Ngiangia T. Iboma & 4 ORS -VS- Port & Terminal Operators Ltd & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HON. JUSTICE I.S GALADIMA

DATED: THIS 20^TH JANUARY 2020

BETWEEN: SUITNO: NICN/PHC/72/2014

NGIANGIA T. IBOMA
PETER TEME WILCOX
NGOJIBO EKINE
WILLINGTON APAKAWARI CLAIMANTS
ODIKI ABIYE

(For themselves and representing

Eighty-Eight other Dock Workers)

AND

PORTS & TERMINAL OPERATORS LTD
DANGOTE BAIL LIMITED
MARITIME WORKERS UNION DEFENDANTS

OF NIGERIA (DOCKWORKERS’ BRANCH)

REPRESENTATION:

Karibo Douglas for the Claimants.
D. O. Okoro for the 1^st Defendant.
Paul Ebiala for the 2^nd Defendant.
3^rd Defendant absent and not represented.

JUDGEMENT:

These Claimants were allegedly dockworkers engaged by the 1^st and 2^nd Defendants from 2006 – 2008 before they were laid off on grounds of redundancy without their being paid their alleged terminal, hazard, and insurance benefits. The 1^st Defendant is purportedly the Port Terminal Operator’s (Stevedoring) firm to the 2^nd Defendant Company. Accordingly, the 1^st Defendant brought these Claimants to work for the 2^nd Defendant whereas the 2^nd Defendant was actually the firm that paid the Claimants’ salaries. The Claimants’ case is that their jobs was terminated on grounds of redundancy without the required payment of entitlement benefits (pay-offs), hazard allowances, and insurance as contained in Article 2 [12] of Part 2 in the Procedural Agreement between the Sea Port Terminal Operators Association and the Maritime Workers Union of Nigeria. Their jobs upon being terminated, accordingly entitled them to terminal benefits for redundancy as well as hazard allowances which these 1^st and 2^nd Defendants purportedly refused to pay to them since 2008. The Claimants allegedly wrote to the Maritime Workers’ Union, Port Harcourt Branch and the Nigerian Labour Congress (NLC) for intervention and that it was upon the strength of that agitation that the 2^nd Defendant paid them their insurance benefits only.

The 1^st Defendant’s defence is that the Claimants were engaged by the 2^nd Defendant and not the 1^st Defendant through Messrs F.D.C Briggs, Yaya Lulu Nig. Ltd, Dinabell and Stevedoring Contractors that variously worked for the 2^nd Defendant at different times in the past. The Claimants were accordingly laid off by the 2^nd Defendant company in 2008 and were paid their respective severance packages/entitlements and that the Claimants were not entitled to the reliefs sought by them in this action at all.

The 2^nd Defendant’s Defence is that the 1^st Defendant was its “Landlord” who engaged stevedoring Companies charged with the responsibility of recruiting dockworkers, and so all the entitlements of such workers were paid by those stevedoring companies. That although there was a collective agreement which took effect from 1^st June, 2008 to 2010, that agreement accordingly did not apply to these Claimants. That these Claimants were casual workers by the very nature of their duties as such all their entitlements were duly paid as per the arrangement in place in 2006 and 2008 and so the 2^nd Defendant owed no liability under any Contracts of Employment with the individual Claimants between 2006 and 2008 at all.

Accordingly, this suit was commenced by way of a complaint duly filed and accompanied by other originating processes on 17/3/2014 — but amended on 26/4/2018, wherein these Claimants claimed against the Defendants jointly and or severally as follows:

(a) AN ORDER directing the 1^st and 2^nd Defendants or the 1^st set of Defendants, to pay the Claimants their terminal Benefits of N2,000,000.00 [Two Million Naira] each.

(b) AN ORDER directing the 1^st and 2^nd Defendants to pay the Claimants’ Hazard Allowances of N1, 000,000.00 each.

(c) AN ORDER directing the 1^st and 2^nd Defendants to pay the Claimants, N200.000.00 as general damages and cost of litigation.

HISTORY OF THE CASE:

This suit was originally commenced and heard in the Portharcourt division of this Court before Hon. Justice F.I Kola Olalere and later transferred to Calabar before the Hon. Justice J.T Agbadu Fishim then subsequently to Yenagoa before it was eventually transferred to Owerri division before me. Appreciating the necessity for expediency therefore, trial commenced properly before me on the 20/2/2018 and concluded on the 24/10/2019. Upon the adoption of their Counsel’s final written briefs on 12/11/2019, the case was thus adjourned to today for pronouncement of this here judgment.

CLAIMANT’S CASE:

Upon the settlement of pleadings, the Claimants opened their case on the 20/2/2018. The Claimants first presented Ngiangia T. Iboma (1^st Claimant) who testified as CW1, adopting his written deposition dated 17/3/2014 and relying on same. 6 Exhibits lettered Exhibit C1 (a) and (b) – C6 were admitted through CW 1. He was duly cross examined by the respective Counsel to the Defendants on the same day. The documents tendered by CW1 are as follows:

Exhibits C1 (A) & (B) – Letter of power of Attorney dated 30/6/2012.
Exhibit C2 – Agreement between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria on Minimum Standards for the Dock labour Industry.
Exhibit C3 – letter of appeal written on behalf of Claimants to MWUN dated 23/12/2008.
Exhibit C4 – letter of appeal for intervention written to NLC dated 20/1/2009.
Exhibit C5 – various Fidelity Bank Cheques paid to the Claimants in 2010.
Exhibit C6 – Letter of intervention written by Felix Chukwuemeka Amadi & Co Legal Practitioners & Consults to the Speaker Rivers House of Assembly dated 25/7/2012.

The Claimants’ second witness, Mr. Peter Teme Wilcox testified as CW2 on the 4/2/2019. He relied on his amended deposition dated 27/11/2018 and adopted same as his evidence. Additional two Exhibits lettered Exhibits C7 (a) & (b) and C8 (a) & (b) were tendered and admitted in evidence. He was duly cross examined by the respective Counsel to the Defendants on the same day. The documents admitted are as follows:

Exhibits C7 (A) & (B) – Copies of Port’s Permits of Ngiangia Tamuno Iboma and Peter T. Wilcox (1^st and 2^nd Claimants).
Exhibit C8 (a) to (h) – Nigerian Social Insurance Trust Fund Certificates of Membership of Ngangia T. Iboma, Peter Allen Wilcox, etc.

The Claimants thereafter closed their case. Portions of their testimonies in open Court may be relied upon in the course of this Court’s findings.

1^st DEFENDANT’S CASE:

1^st Defendant opened its case on the 9/4/2019 and one Ifeyinwa Johnson testified as DW1. He too adopted his written deposition dated 25/4/2014 and relied on same as his testimony in open Court. He was duly cross-examined by Counsel to the Claimants on the same day and thereafter closed their case.

2^ND DEFENDANT’S CASE:

The 2^nd Defendant opened its case on the same day as the 1^st Defendant. It presented a sole witness, Jumai Wika who testified as DW2. She too adopted her written deposition dated 25/6/2015 and relied on same and was duly cross examined by the Claimants’ Counsel on the same day.

Portions of the witnesses’ testimonies may be relied upon in the course of this Court’s findings.

1^ST DEFENDANT’S FINAL WRITTEN ADDRESS:

Upon the conclusion of evidence, the 1^st Defendant’s Counsel filed his final written address on 29/04/2019 wherein two issues were raised for determination, thus:

Whether the Honourable court is not in law bereft of the Jurisdictional competence to entertain this suit in view of the provisions of Section 16 of the Limitation Law, Cap. 80, Laws of River State of Nigeria, 1999?

Whether the Claimants have proved their entitlements to the reliefs Claimed in this suit against the 1^st Defendant?

Learned Counsel first submitted that this court must take judicial notice of the Claimants’ complaint filed 27/11/2018 which by virtue of Section 122 (2) (m) Evidence Act, 2011, it has unfettered power to so do. He cited inter alia, the case of Agbaisi V. Ebikoreke (1997) 4 NWLR (pt. 502) 630, Ratio 1. Counsel then submitted that in order to ascertain whether an action is statute barred a comparison of dates has to be made between the Complaint and the Statement of facts before the Courts. He cited P.N Udoh Trading Co. ltd v. Abere (2011) 11 NWLR (pt 723) 114 @133, paragraphs G-H. He further submitted that a cause of action arises on the date or from the time when a breach of any duty or an act occurs which warrants the person injured or the victim who is adversely affected by such breach to take out a Court action, to assert or protect his legal right — Woherem v. Emereuwa (2004) 13 NWLR (PT. 890) 398 @ 415, paragraphs F-H.

He added that Section 16 of the Limitation Law, cap 80, Laws of Rivers State Nigeria, 1999 stipulates as follows:

“No action founded on contract, tort or any other action not specifically provided for in parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued”

It was submitted that these Claimants ought to have commenced this suit within 5 years from 2008 when they were laid off and not afterwards. Therefore, since this suit was commenced on the 17/3/2014 which was several months after the expiration of the limitation period, the Claimants’ action in the circumstance is now stale and no longer justiciable.

Learned Mr. Okoro argued that according to the CW1 and CW2, they stated under cross – examination that their terminal benefits and hazard allowances accrued in December, 2008 when they were laid off by the 2^nd Defendant. Reckoning with this fact, since this action was commenced on 17/3/2014 whereas the cause of action extinguished in 2013, it is thus glaring that the instant suit is caught up by Section 16 Limitation Law of Rivers State. He cited Attorney General of Adamawa State V Attorney General of the Federation (2014) 14 NWLR (pt. 1428) 515 @ 550, paragraphs B-E, 561, paragraphs E-F, 565, paragraphs E-G inter alia.

It was thus submitted that when a court holds that an action is statute barred the effect is that the right to enforce that action is totally lost as the jurisdiction to entertain the Claim by the Court is lost — Egboigbe v. NNPC (1994) 6 SCNJ 71. Accordingly, in the case of Omaye V. Omagu (2008) 7 NWLR (pt. 1087) 477 @ 501, para d-h, Adekeye, J.C.A (as he then was) had held that statute of limitation undoubtedly raises a jurisdictional issue. After the date on which the applicable law provides that legal proceedings cannot be taken, any person ordinarily having a right of action can no longer institute such action. In other words, if an action is statute barred, it affects the legal competence or jurisdiction of court — Egbe v. Adefarasin (1987) 1 NWLR (pt .471) 1. In his opinion, the rationale behind all the judicial authorities is that jurisdiction is the fulcrum of any proceedings and when the instant case is compared with all the judicial authorities aforementioned, this Court must come to a conclusion that this action is incompetent — dead on its face — by reason of the statutory limitation provided in Section 16 Limitation Laws of Rivers State of Nigeria, 1999. He thus concluded on this issue that this Court does not have the jurisdiction to entertain or make a finding in this suit — Unity Bank Plc V. Nwadike (2009) 4 NWLR (pt.1131) 352 @ 381, para b-d. He therefore urged that the proper order to be made in the instant suit is a dismissal.

On issue number two, learned Counsel first sought to draw this Court’s attention to the Claimants’ reply to the 1^st Defendant’s Statement of Defence filed on 19/6/2014 which was unaccompanied by a witness’ deposition. He argued in this light, that the Claimants’ Reply which was filed without any evidence, therefore goes to no issue and same must be deemed to have been abandoned since pleadings not backed by evidence, is liable to be struck out and disregarded in toto. He cited Susainah (Trawling) vessel) Abogun (2007) NWLR (PT. 1016) 456@487, para a-d inter alia. Counsel submitted on that even the Claimants’ Reply to the 2^nd Defendant’s Statement of Defence which was although accompanied by additional witness Statement on oath of CW1 filed on 20/10/2018, was not adopted by him when he testified before this honourable Court. Accordingly, the said reply and additional witness Statement on oath must be deemed abandoned in law and must be struck out.

Arguing on, Counsel stated that the case of the Claimants in their pleadings as dock workers of the 1^st Defendant, is rather speculative, unsubstantiated and baseless in law because there was no where they made reference to any employment letters from the 1^st Defendant throughout the gamut of evidence provided through CW1 and CW2 on oath. He suggested that by virtue of Section 133 (1) and (2) of the Evidence Act, 2011 in civil cases, the burden of proving the existence of a fact lies on the party against whom judgment of the Court would be given if no evidence were produced on either side. The burden of establishing the assertion that the Claimants are the employees of the 1^st Defendant, thus lay squarely on the Claimants and they accordingly failed to discharge that onus in this case by not tendering their respective letters of employment in support of their Claims. Their abysmal failure to avail this Court of their Letters of Employment is purportedly fatal to them — Bulet Int’l (Nig) Ltd V. Olaniyi (2017) 17 NWLR (pt. 1594) 260 @287, para g-h, 296, para d-f. He submitted that in law, it is now sacrosanct that the best form of establishing an employment relationship is through the production and tendering of a letter of employment before the Court — Organ V. N.L.N.G Ltd (2013) 16 NWLR (pt. 1381) 506 where AKA’AHS, J.S.C at page 551 para G held:

“the letter of employment is the bedrock on which any of the appellants can lay Claim to being employees of the Respondent and without the production of such a document, no employment can be inferred. The Employees’ Handbook issued by 1^st Respondent is not a substitute for the letter of employment.”

He cited inter alia, Morohunfola V. Kwaratech (1990) 4 NWLR (pt. 145) 506 @ 527-529 and submitted that Exhibits C7A and C7B were issued to the Claimants by the Nigerian Ports Authority as admitted in evidence by CW2 to enable them gain ingress into the ports and same were not issued by the Defendants and thus cannot serve as substitutes for letters of employment which are indispensable in establishing a valid Contract of Employment.

He emphatically submitted that Exhibit C2 is the fulcrum of the Claimants’ cause but a critical and thorough examination of the said Exhibit C2 will show that Claimants were neither parties nor signatories to the said collective agreement. It is accordingly undoubted that documentary evidence remains sacrosanct at all times. It is the best evidence and same always speaks for itself — Emeje V. Positive (2009) ALL FWLR (PT. 452) 1056 @1074, Para C-D

The learned Okoro argued on that a contract cannot confer or impose any obligations or rights on parties who are strangers to it. They are best described as interlopers where a Claimant has no privy of Contract with a Defendant, just like in the instant case. Any action based on such contract must fail as the Claimant will basically have no locus standi or legal standing to sue a Defendant on the Contract that he is not a party to — Technip V AIC LTD (2016) 2NWLR (pt. 1497) 421 @ 464-465. He submitted that only parties to a Contract can sue on it but in the instant case, an extraneous agreement not entered into by the parties to a contract of service, cannot be made the basis of an action by an employee unless it is incorporated into the Contract of service agreement of such an employee — A.G Federation V. A.I.C LTD (2006) 10 NWLR (PT 675) 293 @206. These Claimants are accordingly total strangers to the execution of the Agreement in question and as such they lack the legal standing to invoke the interpretative jurisdiction of this Honourable Court —U.B.N Ltd V. Edet (1993) 4 NWLR (PT. 287) 288@ 298-299, para G-A where Uwaifo J.C.A (as he then was) stated the position of the law thus:

“…Generally a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it.”

He further submitted that like in N.N.B.C PLC V. EGUN (2001) 7 NWLR (PT .711) 1 @ 18-19, para g-b Tobi J.C.A (as he then was) referred to the earlier decision in the case of U.B.N ltd V. Edet (supra) and re-stated the settled position of the law on the effect of collective agreement between employers and association of employees to contract of employment which is to the effect that a collective agreement between an employers’ association and an employees’ association is only binding if the parties are privy to the contract and no more.

He further submitted that assuming even if for mere academic exercise that one agrees that the Claimants have the locus to rely on and invoke the provisions of exhibit C2, the said Exhibit is accordingly inapplicable to the Claimants in this suit. This is essentially because by clause 1 of Exhibit C2, the agreement is applicable to permanently employed dockworkers only which the Claimants are allegedly not. He quoted Clause 1 which stipulates thus:

“that the minimum gross wage for any permanently employed Dockworker shall be thirty-three thousand Naira (33,000.00) only as entry point on employment.

He then submitted that apart from not tendering their letters of employment, if any, the Claimants never tendered any documentary evidence that established that they were permanently employed dockworkers, as against casual workers which the 2^nd Defendant said that the Claimants were. Accordingly also, more devastating to their bare claims that they were permanent dockworkers is Exhibit C6 — the letter dated 25/7/2012 written by the Claimants’ Counsel to the Honourable Speaker of the Rivers State House of Assembly. Exhibit C6 was accordingly tendered by CW1 on 20/2/2018. The second paragraph of Exhibit C6 states as follows:-

“1. That our clients were under the employment of Dinabel services and Ports and Terminal Operators Limited as Casual/Contract staff to Dangote Bail Ltd between 2001 to December 2008”

He believes this in itself was an admission of the fact that the Claimants knew that they were not employed as permanent employees of the 1^st Defendant.

He further submitted that Section 28 of the Nigerian Dock Labour Act, cap. N103, laws of the Federation of Nigeria, 2004 categorizes dockworkers into two, namely, permanent skilled dock workers and casual dockworkers. So it was incumbent on the Claimants to prove by credible evidence that they are permanent dockworkers before they can benefit from the stipulations in Exhibit C2, and this they accordingly failed to do.

He argued further that it was clear Exhibit C2 was executed on the 20/5/2008 and by clause 8, the life span of the agreement was for 2 years from the date of its signing. Meanwhile, the Claimants are asking for their severance benefits for the period of 2006 – 2008 to be computed based on the stipulations in Exhibit C2. It is accordingly therefore doubtful that there is any clause in Exhibit C2 that states that it will take a retroactive/retrospective effect from 2006 so as to make the Claimants beneficiaries of its contents.

Counsel further submitted that this Court will neither make a contract/agreement for parties nor rewrite the parties’ agreement. A Court of law must treat as sacrosanct the terms of an agreement freely entered in to by the parties thereto as parties enjoy the liberty to contract on their own terms as long as same is lawful — AFRILEC LTD V. LEE (2013) 6 NWLR (PT.1349) 1@ 14-15, para G-D and DASPAN V. MANGU LOCAL GOVERNMENT COUNCIL (2013) 2 NWLR (PT.1338) 203 @ 233, PARA b-d

With respect to relief 3 of the Claimants’ Statement of facts wherein they asked for the sum of N200,000 as general damages and cost of litigation, Counsel stated that much as the Claimants are not entitled to general damages having not proved their case against the 1^st Defendant as shown above, there is no known law or rule of practice that prescribes that it is the duty of a Defendant to underwrite the professional fees charged by the Claimants’ Counsel for the prosecution of a matter on behalf of the Claimants. The law is accordingly sacrosanct that it is unethical and an affront to public policy to pass on the burden of Solicitor’s fees to the opponent in a suit — S.P.D.C V. OKONEDO (2008) 9 NWLR part 1091 page 85 @ 122-123. The Claimants retained the services of Karibo Douglas, Esq as their Solicitor, and not the Defendants. It will therefore be unconscionable to ask this Court to order the Defendants to pay the Claimants Solicitors’ fees in this action. Accordingly, the Court of Appeal in the case of GUINNESS (NIG) PLC V. NWOKE (2008) 15 NWLR pt 689 page 135 @ 150, para A-E had this to say-

….

…It is absolutely improper to allow the cross-appellant to pass his financial responsibility couched as “special damages to the cross-appellant”.

In conclusion, Counsel submitted that the inability of the Claimant’s to proof by any scintilla of evidence that the 1^st Defendant was their employer and that it owed such duty to pay them their severance benefits and hazard allowances as claimed, is very fatal to the Claimants’ case on the whole. As such, he wants this Court to find that the Claimants have not proved their case on a preponderance of evidence and they are therefore not entitled to the award of the reliefs sought in this suit. He urged the Court to dismiss the Claimants’ case with substantial cost in favour of the 1^st Defendant.

2^ND DEFENDANT’S FINAL ADDRESS AND SUBMISSIONS:

The 2^nd Defendant’s Counsel filed his final written address on the 31/5/2018 wherein three issues were raised for determination thus:

Whether in the circumstances of this case, there is privity of Contract between the 2^nd Defendant and the Claimants?
Whether the Claimants and 2^nd Defendant are parties to the minimum standards for the Dock industry and the procedural agreements; and even if the Claimants are, whether as at the time they instituted this action relying on same, the said agreements were still subsisting and enforceable?
Whether from the totality of the evidence put forward by the Claimants in this case, they have been able to prove their case on the balance of probabilities to be entitled to judgment.

On the first issue, learned Counsel submitted that there was no subsisting and enforceable contract of employment between the Claimants and the 2^nd Defendant. His submission is on the grounds that the 2^nd Defendant never engaged the Claimants at any time to work for it. He defined what a contract of employment is to be “an agreement between an employer and employee and is the basis of the employment relationship”. Accordingly by section 73 of the Employees’ Compensation Act, 2010, an employee means “…a person employed by an employer under oral or written contract of employment whether on a continuous, part time, temporary, apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, state and Local Governments, and any of the government agencies and in the formal and informal sectors of the economy…” On the other hand an employer, “…includes any individual, body corporate, Federal, State or Local Government or any government agencies that has entered into a contract of employment to employ any other person as an employee or apprentice…”

He further submitted that the 2^nd Defendant never employed the Claimants as the Claimants could not tender any Contract of employment to substantiate their Claims. Mr. Ebiala cited Obanye V. UBN PLC (2015) LPELR-25891 (CA), where the Court of Appeal held that “in a Contract of employment, the general principle is that the letter of appointment must be tendered as it is the document that the Court will look at in considering the rights and obligations of the parties…”. The only exception that exists is when both the Claimant and the Defendant are, by their pleadings, ad idem that the Claimant is an employee of the Defendant. This accordingly was not the case in the instant suit, as the 2^nd Defendant herein maintained from the outset that the Claimants were not its employees. Counsel sought refuge in the Supreme Court decision in Organ & ors V. Nigeria Liquified Natural Gas Ltd & Anor (Supra).

Learned Counsel submitted that under cross-examination, both CW1 and CW2 admitted that they were not employed by the 2^nd Defendant, but were rather engaged by the stevedoring firms to work for the 2^nd Defendant and that their wages were usually released by the 2^nd Defendant to the stevedoring firms who, in turn, paid them. By the doctrine of privity of contract, a contract cannot impose obligations upon any person who is not a party to it. In the instant case, the stevedoring firms had separate contracts with the 2^nd Defendant and the Claimants. Just as the 2^nd Defendant is not a party to the Contract between the stevedoring firms. If the Claimants have any Claims at all, it should accordingly be against the stevedoring firms and not the 2^nd Defendant. He cited J.E OSHEVIRE LTD V. TRIPOLI MOTORS (1997) LPELR-1584(SC) and the Court of Appeal’s decision in AONDO V. BENUE LINKS (NIG) LTD (2019) LPELR-46876(CA) where Ekanem, JCA, that,

“By the doctrine of privity of Contract, only a party to a contract can sue or be sued on it. It cannot be enforced by or against a non-party even if it is made for his benefit…”

He finally added on issue one, that there were no employment relationships between the Claimants and the 2^nd Defendant as to form the basis of this action against it.

ON ISSUE TWO, Ebiala submitted that there was no subsisting agreement before this Court capable of being enforced by the Claimants against the 2^nd Defendant. His submission is anchored on the fact that first the said agreements (Exhibit C2) were between the Seaport & Terminal Operators Association and Maritime Workers Union of Nigeria; secondly, the 2^nd Defendant only witnessed the agreements, as it is not a member of either party to the agreements; and, third, the said agreements expired by effluxion of time after two years from their commencement, that is, in the year 2010, while this suit was instituted in the year 2014 — two years after the expiration of the agreements.

He further submitted that the Claimants are members of the Maritime Workers union of Nigeria, which is a party to the agreements under consideration. By the very nature of the agreements, where there is a breach of the terms of the agreements on the part of the Seaport & Terminal Operators Association, it is the Maritime Workers Union of Nigeria as a body which can rightly seek the enforcement of the terms and conditions of the agreements on behalf of its members (which includes the Claimants). Therefore, the Claimants, not being parties to the agreements, cannot seek the enforcement of the terms and conditions of the agreements either personally or collectively without the participation of their union. Counsel is convinced that the agreement cannot even be enforced against the 2^nd Defendant as it did represent any of the parties to the agreements but was only witness to the execution of the agreement by the parties. Thus, it cannot be held liable for any purported breach of any of the terms and conditions of the agreements — Agbareh & Anor V. Mimra & ors (2008) LPELR 43211(SC), in which the court, per OGBUAGU JSC, said: “…also settled is that, an agreement is binding only on the parties thereto and not on third parties.” In the case of Dizengoff W.A (NIG) LTD V. Agric Service, Training centre and marketing LTD (2018) LPELR-46361(CA), the court of Appeal put it even more pungently when it said, per Ugo, JCA, that,

“How can an agreement between two different entities bind appellant who was not a party to it? Only parties to agreements are bound by its terms, non-parties are not bound and cannot even sue on it even if it was made for their benefit…”

He cited inter alia the case of W.D.N.LTD V. OYIBO (1992) 5 NWLR (PT.239) 77 at 100.

Counsel further submitted that, at the time this suit was instituted in 2014, Exhibit C2 had lapsed by effluxion of time, as it clearly provides in paragraph 8, that, “… the life span of this agreement shall be two (2) years from the date of its signing”. Exhibit C2 was signed on the 8^th day of May, 2008 to last for two years from that date, which ended on the 8^th day of May, 2010. By this time the services of the Claimants had been dispensed with two years earlier (i.e. in 2008). They waited for another two years after the expiration of the agreement before instituting this action (in 2014). Counsel questioned that “on what plank, therefore, are the Claimants before this Honourable Court because, their main claim is a purported accrual of some benefits in their favour under the agreements?” He submitted that assuming without conceding that Exhibits C2 was still ‘alive’ for the Claimants to enforce if they were parties to it, they had a duty under the agreement to first lodge their complaint before the National Joint Industrial Council (NJIC), created and constituted under the agreement, for possible settlement. Para 11 of the said Exhibit C2 provided that “…in the case where there is a breach of this agreement, the aggrieved party shall take the matter to the NJIC for settlement.” Can the Claimants rightly be referred to as the “the aggrieved party” with a view to enforcing their ‘rights’ under the agreement? If they can, did they present their perceived grievances to NJIC for consideration? Questioned Mr. Ebiala. He answered negatively saying, “the Claimants must necessarily convince this Honourable Court that their action is predicated on a subsisting and enforceable agreement and they are parties to Exhibit C2 in their individual capacities”. Therefore, in the absence of such conviction, this suit must accordingly fail.

On his issue number 3, Counsel submitted that these Claimants have not met the required standard of proof to be entitled to judgment in this suit. That beyond asserting that they are entitled to some form of accrued benefits by virtue of their alleged engagement by the 2^nd Defendant, they have not been able to place before this Court, credible evidence to substantiate their claims. He cited the Supreme Court case of AGALA & ORS V. OKUSIN & ORS (2010) 10 NWLR (PT. 1202), P.412, where MUKHTAR, JSC stated that,

“Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim.”

Similarly, the court of Appeal expanded on this in the case of UNION HOMES SAVINGS & LOAN PLC V. OLUMIDE & ORS (2018) LPELR-45572(CA) when he said, per Obaseki Adejumo, JCA, that, “it is a loud position of law that cases are won and lost on the evidence presented by parties before the Court. Where in civil cases, as in the instant one where the standard of proof is on balance of probabilities, the plaintiff presents sufficient evidence, satisfactory to support his case, the court will readily decide the dispute in his favour…”. Counsel further referred and relied on section 134 of the Evidence Act, 2011.

He submitted and argued that these Claimants could not establish with credible evidence that any employment relationships existed between them and the 2^nd Defendant, and this was the foundation of any claims by them. Accordingly, the Claimants under cross examination affirmed that they were not employed by the 2^nd Defendant, and they were rather engaged by the stevedoring firms, which assigned them to work for the 2^nd Defendant whenever there were loading and offloading. That state of affairs was further confirmed by their failure to tender their appointment letters (if any) purportedly issued them by the 2^nd Defendant in evidence. Secondly, the Claimants also failed to establish by credible evidence before this Court that they were parties to Exhibit C2, which they relied on wholly to make their claims against the 2^nd Defendant. In their separate answers to a question asked under cross-examination whether their names were mentioned in Exhibit C2 as parties, they answered in the negative. That situation in itself leaves the Claimants without locus to maintain this action. Learned Counsel reiterated that only parties to an agreement can derive any benefits or suffer any forbearance under the agreement. Therefore, the Claimants not being parties to the agreement cannot enforce same neither can the 2^nd Defendant, which is also not a party to Exhibit C2, be made to suffer any forbearance under it.

He further submitted that not conceding, that there was privity of contract between the Claimants and the 2^nd Defendant, and that both the Claimants’ witnesses and the 2^nd Defendant were parties to Exhibit C2, the Claimants’ case will still fail having not established by any credible evidence that they were not paid whatever entitlements that were due to them under the collective agreement. Even when they tried vigorously to create the impression that the cheques they received from the 2^nd Defendant in various sums were in defrayment of their ‘insurance’ only, that was completely destroyed under cross-examination when they could not show where on the cheques it was stated that the payments made to them were for insurance benefits.

He concluded his submission by summarizing the following facts:

There were no employment relationships between the Claimants and the 2^nd Defendant as to form the basis of this action.
That the Claimants as well as the 2^nd Defendant are not parties to Exhibit C2 upon which the Claimants predicated this action.
That the Claimants failed woefully to prove their case on a balance of probabilities and are, therefore, not entitled to judgment.

Counsel finally urged this Court to dismiss this suit for lacking merits with substantial costs against the Claimants.

CLAIMANTS’ FINAL SUBMISSIONS:

The Claimants’ Counsel filed his Final Written Address on 17/06/2019 wherein he raised two issues for determination, thus:

Whether the Claimants are entitled under the law to a redundancy or terminal payment.
Whether reliance on Exhibit C2 will vitiate the express provision of the law on redundancy.

Counsel started his submissions by considering the legal issues raised in the 1^st Defendant’s Final Written Address.

On whether this Court is not in law, bereft of the Jurisdictional competence to entertain this suit in view of the Provisions of Section 16 of the Limitation law cap 80 laws of Rivers state of Nigeria 1999, the learned Douglas submitted that the 1^st Defendant effortlessly extrapolated the legal proposition of the statutes of limitation in this case. Accordingly, Exhibit C5 a-h are Fidelity Bank cheques issued to the Claimants for the payment of their insurance contributions while in the services of the Defendants. That said Exhibit C5 a-h were part of their agitation which was paid in 2010. He referred to paragraph 10 of the statement of facts. It meant therefore, that the cause of action was extended from 2008 to 2010. This accordingly, is in line with the clear provisions of Section 28 (5) and (7) of the Limitation Law of Rivers State cap 80, 1999. Same was also admitted by the 2^nd Defendant in paragraph 9 of their Statement of Defence. It is trite Law that admitted facts need no further proof. He cited the case of Agbola V. State (2013) ALL FWLR (pt 704) 139, adumbrated the Claimants’ Counsel.

He further submitted that, Limitation Law does not apply to compensation and entitlement of workers. He cited the case of Adeniyi V. Gov Council, Yaba College of Tech. (2014) All FWLR (pt.724) 141. He added that Courts have held that Limitation Law does not apply to a continuing act of breach. Thus, where the injury is a continuing one, the Limitation Law does not apply until the cessation of the cause of action — Abiodun V. AG federation (2007) 15 NWLR (PT 1057) 359 CA. Counsel further submitted that, this Court has the Jurisdiction to determine this case and so issue one raised by the 1^st Defendant must be resolved in favour of the Claimants.

In response to issue 2 of the 1^st Defendant’s written address where he opined that the Claimants’ reply to the 1^st Defendant’s Statement of Defence was without a deposition on oath which meant that there is no reply to his statement of Defence as pleadings can not replace evidence, Mr. Douglas submitted that there are exceptions to this rule. He submitted that the Courts have opined that there is no general proposition of Law that the failure to file a reply to rebut an averment in a statement of defence amounts to an admission. He cited the case of Eugene Nnaemaka Egesimba V. Ezekiel Onuzurike (2002) 9 – 10 SC 1 at 8. That failure to file a statement on oath does not amount to abandoning the reply.

Counsel submitted that besides, it is untrue that CW1 did not adopt his Statement on Oath that accompanied the reply to the 1^st Defendant’s Statement of Defence as same was accordingly duly adopted by the witnesses and all documents duly tendered before the Court. However, assuming but not conceding that there was an oversight, the Court has the inherent power to deem it duly adopted. There is allegedly, no strict application of the rules of evidence in the National Industrial Court. He cited and relied on Section 12(2)(b), of the National Industrial Court Act 2006 which provides that the Court has the power to depart from the rules of evidence in the interest of Justice.

He submitted further that the 1^st Defendant’s contention that the Claimants could not present letters of employment to establish their contractual relationship, negates what is contained in Section 91 (1) (b) of the Labour Act Cap L1 LFN 2004 which accordingly provides that:

“Contracts of Employment means an agreement, whether oral or written, Express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”

To further elucidate on who a worker is the Section aforesaid defines a worker thus:

“Worker” means any person who has entered into a or works under a contract with an employer, Whether the contract is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a Contract of service or a contract personally to execute any work or Labour…”

He further submitted that the fact that there were no written employment letters from the 1^st Defendant does not make the Claimants less workers. Nevertheless, the Claimants were dockworkers and their employment is regulated by the Dock Labour (Registration and Control of Employment Rules, a supplemental Legislation to the Labour Act: Under Rule 1 (2), it defines a dockworker as follows;

“Dockworker” means a person employed or to be employed in or in the vicinity of a port on work connected with the loading, unloading, movement or storage of cargoes, or work connected with the preparation of ships or other vessel for the receipt or discharge of cargoes and includes persons engaged in itinerant dock-work on coastal voyages, a tally casually employed and a supervisor, headman or person for the time being in charge of a gang of dockworkers.

He added that the rule defines a dock employer as a person for whom a dock worker is employed or to be employed and includes a stevedore labour contractor. Accordingly, the 1^st Defendant as a dock employer is what 1^st Defendant has been struggling to deny without luck. Counsel quizzed that if the 1^st Defendant is not a labour contractor, why will the Nigerian Ports Authority issue a port pass (Exhibits C7A and C7B) to the Claimants and within it refer to 1^st Defendant? It allegedly shows that the 1^st Defendant is economical with the truth. The Nigerian Ports Authority accordingly knows and records all labour contractors operating within the Ports and these contractors forward the names of dockworkers under their employment for them to be issued port passes and so the 1^st Defendant cannot blatantly deny knowledge of the port passes or whether or not it signed or authorized the signing of them.

He further submitted that, similarly it is a misconception in the submission of the 1^st Defendant, that the case of the Claimants is anchored on Exhibit C2, the Collective Agreement. That what gave rise to the Claimants’ claim is found in law which is Section 20 Labour Act Cap L1 LFN 2004 on redundancy.

Counsel argued on that Exhibit C2 is an Agreement signed by all Labour Contractors with the Dockworkers’ Union for Dockworkers’ Remunerations, wages and terminal entitlements which was signed on the 20^th May, 2008 and which date of enforcement was given to be the 1^st June, 2008.

He further submitted that this employment of these Claimants was not one with statutory flavour unlike employments in the civil and public service therefore, those cases cited by 1^st Defendant fall within the class of employments with statutory flavour — like employment in the civil service and the public service wherein it is mandatory to tender a letter of employment, but not pertaining to dock laborers. Accordingly, the Courts frown at the ugly trend where employers fail to give letters of employment to their employees and turn back to challenge what was their responsibility to give in the first place. The Courts have accordingly held that where there was failure to provide conditions of service as statutorily provided for, the employer cannot be allowed to benefit from its own wrong by turning round to contend the failure of the employee to produce evidence that was in the control of the employer — Nwakhoba & ors v. Dumez Nigeria Ltd (2003) FWLR (pt 179) 1188 at 1203.

It was also submitted that the employment relationship that exists in this case is one that obviates the standard employment relationship. It is purportedly a multiparty employment relationship. He cited the case of Felix Adariku & 257 Contract Staff of Total v. Total E & P Nig Ltd & 6 ors (unreported) Suit No : NICN/ABJ/110/16 judgment delivered on 26 October 2018 delivered by Hon Justice E N Agbakoba. He further stated that the non-tendering of employment letters by the Claimants does not extinguish the liability of the 1^st Defendant in this case.

He continued by stating that the 1^st Defendant submitted that the entire case of the Claimants is centered on Exhibit C2 (the Collective Agreement) and contended that the Claimants, not being privy to the agreement, lacked Locus Standi to sue on it. He argued against the afore premise that the 1^st Defendant’s submission is erroneous, as the case of the Claimants is for redundancy benefits that should be paid to them. Redundancy compensation or benefit is a statutory provision, said Counsel. It is this statutory provision that the said agreement gives life to. Section 20 (1) (c) of Labour Act is accordingly apposite since it states:

“The employer shall use his best endeavors to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section”

Counsel further submitted that the question begging for answer in this case is, was there any form of negotiation between the Claimants and the Defendants? The answer is accordingly in the negative. Mr. Douglas stated further that the 1^st Defendant’s submission of the non-enforceability of collective agreements by the workers who are not beneficiary is the common law position. That position has been accordingly altered in recent times, said the learned Counsel for the Claimants. The Courts have since taken a different stance on the issue and at present, the Courts will enforce collective agreements where the provisions are incorporated into the contract of employment. It becomes binding upon both the employer and the workers — Union Bank of Nigeria Plc v Emmanuel Aderewaju (2012) 11 NWLR (pt 1312) 550. The incorporation into the contract of employment can be made expressly, or impliedly as in the instant case, contends Mr. Douglas.

He submitted on that where both parties plead the existence of a collective agreement, same is binding on the parties — Nwobosi v ACB (1995) 6 NWLR (pt 404) 658 inter alia. He further believes that the issue raised must be resolved in favour of these Claimants as this Court was not called to interpret the collective agreement but to find that the agreement strengthens the Claimants’ claims for redundancy compensation due to them. The collective agreement Exhibit C2 was also intended to fulfill the requirement of Rule 8 of the Dock Labor (Registration and Control of Employment) Rules which provides that —

Rule 8(1) it shall be implied condition of the Contract between a dock worker available for work and a registered employer that the rate of remuneration and conditions of service shall be in accordance with law and in accordance with any local or National collective agreement for the time being in force.

Accordingly, this simply means where there is a collective agreement in force, such collective agreement automatically becomes an implied condition of service that is enforceable as in the instant case.

Counsel submitted on that this subsidiary legislation to the Labour Act (cap L1 LFN 2004) was embolden by Section 25 of Nigeria Maritime Labour Act (Cap 151 LFN 2004) which Law repealed the Nigerian Dock Labour Act (Cap 37 LFN 1999), which is an old law now superseded by the Nigerian Maritime Labour Act and the Labour Act. It accordingly provides thus:

Section 25(1) “it shall be an implied condition in any contract of employment between a registered dockworker and a registered dock labour employer, stevedoring company, jetty or terminal Operator or Seafarer and Seafarer employer that the rate of remuneration and conditions of service shall be in accordance with any local or National Collective agreements for the time being in force”

It was further submitted that where the conditions of service is duly set out in Section 25 (2) of the Nigerian Maritime Labour Act (Cap 151 LFN 2004), there is an implied obligation on any Dock Labour employer to enforce any Collective agreement signed with respect to Dockworkers. This is a statutory provision, emphasized Counsel, and the Law itself spells out the conditions of service for any Dock Labour employer to follow.

He stated further that the collective agreement is by law expressed as an implied term of the contract of service where there is no written letter of employment. His reasoned that it is a mandatory obligation of the employer of Labour to provide or give a written letter of employment and failure to give same is a breach of Section 7 Labour Act to which the 1^st Defendant is liable and cannot turn now to ask for letters of employment where he failed to give one.

It was further submitted that the 1^st Defendant never denied that these Claimants were not workers, but denied that it never employed them. That the fallacy of this argument is predicated on the fact, that Exhibit C7A & C7B has rendered their claims baseless. Accordingly, where there is no direct evidence, the Courts are enjoined to take any circumstantial evidence that is compelling, hence Exhibits C2 and C7B must be seen as having resolved this doubt.

Counsel argued that the 1^st Defendant had stated that the Claimants were not permanently employed dockworkers, but did not expatiate on who a permanent dockworker is, choosing only to categorize dockworkers as registered and casual. However the implied condition of service applies to all categories of dockworkers by virtue of Section 25 (2) Nigerian Labour Act. He referred to paragraph 5 of the Statement of facts where the Claimants averred that they have been working for the 2^nd Defendant since 2001 under different labour contractors until the 1^st Defendant came in 2006. This assertion was accordingly corroborated by the 1^st Defendant’s witness under cross examination, where the witness answered affirmatively that 2^nd Defendant was operating in the said shed before their coming. Thus, it is an admitted fact that these Claimants worked for the 2^nd Defendant under different dock labour employers before the 1^st Defendant came on board. The current employment and Labour regime has rendered derogatory, the use of the word “casual worker” — Shena Security Co Ltd v Afropak (Nig) Ltd & ors (2008) LPELR 3052 SC where the Supreme Court frowned at the use of that nomenclature.

He submitted on that a careful perusal of the document tendered as Exhibit C2, showed its operational date to be 1^st June 2008. The question to be asked accordingly is whether the Claimants are under the employment of the Defendants as at the date the agreement became enforceable? The answer, according to Counsel, is the affirmative. The Claimants were accordingly terminated for redundancy in December 2008.

He submitted that since they are asking for all benefits accruable to them, it becomes the duty of 1^st, 2^nd and 3^rd Defendants to meet and determine the redundancy compensation to be given to them. Regrettably the 1^st and 2^nd Defendants have continued to assert that they paid these Claimants their benefits and entitlement, but woefully failed to tender any evidence documentary or otherwise of any means of payment. Redundancy is aptly provided for in Section 20 (1) (c) Labour Act and it is trite Law that redundancy attracts financial benefits. He cited the case of UBN Plc v Ariba (2015) ALL FWLR (pt 763). The Court held thus,

“…the only similarity between redundancy and retirement is the fact that such a person no longer in the service of the organization and such disengagements attracts financial benefits…”

He submitted that the Supreme Court held that where there is no written agreement, the notice or payment in lieu thereof must be reasonable. He cited CBN V. Eluma (2001) ALL FWLR (pt 45) 670 at 699 SC and said that nothing were paid to the Claimants. The insurance monies paid in 2010 were the Claimants’ insurance Contributions in their years of service. He also referred to their registration with NSTIF Exhibit C8 which was paid with Exhibit C5 (a- h). The Claimants have discharged the onus placed on them to proof their case and so they are entitled to damages because damages flows from the foreseeable pecuniary loss of the breach of the Contract, hence their suffering all these years seeking for what ordinarily should have been given to them and their continued expenses in pursuit of justice accordingly warrant the award of damages. He cited the case of NPA V. Ahmed (2017) ALL FWLR (pt 892)1059.

With regards to their issue one raised which is whether the Claimants are entitled under the law to a redundancy or terminal benefit, learned Counsel submitted that the plausible question is whether the Claimants are workers with the Defendants. Accordingly, this question was answered affirmatively by the 2^nd Defendant and thus admitted, this needs no further proof — Agbola v. State (2013) All FWLR (pt 704) 139.

He stated that the 1^st Defendant denied that the Claimants were employed by them and that their claim against it is unsubstantiated without any letter of employment. The obvious fact was that these Claimants started work under various labour employers from 2001 till 2006 when the 1^st Defendant came to the Port and assumed control over the shed occupied by the 2^nd Defendant, it is true that even the 2^nd Defendant operated in the said jetty and penultimately became the Landlord to the 2^nd Defendant and the employer to the Claimants. Therefore, the 1^st Defendant as Labour Contractor and terminal operator at the port became vivid when the ports passes (Exhibits C7A & C7B) were issued to the Claimants by the Nigerian Ports Authority under the authorization of the 1^st Defendant. Thereafter, the 1^st Defendant with other terminal operators and labour employers deemed it necessary to sign Dockworkers’ remuneration and benefits with the Maritime Workers’ Union of Nigeria (Exhibit C2), in favour of Dockworkers, thus the collective agreement becomes an implied condition of service as provided by Section 25 NMLA, Nigeria Maritime Labour Act and Rule 8 of the Dock Labour (Registration and control of employment) Rules, argued the learned Mr. Douglas. Hence, where there is no express contract of service, the law has provided an implied condition of service to this class of workers in all the ports to be followed by all labour employers in the ports. These ports are part of the Admiralty Jurisdiction of the Federal Government and as such have laws and rules that regulate activities in the ports. Consequently, all terminal Operators or labour employers are registered with the Ports Authorities hence the Nigerian Port Authority will not make a mistake to issue Exhibits C7A & C7B to the Claimants wherein it refers to the 1^st Defendant as an employer. He relied on the provision of Section 91 Labour Act Cap L1 LFN 2004 which defines a contract of employment thus:

“Contract of Employment” means an agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker” — Shena Security Co Ltd V. Afiopak (Nig) Ltd & ors (2008) LPELR 3052 SC

Counsel further submitted that without any written letters of employment, the Court is enjoined to look at any document at its disposal to ascertain whether such relationships exist in Exhibits C7A & C7B which are documentary evidence that corroborate the evidence of the Claimants against the 1^st Defendant. See Inter Drill Nigeria Limited & Anor V. Limited Bank for Africa Plc (2017) LPELR – 41907 SC.

Again, Counsel submitted that the 1^st Defendant is in breach of the provisions of Section 7 of the Labour Act for failure to give the Claimants written letters of employment after three months of their engagement. Accordingly, the same person who refused, failed to give written letters of employment to the Claimants are the ones asking them to produce letters of employment. He urged this Court not to allow them benefit from their wrong doing and cited Nwakhoba & ors v. Dumez Nigeria Ltd (2003) ALL FWLR (pt 179 )1188 at 1203.

He further elucidated on this issue raised by the 1^st Defendant’s witness wherein he contended at the trial that it was Dinabel Associate that engaged the Claimants as workers. The 2^nd Defendant’s witness further affirmed this fact but under cross examination he (the 2^nd Defendant’s witness), accepted that Dinabel Associate was brought by the 1^st Defendant. The Law is accordingly settled that, where an agent acts for a disclosed principal, the Principal can be sued. He cited the case of Ataguba & Company V. Gura Nig Ltd (2005) 8 NWLR (pt 927) 429 SC and urged this Court to hold the 1^st Defendant as principal to Dinabel Associate and thus can be sued.

He went on to state that having proven the fact that the Claimants worked for the 1^st & 2^nd Defendants, it became pertinent to find out if the Claimants are entitled to redundancy benefits as sought for. By Section 20 (1) of the Labour Act which provides that “in the event of redundancy

The employer shall inform the trade union of workers representative concerned of the reason for and the extent of the anticipated redundancy.
The principle of last in, first out shall be adopted in the discharge of the particular category of workers affected, subject to all factors or relative merits, including skills, ability and reliability; and
The employer shall use his best endeavors to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section”.

This being the position of the law as regards termination by redundancy, it means that the Claimants having been terminated by redundancy ought to be paid. That this was the fulcrum of the Claimants’ case. As such, the 1^st and 2^nd Defendants who claimed that they paid the Claimants their entitlements, did not provide any proof of payments in form of documents. The Claimants contended that only their insurance were paid in 2010 that other benefits due to them were unpaid. That the insurance payments were drawn from the workers’ contributions since 2003 being that they were registered with the NSITF scheme since 2003 as seen in Exhibit C8 and upon their termination, they were paid their contributions and nothing more. Exhibit C8 is accordingly proof that the Claimants are registered Dockworkers with a permanent establishment and are thus entitled to terminal benefits. The Claimants have accordingly proven their entitlement to those terminal benefits and he urged this court to so hold.

On his issue number two, which is whether reliance on Exhibit C2 will vitiate the express provision of the law on redundancy, he submitted that no private agreement that can supersede the express provision of a written law and even though the Courts are enjoined to interpret any document in its literary form, Exhibit C2 is a collective agreement signed between the Association of Seaport Terminal Operators and the Maritime Workers’ Union of Nigeria for workers’ remuneration and benefits in the ports. This collective agreement was signed on the 20/5/2008 and became operational on the 1/6/2008. The agreement was purportedly signed by the 1^st and 3^rd Defendants and witnessed by the Nigerian Ports Authority (NPA), Dangote Bail Ltd, and NIMASA. That by the signing of the collective agreement, it becomes an implied contract of service that binds the Dock workers’ employers and the Dockworkers by the express provision of Section 25 (1) NMLA and thus enforceable. Counsel reiterated that the legal regime where collective agreements are seen as unenforceable by the beneficiaries has been discarded in the face of current employment and labour principles. The enforcement of a collective agreements is predicated upon three 3 facets — (1) If the Collective Agreement is expressed in the contract of service — Osoh v. Unity Bank Plc (2013) 2KLR (pt 325) 1133, the incorporation into the Contract of service can be express or implied (2) Where both parties pleaded the existence of a Collective Agreement same is binding on the parties — Nwobosi V. ACB (1995) 6NWLR (pt 404) 658 and (3) Collective Agreement is enforceable by the beneficiary upon prove that they are members of the workers’ union — Aghata Nonuorah V. Access Bank Plc (2015) 55 NLLR (pt 156). In his esteem therefore, these Claimants are dockworkers registered with NIMASA who were issued with the port passes — Exhibits C7A & C7B. They also registered with NSITF — Exhibit C8 as Dockworkers. Their letter — Exhibit C3 to the 3^rd Defendant MWUN and another written by them to NLC dated 20/1/2009 — Exhibit C4 all point to the direction that they are bona fide dock workers under the umbrella union. Counsel believes that fortunately all Exhibits tendered and admitted in this case confirms that they are indeed Dockworkers because only Dockworkers are permitted to work with stevedoring and Terminal Operators. He urged the Court to hold that the Claimants are indeed Dockworkers within the meaning of Dockworkers. As far as their conditions of service were concerned, it was implied by virtue of Section 25 NMCA and Rule 8 of Dock Labour ( Registration and control of employment) Rules and same is incorporated in Exhibit C2 hence its breach is enforceable against the employers. He concluded his submissions by adding that the Claimants can benefit from Exhibit C2 and that whether Exhibit C2 is enforceable by the Claimants or not did not rub the Claimants from benefitting from the provisions of Section 20 Labour Act as per their terminal benefits. He urged this Court to hold in favour of the Claimants and grant the reliefs sought in this case.

1^ST DEFENDANT’S REPLY ON POINTS OF LAW:

The 1^st Defendant’s Counsel filed a reply address on 17/7/2019. Counsel stated that the case of ADENIYI V. GOVERNING COUNCIL, YABA COLLEGE OF TECHNOLOGY (Supra) cited by the Claimants’ Counsel, defeats the Claimants’ case and it should not have been relied upon to challenge his argument that this action is statute barred. That in fact, that authority reemphasizes that statutes of limitation apply to claims for entitlements even though it had found therein that the Claimants’ claims were not barred by the limitation law. Those Claimants accordingly pursued their entitlements diligently, consistently and within time unlike the Claimants here. He remarked further that the 1^st Defendant never admitted that the cheques issued to the Claimants as contained in Exhibits C5 (a) to (h), were in satisfaction of any entitlements now claimed here or in partial satisfaction of the collective agreement executed in 2008. He stated that it was in fact, the 2^nd Defendant who had claimed that those cheques were issued in satisfaction of the entitlements owed the Claimants in the course of their employment prior to the execution of Exhibit C2. He reargued his position with regards to the issue of the claims being statute barred and further impressed on this Court to dismiss this suit.

On the issue of whether failure to file a deposition in support of a pleadings amounts to an abandonment of the pleadings, learned Mr. Okoro cited AKINBADE V. BABATUNDE (2018) 7 NWLR (part 1618) page 366 to submit that this Court must presume that the Claimants abandoned their reply to the 1st Defendant’s statement of Defence in the absence of an accompanying statement or deposition on oath.

On the Claimants’ neglect to adopt their deposition accompanying their reply to the 2^nd Defendant’s statement of Defence, Counsel urged this Court to refer to its records and hold that they indeed neglected to adopt their depositions in open Court during trial. He urged this Court to peruse the proceedings of 20/2/2018 when the CW1 testified to find that he never adopted any deposition accompanying their reply to the 2^nd Defendant’s pleadings. He cited SPLINTERS NIG LTD V. OASIS FINANCE LTD (2013) 18 NWLR (Part 1385) page 188 and urged this Court to find as submitted.

The learned Counsel went about to elaborately reintroduce his arguments and submissions already raised in his final address and finally urged this Court to dismiss this suit against the 1^st Defendant.

The 2^nd Defendant did not file any reply to the Claimants’ final written address and submissions.

COURT’S DECISION:

Having perused the processes, submissions and arguments of the respective Counsel in this suit, the sole issue that calls for determination is whether these Claimants have proven their case to be entitled to the reliefs sought. Before I continue further it is necessary to first consider and resolve the issue of jurisdiction as raised by the 1^st Defendant’s Counsel when it questioned whether this Court is not in law bereft of the jurisdictional competence to entertain this suit in view of the provisions of section 16 of the Limitation Law, cap. 80 Laws of the Federation of Nigeria, 1999.

The 1^st Defendant’s Counsel placed reliance on the fact that the cause of action accrued sometime in 2008, and that when this date is compared with the date the instant action was instituted on 17/3/2014, it is glaring that this matter is caught up by the provisions of Section 16 of the Limitation Law of Rivers State and therefore it is irredeemably statute-barred, as it was filed more than five years from the date the cause of action accrued.

Ordinarily I would agree with 1^st Defendant’s Counsel that this suit ought to be statute barred but it is now established in line with recent decided cases, that matters with respect to labour or incidental thereto, or work done or terminal benefits, and or wages of employees, cannot be vitiated by statutes of limitation. It is obvious from the pleadings of the Claimants that they purportedly seek for payments for alleged redundancy and terminal benefits which falls under the category of wages and labour for work done — FGN V. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PT 798)162; CAPTAIN TONY OGHIDE & ANOR V. JASON AIR LTD (NCN/LA/12/2009) DELIVERED ON THE 13^TH OF JANUARY 2011.

Therefore, the injury complained of by these Claimants falls under continuous injury which is not affected by the statute of limitation — ALHASSAN V. ALIYU (2009) LPELR 8340 CA. See also the ruling of this Court in HON. IRU KALU & ORS V. ABA SOUTH LOCAL GOVERNMENT & ORS (NICN/OW/11/2019) Delivered on the 25^th October, 2019. This is more so since it was established that before they instituted this action, they had continuously made several efforts and led interventions for the payment of what the allege to be their entitlements deriving from their being laid off by the Defendants. This Court has made various pronouncements particularly in 2019 following the decision of the Supreme Court in NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION V. AJIBOLA JOHNSON AND OTHERS (2019) 2 NWLR (part 1656) 247 which held that the limitation laws cannot be invoked to prevent a Claimant his rights derived from a contract of employment. Besides, there is clear evidence that since their agitation for their alleged claims, they were paid what they referred to as “insurance benefits” of various sums as established by their Exhibit C5 in this suit. The Defendants however stated that the Claimants were indeed paid.

In MARK AMACHERE & ANOR. V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2011) LPELR-4474(CA) it was held that where, in the course of negotiations some admission of liability had been made by the party raising the defence of limitation and all that remains is the fulfillment of the admission, the cause of action is, as it were, revived by the admission. The statutory period is there and then to be computed no longer from the date the cause of action originally arose but from the time of the admission. The revival of the cause of action in the circumstance is by rules of fairness and equity so that the party admitting would not be allowed to resile from his admission to the detriment of the other party.

Thus being the case, the fact alone that the Defendants stated that the Claimants were already paid justifies this Court to find against the objection that this suit filed in 2014, was statute barred as provided for under section 16 of the Limitation Law of Rivers State and I so declare. It is equitable to therefore allow these Claimants heard and to determine their claims accordingly.

Now, the Claimants seek for three reliefs thus:

An order directing the 1^st and 2^nd Defendants…to pay the sum of N2,000,000.00 each to the Claimants;
An order directing the 1^st and 2^nd Defendants to pay the Claimants hazard allowances of N1,000,000.00 each; and
An order directing the 1^st and 2^nd Defendants to pay the Claimants N200,000.00 as general damages and cost of litigation.

(See the amended statement of facts of 26/4/2018).

In its defence, the 1^st Defendant filed a Statement of Defence accompanied by a witness’ deposition on 25/4/2014. The 2^nd Defendant on the other hand, filed its own on 25/6/2015 along with witness’ deposition. The Claimants again filed a reply to the 1^st and 2^nd Defendants’ Statement of Defence on 19/6/2014 and on 21/10/2015 respectively. However, whereas the reply to the 2^nd Defendant’s statement of defence was accompanied by a witness deposition, that in response to the 1^st Defendant’s was not. It was this dilemma which led the Counsel to the 1^st Defendant to submit that the Claimants’ purported reply to the 1^st Defendant’s pleadings must be deemed to have been abandoned in the absence of any sworn deposition accompanying same. The Claimants’ Counsel however urged this Court to rely on Section 12 of NICA 2006 to nonetheless admit the reply pleadings in the interest of justice.

I believe this issue requires no further deliberation. The fact of the matter is any pleadings which is not supported by a written deposition on oath cannot be admitted and used by the Court in reaching any decision. This is because the “refusal by a party to lead evidence in support of an averment in the pleadings or the entire pleadings translates into a voluntary abandonment of such averments or the entire pleadings as the case may be”. See DEBORAH A. ADEYINKA AND 3 OTHERS V. NIGERIAN WIRE AND CABLE PLC NICN/IB/43/2012 per F.I KOLA-OLALERE, J. Thus said, I hereby hold that the Claimants’ purported reply to the 1^st Defendant’s statement of defence lacks any legal value and same is hereby disregarded and struck as abandoned.

On the second question of whether the Claimants’ witness adopted their deposition accompanying their reply to the 2^nd Defendant’s statement of defence during trial, I have gone through the record of proceedings and do not find where the Claimants’ CW 1 or CW 2 ever adopted the reply to the 2^nd Defendant’s statement of defence. This in effect also means that no evidence was led on the reply to the 2^nd Defendant’s statement of defence and same must accordingly be deemed to have been abandoned as well by the Claimants and I so hold.

Therefore, it seems that the pleadings which shall form the basis of my findings in this action are the Claimants’ statement of facts and the 1^st and 2^nd Defendants’ statements of defence only. It must also be stated that there seem to be no claims made against the 3^rd Defendant in the absence of anything contained in the Claimants’ pleadings connecting it as well as from the reliefs sought. It is thus safe to at this juncture, strike out the 3^rd Defendant listed in this action as no cause has been established against it.

Now, looking at the remaining facts in contention in this suit for considering whether these Claimants are entitled to the purported redundancy and terminal benefits and secondly whether they can rely on exhibit C2 being the collective agreement which was made between the Association of Private Operators of Seaport Terminals (now known as SEAPORT TERMINAL OPERATORS OF NIGERIA (STOAN) and the Maritime Workers’ Union of Nigeria in 2008, judging by their nature of individual employments, it is obvious that each of the 88 Claimants here must have been employed individually and separately by their employers. However, in filing this suit, they stated that they were all dock workers who have given their consents through a letter of attorney to the Claimants on record to sue in a representative capacity.

The problem I had from the onset is in determining whether or not they are or were all members of the Maritime Workers’ Union of Nigeria. Much as this issue was never raised by the respective Counsel, the basis of their claims in the manner it was presented, requires that they be established to be members of the Maritime Workers’ Union in order for them to even have the locus to initiate this action for the reliefs sought. This is so because the very basis for their action is hinged on the enforceability of the collective agreement entered on 20/5/2008 between the workers’ union and the association of private operators of seaport terminals (their alleged employers). For the Claimants to succeed also, they must also first establish and sustain by evidence, that the Defendants are liable to them for the reliefs made as their purported employers. Therefore, the Court cannot speculate, conjecture or manufacture facts not before it.

Assuming however, that the fact of membership of the Workers’ Union is not in contention because it has been either expressly or impliedly admitted by these Defendants, the issue of determining the exact nature of the employment relationship between the Claimants and these Defendants seem blurred. This is so because whereas the 1^st Dedendant denies being an employer of the Claimants, the 2^nd Defendant company also refuted any direct employment of the Claimants and in fact denied any dealings with them directly.

The CW1 under cross examination had stated that the Claimants were employed by stevedoring firms to work for the 2^nd Defendant’s company which is a private terminal operator but that they were never given any letters of employment by the 2^nd Defendant. When further cross examined by the 1^st Defendant Counsel, he stated that they claim the sum of N2M each from the 2^nd Defendant because of their efforts and hardships suffered in pursuing their purported entitlements. He admitted also that Exhibit C2 does not contain any amount such as they now claim against these Defendants. Interestingly, when further quizzed by the 2^nd Defendant’s Counsel under cross examination, the CW1 stated that the 2^nd Defendant was not their employer as they were handed over to a contractor. He admitted again that there was no letter of employment issue to any of them by the 2^nd Defendant company. He denies being a casual worker but does not have the roll containing his name and those of the other Claimants as permanent employees of the 2^nd Defendant company. He said his prove that he was a permanent staff of the 2^nd Defendant was his Identity card, a copy of which he tendered as Exhibit C5. He said the mode of payment of salaries per month was that the 2^nd Defendant disbursed the salaries to the contractors being stevedores who in turn paid the Claimants individually. He admitted that by the time the Claimants commenced work in 2006, the agreement exhibited as C2 had not yet been signed. He equally admitted that the agreement specifically covered permanent employees who were dockworkers.

Under cross examination, the CW 2 testified inter alia that the port passes tendered as Exhibits 7 (a) and (b), were issued by the NPA and were merely passes to enable them access to the Port. They were accordingly not provided with any letters of employment. He admitted that stevedoring companies employed them as dockworkers before contracting them to the 2^nd Defendant’s company. He mentioned also that the Claimants were laid off in 2008 and that they were not direct signatories to Exhibit C2.

In response to questions from the 2^nd Defendant’s Counsel under cross, CW2 admitted that the Maritime Workers’ Union of Nigeria was ordinarily the proper party to sue but they refused to initiate the action thus making it necessary for the Claimants to file this suit.

DW 1 who was thoroughly cross examined by the Claimants’ Counsel, had denied being the employers of the Claimants and that the port passes issued to them was by the NPA. That the 1^st Dedendant did not employ dock workers as same were done by stevedores. He admitted knowing that some persons were laid off in 2008 and paid certain severances.

DW2 who was also cross examined on 8/4/2019, stated that some of the Claimants worked with the 2^nd Defendant Company between 2005/2010 and they were engaged through Dinabel Stevedoring Company. That the Claimants were paid their severance benefits when they were laid off which they themselves called “insurance benefits”. That they were paid in 2010. She said the Claimants were not permanent employees of the 2^nd Dedendant and as such could not have been entitled to insurance benefits.

Evidently, from their Counsel’s final address, the Claimants are relying on Section 20 (1) (c) of Labour Act (Cap L1 LFN 2004) on redundancy, to make a case. That section provides:

“The employer shall use his best endeavors to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section”

However, from the pleadings of the Claimants and the Statements of Defence by the Defendants, it is generally admitted that the Claimants have been working as dock workers at the Port through various stevedoring companies since 2001 such as F.D.C Briggs, 2001 – 2003, YAYA LULU Nigeria Limited 2003 – 2006 and with the 2^nd Defendant 2006 – 2008. Therefore, there is no doubt as to whether these Claimants variously worked as dock workers for the 2^nd Defendant company being a private terminal operator authorized to operate by the 1^st Defendant. So, even though the Claimants are unable to present letters of employment, the fact that they variously worked for the 2^nd Defendant is evident enough to prove they were engaged by the 2^nd Defendant and even laid off in 2008. This fact is even admitted by the 2^nd Defendant in its pleadings.

But what is to be considered once again is the nature of their employment, working through various stevedoring firms under the supervision of the 1^st Defendant at different times. This only goes to prove a kind of contractual relationship, whereby the Claimants are called to work as the needs demand and any time a new private seaport operator emerges. It is easy to highlight the following indices to be the nature of these Claimants’ employment:

The 1^st Defendant never employed the Claimants on its own accord. It only supervises the stevedores that engage their services when there is a private seaport operator.
The 2^nd Defendant being a private seaport operator, engages dockworkers through stevedoring firms and pays their wages through those firms.
Meaning whenever a seaport operator is done with their services, the Claimants are once again laid off until another private seaport operator emerges.
Meaning at different points in time the Claimants were sometimes laid off.

All this point to the fact that there was no standard employment module between the Claimants and Defendants to afford them the reliefs they seek before 2008. Therefore, for all intents and purposes, the Claimants were casual workers giving the nature of the services the provided as analyzed above.

The concept of Exhibit C8 was actually misconstrued by the Claimants because on the face of it, it contains the following instructions:

Keep this card safely and show it to a new employer. If you do not, your contributions may go to someone else. The card can be used by the person whose name appears on it or his/her survivors for the claim of benefits.
Produce this card and give your NIGERIA SOCIAL INSURANCE TRUST FUND membership number.
Whenever you start work for a new employer.
Whenever you contact NIGERIA SOCIAL INSURANCE TRUST FUND for any transaction.

Evidently what Exhibit C8 shows is that the Claimants were not consistently with one employer from the word “new employer” as used repeatedly in the above. Therefore, claiming to be permanent employees of the 2^nd Defendant is an impossible feat just by relying on Exhibits 8 (a) and (h). This is not to mention that not all the 88 Claimants tendered theirs before this Court. Of equal curiosity is the fact that the stevedoring firm(s) that engaged the Claimants directly was never made a party to this suit particularly in view of these Defendants’ assertion that the Claimants were engaged by a third party firm.

In a bid to establish the employment relationship between the Claimants and Defendants, the Claimants in evidence admitted Exhibit C2 and submitted in their Final Written Address that the effective date of Exhibit C2 was 1^st June 2008 and as at the effective date, the Claimants were still under the employment of 1^st and 2^nd Defendants as such, they are entitled to the provisions captured in the agreement. To properly resolve this issue whether these Claimants can make claims in respect to the collective agreement admitted as Exhibit C2, it is important to go through portions of it particularly where it is stated as follows:

NOW IT IS HEREBY AGREED AS FOLLOWS:

That the minimum gross wage for any permanently employed Dockworker shall be thirty-three thousand Naira (33,000.00) only at entry point on employment.

The operable word used above is “permanently employed dockworker”. The question therefore begging for answer is whether the Claimants have been able to establish their employment with the 2^nd Defendant without producing employment letters to establish that they were permanently employed. It is settled law that the best form of establishing employment relationship is by producing employment letter. This position was beautifully captured in Organ & Ors V. Nigerian Liquified Natural Gas Limited & Anor (2013) LPELR-20942(SC) it was held:

“the letter of employment is the bedrock on which any of the appellants can lay claim of being employees of the respondent and without the production of such document, no employment can be inferred. The employees’ handbook issued by the 1^st Respondent cannot substitute for the letter of employment.

Furthermore, on Exhibit C2 which is a collective agreement between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria on Medium Standards of Dock Labour Industry, assuming the Claimants were even able to prove that they were permanent employees, can it be equally said that of they are privy to the said agreement to benefit from it? It is a settled principle of law that collective agreements are generally binding in honor and a party may only reap from it if the provisions of the agreement are incorporated in the party’s contract of employment. See the judgment of this Court in TELEMA EVANS WILLIAMS & ORS V. PATRADE NIGERIA LIMITED suit no NICN/PHCN/07/2017, delivered on the 7^th of March, 2018. They are considered “gentleman’s agreements” with no binding force. See also TEXACO (NIG) PLC V. KEHINDE (2001) 6 NWLR (PT.708) 224 here justice ONNOGHEN , J.C.A (as he then was) said:

Collective agreements are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable…

In U.B.N LTD V. EDET (1993) 4 NWLR (PT. 287) 288 AT 298-300 UWAIFO J.C.A (as he was then) also made pronouncement on the nature of collective agreements when he said at paragraphs B-C page 298 that:

Such collective agreements are not intended or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. See also the Judgment of this Court in

In essence, Failure to act in strict compliance with collective labour agreements is not justiciable. Its power of enforcement lies in some measures as I shall endeavor to show, for example where there is an agreement by parties to be bound by the Collective agreement, like where the employees were already paid from such an agreement.

From the totality of all the evidence tendered I hereby come to a save conclusion that the employment between the Claimants and Defendants was not reduced into any form of writing or terms to rely upon by the Claimants. The 2008 collective agreement cannot be said to bind the Defendants since same was never incorporated expressly or impliedly, nor was it sufficiently established that they were parties to the said agreement and I so find. See also the Judgment of this Court in TELEMA E. WILLIAMS AND ORS V. PATRADE NIG. LTD. (Supra).

The Claimants tendering Exhibit C7 as evidence of being employed by the 2^nd Defendants is not substantial enough to prove an employment relationship as it is a mere port pass which was issued to them by the Nigerian Ports Authority and not even from the 2^nd Defendant. Besides, only two of such passes were tendered as exhibits which leaves doubts as to the status of the other 86 co Claimants who instituted this suit.

The Claimants’ inability to provide the Court with other credible documents, pay slips, or letters of employment or any terms of agreement or contract — even though it is evident they worked for the 2^nd Defendant between 2006/2008, is fatalistic to them in determining the quantum of the monetary claims made by them. Being strictly in the realm of special damages, the claim for reliefs of N2M each as well as N1M as hazard allowances, were not substantiated.

The best form of evidence is documentary evidence — Egharevba V. Dr. Orobor Osagie (2009) LPELR-1044(SC) where the Supreme Court held

“It is now firmly settled that documentary evidence, is the best evidence. It is the best proof of the contents of such document and no oral evidence, will be allowed to discredit or contradict the contents thereof except where fraud is pleaded”

See also Akinbisade V. The State (2006) LPELR-342 (SC). The Claimants had submitted that the Defendants, who neglected or failed to give them employment letters, cannot in turn rely on such default to question their employment status with them. It is obvious that the Defendants, having not given them any employment letters, establishes that their employment relationship with them was never on any standard employment basis. As such, these Claimants must succeed on the strength of their case and not on the weakness of the Defendants’.

In view of the above findings therefore, these Claimants’ action fails completely. I agree with the 2^nd Dedendant particularly that the Claimants were indeed paid off whatever was owed them in the form of terminal benefits by cheques which were tendered by these Claimants in this suit. Accordingly, I refuse to grant the three reliefs claimed by them and dismiss this suit entirely without costs to any of the parties.

DELIVERED IN OWERRI THIS 20^TH JANUARY, 2020.

HON. JUSTICE I.S GALADIMA

(PRESIDING JUDGE)