LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Mr. Onyekachi Orji -VS- Associated Maritime Services Limited & ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: SEPTEMBER 27, 2019                                       Suit No: NICN/YEN/16/2016

 

BETWEEN:

 

  1. ONYEKACHI ORJI ————————–     CLAIMANT

AND:

  1. ASSOCIATED MARITIME  SERVICES LIMITED
  2. INTELS NIGERIA LTD                                                        DEFENDANTS

REPRESENTATION

 

Mr. W.O. Irehovbude Esq for the Claimant.

  1. Tobin–West Esq holding the brief of D.I. Iboroma Esq for the Defendants.

JUDGMENT

INTRODUCTION AND CLAIMS

This action was commenced by way of a Complaint dated and filed by the Claimant on the 22nd day of January, 2016. Accompanying the Complaint were the Statement of Facts establishing the Cause of Action, Witness Deposition on Oath, List of Witness and the List of Documents to be relied upon at the trial. The claims of the Claimant are as set out in his Complaint and also in paragraph 14 of his Statement of Facts establishing the Cause of Action, which are as follows:

  1. A DECLARATION that the deductions made on the salaries of the Complainant by the 1st Defendant from March, 2014 and on the terminal benefit of the Claimant totalling N750,997.20 (Seen Hundred and fifty Thousand Nine Hundred and Ninety Seven Naira Twenty Kobo) only, is illegal and unjustifiable.

  1. AN ORDER directing the 1st Defendant to pay to the Complainant all the money deducted from the salaries of the Complainant from March, 2014 and on the terminal benefit of the Complainant totalling N750,997.20 (Seven Hundred and Fifty Thousand Nine Hundred and Ninety Seven Naira Twenty Kobo).

  1. The sum of N50,000,000.00 (Fifty Million Naira) only, by the 1st Defendant being and representing general, special and aggravated damages due to the Complainant flowing from illegal and unjustifiable deductions made of the salaries of the Complainant which caused his great hardship and frustration.

  1. 10% interest on the Judgment sum from the date of Judgment until the entire Judgment sum is liquidated.

The Defendants on the 22nd of February, 2016 filed a Motion on Notice seeking leave of the Court to extend time within which the Defendants may file their Memorandum of Appearance, Statement of Defence and other processes out of time and to deemed the same processes already file and served. The Motion was accompanied with an affidavit and Written Address. On the same day the Motion for extension of time was filed, the Defendants filed Memorandum of Appearance dated the 19th day of February, 2016, Statement of Defence dated the 15th day of February, 2016 accompanied by list of Witness, Witness Deposition on Oath and list of Documents to be relied upon during trial. The Defendants’ Motion for extension of time to file their processes and deemed same as properly filed and served was granted on the 24th of February, 2016. Consequently, the Defendants’ Memorandum of Appearance dated the 19th day of February, 2016, Statement of Defence dated the 15th day of February, 2016 accompanied by list of Witness, Witness Deposition on Oath and list of Documents to be relied upon during trial were deemed to be properly filed and served on the Claimant.

The Defendants’ Statement of Defence and other accompanying processes filed on the 22nd of February, 2016 and deemed properly filed and served on the 24th of February, 2016 prompted the Claimant to file a Claimant’s Reply dated and filed on the 4th of March, 2016 and accompanied by  a Complainant’s further Deposition.

By a Motion on Notice dated 15th day of October, 2018 but filed on the 16th of October, 2018, the Defendants sought for, and was granted, leave by this Court to amend their Statement of Defence. The said Motion for Amendment of the Statement of Defence was granted on the 29th day of November, 2018 and the said Amended Statement of Defence, a Further Witness Written Statement on Oath and List of Additional Document were filed on the 16th day of October, 2018 were deemed properly filed and served.

The Claimant by Motion dated the 28th day of January, 2019 filed a Motion for extension of time to file his Amended Reply and to deemed same as properly filed and served on the Defendants. The said Motion was granted on the 4th day of February, 2019 and consequently, the Claimant’s Amended Reply dated 28th day of January, 2019 and the Complainant’s Further Deposition on Oath were deemed properly filed and served.

It is important to note that this matter as at when it was filed was been presided over by His Lordship, Hon.  Justice J. T. Agbadu Fishim. It was transferred to me and on the 19th of April, 2018 the matter started de novo before me. It was observed that the Claimant has opened and closed his case and the matter was at the stage of Defence before I became the presiding Judge. However, upon commencement of the trial before me, the Claimant (CW1) testified as the sole witness in proof of his claims and was cross-examined accordingly on the same date. He tendered a total of 11 Exhibits marked as EXHIBITS CWOJ 001 – CWOJ 011 respectively.

At the opening of their defence, the Defendants called a sole witness, who testified as DW1 (Okwun Eke). In their defence, the Defendants tendered 3 documents which were marked as EXHIBITS DW AMS 001 – DW AMS 003; while under cross-examination, EXHIBIT DW AMS 004 was tendered through DW1 and thereafter the Defendants closed their case. Parties were then ordered to file their Written Addresses, which were filed and same adopted on the 17th day of May, 2019.

 

 

CLAIMANT’S CASE IN BRIEF

The brief fact of the case as contained in the Claimant’s Statement of Facts and Amended Reply is that the Claimant claims that he was employed by the Defendant via a letter of offer of employment dated the July 5th, 2009 (EXH CWOJ 001) as Material Clerk on grade level 4-1and same letter detailed his benefit as dedicated staff. He was later placed as a dedicated staff to Chevron Nigeria Limited; and as a result of his dedication to his duty he was given an Appraisal Merit Award in 2012 (EXH CWOJ 007) and also got promoted to level 5-2 later in 2013 (EXH CWOJ 004). The Claimant held that sometimes in March, 2014 he was confronted with an allegation of receiving an erroneous payment. He was later issued with letter for the recovery of the excess special dedicated allowance (EXH CWOJ 008). The Claimant said that 1st Defendant had embarked on the wrongful deduction against the dictate of its deduction schedule as contained in EXH CWOJ 008 and contrary to the provisions of the Collective Agreement of Senior Staff Conditions of Service 2009 – 2012 (EXH CWOJ 011). It is the Claimant contention that he had paid taxes on the deductions made by the 1st Defendant on his benefits and payoff. The Claimant said he had made several demands for refund of the deduction made on his benefit including writing a letter of demand (EXH CWOJ 003). The Claimant denied knowledge of any undertaking to absolve the 1st Defendant of all future claims and liabilities upon receipt of his terminal benefit.

.

THE CASE OF THE DEFENDANTS

The Defendants commenced their defence by calling Okwun Eke. The Defendants contend that 1st Defendant employed the Claimant vide EXH CWOJ 001 which spelt out the Claimant’s remuneration. They also admitted that the Claimant was placed as a dedicated staff to Chevron Nigeria Limited. They stated that the Claimant was employed as Material Clark on grade 4-1 and that grade level 4-1 is a junior staff category of staff in the 1st Defendant’s company. They also maintained that the Claimant despite being promoted to grade level 5-1, still being a junior staff category, the Claimant remained on that grade till his redundancy. The Defendants stated that being a junior staff, the conditions of service that regulated the Claimant’s employment is the Collective Agreement of Junior Staff Conditions of Service and not the Senior Staff Conditions of Service. The Defendants stated that the Claimant being a dedicated staff to Chevron Nigeria Limited, he is entitled to what is called a special dedicated allowance which is fixed and different from special allowance accruable to all staff of the Defendants employed before 2009. The Defendants holds that special dedicated allowance is not applicable to all staff of the Defendants but staff of the defendants who are dedicated to the Defendant’s client – i.e. staff handling some assignments to some clients of the Defendants. The Defendants contended that out of error and to the knowledge of the Claimant, the Claimant was paid in excess of his monthly entitlement to the tune of N1,443,811.88. Upon being aware, the Defendants caused a letter – EXH CWOJ 008 – to be written to the Claimant and the Claimant accepted the content without protest. The Defendant admitted effecting lawful deductions of N312,915.5 from March – December, 2014 from the Claimant’s monthly entitlement and that the balance of the deduction was waived after the Claimant became redundant. The Defendants maintained that they never deducted anything from the Claimant’s terminal benefits. Also, that the Claimant is estoppel from pursuing this case as he had been paid his terminal benefit which he acknowledge in writing as his full and final benefit and undertook to absolve the 1st Defendant of all future claims and liabilities.

THE SUBMISSION OF THE DEFENDANTS

In their written address learned counsel on behalf of the Defendants formulated three (3) issues for determination to wit:

  1. Whether the Claimant proved that the Defendants made unlawful and wrongful deductions from the Claimant’s salaries and terminal benefits?

  1. Whether the deductions, if any, caused any injury to the Claimant?

iii.               Whether the Claimant’s claims, if any, is caught by the defence of estoppel pleaded in paragraphs 5(x) of the Defendants’ Amended Statement of Defence?

In arguing issue one, Learned Counsel to the Defendants submits that the burden of proving his claim rest on the Claimant who ought to proof it on the basis of preponderance of evidence before the burden of proof can then shift to the Defendants. The Defendants relied on Sections 131(2) and 136(1) of the Evidence Act, 2011 and the case of MiniLodge vs. Ngei (2009) 7 NWLR (Pt.1173) 254 at 286 paragraph G to hold that the Claimant has not by credible evidence discharged the burden of proof on him. The Defendants submitted that the Claimant has not been able to prove by any oral or documentary evidence that the monthly deduction of N31, 291.55 (Thirty-One Thousand, Two Hundred and Ninety-one Naira, Fifty-Five Kobo) only from his salary for a period of March – December, 2014 totalling N312,915.05 (Three Hundred and Twelve Thousand, Nine Hundred and Fifteen Naira, Five Kobo) only is unlawful and illegal.

The Defendant further argued that the Claimant failed to contradict Exhibit DW AMS 002 that his terminal benefit was deducted. They submitted that a total of N1,792,637.05 (One Million Seven Hundred and Ninety Two Thousand and Six Hundred and Thirty Seven Naira, Five Kobo) was the final terminal benefit of the Claimant and that at the point of redundancy, the deduction on the monthly salaries of the Claimant was waived. They submitted that the Claimant has not been able to supply any evidence on any deduction from Exhibit DW AMS 002 and that there was no evidence to contradict that the schedule on which the total terminal benefit was arrived at was flawed and unreliable.

On issue two, Learned Counsel to the Defendants submitted that the Claimant’s claim in paragraph 13 of the Statement of Fact of injury suffered as a result of the unlawful and wrongful deduction from his salary and terminal benefits should failed because the evidence led cannot sustain the claim of injury and payment of compensation. The Defendants’ argument was that Claimant failed to plead or lead any evidence of any proposed business venture he intended to start with his terminal benefits after his redundancy; nor was there any pleading or evidence of any capital layout of the proposed business or feasibility study of business intended to be commenced; and that there was no pleading or evidence of the terminal benefits the Claimant expected from the Defendants to justify the claim that the Claimant could not kick start any meaningful business venture.

On Issue Three, Counsel to the Defendants submitted that even though the Claimant attempted to deny the signing of Exhibit DW AMS 003, Exhibit DW AMS 001 and 002 was showed that the Claimant received the sum of N1,792,637.05 (One Million Seven Hundred and Ninety Two Thousand and Six Hundred and Thirty Seven Naira, Five Kobo) as his full and final benefits to absolve the 1st Defendant from future liabilities or claims. The Defendants urged the Court to invoke section 101(1) of the Evidence Act to compare signature of the Claimants. The Defendant argued that they pleaded and proved estoppel by relying on Order 30 Rule 8(i) of the Rules of this Court and the case of Bank of the North Ltd vs. Yau (2001) 10 NWLR (Pt. 721) 408 @430, paras D-G. Having pleaded the defence of estoppel, the Defendants argued that the claims of the Claimant are liable to be defeated and should be dismissed.

SUBMISSION OF THE CLAIMANT

The Claimant on his part raised three (4) issues in his Final Written Address for this Court to determine, to wit:

  1. Whether the Defendants’ witness is competent to testify on behalf of the Defendants in this suit?

  1. Whether in the light of all the evidence before the Honourable Court (oral or documentary) the Defendants were right to deduct any money from the benefit of the Claimant in particular reference to exhibit CWOJ 008 (Recovery of Excess Special Dedicated Allowance dated 14/3/14)?

  1. If the above was wrong, whether the Claimant is entitled to a refund of the money admitted by the Defendants to have deducted from the benefit of the Claimant?

  1. Whether the claimant is entitled to his claim before the Honourable Court?

Putting forward his argument on Issue One, Learned Counsel to the Claimant submitted that the DW1 although a staff of the Defendants but does not work in the finance Department or in the Human Resource Department of the Defendant. He argued that whatever information given by DW1 amount to hearsay and inadmissible, having not stated the names, details and sources of his information. He relied on Section 37 of the Evidence Act, 2011 (As Amended) to buttress his argument.

On his Issue Two, Counsel to the Claimant submits that ab initio Exhibit CWOJ 001 (Employment Letter) and Exhibit DW AMS 004 (Collective Agreement for Junior Staff) detailed the benefits of the Claimant and provided that those who earn special allowance are entitled to increment according to Article Seventeen of Exhibit DW AMS 004. He stated that the deduction in the benefits of the Claimant is oppressive as the Claimant was entitled to what he received and even more.

On Issue Three the Claimant’s Counsel submitted that if the Court resolved that the deduction carried out on the salary and or benefit of the Claimant was wrong, then the rightful thing to do is for the Defendant to immediately refund the money deducted. He stated that from evidence before the Court, Exhibit CWOJ 003 (Solicitor’s Letter from Osemeyobo Legal Consult), the Claimant had prior to instituting this action demanded the refund of the deduction from the Defendants which they failed to comply with.

On issue four, it is the argument of the Claimant’s Counsel, by relying on the case of Nigeria Telecommunications Plc vs. I. A. Ocholi (2001) 10 NWLR (Pt. 720) 118,  that when the right of any citizen is infringed upon he is at all times entitled to compensation by way of damages for the breach of his right. He submitted that the Defendants acted against known international and domestic labour practices by illegally deducting monies from the salary of the Claimant and with no proof that they didn’t deduct any money from the Claimant’s terminal benefit.

The Claimant Counsel in his Final Written Address also reacted to the Defendants’ Address as follows:

  1. The Claimant contended that the documentary evidence which overpayment was made to the Claimant by the Defendants never existed in the first place. It is the Claimant’s argument that Exhibit CWOJ 008 which made reference to “…monthly fixed special dedicated allowance…” was never part of the former and was an afterthought to unjustly carryout deductions on the salary and or benefit of the Claimant. He also submitted that Exhibit CWOJ 009 (Supply of Contract Personnel) which entitled the Claimant to special dedicated allowance did not state it as “fixed” and by Exhibit DW AMS 004 allowance was to increase in line with Article Seventeen. Counsel submitted that by documentary evidence, the Claimant has proved his case in compliance with Sections 131(2) and 136(1) of the Evidence Act and the case of MiniLodge vs. Ngei (2009) 7 NWLR (Pt. 1173) 254 at 287 cited by the Defendants’ Counsel.

  1. The Claimant on Issue 2 argued by the Defendants submitted that Claimant needs not be cut into halves to show injury, but mere deprivation and unlawful deduction is enough injury to entitle the Claimant to damages.

  1. On the Defendants’ third issue, Counsel argued that the Claimant never signed Exhibit DW AMS 003 and that the document lacks some vital features like the company logo, email, phone number, address; and that the document was signed by only a person which is never done anywhere; and that no department was copied to that effect. Learned Counsel submitted that assuming but not conceding that the document was signed by the Claimant, it illegal and offends Section 13 of the Workmen Compensation Act. Counsel then urge the Court to discountenance the argument of the Learned Counsel to the Defendants.

DEFENDANTS’ REPLY ON POINTS OF LAW

The Defendants on the 10th of April, 2019 filed a Reply on Point of Law dated the 9th day of April, 2019. The Learned Counsel to the Defendants in response to paragraphs 3.1(J) of the Claimant Final Written Address submitted that there was no admission on the part of the Defendant that the deductions from the Claimant’s salary were wrongful. He cited B.F.N Ltd vs. Ibrahim (1987) 4 NWLR (Pt. 65) 350 at 359, para. F to submit that for a given fact to be settled or unchallenged, that fact must be expressly admitted in the pleading; however, that the Defendants vigorously stand by their pleadings and evidence that the deductions were made with the concurrence and agreement of the Claimant.

The Defendants’ Counsel also stated that Claimant’s argument that DW1 is not competent witness for the Defendants because he wasn’t a staff of the Finance Department of the Defendants and that DW1’s evidence is hearsay evidence is misplaced in law. He cited Kate Enterprises Limited vs. Daewoo (Nigeria) Ltd (1985) 2 NWLR (Pt. 5) 116 at 127, paras. D-F and Ishola vs. Societe General Bank Limited (1997) 2 NWLR (Pt. 488) 405 at 424, paras. E-G to submit that hearsay rule is inapplicable in corporate transactions involving corporate bodies and that corporate bodies, like the Defendants in this case, are artificial persons who deal through agents and servants; that any agent or servant of an artificial person may give evidence without been directly involved in the transaction. Learned Counsel then pray the Court to dismiss the Claimant’s case.

 

 

COURT’S DECISION

Having read through all the processes filed and exhibits tendered by Learned Counsels for and on behalf of the respective Parties and heard their submissions in support of their cases and also listened to and observed the deportments of the witnesses who testified before this Court, I have carefully compressed the issues for determination as follows:

  1. Whether the Claimant has proved that there was an unlawful or wrongful deduction made on his salaries and terminal benefits.

  1. Whether the doctrine of estoppel bars the Claimant from pursuing the instant suit having undertaken to absolve the 1st Defendant of all future claims and liabilities upon the receipt of his terminal benefit

Permit me to take few moments to make observation on some points which has narrowed the issues in this trial. From the pleadings filed by parties, the exhibits tendered by both parties, the testimonies of the parties and the submissions of the Counsels on behalf of their respective parties in their Final Address, it is observed that parties are in ad idem on the following:

  1. That the Claimant was employed by the 1st Defendant as Material Clerk on grade level 4-1 (Junior Staff).

  1. That the Claimant was placed to Chevron Nigeria Limited as a dedicated staff.

  1. That the Claimant was awarded for his dedication to duty.

  1. That the Claimant was promoted to grade level 5-1 with an increased remuneration.

  1. That the Claimant was informed of receiving excessive salary and as such there would be deduction on his entitlement to compensate for the portion of excess received in his salary.

  1. That there was actually deduction from the salaries of the Claimant from March – December, 2014.

  1. That the Claimant later was declared redundant.

However, what is in contention on the second to the last point (that is “f” above) is the legality or the wrongfulness of the deduction and whether, if any, such deductions were from the Claimant’s terminal benefit as well. This point will no doubt be addressed in the course of this judgment.

Issue One:

Whether the Claimant has proved that there was an unlawful or wrongful deduction made on his salaries and terminal benefits.

The Claimant pleaded and testified that the Defendants had wrongfully deducted the sum of N750,997.20 from his salaries and terminal benefit whereas he had paid taxes on the deduction made by the Defendants. The Defendant on their part pleaded and testified that they actually lawfully deducted the sum of N312,915.05 over a period of March – December, 2014 from the salaries of the Claimant and not from the terminal benefit. That in fact, the terminal benefit of the Claimant was paid in full after the Defendants had waived the un-deducted balance of the excess salaries paid to the claimant when he became redundant. Under cross examination, the Claimant admitted that he was paid his full benefit of N1,792,637.05k and that the deduction of N31,291.55k was made on his salaries over a period of 10 months totaling N312,915.50k; while the balance in-deducted was waived. This admission by the Claimant I find as credible and cogent evidence enough to hold that the Defendants did not deduct any money from the Claimant’s terminal benefit but from his salaries from the month of March – December, 2014 when he was declared redundant. Where admission is credible the Court is enjoined to act on it. In Hadyer Trading Manufacturing Limited & Anor vs. Tropical Commercial Bank (2013) LPELR-20294(CA) it was held that:

“Credible evidence means evidence worthy of belief and that for evidence to be worthy of belief and credit, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe.”

 

Consequently, the amount deducted from the Claimant’s salaries over the period of March – December, 2014 is N312,915.05k in total.

As to the legality of the said deduction of N312,912.05, the Defendants have pleaded that the deduction was legal on the ground that the Claimant was erroneously over paid the amount which he wasn’t entitled to because he was a dedicated staff entitled only to special dedicated allowance and he doesn’t benefit from the special allowances in the Condition of Service for ordinary staff. The Defendants maintained that the special dedicated allowance is different from special allowance and that special dedicated allowance is fixed and does not enjoy increment like the special allowance. DW1, Okwun Eke, who testified as the legal manager of the 1st Defendant told the Court under cross-examination that special dedicated allowance which cannot be seen in the offer letter is only given to those who are on special assignment to the clients of the Defendants. He said that the special allowance is meant only for staff employed before 2009 and it doesn’t apply to staff employed after 2009 as a matter of company policy.  The Claimant in his address has attacked the competence of DW1 to testify on the Defendant’s behalf since he isn’t staff of the finance department and that his testimony amounts to hearsay because he didn’t disclose the source of his information. The law is that a company acts through human agent and such human agent can testify on behalf of the company and such testimony will not amount to hearsay. The Court in S.T.B. Ltd vs. Interdrill Nig. Ltd. (2007) All FWLR (Pt.366) 757 at 772 held that:

A company is a juristic person and can only act through its agents and servants. Any agent or servant can consequently give evidence to establish any transaction entered into by a juristic personality. Even, where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence nonetheless is admissible and will not be discountenanced or rejected as hearsay evidence.

Following the law, I agree with the Defendants’ Counsel submission to the effect that DW1 is a competent witness for the Defendant and I find DW1 competent to testify on behalf of the Defendant.  And I so hold.

Still on the issue of the legality of the deduction from the Claimant’s salaries, the Defendants have justified the deduction on the ground that the Claimant being a dedicated staff is not entitled to special allowance nor the increment that comes along with the special allowance; and also that employees employed after 2009 cannot enjoin the benefit of the special allowance or its increment as provided in the Conditions for Service. What actually will agitate the mind of a person is the fact, does the condition of service define what a dedicated staff is from an ordinary or regular staff of the 1st Defendant? A critical look at the Conditions of Service for both the Senior and the Junior Staff did not define what a dedicated staff is. Parties at the trial are ad idem that the Claimant is a junior staff and as such the conditions of service applicable to him is the “Collective Agreement of Junior Staff Conditions of Service between Associated Maritime Services Limited and Maritime Workers Union of Nigeria” (EXHIBIT DW AMS 004). Very instructive is the scope and validity of the EXHIBIT DW AMS 004 which provides under Article 1(b) thus:

The condition set out in this agreement shall apply to all junior staff in the employment of AMS Limited irrespective of their place of employment.

The Defendant expressly admitted that the Claimant is a junior staff in the 1st Defendant’s employment and placed as dedicated staff to Chevron Nigeria Limited. To my mind, EXHIBIT DW AMS 004 applies in all ramifications to the Claimant except where it states otherwise. EXHIBIT DW AMS 004 did not define dedicated staff. Even if I am to accept the definition of DW1 as dedicated staff been staff handling some assignments to some clients of the Defendant, the definition did not exclude the staff from being employees of the Defendants whom EXHIBIT DW AMS 004 is binding on. The law is trite that where the wordings of a document are clear, it should be given its plain and ordinary meaning. In Lewis vs. UBA (2016) LPELR-40661(SC) it was held that:

 In the construction of a contract, the meaning to be placed on it is that which is the plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning. When the language of a contract is not only plain but admits of one meaning, the task of interpretation is negligible. See Union Bank of Nig. Ltd & Anor vs. Nwaokolo (1995) 6 NWLR (Pt.400) 127.

The wordings of Article 1(b) is clear and must be given its ordinary meaning to mean that the Condition set out in EXHIBIT DW AMS 004 applies to all junior staff in the employment of the 1st Defendant irrespective of the place of their employment. What could be more mandatory than the word “shall” as used in that provision. The law is trite that the use of “shall” means or connote compulsion or obligatory. In the case of Yakubu vs. Ibrahim (2016) LPELR-41495(CA) the Court held that:

 

The word ‘shall’ used in both paragraphs 3(a) and (d) denotes obligation and gives no room for discretion. See Agbih vs. Nigeria Navy (2011) 2SCNJ 1 at 5.

The Defendants have held and argued that the Claimant’s allowance being a dedicated staff is special dedicated allowance and that the Claimant is not entitled to special allowance. That it’s only staff that is not dedicated staff that benefits from the special allowance. The term special dedicated allowance appeared only in EXH CWOJ  010. What EXHIBIT DW AMS 004 provides for is special allowances for its staff. I pause at this juncture to ask myself, if a person is entitled to a benefit, does the name or semantics with which it’s called deny or deprived him from such benefit? No, I don’t think so. Article 17 of EXHIBIT DW AMS 004 categorically made provisions for the type of benefits that the junior staff (including the Claimant can enjoy) which did not include any mention of “special dedicated allowance”. However, Article 18 of EXHIBIT DW AMS 004 which deals with annual increment provides that “employees who earn special allowance shall have this allowance increased accordingly”. Special dedicated allowance I believe falls into category of special allowance mentioned by Article 18 of EXHIBIT DW AMS 004 which the Claimant is entitle to for being dedicated staff or employee of the 1st Defendant. Since by the provision of Article 1(b) of EXHIBIT DW AMS 004 conditions in the said exhibit applies to the Claimant, it is my humble view that the Claimant is entitled to benefit from the allowances set out in Article 17 (EXHIBIT DW AMS 004) and also by Article 18 (EXHIBIT DW AMS 004) to have any special allowance accruing to him increased accordingly. The Defendant’s argument that the Claimant is not entitled to special allowance but to a special dedicated allowance which is fixed is not tenable in the light of the combine reading of Article 1(b), Article 17 and 18 (EXHIBIT DW AMS 004) which make the Claimant a junior employee of the Defendant whom the conditions set out in EXHIBIT DW AMS 004 applies to and who is entitled to allowances/bonus/grants and also entitled to annual increment of his benefits which include any special allowance that he earns.

An interesting part of the Defendant’s argument is when it stated that only staff employed before 2009 enjoys special allowance as a matter of company policy. This is an attempt to re-write Article 1(a) of EXHIBIT DW AMS 004 which stated that “These conditions of service stated herein must not be altered against or changed except by amendments duly signed and agreed by both parties (Maritime Workers Union of Nigeria and Management). The company policies of the Defendants which seeks to bar the Claimant or any employee from reaping the benefits provided under EXH. AMS 004 is an attempt to unilaterally alter or change EXHIBIT DW AMS 004 without due procedure. A revised version of EXHIBIT DW AMS 004 can be found in the Court file which covers a period of 2013 – 2016 with similar provision. I find it crystal clear that the intention of the drafters of the EXHIBIT DW AMS 004 and its revised version do not intend to exclude any of its staff from benefiting under the documents, if not, they would have expressly made it clear in the documents.

From the above explanation, it is my view that the Claimant being a junior staff of the Defendants has his service regulated by EXHIBIT DW AMS 004 and entitled to benefit from all and any allowance contained therein inclusive of special allowance legitimately earned by him. It also follows that his benefits and allowances is subject to annual increment accordingly. It is my view also that whatever the Claimant has earned as benefit and allowances during his period as staff of the 1st Defendant are legitimately earned. Any deduction on the ground that he was dedicated staff not entitled to special allowance or that special allowance is meant only for staff employed before 2009 is wrongful deduction and I so hold. I hereby resolve issue one partly against the Defendant and hold likewise that the deduction of N31,291.55 monthly on the salary of the Claimant from March – December, 2014 totaling N312,915.05 is illegal and wrongful deduction and same should be refunded to the Claimant immediately.

Issue Two:

Whether the doctrine of estoppel bars the Claimant from pursuing the instant suit having undertaken to absolve the 1st Defendant of all future claims and liabilities upon the receipt of his terminal benefit

It is the submission of the Defendants in their Final Written Address that EXHIBIT DW AMS 001 absolved the Defendant from liabilities. The said EXHIBIT DW AMS 001 is a document which was said to have been signed by the Claimant to the effect that the Claimant accepts as full and final settlement of all his claims and terminal benefits due from the 1st Defendant and do also absolved the Defendant from all future claims or liabilities. The Defendants have argued that EXHIBIT DW AMS 001 act as estoppel against the Claimant. The Defendants invited the Court to compare the signature on the exhibit and the signature of the Claimant by invoking Section 101(1) of the Evidence Act 2011 (As Amended). The Claimant denies ever executing any document absolving the Defendants from future claims and liabilities.

I have compared the signatures on Exhibit DW AMS 001 to the signature of the Claimant on the processes filed before this Court and I find the signatures similar. However, in the light of the controversy of accepting or denying signing Exhibit DW 001, I had to still look at the the said exhibit DW AMS 001 in juxtaposition to averments of the Defendants in their Amended Statement of Defence and DW1 further deposition, particularly in paragraphs 5(ix) and 3 respectively. Both paragraphs confirmed the payment of N1,792,637.05 (One Million Seven Hundred and Ninety Two Thousand and Six Hundred and Thirty Seven Naira, Five Kobo) as the full and final settlement of claims and terminal benefits to the Claimant. The evidence of acceptance of the settlement of the full and final settlement which in turn absolved the Defendants from any future claim and liability is Exhibit DW AMS 001 which heading is “ASSOCIATED MARITIME SERVICES LTD SETTLEMENT OF FINAL ENTITLEMENT/CLAIMS ENDORSEMENT FORM”. As beautiful and absolving as the statement of the Defendants seem, Exhibit DW AMS 003 contains the breakdown of the claims and terminal benefits of the Claimant amounting to N1,792,637.05 (One Million Seven Hundred and Ninety Two Thousand and Six Hundred and Thirty Seven Naira, Five Kobo) which he has signed, if actually he has signed it. If Exhibit DW AMS 003 is anything to go by, it related only to those items contained therein which give rise to N1,792,637.05 (One Million Seven Hundred and Ninety Two Thousand and Six Hundred and Thirty Seven Naira, Five Kobo) as the full and final settlement of all the claims and terminal benefit of the Claimant; it doesn’t include deduction wrongfully made on the salaries of the Claimant. From the heading of the said exhibit DW AMS 001 which to my mind is a form emanating from the Defendants is intended to document the receipt of the final benefit or claim (terminal benefit) paid to employee(s) against any future and adverse claim bordering on such terminal claim or benefit.

As to whether Exhibit DW AMS 001 act as estoppel to the Claimants claim, the Defendants have relied on the case of Bank of the North Ltd vs. Yau (2001) 10 NWLR (Pt. 721) 408 @430, paras D-G. Section 169 of the Evidence Act, 2011 (As Amended) deals with estoppel when it provides thus:

When one person has, either by virtue of an existing Court Judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

My Lord, Hon. Justice, Per Achike, J.S.C (as he then was) in the case of Bank of the North Ltd vs. Yau (2001) 10 NWLR (Pt. 721) 408 @430, paras D-G which the Defendants relied upon to argue that Exhibit DW AMS 001 act as estoppel interpreted the above provision of the law when he held thus:

 

…Section 151 of the Evidence Act provides: “When one person has, either by virtue of an existing Court Judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.” Expatiating on the nature and far-reaching effect of admissions and the plea of estoppel, Ibekwe J.S.C in YOYE vs. OLUBODE & ORS (1974) 9 N.S.C.C. 409 opined at p.414: “Estoppel is an admission, or something which the law views as equivalent to an admission. By its nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it or adduce evidence to contradict it”. A similar illuminating view of the nature of estoppel was succinctly expressed in BASSIL vs. HANGER 14 WACA 569 at 572, per Coussey, J.A.: “Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations ‘to the prejudice of a party, who relying upon them, has altered his position. It shuts the mouth of a party”.   

From the wordings of Section 169 of the Evidence Act, 2011 (As Amended) and the holding of My Lord, Hon. Justice, Per Achike, J.S.C. (as he then was) quoted above in Bank of the North Ltd vs. Yau (Supra), it must be shown that a party by his act or conduct intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Can it be said that the Claimant by Exhibit DW AMS 001 intentionally caused the Defendants to believe that he waived the illegal deduction on his salaries as part of the full and final settlement of all his claim and terminal benefit? I find it hard to believe so; and more particularly where the Defendants who pleaded the estoppel has not demonstrated before the Court that the Claimant’s conduct or action was intentional to make them belief that he has waived the deductions made on his salaries as part of his terminal benefit or claim. From the above cited authority of Bank of the North Ltd vs. Yau (Supra), estoppel can only apply to the terminal claim or benefit of the Claimant because the full and final Claim and terminal benefit contemplated are those claims and entitlement calculated and contained in Exhibit DW AMS 003 amounting to a total of N1,792,637.05 (One Million Seven Hundred and Ninety Two Thousand and Six Hundred and Thirty Seven Naira, Five Kobo).

I find it hard for the Exhibit DW AMS 001 to be used as sword to strike down entitlement which an employee has legitimately earned. If there is any bar to future claims and liabilities, it must not be construe to benefit the wrongdoing of party. The law is trite that a party cannot benefit from its own wrong doing. In the case of Oceanic Bank International Plc vs. Brokenn Agro Allied Industries Ltd (2008) LPELR-4671(CA) it was held that:

 

In the case of AP Ltd vs. Owodunni (1991) 8 NWLR (Pt.210) p.391 @421, the Supreme Court declared that: “The law will not allow any person to reap any benefit from his own wrongful act. To allow such is manifestly unjust and will portray the law as an instrument of injustice”.

The act of pleading estoppel by the Defendants is a ploy by the Defendants to exploit the Claimant’s weakness to benefit from the wrongful deductions made on the Claimant’s salaries and to forever silence the Claimant on it. Even though the Claimant has relied on Section 13 of the Employee’s Compensation Act, 2010 as a defence to the plea of estoppel raised by the Defendants and submitted that even where there is any waiver of compensation such waiver is void. I quite agree with the Claimant’s Counsel’s submission that Section 13 of the Employee’s Compensation Act 2010 provides that compensation cannot be waived by the employee and that any such waiver of compensation is void. Judicial authorities have defined “compensation” to include salaries and remuneration. The Court of Appeal in Oak Pensions Ltd & Ors vs. Olayinka (2017) LPELR-43207 held thus:

 

The word “compensation” is defined… as 1. Remuneration and other benefits received in return for services rendered, especially salary or wages…

However and rather unfortunate too, the Employee’s Compensation Act 2010 is not application to this case as the said Act applies only to where the employee has suffered injuries in the cause of work.

On a whole, the plea of estoppel raised by the Defendants, apart from not being applicable to the illegal and wrongful deduction made on the Claimant’s salaries, it cannot be used to legalize illegality or a wrongful act else the law would be seen as an instrument of illegality and injustice. I hold, therefore, that the Defendants cannot use estoppel as a defence to legalize their wrongful act and avoid legitimate obligation. I hereby resolve issue two against the Defendants.

In the final analysis and from the totality of the evidence before this Court, having resolve issue one partly against the Defendants and issue two against the Defendant still, I hold that the Defendant deduction of the sum of N312,915.05 from the salaries of the Claimant from March – December, 2014 was illegal and wrongful and I order the immediate refund of the said amount from the Defendants to the Claimant.

On the claim of damages, the Claimant has not pleaded and proved any special damage to warrant same being granted to him. However, the Court is inclined to granting N50,000.00 as general and aggravated damages against the Defendants.

Judgment is hereby entered in favour of the Claimant against the Defendants. The Defendants are to make immediate refund of the N312,915.05 wrongly deducted from the salaries of the Claimant from March – December, 2014; the Defendants are to pay the sum of N50,000k as general and aggravated damages to the Claimant; and it is also order that 10% interest rate shall be paid on the judgment sum from the date of this judgment until the judgment sum is liquidated.

Judgment is hereby entered accordingly.

SIGNED

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

admin

Website:

Related Story