MR. TORITSE MLLER MARTINS VS DON MAC LIMITED & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: FEBRUARY 21, 2019

SUIT NO: NICN/YEN/64/2017

BETWEEN:

TORITSE MLLER MARTINS

CLAIMANT

AND

DON MAC LIMITED
MR. MAC DONALD AMADI

DEFENDANTS

REPRESENTATION

Mr. M.E Sajere Esq with A.J Wawe (Mrs) Esq for the Claimant.

Mr. F.I Agboroh Esq with O.O Awolabi Esq for the Defendant.

JUDGMENT

INTRODUCTION AND CLAIMS

This action was commenced by way of a Complaint dated and filed by the Claimant on the 21^st of September, 2017. Accompanying the Complaint were the Statement of Facts establishing the Cause of Action, Witness Deposition on Oath, List of Witnesses 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 21 of his Statement of Facts Establishing the Cause of Action, which are as follows:

A DECLARATION that the Defendants breached the terms of the Claimant’s contract of service as provided in the Memorandum of Understanding dated the 28^th day of September, 2016, executed by the Parties.

AN ORDER compelling the Defendants to pay the balance contract sum of N25, 170,250.00 (Twenty Five Million, One Hundred and Seventy Thousand, Two Hundred and Fifty Naira) only to the Claimant, being the amount of money for which the latter was short-changed by the Defendants for a period of eight months.

AN ORDER compelling the Defendants to pay the contract sum of N1,360,000.00 (One Million, Three Hundred and Sixty Thousand Naira) only to the Claimant, being the money due and payable to the latter by the Defendants as Stand-By rate per day for the number of days mentioned herein.

AN ORDER compelling the Defendants to pay the sum of N10, 000,000.00 (Ten Million Naira) only to the Claimant, being general damages for the Defendants’ breach of contract and cost of litigation.

Any other suitable relief that the Court may seem just to make in this suit.

The Defendants entered a Memorandum of Conditional Appearance dated the 29^th day of September, 2017 but filed on the 10^th day of October, 2017. It was filed alongside the Defendants’ Statement of Defence, Witnesses Statement on Oath and other accompanying processes. Consequent upon the filing of the Statement of Defence, the Claimant filed a Reply and an Additional Witness Written Statement on Oath both dated 30^th day of October, 2017 but which was duly filed on the 31^st day of October, 2017; in response to the Statement of Defence.

By a Motion on Notice dated 4^th of April, 2018 but filed on the 5^th of April, 2018, the Claimant sought for, and was granted, leave by this Court to amend his Statement of Facts establishing the Cause of Action. The said Amended Statement of Facts and a Further Witness Written Statement on Oath were filed on the 12^th day of April, 2018.

Upon commencement of the trial, the Claimant (CW1) testified as the sole witness in proof of his claims and was cross-examined accordingly on the same date. He tendered 7 Exhibits marked as EXHIBITS CW1 TOM 001 – CW1 TOM 007 respectively.

At the opening of their defence, the Defendants called three witnesses, who testified as DW1 (Mr. Johnson Ibane), DW2 (Mr. Obinna Okoye) and DW3 (Mr. Osagie Ogbebor).

In their defence, the Defendants tendered 3 documents through DW2 which were marked as EXHIBITS DW 001 – DW 003, and thereafter closed their case. Parties were then ordered to file their Written Addresses, which were filed and same adopted on the 3^rd day of December, 2018.

CLAIMANT’S CASE IN BRIEF

The brief fact of the case as contained in the Claimant’s Amended Statement of Facts (paragraphs 1-21) is that the Claimant claims to be a welder and an employee of the 1^st Defendant, which is duly incorporated and involved in the provision of Offshore Pipeline Construction Services. The Claimant states that he was engaged, along with 15 other welders, by the Defendants in respect of a Pipeline Replacement Subcontract secured by the Defendants with NPDC in Delta State.

He claims that a Memorandum of Understanding, tendered and admitted into evidence as EXHIBIT CW1 TOM 001, was eventually entered into between the Defendants and himself but that the Defendants have breached the terms of this Memorandum of Understanding. The Claimant further claims through his written deposition that by Clause 2.0 of the said Memorandum of Understanding, he and his group were supposed to be paid N3,800 per inch welding on the circumference of each pipe, multiplied by the total number of pipe joints. He avers that the pipe joints is made up of 51 inches on the circumference of the pipe and that when calculated on diameter, it will be made of 16 inches. To him, despite expecting payments to be made to him at the end of each month based on the circumference of each pipe joint, the Defendants rather paid him based on the diameter of the pipe joints, thereby short-changing him and his group members. On the whole, the Claimant and his group welded a total of 1514 pipe joints between the months of November, 2016 through July, 2017.

After several complaints to the staff of the Defendants, the Claimant approached his lawyers to write the Defendants compelling them to comply with the contract of service as provided for in the Memorandum of Understanding. This includes the balance payment of his supposed salaries and stand-by money for a period of 136 days. The said letter was tendered in evidence as EXHIBIT CW1 TOM 003.

By his further deposition (Reply to Defendants’ Statement of Defence), the Claimant contends that though the sample pipe the Defendants used for the Welders’ Qualification Test measures 16 inches in diameter according to the Defendants’ assessment, the pipe, which is exactly of the same specification with the ones used on site, measures 51 inches on its circumference. He avers that his job on site was done on the circumference of the 16inches diameter pipes since there was no provision in the Memorandum of Understanding that specifically provides for the measurement of the pipes used on site except for those gleaned from the nature of work done by the Claimant and his group.

Under cross examination, the Claimant stated that EXHIBIT CW1 TOM 001 (Memorandum of Understanding) was indeed executed between the 1^st Defendant and other welders including himself. Although the 2^nd Defendant was not a signatory to the Memorandum of Understanding, he is the Managing Director of the 1^st Defendant. The Claimant also stated that all the welders, including himself, were subjected to a Welders’ Qualification Test on pipes line measured in diameters before they were engaged. There is nothing to show in EXHIBIT CW1 TOM 001 that pipes which he welded should be calculated in circumference. That it is also true that there is nothing to show in the same Exhibit that the pipe joints should be calculated in diameter. As regards the stand-by amount of N10,000, the Claimant states that the said amount is paid where welders are demobilized due to any reason because that day you won’t be paid for any work welded.

THE CASE OF THE DEFENDANTS

The Defendants commenced their defence by calling Mr. Johnson Ibane (DW1). DW1, averred that he was engaged as a welder by the 1^st Defendant in the 16 inches x 36KM Crude Export Pipeline Replacement Project awarded by NPDC. That he underwent series of tests alongside the Claimant, where they were informed and which they all agreed that the pipes to be welded are 16 inches pipes and that N3,800 shall be paid per diameter of the pipe welded by them. He worked with the Claimant on Lay Barge 1 and they were all paid without complaint. He also averred that it was not the agreement between the Defendants and welders that payment will be made based on circumference of each pipe joint welded.

When placed under cross-examination, DW1 testified that the 2^nd Defendant is the owner and Managing Director of the 1^st Defendant although the Memorandum of Understanding was not executed by the 2^nd Defendant. He reiterated that all the welders were tested on a 16 inches pipe calculated in diameter which was similar to the pipes they eventually worked on at the site. According to his testimony, there was nothing in the agreement which suggested that they were to be paid based on the pipes they welded either in circumference or diameter but that it was the agreement between the welders and the 1^st Defendant that they will be paid based on diameter. He also stated that during the pendency of their contract with the Defendants, welders were allowed to engage in other work or contract though he was not aware if the Claimant got any other contract during the said period. All he knows was that they were paid their stand-by money on those days that they were in the site but did not do any work. He could not also remember the number of days that they were demobilized from site.

According to DW2 and DW3, in their Written Depositions on Oath, they aver that they are both staff of the 1^st Defendant and that the Claimant was not an employee of the Defendants but was engaged with other welders on an ad-hoc basis for a period of one (1) year subject to re-negotiation. It was also their evidence that the 1^st Defendant only engaged the Claimant and other welders after subjecting them to a Welders’ Qualification Test (WQT) on the 23^rd and 24^th of August, 2016 with a sample 16 inches pipe, which was eventually used for the job. They relied on EXHIBIT DW1 002 & DW1 003. It was upon the said WQT that the Claimant and 15 other welders were selected for the job. The Claimant was assigned with 7 other welders to work on Lay Barge 1 and the number of joints welded on the said barge was shared equally amongst the 8 welders.

They also contend that the Claimant never complained to them nor did they receive any formal letter on the 18^th of August, 2018 or any other dates. They further state that the Claimant and his team welded a total of 1514 pipe joints of the 16 inches pipes and a total of N92,051,200.00 paid to them jointly, of which the Claimant got N11,506.400.00 as his share, without any complaint. They aver also that the stand-by rate of N10,000 was paid to welders who were on site and that the said payment was not applicable when welders are officially demobilized from site.

DW2 and DW3 testified, under cross examination that the measurement of the pipe joints that the Claimant and his group worked on were on diameter inch and not circumference. DW2 specifically mentioned that it is the practice in the whole world that pipe welding are measured by diameter inch. The Claimant did work on a 16 inches diameter pipe. It is the evidence of the Defendants’ witnesses that the N10,000.00 stand-by rate is the token given to welders when they are not working on site due to no fault of theirs and also when there is no work at the site and the welders are demobilized, they would not be paid any stand-by allowance. Clause 3.0 of EXHIBIT CW1 TOM 001 clearly expresses this point. It is because of the fact that welders are allowed to do any work when they are demobilized from site that the Defendants engaged the services of many welders.

In all, the Defendants urged this Court not to grant the reliefs sought by the Claimant.

THE SUBMISSION OF THE DEFENDANTS

Learned Counsel on behalf of the Defendants formulated three (3) issues for determination to wit:

Whether the 2^nd Defendant is a necessary party to this suit

Whether from the evidence adduced before this Honourable Court, the Claimant has discharged the evidential burden placed on him by the law

iii. Whether the Claimant is entitled to the reliefs sought in this suit.

In arguing issue one, Learned Counsel to the Defendants submits that the 2^nd Defendant is not a party to the suit and should not have been joined as a Party in the instant suit. It is their contention that since EXHIBIT CW1 TOM 001 was executed strictly between the 1^st Defendant and the Claimant, the 2^nd Defendant, not being a party to the contract, should not have been joined in the suit; an allegation of breach of the terms of the agreement having arose. He cited the case of IDUFUEKO v. PFIZER PRODUCTS LTD [2014] ALL FWLR (PT.745) PG.269 AT 287, PARAS G-H.

The gamut of the Learned Counsel’s argument on issue one is based on the fact that the 1^st Defendant is a legal entity different from the 2^nd Defendant notwithstanding that the 2^nd Defendant is the Managing Director of the 1^st Defendant.

Learned Counsel further contends that nothing in EXHIBIT CW1 TOM 001 shows that the 2^nd Defendant should be made a necessary party to the suit. He relied on the cases of BIYU v IBRAHIM (2005) ALL FWLR (PT.261) AT PG.287 and MBANEFO v MOLOKWU (2014) ALL FWLR (PT.742), PG. 1685-1686, where the Courts defined a necessary party to mean:

“an indispensable party without whom the issue in dispute cannot be effectively adjudicated upon”.

The Defendants urged the Court to determine this issue in their favour and dismiss the claims against the 2^nd Defendant.

The Defendants in their Issue Two argued that the Claimant failed to discharge the evidential burden of proving beyond the preponderance of evidence as prescribed by sections 131, 132 and 133 of the Evidence Act, 2011. Counsel submitted that the Claimant, having accepted payments made in the agreed method and sums, which is consistent with the evidence of DW1 – a welder who work alongside the Claimant – the Claimant cannot turn around and complain. He contend that the Claimant is bound by the agreement he entered into and cannot act outside same as that would amount to the Claimant approbating and reprobating at the same time. He relied on the authority of H.N.I.K.G v. UBA PLC (2014) ALL FWLR (PT.719) PG.1137 AT 1161, PARA B. He urged that the Court should not allow extrinsic evidence into the terms of the contract as presently constituted.

Learned Counsel to the Defendants further argued that the Claimant and other welders who worked together at the site did receive their salaries without complaint and that the Claimant’s assertion that he made complains to the Defendants were not proved. Even so, Counsel contends that no other welder, who worked with the Claimant, joined the Claimant in instituting the action before this Court. That this shows that all other welders are in agreement with the position of the Defendants on the calculation of joints and payments by diameter rather than circumference as alleged by the Claimant.

He submits also that the Claimant’s claim for the sum of one million, three hundred and sixty thousand naira as stand-by allowance unpaid, are unfounded and false. Counsel contends that the evidence of the Defendants’ witnesses is overwhelming to the effect that all the Claimant’s stand-by allowances were paid without default. Counsel urged the Court to discountenance EXHIBITS CW1 TOM 004, CW1 TOM 005, 006 and 007 relied by the Claimant as they lack probative value and that the pictures were made in anticipation of the case, contrary to the tenets of the Evidence Act. He cited the cases of IRONKWE v. UBA PLC (2017) ALL FWLR (PT.879) PG. 650 AT 684, PARAS E-F (RATIO 10) and N.B.C PLC v. UBANI (2014) ALL FWLR (PT.718) PG 803 AT 829, PARAS A-D and also SECTION 83(3) EVIDENCE ACT, 2011.

Counsel to the Defendants argued too that the reliefs sought by the Claimant as contained in Reliefs B & C of his Statement of Facts, falls within the realm of special damages and that the Claimant failed to provide evidence to substantiate his claims. Furthermore, Counsel questioned the locus of the Claimant to bring or institute the action ab initio when the evidence is clear on the fact that 7 other welders also executed EXHIBIT CW1 TOM 001 and welded 1514 pipe joints together. Learned Counsel answered the question in the negative submitting also that it goes to show that the other welders are not in agreement with the Claimant’s position that payments will be made by circumference. He argued that from the evidence of DW1, the welders, including the Claimant, were tested on 16 inches pipes and the approved measurements based on diameter. That at the end of their work on site, all the engaged welders were paid their salaries and stand-by allowances. Counsel urged the Court to resolve the issue in their favour.

On Issue Three, Counsel to the Defendants adopted all his argument in support of issue two and contends that the Claimant is not entitled to the reliefs he seeks having failed to provide cogent and convincing evidence to support his claim. On the whole, he asked the Court to resolve all the issues in favour of the Defendants.

SUBMISSION OF THE CLAIMANT

The Claimant on his part raised three (3) issues in his Final Written Address for this Court to determine, to wit:

Whether the Claimant was short-changed by the Defendants to the sum of N25,170,250.00 (Twenty-Five Million, One Hundred and Seventy Thousand, Two Hundred and Fifty Naira) in respect of the contract giving rise to this suit?

Whether the Defendants breached the provisions of Clause 3.0 of Exhibit CW1 TOM 001 (MoU) executed by the parties, when they deliberately refused to pay the Claimant his stand-by money for a period of One Hundred and Thirty-Six (136) days during the existence of the aforesaid contract?

Whether the Claimant has proved his case on the preponderance of evidence and balance of probabilities to be entitled to judgment for the reliefs sought in paragraph 21(A) – (E) of the Amended Statement of Facts Establishing the Cause of Action dated the 11^th day of April, 2018 and filed on the 12^th day of April, 2018.

Putting forward his argument on Issue One, Learned Counsel to the Claimant submitted that the Defendants short-changed the Claimant to the tune of N25,170,250.00 after the Claimant and his team welded a total of 1514 pipe joints. The contention of the Claimant being that the number of joints welded by him and his team ought to be calculated based on circumference of the pipe and not based on diameter of the pipe. He contends that the work done by the Claimant was done round the circumference of each pipe. To him, the Defendants were wrong to have unilaterally and arbitrarily adopted a method of calculating the measurement of the pipe joints welded and payment thereof without first consulting the Claimant to that effect, being that there is no explicit provision in the MoU which stipulates the method for measurement and payment. He argued that it is only the Courts that can interpret the contents of the Agreement. He relied on the case of IHUNWO v IHUNWO (2013) 8 NWLR (PT.1357) 550 AT 555, RATIO 7 & 8, where the Supreme Court held that:

“where there is a written contract between parties, the main duty of the court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document. In other words, the proper course for the court is to discover the intention or contemplation of the parties, and not to import into the contract ideas not patent on the face of the document…”

Learned Counsel further argued that the Defendants’, by their oral evidence, cannot enlarge the interpretation of the provisions of the MoU (EXHIBIT CW1 TOM 001) and as such the Court should not place any reliance on the evidence adduced by the Defendants’ witnesses. He was of the opinion that the Defendants ought to have called any of the welders who worked with the Claimant and who is no longer in the employment of the Defendant. While discrediting the evidence of the Defendants, Counsel submitted that EXHIBITS DW1 001 and DW1 003 are documents unilaterally prepared by the Defendants themselves and do not form part of the MoU entered into by the Parties. The Defendants ought to have mentioned it in the MoU if they had intended the documents to be part of the agreement between the Parties prior to the commencement of work at the site. He therefore contends that the Court should rely solely on EXHIBIT CW1 TOM 001 as being the only document which regulated the contract between the Claimant and the Defendants.

Still on his issue one, Claimant’s Counsel argued that the evidence adduced by DW2 under cross-examination amounts to opinion evidence and offends the provisions of SECTION 67 EVIDENCE ACT, 2011. Counsel submits that since DW2 is not an expert in the field of welding and fabrication thus he cannot give any opinion that ought to be made instead by an expert in the field. He cited the case of NAGEBU CO. (NIG.) LTD v. UNITY BANK PLC (2014) 7 NWLR (PT.1405) 42 AT 49, RATIOS 5, 6 & 7.

On his Issue Two, Counsel to the Claimant submits that the Defendants ran afoul of the provisions of EXHIBIT CW1 TOM 001, particularly Clause 3.0 when they refused to pay the Claimant his stand-by allowance for over 136 days at Ten Thousand Naira (N10,000.00) per day. He argued that having failed to contradict the Claimant’s evidence on the number of days his stand-by allowance were not paid by proffering the number of days the Claimant was indeed demobilized from site, amounts to an admission. That the Defendants were rather evasive in their response to the Claimant’s evidence and thus the Claimant needs no further proof thereof. He contends that the evidence of the Defendants’ witnesses stating to the effect that welders were only entitled to stand-by allowance only when they are on site without work, is an attempt to rewrite the provisions of Clause 3.0 of EXHIBIT CW1 TOM 001.

Counsel maintains that the Claimant’s evidence on the stand-by allowance was emphatic, clear and unambiguous and the Defendants failed to successfully controvert the Claimant’s evidence in their pleadings and evidence. On the whole, he argued that the evidence of the Defendants’ witnesses were tainted with personal interest and falsehood. He urged the Court not to rely on the evidence of the Defendants.

Counsel’s submission on Issue Three is that the Claimant has sufficiently proved his case to warrant judgment to be given in his favour. He contends that having satisfied the obligations imposed on him by SECTIONS 131 & 132 of the EVIDENCE ACT, 2011; with credible and convincing evidence, the burden is discharged. On the other hand, the Defendants failed to come up with any compelling evidence to debunk his case. Also, since his claims fall within the ambit of special damages, the Court should rely on the quality evidence he adduced and grant all his reliefs sought.

In reply to the Defendants’ Final Address, the Claimant maintains that the 2^nd Defendant, being the alter ego and Managing Director of the 1^st Defendant, is a person whose interest would be affected by the determination of the suit. Learned Counsel posits that in the eyes of the law, a company is not a living being, hence, it is the human beings in the company that act as the eyes and legs of the company, and the 2^nd Defendant, being the directing mind and will of the 1^st Defendant, ought to be joined as a party to the suit. Referred the Court to the case of NIGERIA NATIONAL SUPPLY COMPANY LTD v ALHAJI HAMAJODA SABANA & CO. LTD & ORS (1998) NWLR (PT.74), 23.

On the discharged of the burden of proof placed on the Claimant, Counsel submits that having led credible and compelling evidence before the Court, he has successfully discharged the burden laid on him by law.

Lastly, as to whether the Claimant complained to the employees of the Defendants, Learned Counsel submits that the Claimant on several occasions approached the Defendants’ for redress before instituting this action and the fact that other welders appeared to have waived their rights under EXHIBIT CW1 TOM 001, is not enough to force the Claimant to also waive his right. He urged the Court to grant his reliefs and enter judgment in his favour.

DEFENDANTS’ REPLY ON POINTS OF LAW

The Defendants also filed a Reply on Points of Law dated the 30^th day of November, 2018 but filed on the 3^rd day of December, 2018. Taking the arguments of the Claimant one after the other, Learned Counsel to the Defendants argued in the Reply that the Court is not to make a contract for the Parties or to go outside the words they have used. He insists that Clause 2.4 of EXHIBIT CW1 TOM 001 provides for the mode of payment in inch per diameter. More so, the welders were tested on a 16 inch/diameter pipe joint before embarking on the contract. Counsel further submits that it is for the Claimant to prove his case and not to depend on the weakness of the Defendant’s case.

Counsel reinstates that all the witnesses who testified on behalf of the Defendants led credible and consistent evidence. He insists that stand-by allowances are only paid when a welder is on site but not working due to no fault of theirs as against the evidence of the Claimant that stand-by allowance are paid whenever a welder is not on site to take care of their welfare. He concludes by submitting that the Claimant has failed to prove his case and that the authorities cited and relied upon by the Claimant should be discountenanced.

COURT’S DECISION

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

Whether it was necessary or not to have joined the 2^nd Defendant as a Party to the instant suit

Whether the Claimant has properly dispensed with the burden placed on him by the law to entitle him to the reliefs sought by him.

Issue One:

Whether it was necessary or not to have joined the 2^nd Defendant as a Party to the instant suit

The Defendants have argued rather succinctly that the 2^nd Defendant ought not to have been joined as a Party in the first place being the Managing Director and an employee of the 1^st Defendant and that since the EXHIBIT CW1 TOM 001 was executed by a disclosed principal, there was no need suing the Agent. This argument was contradicted by the Claimant who posits that the 2^nd Defendant, being the alter ego and the owner of the 1^st Defendant, he necessarily ought to be joined because the likely outcome of the judgment would bind or affect him.

From the authorities, a necessary Party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party, in the absence of whom the claim cannot be effectually and completely determined. See: NNN LTD. v. ADEMOLA (1992) 6 NWLR (Pt. 507) 70 at 83; LSBPC v PURIFICATION TECH. (NIG.) LTD (2013) 7 NWLR (PT.1352) P.82.

The essence of the principle of necessary party is to forestall the institution of parallel litigation by a person who ought to but was not joined as a party in the suit. Consequently, he is joined in order to bind him by the judgment thereof. It is not squarely because he has an interest in the questions involved in the case or would proffer answers to relevant questions thereto or whether it is necessary to hear him for that purpose. There must therefore be a question in the action which cannot be effectively and completely settled unless he is a party. PEENOK INVESTMENTS LTD V HOTEL PRESIDENTIAL LTD (1982) 12 SC P1.

It is not in doubt that the 2^nd Defendant is the alter ego and Managing Director of the 1^st Defendant. The evidence of the Defendants’ witnesses especially DW1 and DW2 sufficiently discloses that fact. According to the witnesses, the 2^nd Defendant is aware of the existence of EXHIBIT CW1 TOM 001 and even approves payments for work done by the 1^st Defendant. Yet it is trite law that the 2^nd Defendant and the 1^st Defendant are separate and distinct persons even though the 2^nd Defendant is the Owner/Managing Director of the 1^st Defendant. The 1^st Defendant is a legal person and is legally different from the 2^nd Defendant. The 1^st Defendant is a corporate entity duly registered under the Companies and Allied Matters Act of Nigeria. This is as submitted by the Claimant himself in paragraph 2 of his Amended Statement of Facts. I am bent therefore in obliging credit to the arguments of the Defendants that the 1^st Defendant being a juristic person, is capable of suing and being sued in its corporate name only, without joining its directors or shareholders. See the case of OLALEKAN V WEMA BANK PLC (2006) 13 NWLR (PT.998) PG.617.

Acceding to the arguments of the Claimant that being the alter ego of the 1^st Defendant, the 2^nd Defendant, must necessarily be joined as a Party to this suit; defeats the very essence of the juristic nature of a company contrived in the acclaimed case of SALOMON V SALOMON & CO (1897) AC 22, and would make mockery of the judicial decisions settled to that effect. The sanctity of that principle must be protected.

The very reason for creating such distinction is to protect the individuals/directors/shareholders of a company from the travails of the company in limited circumstances. Where, however, criminality is alleged and or an application to lift the veil is made to ascertain the persons behind the veil, such individuals or directors would be exposed and tried accordingly. Otherwise, the company should be made to face the music of its deeds without coercing the individual directors to dance to the same tune.

Even so, I have considered the facts pleaded in the Complaint filed by the Claimant and I do not find, prima facie, any reasonable cause of action against the 2^nd Defendant linking him to the matter in controversy. This is so also for the reliefs sought by the Claimant. The case of the Claimant is entirely against the 1^st Defendant as can be gleaned from the Complaint. The 1^st Defendant was not the person who executed the EXHIBIT CW1 TOM 001 (MOU), contrary to the evidence of the Claimant that he did. It is now fairly settled law that it is the cause of action as endorsed on the Writ of Summons (the Complaint, as in this case) that determines the proper parties before the Court. See OKOYE v. NCFC (1991) 6 NWLR (PT. 199) PG 501; AFOLAYAN v. OGUNRINDE & ORS (1990) 1 NWLR (PT. 27) 359.

Everything or anything done (if any) by the 2^nd Defendant would have been done on behalf of the 1^st Defendant and in his capacity as a servant of the 1^st Defendant. He must therefore not be subjected to the wrangle of the relief sought by the Claimant when there are no claims against him, prima facie. And I so hold.

Issue one is decided in favour of the Defendants.

Issue Two:

Whether the Claimant has properly dispensed with the burden placed on him by the law to entitle him to the reliefs sought by him.

It is an elementary principle of law and which has found judicial backing in a sea of authorities that in civil cases, burden of proof is on the balance of probabilities based on preponderance of evidence. This burden may shift depending on the preponderance of evidence and it will rest on the Party who would fail if no evidence at all or no more evidence were led on either side. SAKATI v BAKO & ANOR (2015) LPELR-24739 (SC) PER NGWUTA J.S.C. In this instance, the Claimant must first, by his evidence, satisfy the twin but alternative standards of proof. In either of these standards the Claimant must come out clearly with cogent evidence as to the specific act or acts of the Defendants. It is when the Claimant has done this that the burden shifts to the Defendants to rebut.

It is essential to note that the onus of proof in this proceeding must be connected to issues raised in the pleadings and the strength of the entireties of evidence adduced at the trial. There can be no absolute standard.

The Claimant alleged that the Defendant employed a method for calculating inches of pipe joints which is not contained in EXHIBIT CW1 TOM 001 and thereby paying him lesser than the supposed sum for the contract work. By his evidence, the Defendant unilaterally based their calculation using diameter inch rather than on the circumference of the pipes. This is a quite a stubborn issue because I have looked at EXHIBIT CW1 TOM 001 and I do not find contained therein any clause which suggests payment to be calculated using either diameter or circumference. For an objective settlement of this vivacious but persistent issue, I have had to place reliance on EXHIBITS DW1 002 & DW1 003, which showed the type of pipes and the calculation used during the Welders’ Qualification Test and which Parties also admitted is similar to the pipes worked on at the site of the construction. It is not in doubt that the calculations were made on a 16 inches diameter with nothing suggesting otherwise.

It is apparent that the said documents (EXHIBITS DW1 002 & DW1 003) are of a nature that the Court will presume that they were made with the apparent intention that the pipe joints will be calculated in diameter inch and the Defendant also led evidence in prove that it was in fact executed with this apparent intention. It was then for the Claimant to call evidence to rebut that presumption, which he failed to do. This Court also took its time to consider the application of pipe welding calculations as is obtainable in the welding practice and came to the realization that in construction projects, both Inch Diameter and Inch Metre are generally considered as units for measurement of quantum of piping jobs (mainly for welding/erection of piping, hydro test measurements). This being the general usage or custom of the business of welding, satisfies this court on the determination of the issue.

By SECTION 167 of the EVIDENCE ACT, 2011, the law is settled that the Court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts. See the cases of HIGH GRADE MARITIME SERVICES LTD v. FIRST BANK LTD (1991) 1 NWLR (PT.167) PG. 290 AT 308; ANYANWU & ORS v UZOWUAKA & ORS (2009) 13 NWLR (PT.1159) PG.445.

In the circumstance, I entirely endorse the evidence and arguments of the Defendant and accordingly rule in their favour.

The Claimant has also raised the question of breach of Clause 3.0 of the Memorandum of Understanding (EXHIBIT CW1 TOM 001) by the Defendant in that the Defendants failed and or refused to pay him the stand-by allowances for 136 days and as agreed upon by Parties. Clause 3.0 provides that:

“Stand-by rate per day shall be N10,000.00 for each welder if due to no fault of the welder”

To my mind, this phrase is incomplete and there are no documentary evidence to ascertain or discern the complete intendment of the said Clause except with the contrasting oral evidence of the contesting Parties and drawing any inference therefrom would amount to going on a voluntary voyage of my own aimed at producing evidence for the Claimant. Parties, by their oral evidence, seem to be in disagreement on whether the stand-by rates are paid to welders who were at the site or not. Clearly, there is an omission in Clause 3.0 of EXHIBIT CW1 TOM 001 but it is not the duty of this Court to fill in the gap or correct that omission.

Once again, the law is settled that every item contained in the claim of special damages must be specifically proved and such proof must be characterized by testimony that ties each item with the evidence led. The reliefs sought by the Claimant in Paragraph 21(b) & (c) of his Amended Statement of Facts Establishing the Cause of Action falls under the umbrellas of special damages and the burden of proving those claims with sufficient and tangible evidence fell on the shoulders of the Claimant. The Claimant failed to discharge this burden placed on him by SECTION 131(1) of the EVIDENCE ACT, 2011, which provides thus:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

The Claimant did not lead any evidence to tie his oral testimony. He did not rely on EXHIBIT CW1 TOM 002 (His Statement of Account) to substantiate his claim for the alleged non-payment of the stand-by rates. Even if he had done so, the said Statement of Account would not have availed his cause because it is unreliable being incomplete with several pages missing or skipped. It would be unfair, unjust and unconscionable to rely on EXHIBIT CW1 TOM 002 as it does not aid this Court in anyway in the determination of the issue before it nor does it project justice, which is a cardinal principle of the law. I will pay total loyalty to this legal principle so as not to insult the law.

Before my ink runs dry, I must state that the Claimant, with this action, seeks to change the norm and practice of his profession and felt it was proper to use the arsenal of this Court to achieve such sinister motive. This is a Court of Justice where life and serious issues are maintained and determined, and not where academic issues meant for the classrooms are discussed or tried.

Having said that, I resolved all the issues in favour of the Defendant, I hold that all the reliefs sought by the Claimant must fail. The case of the Claimant is hereby dismissed. I so hold.

Judgment is hereby entered accordingly.

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HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE