to the general principle of law expressed in section 128(1) of the Act. It, therefore, makes admissible oral evidence relating to: (b) the existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if from the circumstance of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. Similarly, that section 128(1)(d) makes admissible oral evidence pertaining to the existence of any distinct, subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property. The claimants agreed with the defendants that the foregoing provision regarding admissibility of oral evidence, in the circumstance, should not be seen or understood to allow all kinds of oral evidence to supplant or supplement the express terms of a written contract not contemplated by the parties. The claimants then urged the Court to hold and find that there was an agreement between the claimants and the 1st defendant to employ the claimants for a minimum period of two years. That the first line of Exhibit D2 states: “Further to earlier discussions with you regarding employment opportunities with our company”. That this sentence clearly shows that some issues had been agreed on before the offer was made. That a close look at Exhibit D2 reveals that it did not contain the usual terms you will find in a letter of offer of employment, such terms will have to be located elsewhere, in this case, those terms were contained in another document, the Sales Agreement, from which Exhibit C1 (the Q & A) was produced.

 

  1. That a notice to produce dated and filed on 6th September 2013 was served on the 1st defendant to produce the Sales Purchase Agreement between the 1st and 2nd defendant, the existence of this document was admitted by both defendants in their pleadings and testimony before the court, which they failed to produce, I urge the court to invoke Section 167 (d) of the Evidence Act which provides that “evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it”.

 

  1. That in Mobil Producing Unlimited v. Asuah [2002] FWLR 1196 at 1222, Edozie JCA, relying on Catlamco v. Da Rocha[1932] 11 NLR 57, and Garabedion v. Jamakin[1961] 1 All NLR 177 stated the position of the law that “where a contract of employment is for a specified period, and the employee was wrongfully dismissed or removed from office, the measure of damages is the full amount of salary, allowances and other entitlement which the employee would have earned if the contract of service had run up full course. This is the maximum that is recoverable except that the amount may be reduced slightly for being payable as a lump sum”.

 

  1. In the alternative the claimants submitted that there was a contract to employ the claimants for an unspecified period, which in the usual manner can be terminated by giving notice or payment of salary in lieu of notice. That the 1st defendant has not given notice to terminate nor paid salary in lieu of notice. Rather it withheld the salaries of the claimants and locked them out of the work place, which amounts to a breach of the contract of employment.

 

  1. That the 1st defendant contended that no evidence was led in proof of the claim for special damages in paragraph 30c. That the 1st defendant has failed to properly construe paragraph 30c. That at the commencement of the constituting elements of this suit relief (c) was frontloaded and filed along with the originating processes as a schedule and was testified to in paragraphs 28 of the written statement on oath of CW and admitted without objection as Exhibit C11, which contains the claimants entitlements, salaries and other emoluments for the 2years each of the claimants could have earned less what was paid to them in January and February 2012. The claimants then urged the Court to award to them the sum of N3,656,258,143.00 (Three Million (sic), Six Hundred and Fifty-Six Million, Two Hundred and Fifty-Eight Thousand, One Hundred and Forty-Three Naira) only.

 

  1. In response to paragraphs 5.34, 5.35, 5.69 and 5.70 of the 1st defendant’s address, the claimants submitted that these exhibits are not electronically generated documents that require certification as alleged. That the mails were written and sent by known persons, the main feature of an electronically generated document is that its maker is unknown, as it is produced by an automated process based on information fed into the computer, which is not the case with the exhibits here; their makers are known and were identified by DW2 under cross-examination. The claimants also relied on section 12 of the NIC Act 2006, which allows this Court to depart from the Evidence Act in order to do justice. That the denial of DW2 was to the veracity of Exhibit C1 and not D8; the authenticity of Exhibit C1 is confirmed by Exhibit C6. That the nexus between these three exhibits make them intrinsic to the contract of employment (Exhibit D2). The claimants referred to section 84(1) of the Evidence Act 2011 and Brila Energy Ltd v. FGN[2018] LPERR-43926(CA) where the Court of Appeal held that “where such certificate (Certificate of trustworthiness of the computer used in printing the documents) is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert”.

 

  1. In response to paragraph 5.46 of the written address, the claimants submitted that issues are not proved by calling a multitude of witnesses. That the testimony of CW was enough to establish the claim of the claimants in this circumstance as the issues involved in all the claims were the same. Neither was it necessary to have authorization to testify for the other claimants; it does not lie in the 1st defendant to raise any objection on behalf of any of the claimants.

 

  1. Furthermore, that the objections raised by the 1st defendant in paragraphs 5.48 and5.75 of its address fails to take cognizance of section 14 of the NIC Act 2006 which provides that “The court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided”. That section 14 of the NIC Act coupled with section 15 have overtaken the former position represented by CCB (Nig) v. Rose[1998] 4 NWLR (Pt. 544) 37 and Bossa v. Julius Berger Plc[2005] 15 NWLR (Pt. 948) at 409. That claimants can now file their claims together to avoid a multiplicity of legal proceedings;the paramount consideration in this Court is doing justice in all matters.

 

  1. In response to paragraph 5.57 of the address, that there is no averment and evidence in support of misrepresentation, the claimants submitted that learned counsel has failed to understand paragraphs 10, 11 and 12 of the statement of facts and paragraphs 10, 11, 18 and 19 of the witness statement on oath of the claimants or is in deliberate denial of them.

 

  1. On the issue of exemplary damages, that learned counsel has relied on FBN Plc&ors v. AG, Federation and ors[2013] LPELR-20152(CA) and Odogu v. AG, Federation &ors[1996] 6 NWLR (Pt. 456) at 508. To the claimants, the evidence and Exhibit C8 show that the 1st defendant did not pay the salaries of the claimants at the end of March.In April, it withheld and used their salary as a tool of cohesion to foist its desire to be discharged from the contract on the claimants;following which they were finally locked out of their work place till date, despite entreaties for discussion as shown by Exhibit C9. That such conduct to say the least is cruel, fraudulent and reprehensible.Therefore, this is an appropriate case in which exemplary damages should be awarded against the 1st defendant. The claimants concluded by urging the Court to uphold their claims as prayed.

 

Submissions in Response to the 2nd Defendant

  1. In response to the submissions of the 2nd defendant, the claimants submitted a sole issue for determination: “whether the 2nd defendant has kept to the terms, condition of employment, agreements reached with the claimants and company polices on the disengagement of the claimants from its service”. To the claimants, their claim against the 2nd defendant is that under the applicable terms, conditions of employment, company policy and agreements reached for their disengagement,they are entitled to a payment for loss of office, determined by calculating 14% to 35% of annual salary multiplied by the number of years unserved to a maximum of 25 years, whichthe 2nd defendant failed to pay but only proceeded to pay an ex gratia sum arbitrarily determined by it.

 

  1. The contention of the claimants against the 2nd defendant is that it has not paid them their severance entitlements in accordance with the terms, conditions of employment, company policy and agreements reached for their disengagement. That the agreement was that, they will be paid their pension and or pension lump sum, abundance payment, three months’ pay in-lieu, leave buy out, performance bonus and loss of office payment together known as selected voluntary severance package, (SVS). That as admitted, the claimants were paid an exgratia sum by the 2nd defendant which was an arbitrary payment not in accordance with company policy or the agreements on disengagement exercise. That one of the payments to be made under the agreements reached was for loss of office, which is determined by calculating 14% to 35% of annual salary multiplied by the number of years unserved to a maximum of 25 years as contained in paragraph 29 of the witness statement on oath, which table was admitted as Exhibit C12.

 

  1. That the 2nd defendant in their written address and the first issue it set for determination had submitted that the evidence/claim of the claimants is unsupported by oral evidence as the witness statement on oath and documents to be relied upon at the trial were filed, deposed to and stamped at the Registry of the Delta State High Court, Ughelli instead of the Registry of this. While it is true that the witness statement on oath was deposed to at Ughelli and the documents to be relied upon at the trial were attached as exhibits to the witness statement on oath, as well as the list of the documents to be relied upon at the trial. However, the said witness statement on oath, with the documents to be relied on and list of witness were eventually filed with the complaint and statement of facts at the registry of this Court. That the 2nd defendant predicated their argument on the ruling of this Court delivered on 25th February 2014, where the affidavit sworn to at the Ughelli High Court was held not to be valid and competent to be used in this Court. To the claimants, the said ruling cannot apply to this proceedings, as that ruling was to a specific application. The claimants proceeded to reiterate the arguments they advanced on the same issue as raised by the 1st defendant.

 

  1. In response to the second issue raised by the 2nd defendant, the claimants submitted that on the admission of the 2nd defendant in paragraphs 9, 10, 11, 16, and 26 [of what?] that it discussed with the claimants and reached some agreements, which it implemented, the issue becomes what were those agreements; and were they implemented? The said paragraphs are reproduced herein:

In line with the statutory labour requirement, and pursuant to the 2nd Defendant’s Human resources policy which forms part and parcel of its staff contract of Employment; the Collective Agreement between the 2nd Defendant and Nigeria Union Of Petroleum And Natural Gas Workers [SPDC/SNEPCO BRANCH] dated 18th February 2011 (“NUPENG Collective Agreement”); and the Collective Agreement between the 2nd Defendant with Petroleum And Natural Gas Senior Staff Association of Nigeria (SPDC/SNEPCO BRANCH, also dated 18th February, 2011 (“PENGASSAN Collective Agreement”), the 2nd defendant entered into discussion with the referenced union on the attendant labour issues of disengagement of SPDC’s employees (including the claimants) being also members of the unions. The 2nd Defendant shall rely on the said Collective Agreement both dated 18th February, 2011 at the trial of the suit.

 

Following those discussions between the 2nd defendant and unions in respect of the impact on the staff strength of the divestment of the 2nd defendant interest in OML 42, some agreement was reached which the 2nd defendant implemented.

 

Consequent upon the discussion with the unions and the agreement reached, a Memoranda of Understanding was entered into with the unions in respect of their members, which was applied to all affected employees of the 2nd defendant.

 

Based on the said agreement between the claimants and the 2nd defendants, (sic) the 2nd defendant computed and paid to the claimants their individual end of service and severance benefits. This was inclusive of deemed redundancy benefit and three month’s salary in lieu of notice. The 2nd defendant shall at the trial rely on the following:

  1. Claimants’ individual Severance Agreements dated 12th December, 2011 with attached statement setting out in details, the applicable end of service and redundancy benefit offered to the claimant.
  2. Spread sheet outlining the end of service and severance benefits paid by means of transfer by the 2nd Defendant into claimants’ individual First Bank of Nigeria Account Numbers 26. The 2nd Defendant denies firmly the averment contained in paragraph 14 and 15 of the statement of facts and put the Claimants to the strictest proof thereof. Specifically, and further, the 2nd Defendant avers that notwithstanding payment of all full and final benefits to the Claimants in accordance with their respective contracts of employment and applicable laws, the 2nd Defendant at its absolute discretion, paid an additional exgratia sum which represents loss of office element to the Claimant individually. This is neither an obligation on the 2nd defendant nor an entitlement of the Claimant under their terms of employment.

To the claimants these averments show clearly that the claimants are entitled to a loss of office payment from the 2nd defendant which it is trying to deny the claimants by making an exgratia payment which has known basis of computation.

 

  1. The claimants then urged the Court to put the assertion of both parties in their respective pleadings and the evidence led on the scale of justice. That there is no doubt that it will tilt in favour of the claimants that the loss of office head of their severance package was omitted at the time of computation and payment of their severance entitlements. That Exhibit C1 (the Q & A) particularly paragraph 14 and Exhibit C6(e-mail of Charles Gbandi Human Resources Manager) reveal clearly that there is a loss of office head of payment at a determinable rate, contrary to the denial of the 2nd defendant. That the payment of the exgratia after Exhibit D5 puts the exemption clause therein which the 2nd defendant seeks to rely on in abeyance. That the Court must ask the question why the payment if the claimants are not entitled to it, as the 2nd defendant is not the legendary Father Christmas that doles out gift to children; even the legendary Father Christmas doles out gifts only in December and not in March when these payments were made. In conclusion, the claimants urged the Court to uphold their claim as prayed.

 

THE 1ST DEFENDANT’S REPLY ON POINTS OF LAW

  1. In responding on points of law, the 1st defendant first noted that it is trite that where a party fails to address or respond to issues raised, he has tacitly conceded to those points. That a close look at the claimants’ final written address will show that they failed to address or respond to the various issues of law canvassed by the 1st defendant in its final written address.

 

  1. In response to the arguments of the claimants that their employment enjoys statutory flavor, the 1st defendant submitted that the argument of the claimants is misconceived in that it is a trite principle of law that a simple contract of employment relationship between an employer and employee is strictly regulated by the terms and conditions of the contract of employment signed by both parties. That the employment relationship between the claimants and the 1stdefendant does not enjoy any form of statutory flavor let alone being regulated by the alleged ministerial directive: PL:50611B/V.21l81 of 6th February 1997 cited by the claimants in their written address. That it is on record before this Court that the fact of this alleged ministerial directive with regard to the termination of their employment contract with the 1st defendant was not pleaded by the claimants nor any evidence led on it at the course of trial. That it has been settled in a plethora of cases that where aclaimant’s case is based on the absence of a prior 3rd party approval with regard to a contract of employment such must have been pleaded by him unless there would be no reasonable cause of action disclosed, citing Shell Petroleum Development Company v. Nwawka[2003] 6 NWLR (Pt. 815) 184. By virtue of this case law, the 1st defendant urged the Court to discountenance the said argument of the claimants with regard to the issue of ministerial consent.

 

  1. Furthermore, that the claimants’ counsel is trying to use counsel’s address to cure the inadequacy of their case. That the Courts have been enjoined to discountenance such practice as no matter the length and logic, submissions and address of counsel, however sound and brilliant, cannot take the place of evidence or substitute for hard and credible evidence upon which the Court is obliged to rely upon in reaching a decision. That the address of Counsel is supposed to deal only with the evidence before the Court and not to supplant inadequacy of evidence given at the trial, citingOkwejiminor v. Gbakeji &anor[2008] LPELR-2537(SC).

 

  1. The 1st defendant went on that the argument of the claimants’counsel in paragraphs 7.3 to 7.5 of his written address is misconceived and all the authorities cited are unhelpful and inapplicable to their case. That it is a well established principle of common law and of Nigerian law that ordinarily a master is entitled to dismiss his servant from his employment for good or bad reason or for no reason, citingOforishe v. Nigerian Gas Company Ltd[2017] LPELR-42766(SC). That ordinarily and consistent with the common law principle, the Court will not impose an employee on an employer, citingWebb v. England (1860) 29. Bear 44 andLamley Wagner (1852), Ibe G & M & G 604. Hence an order for specific performance of a contract of employment is an aberration which will rarely be made, citingFrancis v. Municipal Council of Kuala Lumpur[1962] 3 All ER 633. Therefore, it is inherent to say that in a contract of employment, the principle of hire and fire is predominant as an employee cannot be forced on an unwilling employer. Consequently, the alleged Ministerial Directive PI:5061/B/V.2/181 of 6th February 1997 is inapplicable to the instant case as the relationship between the claimants and the 1st defendant is a simple contract of employment devoid of any statutory flavor whatsoever and regulated strictly by the terms and conditions of the individual offer of employment issued to each of the claimants. Indeed, that the equitable remedy of specific performance, save in special circumstances (such as where the employment has statutory flavour), is alien to contracts of service.

 

  1. The 1st defendant continued that the claimants’ argument to the effect that the 1st defendant’s letter of cessation of employment (Exhibit C8) is susceptible to acceptance or rejection, and that based on the rejection of the claimants for a discharge from the contract of employment with the 1st defendant, the contract of employment still subsists, is not tenable in law. That by the conduct of the 1st defendant in issuing the claimants a letter of cessation of employment in the first place there is a strong implication that the 1st defendant has become unwilling to retain the services of the claimants and it remains a settled principle of law that an employee cannot be forced on an employer that is unwilling to retain the employee’s services either expressly or by implication, citingUnion Bank v. Salaudeen [2017] LPELR-43415(CA).

 

  1. In response to the arguments contained under paragraphs 7.6 to 7.19 of the claimants’ written address, the 1st defendant submitted that those arguments and all the cases cited are unhelpful to the claimants’ case, inapplicable and untenable. This is because the claimants’ sole witness written statement on oath filed at the High Court of Delta State, Ughelli lacks competence as the High Court of Delta State is not vested with the jurisdiction to entertain suits relating to labour matters. The 1st defendant the reiterated its argument on the issue stressing that the issue of the competency and legality of the claimants’ witness statement filed outside the registry of the NIC has been laid to rest by this Court in a well-considered ruling delivered on 25th February 2014 and as such, no further argument can be canvassed by the claimants in that respect again. That the claimants’ written address is not to be used as a backdoor to re-litigate the issue again, urging the Court to discountenance all the arguments canvassed by the claimants.

 

  1. Furthermore, that contrary to the argument of the claimants that the filing of the 1st claimant’s written statement on oath at the High Court of Delta State, Ughelli instead of the NIC is a mere irregularity which could be rectified, the procedure employed by the claimants is a blatant abuse of the process of this Court. That it is a spite on the majesty of this Court for the 1st claimant to file his statement on oath and depose to the witness statement on oath in the registry of a Court which lacks the jurisdiction to entertain the claimants’claims, to willfully attempt to induce the Court to use same as evidence in the determination of this suit and expect the Court to grant judgment in the claimants’ favour. That the claimants being in gross abuse of the process of this Court have not come to equity with clean hands and, therefore, are not in a proper position to pursue the remedies sought in this Court. That the filing of the witness statement on oath and the documents to be relied upon at the trial and the deposition by the claimants’ sole witness in the registry of Delta State High Court, Ughelli goes beyond just an irregularity but to the root of the matter as it has to do with the proper commencement of the action and as such the claimants’ claim stands on nothing. That non-compliance with the requirements for the commencement of an action ab initio goes to the root of this entire case of the claimants, citingMacFoy v. UAC[1961] 3AlI E.R 1160 to the effect that you cannot place something on nothing and expect it to stay. Consequently, that the argument by the claimants premised around Order 5 Rule 1 & 2 of the National Industrial Court (Civil Procedure) Rules 2007 and Order 3, Rule 9 of the 2007 National Industrial Court (Civil Procedure Rules) is of no momentum and should be discountenanced by this Court.

 

  1. In response to the arguments of the claimants in paragraphs 7.20 to 7.27 of their written addresswhere they tried to read and import extraneous matters into their contract of employment, the 1st defendant submitted that the arguments that they are guaranteed two years unemployment is not only false and misleading but also a pigment of their imagination. That the law is well settled that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, citing section 128(1) of the Evidence Act 2011 andOlaoye v. Balogun[1990] 5 NWLR (Pt. 148) 24. Furthermore, that the contract of service is the bedrock upon which an aggrieved employee must found his case if there is any dispute or claim with regard to termination or dismissal from employment;the employee succeeds or fails upon the terms thereof. That where there is a written or documented contract of service and in all contract of employments, the Court must be wary of looking outside their terms in deciding the rights and obligations of the parties because parties are bound to the terms of their contract, citingUnion Bank of Nigeria v. Sax (Nig) Limited &ors[1994] 9 SCNJ 1 at 12,Western Nigeria Development Corporation v. Abimbola[1966] 4 NSCC 172,Layade v. Panalpina World Transport Ltd[1996] 6 NWLR (Pt. 456) 544,Angel Shipping & Dying Ltd v. Ajah[2000] 13 NWLR (Pt. 685) 532,Emenite Ltd v. Oleka[2005] 6 NWLR (Pt. 921) 350 andGateway Bank v. Abosede[2005] 5 NLLR (Pt., 10) 289. That it, therefore, means that this Court is not allowed to read extraneous matters and facts into the Exhibits C1 and D4 respectively, citing Amodu v. Amode &anor[1990] LPELR-466(SC). That the only document the Court is bound to look at as it relates to the relationship between the claimants and the 1st defendant is their letter of employment and no more;all the extraneous documents being peddled by the claimants in a bid to hold on to something are of no effect.

 

  1. That it must be noted that the claimants tactically avoided the issue of the doctrine of privity of contract argued by the 1st defendant in its written address as it relates to the Sales and Purchase Agreement, urging the Court to hold that the argument has been conceded to by the claimants and to discountenance the arguments in respect of section 167(d) of the Evidence Act canvassed by the claimants. That the said provision of the Evidence Act is inapplicable to the fact of this case in that the claimants have already conceded to the fact that they are not a party to the Sales and Purchase Agreement and are precluded by the doctrine of privity of contract from inquiring into agreements they are not a party to.Furthermore, that the claimants have failed to provide any evidence to establish their claim of an alleged two year guarantee of employment. That it is the duty of the claimants to provide evidence in respect of same as he who asserts must prove as the Court should not be invited to embark on a voyage of discovery and counsel’s written address cannot be used to cure the inadequacy of their pleadings;the law has always been he who asserts must prove.ThatMobil Producing Unlimited v. Asuah[2002] FWLR 1196 at 1222, is inapplicable to the instant case in view of the fact that the claimants during trial failed to establish or prove that there was a 2 (two) year guarantee of employment availed to the claimants by the defendants There was no documentary evidence nor confirmation from any of the defendants’ witnesses in proof of same. That it is a settled principle of law that he who asserts must prove and the claimants have failed to prove their assertion in respect of same, citingAbubakar v. Joseph[2008] 13 NWLR (Pt. 1104) – the page is not supplied.

 

  1. On the argument of the claimants in paragraph 7.28 as regard proof of special damages, the 1st defendant submitted that counsel’saddress cannot be used to cure the inadequacy of pleadings as being done by the claimants.That the alleged Exhibit C11 whose content was reproduced in the claimants’ written address was prepared by the claimants themselves in their lawyers’ Chambers. That the exhibit (assuming without conceding that it is even valid before the Court) did not comply with sections 84 of the Evidence Act in that being a document produced by a computer, there was no certificate of compliance prepared in line with section 84(4) of the Evidence Act identifying the document and describing the manner it was produced, the device used in producing it and the basis of the source of the information. Furthermore, no foundation was laid as to the source of Exhibit C11 and the tendering of a photocopy document which was not addressed to anyone including the 1st defendant. That as a matter of fact,the maker of the document is unknown amongst the 74claimants who sued in their individual capacity. That the 1st claimant who testified could not explain the source of the document and if he was the maker of the document for the 73 other individual claimants, referring to Omisorc v. Aregbesola[2015] LPELR-40530(CA). The 1st defendant then urged the Court hold that the claim for special damages was not proved by any credible evidence by any of the claimants in this matter.

 

  1. In response to the argument of the claimants in paragraph 7.29 to the effect that section 84 of the Evidence Act only applies to electronically generated documents whose maker is unknown or documents which are internet-generated, the 1st defendant submitted that it is a misplaced argument,citing Omisore v. Aregbesola[2015] LPELR-24803(SC) and Kubor v. Dickson[2013] 4 NWLR (Pt. 1345) 534 at 577-578. That the implication these decisions is that Exhibits C4, C5, C6, C8, C1l, C1 and D8 amongst others tendered by the claimants without compliance with section 84(1) of the Evidence Act negate the admissibility of such documents let alone attaching any weight or probative value to them by this Court. Furthermore, thatBrila Energy Lid v. FGN cited by the claimants is unhelpful and inapplicable to the claimants’ case asthe 1st claimant who testified never led any evidence or foundation as to his familiarity with the operations, reliability and functionality of the computer that was used to produce the electronic documents.

 

  1. In response to the arguments canvassed in paragraphs 7.29 to 7.31 of the claimants’ written address when they attempted with futility to defend why a sole witness should testify and prove the claims of the other 73 claimants who sued in their individual capacity, it is the 1st defendant’s submission that sections 14 and 15 of the NIC Act being relied upon by the claimants are inapplicable to the claimants’ case. That sections 14 and 15 of the NIC Act apply to representative suit or suits commenced by a union body on behalf of its members. It does not apply to persons who sued in their individual capacity as done by the claimants. That it is an agreed fact that the claimants were employed individually and issued separate contract of employment. That the claimants are not all on the same cadre or bracket;in the light of same, the 1st claimant’s testimony cannot establish the claims of other claimants in this suit. That in view of the foregoing the issue of the claimants filing their claims together does not amount to the other 73 claimants relying on the claims of the 1st claimants in a bid to prove their respective cases as the terms regulating the various employment contracts which is the subject of this suit is different. Therefore, the fact that the claims of the other 73 claimants in this suit are not before this Court in order to establish their respective cases is totally fatal to the claimants’ case as there is no evidence with which the Court can effectively determine this suit in favour or against the claimants. That it is a trite principle of law that a party cannot place something on nothing. The 1st defendant concluded by urging the Court to dismiss the claims of the claimants.

 

THE 2ND DEFENDANT’S REPLY ON POINTS OF LAW

  1. In reacting on points of law, the 2nd defendant first noted that the claimants in paragraphs 7.1 and 7.2 of their written address introduced their skeletal argument or contention by stating that their claim against the 2nd defendant is that the 2nd defendant has not paid them their severance entitlements in accordance with the terms, conditions of employment company policy and agreements reached for their disengagement, hence the claim per relief (e) against the 2nd defendant. To the 2nd defendant, the claimants argued in a vague manner at paragraphs 7.14 to 7.18 of their written address that they are entitled to the claim for loss of office against the 2nd defendant. That it is, however, strange and surprising that the claimants failed to tie or premise their alleged claim for loss of office against the 2nd defendant on any law, or specific document agreed upon between the claimants and the 2nd defendant before the Court. That Exhibit C12 is nothing but the claimants’ unilateral imagination or drawn up table of what they feel they are entitled to as loss of office. That Exhibit C12, which the claimants strenuously relied upon as the basis for their relief (e) for loss of office does not enjoy or possess any evidential value, as it does not have any factual or legal nexus to the contractual obligations or the conditions of service that were agreed on or governing the relationship between the parties. Therefore, the said exhibit does not add any value whatsoever to their case against the 2nd defendant, citing Mr Dandson O. Obi v. Access Bank Plc, unreported Suit No. NICN/LA/406/2013 the judgment of which was delivered on 17th July 2018, which held that in labour relations an employee can only claim if an entitlement was shownby reference to the law that gives it or the relevant document(s) from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship between the parties. Also referred to is Mr Mohammed Dungus &ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. That even where an employee was able to show the document or the relevant law which birthed his entitlement, such an employee must also show how he came by the quantum of the sums being claimed, citingMr Dandson O. Obi v. Access Bank Plc (supra). The 2nd defendant then urged the Court to hold that the claimants’ claim for loss of office against the 2nd defendant remains unproved.

 

  1. On the claimants’ witness statement on oath sworn to at the High Court of Justice, Ugheli in Delta State, the 2nd defendant submitted that Courts generally are creations of statutes and as such each Court has its own peculiarities vis-a-vis the establishing statute and the rules of court guiding its procedure. That it will, therefore, be a mockery of such laws establishing a Court and the rules of Court that guide its procedure if litigants (like the claimants herein) are allowed or indulged to file a process meant to be used in the National Industrial Court (NIC) at the High Court of Justice, Ugheli, Delta State. That the claimants do not need a soothsayer to know that the NIC is statutorily different from the High Court; as such, processes meant for this Court cannot under any circumstances be justifiably filed in the High Court of Delta State. Besides, that the interpretation part of the Rules of this Court, Order 1 Rule 10(2) defines the word “Court” as follows: “Court” means the National Industrial Court of Nigeria and includes the President and Judges of the Court sitting together as a panel or one Judge sitting as a single Judge”. That this quoted rule of this Court does not include High Court of Delta State or any State for that matter or even the Federal High Court. That what is more, Order 1 Rule 10(2) (supra), goes further to state that “Court Process” or “Process” includes originating process, complaints or originating summons, notice of appeal, or other notices, pleadings, orders, motions, summons, warrants and all other documents or written communication filed in the Registry of the Court for which service is required in any proceeding before the Court. It is, therefore, the 2nd defendant’s submission that the claimants’ witness statement on oath which was apparently not filed at the Registry of this Court (“Court” having been defined as the National Industrial Court) cannot even be referred to as a Court process before this Court. The 2nd defendant then urged the Court not to countenance the claimants’ witness statement on oath as same was not filed before the Registry of this Court. That Order 1 Rule 10(2) (supra) has also defined “Registry” thus: “Registry” means the Registry of the National Industrial Court of Nigeria in any Judicial Division of the Court or any State Registries of the Court”. That it is apparent that the Registry of the High Court of Justice, Ugheli, Delta State is not part of the registries of this Court.

 

  1. The claimants had also argued against the ruling of this Court delivered on 25th February 2018, which ruling held that affidavit meant to be used in this Court cannot be so filed or sworn to before another court. To the 2nd defendant, the principle stated in the referenced ruling is very clear and discernible, even for the untrained eyes.Furthermore, that one would have expected the claimants, having enjoyed the benefit of the Court’s position on a similar application, to do the proper thing with reference to the claimants’ witness statement on oath. But that the claimants have not only decided to dare this Court by refusing to do the right thing, but also refused to be guided or bound by a well-considered ruling of this Court not appealed against or shown to be either per incuriam or conflicting with decisions of appellate courts. That the claimants cannot complain that the defendants’issue which relates to the claimants’witness statement on oath came to them as a surprise when this Court has made its position known in a similar application vide the Court’s ruling of 25th February 2018.

 

  1. That the claimants cited all sorts of irrelevant authorities which have nothing to do with the instant scenario. That the Court would observe that none of the cases cited by the claimants relates, even remotely, to the instant situation, where the issue is that witness statement on oath or processes meant to be used in one Court were filed in a different Court. Therefore, that Okpa v. Irek &anor,Etene v. Nyong &anorand Udeagha v. Omegara cited by the claimants are distinguishable from the instant in that the issue treated by the Court in the cited cases border on the difference between a witness statement on oath and an affidavit. That it is well settled that a decision is an authority for what it decides and nothing more; and so the instant case must be considered on its own particular or peculiar facts or circumstances, referring to Skye Bank Plc v. Akinpelu[2010] LPELR-3073(SC); [2010] 9 NWLR (Pt. 1198) 179,Tanko v. State [2009] 4 NWLR (Pt. 1131) 430;[2009] LPELR-3136(SC) andUdo v. State[2016] LPELR-40721(SC). The 2nd defendant then urged the Court not to follow the claimants in their proverbial wilderness journey of confusion or red herring. And in specific response to the claimants’ submission at paragraph 7.13, the 2nd defendant submitted that the issue raised on the claimants’ witness statement on oath filed in a Court other than this Court is properly raised before this Court as the Courts (aside from the Supreme Court) are enjoined to consider and determine every issue raised before the Court, referring to Adeogun v. Fasogbon [2011] 8 NWLR (Pt. 1250) 427 at 448. The 2nd defendant concluded by urging the Court to uphold its submissions and resolve the two issues raised against the claimants.

 

COURT’S DECISION

  1. I took a careful look at the processes filed and the submissions of the parties. The defendants had raised issues as to competence of the suit. The instant suit was filed in this Court on 29th November 2012 vide a complaint and a statement of facts. It has as accompanying documents, the list of witnesses, the witness statement on oath, list of documents to be relied upon at the trial and copies of the said documents. The complaint, statement of facts are both dated, list of witnesses and list of documents are all dated 29th November 2012. The witness statement on oath was, however, deposed to on 27th November 2012, and at the High Court of Justice Ughelli in Delta State. The accompanying documents are each endorsed with the stamp of the High Of Justice, Ughelli but with no date written on the stamp. The defendants objected to this on two grounds: one, having to depose to the witness statement on oath in a Court other than the National Industrial Court (NIC); and two, even at that, the witness statement on oath was deposed to (on 27th November 2012) before the suit was filed (on 29th November 2012). To the defendants then, when ultimately the claimants filed this suit, there was no competent suit as the witness statement on oath need to feed the suit in order to give it validity and so is not competent.

 

  1. The response of the claimants is that they complied with the requirements of Order 3 Rule 4(iv) of the 2007 Rules of Court (which were the applicable rules when the action was filed). That all that the 2007 Rules require is that a witness statement on oath be filed along with the originating processes, it did not specify where it will be deposed to. That so long as it is deposed to before an official that is competent to administer oath and filed in the Court, it is competent. In any event, that Order 3 Rule 7 of the Court Rules stipulates that where a claimant fails to comply with Rules 2, 3, 4 or 5 of this Order as the case maybe, his or her originating process will not be accepted for filling by the registry.That if the processes are accepted then the action is competent.

 

  1. During the pendency of this suit, the claimants had filed a motion supported by a 14-paragraphed affidavit deposed to at the High Court of Justice Ughelli, by Peter Yinkore, the 1st claimant. The defendants objected to the affidavit in support just as they are objecting to the sworn deposition supporting this suit. In a considered ruling delivered on 25th February 2012, this Court held as follows:

I shall first address the issue of the competence of the affidavit in support of the present motion on notice. I looked at the said affidavit. In actual fact, it was sworn to and filed at the High Court of Justice, Ughelli; not in this Court. Section 109 of the Evidence Act provides that “any affidavit sworn before any judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the court in all cases where affidavits are admissible”. In support of their position, the claimants subsequently sent to the Court three authorities to the Court as illustrations of the power of a Court to use an affidavit sworn to in another Court. The authorities are: Abia State Transport Corporation & ors v. Quorum Consortium Limited [2003] FWLR 1975 at 1996, Buhari v. INEC [2008] 4 NWLR (Pt. 1078) 546 and Oparaugo v. Oparaugo [2008] 5 NWLR (Pt. 1081) 574 at 599. These cases, citing sections 80 – 82 of the 1990 Evidence Act, held that affidavits sworn to before any Judge, officer in the Commonwealth authorized to take affidavits, can be used in courts in all cases where affidavits are admissible. The issue here is that section 109 of the 2011 Evidence is slightly different from section 80 of the 1990 Evidence Act. Section 80 of the [1990] Evidence Act provides that –

Any affidavit sworn before any Judge, officer or other person in the Commonwealth to take affidavits, may be used in the court in all cases where affidavits are admissible.

There is no provision as to “the Commonwealth” in section 109 of the 2011 Evidence Act. In like manner, the issue of “person duly authorised to take affidavits in Nigeria” found in section 109 of the 2011 Evidence cannot be found in the 1990 Act. The point about the 2011 Act is that in making provision as to “person duly authorised to take affidavits in Nigeria”, a Court has to be certain that the affidavit sworn to elsewhere was sworn to before one authorize to take affidavits.

 

My understanding of section 109 of the 2011 Evidence Act, therefore, is that an affidavit sworn before any judge, officer or other person can be used in the court that the judge, officer or other person before whom it was sworn to works. The use of the phrase “in the court” in section 109 of the Evidence Act 2011 yields to this conclusion. On this authority, I find and hold that the affidavit in support of the claimants’ motion having not been sworn to and filed in this Court is defective and so invalid for purposes of the claimant’s instant motion. This means that the said motion is unsupported by an affidavit; and being so unsupported, the motion is defective is going against Order 11 Rule 1(1) of the National Industrial Court Rules 2007. This implies that there is no valid application before the Court. For this reason alone, the claimants’ motion ought to be struck; but the 2nd defendant raised further issues – and Courts are enjoined to pronounce on all issues raised before it. In that respect, I shall proceed to address the other issues raised by the 2nd defendant.

 

  1. A second case, however, arose where the competence of the affidavit in issue arose. The affidavit in question was sworn to before a notary public in South Africa, and authenticated by the High Court in South Africa. The case is Mr Pine Piennar v. Bankers Warehouse Plc unreported Suit No. NICN/LA/378/2016, the ruling of which was delivered on 18th May 2017. The claimants, like in the instant suit, also relied onAbia State Transport Corporation v. Quorum Construction Limited [2003] FWLR (Pt. 151) 1975, where the question that arose was whether an affidavit sworn to in one State of Nigeria can, by section 109 of the Act, be used in another State. The Court of Appeal, Jos held thus:

The issue therefore is whether a court process duly assessed, filed and stamped at the High Court Registry, Umuahia, Abia State, and transmitted to the High Court Registry of Plateau State, where it was stamped received, was properly filed at the High Court of Plateau State. It is not in dispute that an affidavit can be sworn to before an appropriate  Officer or person in one country or State and be taken to another country or State for use, under section 80 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990. What is in issue in this case is the question of filing. Should the affidavit after being sworn to, be filed in a court other than the court where it is to be used? I suppose not. The correct procedure would have been after the affidavit in support of the notice of intention to defend has been sworn to, it should be attached to the notice of intention to defend, and the two be forwarded to the court where it would be used, for filing…and I think, it can only be properly filed in the court where it is to be used.

 

  1. This Court in Pine then held thus:

…Both parties are agreed that the claimant’s written statement on oath and affidavit in support of the motion for summary judgment are appropriately before this Court. In particular, I am persuaded by the argument of the defendant that by the combined effect of section 110 of the Evidence Act 2011 and sections 10 and 11 of the Oaths Act, a deposition/affidavit sworn to outside Nigeria can be used as such in Nigeria. I am satisfied that the claimant’s written statement on oath and affidavit in support of the motion for summary judgment meet the requirements of the Evidence Act and the Oaths Act, and as such are validly before this Court…

 

  1. The issue has again been raised in terms of the substantive suit in this matter. In both Pine and the ruling in this suit of 25th February 2012 this Court was referred to Abia State Transport Corporation v. Quorum Construction Limited (supra). So the resolution of the issue of the competence of the written statement on oath in the instant suit would depend on determining what Abia State Transport Corporation decided. The Court of Appeal in Abia talked about “a court process duly assessed, filed and stamped at the High Court Registry, Umuahia, Abia State, and transmitted to the High Court Registry of Plateau State, where it was stamped received, was properly filed at the High Court of Plateau State”; and then held that “the correct procedure would have been after the affidavit in support of the notice of intention to defend has been sworn to, it should be attached to the notice of intention to defend, and the two be forwarded to the court where it would be used, for filing…and I think, it can only be properly filed in the court where it is to be used”. Was the written statement on oath in the instant case sworn to at Ughelli stamped received and properly filed in the NIC? This remains the question. I looked at the written statement on oath sworn to at Ughelli very closely. No where on it was it stamped received by the NIC. Other than being in the case file, there is nothing on it showing that it was received by this Court, It bears no recent stamp of this Court whatsoever. On this score, it fails the test laid down in Abia State Transport Corporation. I so find and hold. This being so, there is no competent deposition in support of the claimants’ suit. The suit is accordingly incompetent and is liable to be struck out. It is herein struck out.

 

  1. This case went to trial; and Courts are enjoined to state their opinion regarding the merit of the case should it be that on appeal the Court is wrong in striking out the suit. This is to enable an appellate court have the benefit of the trial Court’s decision on merit just so that precious judicial time is not wasted in a re-trial should the verdict of striking out be upturned on appeal. See Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387, where Niki Tobi, JSC (of blessed memory) had this to say:

…Any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellant court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter.

See also Mr Dawodu Azeez v. 3 Peat Investment Limited unreported Suit No. NICN/LA/628/2014, the judgment of which was delivered on 16th July 2018. So to the merit of the case I now turn.

 

  1. The 1st defendant had argued that because the claimants did not file a reply to its defence or file an additional/further witness statement on oath, the claimants must be deemed to have admitted the facts alleged by the 1st defendant. This submission of the 1st defendant is not in tune with the principle of joinder of issues, which states that it is not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence. See Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt.1086) 372 at 406 – 407, where it was held thus:

The proper function of a reply is to raise in answer to the defence any matter that must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issue of fact not arising out of the defence. In other words, a reply is used by a plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence because of the principle of joinder of issues. Where no counterclaim is filed, a reply is generally unnecessary if it is also to deny allegations in the statement of defence.

After the completion of pleadings, issue is or issues are said to be joined and the cause is ready for hearing. Such a joinder of an issue operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. In fact, if no reply is filed, all material facts alleged in the statement of defence are put in issue. A reply to merely join issues, is therefore not permissible. Akeredolu v. Akinremi (No. 3) (1989) 3 NWLR (Pt. 108) 164; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; Umenyi v. Ezeobi (1990) 3 NWLR (Pt. 140) 621; Obot v. C.B.N. (1993) 8 NWLR (Pt. 310) 140.

I accordingly hold that issues have been joined in the instant suit and it is not necessary for the claimants to have filed a reply to the defence of the 1st defendant.

 

  1. The 1st defendant then raised objection as the admissibility of Exhibits C8, C4, C5, C6 and D8. As for Exhibit C8, the supposed letter of cessation of employment, the 1st defendant’s witness doubted its authenticity when testifying under cross-examination in terms of the fact that it was not addressed to anyone, it was not acknowledged and the signature on it is simply a name electronically printed. In paragraph 23 of the statement of facts, the claimants pleaded that the attempt by the 1st defendant to distribute a letter titled “Cessation of Employment” was refused by the claimants. The claimants even placed the 1st defendant on notice to produce the said letter at the trial. If the claimants refused to accept the said letter or sign for it, where did the claimants get the one they exhibited as Exhibit C8? A look at Exhibit C8 will show that it bears no date. As a letter of cessation of employment, it ought to bear a date. The law is that an undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). As it is, Exhibit C8 has no evidential value. I, therefore, agree with the 1st defendant that Exhibit C8 is suspect and so should be given no probative or evidential value as far as this case is concerned. I so find and hold. Since Exhibit C8 has no evidential value, it cannot be that the claimants can thereby prove their claim as per relief (b) i.e. “a declaration that the purported letter headed ‘CESSATION OF EMPLOYMENT’ which the 1st defendant asked the claimants to sign before being paid their March 2012 salary is in violation of their contract of employment”. Relief (b) hereby fails and so is dismissed.

 

  1. To the 1st defendant, Exhibits C4, C5,C6 and D8 (all emails) did not comply with section 84 of the Evidence Act being documents produced by a computer. That there was no certificate of compliance in line with section 84(4) produced by CW as mandatorily required by the Evidence Act. This Court generally accepts the admissibility of emails when tendered as such especially given the authority of section 12 of the NIC Act 2006, leaving the weight to be attached to such an email to be determined on a case by case basis. See Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017 and Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018. Exhibits C4, C5,C6 and D8 are accordingly admitted and will be used as such though the weight to be accorded each will be determined in terms of the merit of the case.

 

  1. The law by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 is that a claim is circumscribed by the reliefs claimed; andthe duty of a plaintiff, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. And in several decisions of this Court, it has been held that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. SeeIneh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017,Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017 and Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017.To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. SeeOtunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits”, being monetary sums, is a claim for special damages. SeeKelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. To succeed in a claim for special damages, it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC),Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). The claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 – 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).

 

  1. The claimants brought before this Court 7 reliefs (two declarations and five orders). This Court must find for the claimants in reliefs (a) to (e) before any talk of general and exemplary damages (reliefs f and g) can arise. Reliefs (a), (b) and (c) are claimed only against the 1st defendant. Relief (e) is against only the 2nd defendant. Reliefs (d), (f) and (g) are against both defendants. At the start of their final written address, the claimants submitted that their case is hinged on what they termed Ministerial directive PI:5061/B/V.2/181 of 6th February 1997 or Regulation 15A of The Petroleum Drilling and Production Amendment Regulations 1988, which was made pursuant to statutory power conferred on the Minister of Petroleum, and which stipulates that: “All companies operating in the petroleum industry should apply for official approval of the Honourable Minister before releasing any Nigerian staff from their employment”. As rightly submitted by the defendants, there is no pleading whatsoever by the claimants on any of the facts raised here. The claimants had attempted unsuccessfully to amend their pleadings and bring in these facts. The Court ruled against them. I am at a loss what the claimants think they are doing introducing these same facts through the back door in an address of counsel. The address of counsel cannot take the place of pleadings and evidence. See Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC), Adam v. Shaibu & ors [2016] LPELR-40179(CA) and Okwejiminor v. Gbakeji & anor [2008] LPELR-2537(SC). PENGASSAN v. Schlumberger Anadrill Nig Ltd unreported Suit No. NIC/9/2004, the judgment of which was delivered on 18th September 2007, cited and relied upon by the claimants, was decided on its pleadings. The claimants cannot in an address catch the defendants unaware. Arguments of the claimants regarding what they term ministerial directive are accordingly discountenanced for purposes of this judgment. I so hold.

 

  1. In proving their case, the claimants relied on Exhibit C1, a document headed “Q & A for Asset Divestment – 2011”. Though Exhibit C1 is not dated or signed it is also attached to Exhibit D8, consisting of an email from “Uwakwe, Roselyn C SPDC-HRUI/FNG” to “Yinkore, Peter O SPDC-UIG/S/LEWY”. It was sent on 17 May 2011 at 12:18 hours. It has an attachment endorsed thus: “«Document.pdf«»Q&A.doc»”. Anyone familiar with the email system and the internet will acknowledge that this is the format indicating that a document titled “Q & A…” has been attached to the email in issue. See Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate), supra, where this Court held similarly and allowed the attached document as validly admitted even when it was not signed or dated since the email itself supplied all of these. Since the email in Exhibit D8 came from “Uwakwe, Roselyn C SPDC-HRUI/FNG” to “Yinkore, Peter O SPDC-UIG/S/LEWY”, I also hold that it came from an officer of the 2nd defendant. I, therefore, hold Exhibit C1 as attached to Exhibit D8 to be validly admitted and will be used as such in this judgment. This position is reinforced by Exhibit C6, which has an email from “Charles Gbandi, HR Manager, Nigeria, Upstream International – Sub-Saharan Africa, Shell Petroleum Development Company Ltd”. Exhibit C6 in paragraph 1 actually talks of “As advised in the set of questions and answers we shared with yourselves…”

 

  1. Part of the claimants’ case is that they were employed by the 1st defendant on a 2-year term with a guarantee to that effect. They relied on clause 14 of Exhibit C1 as being the guarantee they were given that they had an employment with the 1st defendant for at least two years, and for which they are entitled to ex gratia payment for loss of employment should they be terminated for other than gross misconduct/negligence. The claimants’ stance, however, suffers from two fronts since Exhibit C1 is a document from the 2nd defendant to the claimants: one, the opening words of clause 14 itself i.e. “While we do not know the details of the contract terms on offer by the new company…”; and two, the 2nd defendant cannot give what it does not have. It cannot bind the 1st defendant in a contract that it does not know the terms of and is not a party to. The reference in clause 14 to part of the sale agreement granting the guarantee also suffers from this same fact i.e. the claimants are not parties to the sales agreement. At least, the Court was not shown that they are. When the letters of employment (Exhibit D2) were given to the claimants without any guarantees stipulated in them, the claimants did not reject them or even protest against that fact. CW under cross-examination testified that the claimants accepted the letters of employment and “did not raise any objection as to the letters of employment given to us by the 1st defendant”. Accordingly, the argument of the claimants that the 1st defendant gave them a guarantee that they will be in employment for at least 2 years is not sustainable. Exhibit C1, coming from the 2nd defendant to the claimants, cannot bind the 1st defendant or be read to have imposed on the 1st defendant a guarantee, or squeezed out a guarantee from the 1st defendant. So if the 1st defendant did not give any guarantee to the claimants, there cannot be any talk of a breach of it as argued by the claimants. I so find and hold. I must state that Exhibit C1 is not a contract; as such the argument of the claimants as to section 128 of the Evidence Act 2011 allowing for oral evidence in some circumstances to explain written provisions of a contract holds no ground. That in itself cannot make Exhibit C1 binding on the 1st defendant since it did not emanate from the 1st defendant. I so find and hold.

 

  1. The claimants had argued that Exhibit C3/D2 in stating that “Further to earlier discussions with you regarding employment opportunities with our company” means that the sentence clearly shows that some issues had been agreed on before the offer was made. The claimants went on that a close look at Exhibit D2 will reveal that it did not contain the usual terms one finds in a letter of offer of employment, and so such terms will have to be located elsewhere, which in this case will be found in another document, the Sales Agreement, from which Exhibit C1 (the Q & A) was produced. This argument suffers from two fronts: the 1st defendant is not the author of Exhibit C1 and so Exhibit C1 cannot represent the “earlier discussions” the 1st defendant had with the claimants in terms of Exhibit C3/D2 since Exhibit C3/D2 is the document emanating from the 1st defendant. Secondly, the so called Sales Agreement the claimants keep referring to has been shown by the oral evidence before the Court to be an agreement between the 1st and the 2nd defendant. The claimants are not parties to it. Consequently, the sales agreement too cannot represent the “earlier discussions” the 1st defendant had with the claimants in terms of Exhibit C3/D2.

 

  1. The claimants had further argued that a notice to produce dated and filed on 6th September 2013 was served on the 1st defendant to produce the Sales Purchase Agreement between the 1st and 2nd defendant. That the existence of this document was admitted by both defendants in their pleadings and testimony before the Court, which they failed to produce. The claimants then urged the Court to invoke section 167(d) of the Evidence Act. There is something curious here. As their relief (d), the claimants prayed for “an order on the 1st and 2nd defendants to produce the Sales Purchase Agreement (SPA) over OML 42 between them, which is the foundation of the contract of employment between the claimants and the 1st defendant which contains the benefits accruing to the claimants”. This is a main relief of the claimants, which they must prove in order to be granted same. How then do the claimants think that a notice to produce is sufficient for them to be held to have proved this head of claim? How also do the claimants think that the defendants would adhere to a notice to produce when thereby they would be helping the claimants to prove their case?

 

  1. The law is that the notice to produce a document plus failure to produce the document merely enables secondary evidence of the document to be given, not that the burden of producing the document or proving its contents has been relieved of the litigant who filed the notice to produce. See UBN v. Alhaji Muhammad Idrisu [1999] 9 NWLR (Pt. 609) 105 at 118 – 119, Gbadamosi v. Kabo Travels [2000] 8 NWLR (Pt. 668) 243 at 273 and Simon Kajo v. BCC Plc [2013] LPELR-20788(CA). I am not unmindful of Lawal v. Magaji & ors [2009] LPELR-4427(CA) where Sankey, JCA held that a party who is in possession of a document but fails to produce it after notice to produce has been issued and served on him may be giving room for the invocation of the presumption; however, that the trend of judicial opinion is that there is a need to exercise caution in making presumptions unless such a presumption is irresistible and overwhelming. For section 167(d) of the Evidence Act 2011 to apply, the evidence sought to be presumed must be identifiable, clear and known to the Court; as the courts are cautioned to be careful in applying section 167(d). See Egwu v. Egwu [2007] 1 NWLR (Pt. 1014) 71 at 92 CA, Olufosoye v. Fakorede [1993] 1 NWLR (Pt. 272) 752, Lawal v. Magaji & ors [2009] LPELR-4427(CA), The People of Lagos State v. Umaru [2014] LPELR-22466(SC), Eboh v. Progressive Insurance Co. Ltd [1987] 2 QLRN 167, George v. The State [2009] 1 NWLR (Pt. 1122), Akintola v. Anyiam [1961] All NLR 508; Akinfe v. The State [1988] 7 SCNJ 236, Aremu v. Adetoro [2007] 16 NWLR (Pt. 29) 471, Awosike v. Sotunbo [1989] 3 NWLR (Part 29) 471 andAdederan v. Alao [2001] 18 NWLR [245] 408. The claimants cannot be seeking as a main relief the production of the Sales Purchase Agreement and yet be citing section 167(d) of the Evidence Act 2011. Effectively, the claimants are seeking for a main relief through the backdoor without the slightest attempt at proving their claim for it. As it is, it cannot be said that the claimants have proved relief (d) given that their evidence is the notice to produce. This being so, relief (d) fails and so is hereby dismissed.

 

  1. To the claimants, their claim against the 2nd defendant (relief e) is that under the applicable terms, conditions of employment, company policy and agreements reached for their disengagement, they are entitled to a payment for loss of office, determined by calculating 14% to 35% of annual salary multiplied by the number of years unserved to a maximum of 25 years, which the 2nd defendant failed to pay but only proceeded to pay an ex gratia sum arbitrarily determined by it. In proof of this head of claim, the claimants referred to Exhibit C12. Exhibit C12 is a document that is said to embody “Claims for Shell Petroleum Development Company of Nigeria Limited”. It has the names of the claimants, their ages, certain sums of money under the heading of loss of office, another head of sums of money under the heading relocation allowance due to failed OML 42 divestment deal and then the total of the sums of the two heads of claims. Exhibit C12 is a creation, not of the 2nd defendant, but of the claimants. Other than paragraph 14 of the statement of facts, repeated as ipse dixit, which stipulates that in accordance with the terms and conditions of service and collective agreements applicable with the 2nd defendant, the claimants are entitled to receive between 14% to 35% of their annual basic salary, multiplied by the number of years of service left unserved till retirement age of 60 up to a maximum of 25 years, called the Selected Voluntary Severance package (SVS), there is nothing else in proof of this.

 

  1. To start with, relief (e) is a claim for special damages. Like I pointed out earlier, the law is that it must be claimed specifically, proved strictly and with compelling evidence, and the claimants have a duty to give specific particulars of the special damages they are claiming. The formula for making this claim is that we have to determine the following: what the basic salary of each claimant is; what each claimant has as years of service left unserved; the exact percentage between 14% to 35% that each claimant is entitled to. Did the claimants’ pleadings show any of these particulars? The answer is NO. So how did the claimants arrive at the various sums they indicated in Exhibit C12 as their entitlement? Only God knows. The claimants cannot generate a document and call it an exhibit that proves their case. This means that relief (e) has not been proved. It fails and so is dismissed.

 

  1. There is a second reason why relief (e) must be dismissed. Exhibit C2 is dated 12 December 2011. In it, the 1st claimant endorsed on 13th December 2011 that he accepts the offer of severance from the 2nd defendant’s employment in accordance with the terms and conditions outlined and the attachment in full and final settlement of all his terminal entitlements from the 2nd defendant. Exhibit D5 is same with Exhibit C2, only that it consists of the equivalent of Exhibit C2 of all the claimants and has attached what each claimant is entitled to. In Hotel and Personal Services Senior Staff Association& anor v. Tourist Company of Nigeria Plc unreported Suit No. NICN/ABJ/50/2014, the judgment of which was delivered on 16th July 2018 this Court held thus:

…Once an employee collects terminal benefits and signs that he/she receives same as “full and final entitlement” or in “full and final settlement of entitlements”, this Court has always held same to be valid; and we have had instances where the employee not satisfied with what he was paid indicated in handwriting that he is receiving the sum paid in protest thus reserving the right to contest the sum paid…

See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC and Pekun Oyeleke v. Mobil Producing Nigeria Unlimited unreported Suit No. NICN/LA/44/2016, the ruling of which was delivered on 16th November 2016. The claimants in the instant case, having endorsed Exhibit C2/D5 “in full and final settlement of all my terminal entitlements from the Company”, cannot now turn around and make further claims. I, therefore, find and hold that by Exhibit C2/D5, the claimants are not entitled to relief (e). It fails and so is dismissed.

 

  1. Exhibit C11 is similar to Exhibit C12, only that this time it is the monetary claims of the claimants against the 1st defendant. It consists of the names of the claimants, their respective ages, it has respective sums of money for each claimant under the following heads: annual consolidated salary; total consolidated salary (2 years); payments for January and February 2012; overall balance after January and February payment; staff/family medical; and status car/car grant as well as total special damages. Exhibit C11 is meant to be the proof of the claim for relief (c). Once again, Exhibit C11 is a self-generated document by the claimants. It cannot be the proof of the claimants’ entitlement. Relief (c) itself is hinged on the assumption of the claimants that they had a guaranteed employment that must run for two years. I already held this to a fallacy. Exhibit C3 dated 28th November 2011 is the offer of employment by the 1st defendant to the 1st claimant. Exhibit D2 on the other hand is similar to Exhibit C3, only that this time it consists of the offer of employment of all 74 claimants. Exhibit C3/D2 has the consolidated salary of each of the claimants, but it has no breakdown as to the exact sums attributable to medical benefits, value of status car and grant, relocation expenses, etc. So how the claimants came by the sums they claim was not disclosed to the Court. As it is, relief (c) remains unproved. It fails and so is dismissed.

 

  1. Having held that the claimants do not have any guaranteed two year employment contract with the 1st defendant, the question of the claimants being entitled to payment of their salaries since March 2012 till date (relief a) does not arise. Relief (a) accordingly fails and so is hereby dismissed. The failure and hence dismissal of reliefs (a) to (e) presupposes that reliefs (f) and (g) also fail since they are predicated on the success of the other reliefs. Reliefs (f) and (g) are accordingly dismissed.

 

  1. I must state, even if as an aside, that the claimants came to this Court as 74 claimants. It is this fact of being 74 in number that led the defendants to argue that the claimants must prove the individual claims of each claimant before they lay claim to the reliefs they seek. The pleadings of the claimants especially in paragraph 26 of the statement of facts show that the claimants’ union, PENGASSAN, was involved in the issues leading to this suit. In fact, the defendants tendered a collective agreement (Exhibit D4) entered into with PENGASSAN. The expectation is that PENGASSAN would be the driver of this suit, in which event the claimants would have had to exhaust the dispute resolution processes of Part I of the Trade Disputes Act (TDA) Cap T8 LFN 2004. This way, it would be much easier for the claimants led by their union to prove their case without having to meet the defendants’ sting about them coming to this Court in their individual capacities and so must prove each individual’s claim. But No, the claimants think they played smart in sidetracking the processes of Part I of the TDA. Unfortunately, they shot themselves in the foot as their strategy not only failed but they succeeded in wasting valuable judicial time given that this is a 2012 case. I had cause to lament this strategy of counsel in two previous cases: Akeem Lawal & ors v. The Honourable Minister of Transport & ors unreported Suit No. NICN/LA/177/2016, the ruling of which was delivered on 14th December 2017, where the three claimants on record sued for themselves and as representing 1,686 others; and Lijoka Olaniyi Dennis & 1677 ors v. First Franchise Service Ltd& anor unreported Suit No. NICN/LA/527/2013, the judgment of which was delivered on 6th February 2019, where the claimants were 1,678. If only counsel would take the pains to read through previous decisions of this Court a good deal of valuable judicial time would be saved.

 

  1. On the whole, the claimants’ case lacks merit. It fails and so is hereby dismissed. Cost is put at Three Hundred and Seventy Thousand Naira (N370,000) only payable by the claimants to the defendants at N185,000 to each defendant within 30 days of this judgment.

 

  1. Judgment is entered accordingly.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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