IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE O.Y. ANUWE

 

Dated: 3^rd July 2018                                            

SUIT NO.NICN/OW/86/2016

 

Between

 

Mr. John Ndahbros                                                  -                                   Claimant

 

And

 

1.      Shelf Drilling Offshore Service Ltd.

2.      Humvic Global Resources Ltd.                             -                              Defendants

 

Representation:

Opeyemi George Ojo, with him, A. C. Eze for the Claimant

F. A. Dalley, with him, A. D. Oriola for the 1^st Defendant

Paul Amadi for the 2^nd Defendant

 

JUDGMENT

This action was commenced by complaint dated the 21^st day of December 2016 and filed on the 22^nd day of December 2016. In the Statement of Facts filed the same day, the Claimant claimed the following reliefs against the Defendants:

1.         The sum of N7,620,175.00 only, being unpaid salaries from August 2016 to December 2016 and other entitlements of the Claimant including shopping allowance and terminal benefits as provided for by his contract and by the agreement of 21/10/2014.

2.         N50,000,000.00 being special and general damages for the monthly hospital bills at N75,000.00 from August 2016 for treatment or management of the permanent injury suffered by the Claimant from the injury caused by the Defendants’ nature of work and to change the period of work of the Claimant from 28 days in and 28 days out to 28 days in and 14 days out which is against the standard practice in oil and gas companies all over the world, refusal of the Defendants to recall the Claimant from suspension and attempt to terminate the appointment of the Claimant without paying all his entitlements including salaries for ten years in arrears for the permanent injury suffered, and the sum of $17,000 or N8,000,000 needed for surgery in Artemis Hospital in India.

3.         N1,000,000 being the cost of instituting this case

4.         10% post judgment interest on the judgment sum till the judgment is fully liquidated by the Defendants.

 

Pleadings were duly exchanged and regularized and hearing commenced on the 5^th day of May 2017. The Claimant testified for himself as CW1. One Ladi Dare, the 1^st Defendant’s Human Resources Workforce Planning Supervisor testified for the 1^st Defendant as DW1. One Kalu Anya, the manager of the 2^nd Defendant testified for the 2^nd Defendant as DW2. Hearing ended on the 16^th day of November 2017 and parties were ordered to file their final written addresses in accordance with the Rules of Court. Addresses were regularized and adopted on the 9^th day of April 2018.

 

CLAIMANT’S CASE

The Claimant gave evidence in person proof of his claims. The facts of his case are that he was employed by the Defendants as an Assistant Driller at a monthly salary of N1,060,025 through employment letters dated 24/10/2014, 30/7/2015 and 1/4/2016. He was directly recruited by the 1^st Defendant who used to pay off its staff every year. Since he joined the 1^st Defendant’s employment, he has worked in 3 of the 1^st Defendant’s rigs. In March 2016, the 1^st Defendant informed its workers that from April 2016, it would engage the 2^nd Defendant to handle issues of recruitment, welfare of workers and payment of salaries. Following that information, the 2^nd Defendant issued a new employment letter to the Claimant on 1/4/2016. The 2^nd Defendant also told the workers that they will still remain in their duty post in the 1^st Defendant, and the condition of service will be as agreed with the 1^st Defendant.

 

When the Claimant was employed by the 1^st Defendant, he went through a fitness examination at Medbury Medical Services and he submitted the certificate of fitness issued to him after the examination to the 1^st Defendant.  The Claimant was fit before joining the 1^st Defendant’s employment in 2014 but because of the nature of work he was given to do in the rig, he has been suffering from Lumber Spoudylosis with degenerative disc disease, multilevel posterior disc impingement and spinal canal stenosis which have resulted to severe back pain and difficulty in standing erect or walking. The Claimant relied on a medical result dated 23/7/2016. Since his employment in 2014, he has been diligent in his duties until on 31/7/2016 when he received an email from Mr. Kalu, the Manager of the 2^nd Defendant stating that the Claimant has been suspended indefinitely. When the Defendants refused to reconsider the suspension, the Claimant consulted his solicitors who wrote a letter dated 11/11/2016 to the 1^st Defendant. The Claimant later discovered from Mr. George Igwe, the HR Manager, that the reason why the Claimant was placed on indefinite suspension was because of his health condition which has affected his output and because he offended the OIM.

 

Before the suspension, the Claimant and his family were receiving free medical treatment at the expense of the 1^st Defendant but since August 2016, the 1^st Defendant has instructed the hospitals to stop attending to the Claimant. The Claimant also relied on a report from Rehoboth Hospital. He has been in and out of Hospital since July 2016 and has been recommended for surgery in India estimated to cost $17,000 (about N8,000,000). It is also difficult for him to continue with drilling work which is the only work that he specialized in. He cannot work again as a driller. The 2^nd Defendant made him to work for 28 days in and 14 days out contrary to international best practice of either 14 days in and 14 days out or 28 days in and 28 days out. This action of the 2^nd Defendant worsened his back pain. He complained to the OIM about the days of work but he was threatened with a sack. The Defendants have refused to pay for his hospital bills and his request for surgery in India. He has been in and out of hospitals and admissions since 2015 because of the injury suffered as a result of the activities of the defendants. His unpaid salaries and entitlements from April to December 2016 are N7,620,175.00 covering salary from August  to December 2016 and allowances include N1,060,025 as salary in lieu of notice, N1,060,025.00 end of year bonus and N220,000 shopping allowance. He is also entitled to workmen compensation insurance cover at N10,000,000.00 but which the Defendants refused provide for him. The Claimant also stated that in case of termination, he is entitled to one month in lieu of notice in accordance with the agreement between the Defendants and PENGASAN. The Defendants are not ready to recall him or pay him his entitlements or to pay for the treatment in India.

 

The Claimant’s further evidence given in respect of the defence of the 1^st and 2^nd Defendants contain that the letter of 16/3/2016 did not contain that his employment has been terminated. The release and discharge undertaking he signed with the 1^st Defendant on 6/4/2016 only covered his activities with the 1^st Defendant up till March 2016. The 2^nd Defendant at no time terminated his appointment but he was only suspended through email of 31/7/2016. The 2^nd Defendant paid his salaries till July 2016. The Defendants at no time paid him any entitlement whether as pay off or redundancy benefits. The 2^nd Defendant was aware of his health condition and he was not served any letter dated 31/7/2016 as that date was a Sunday. There is procedure for terminating employment of staff but the defendants did not follow the procedure. His employment has not been terminated till date. The identity card given to him by the 1^st Defendant was valid till December 2016.

 

1^ST DEFENDANT’S CASE

The 1^st Defendant filed a statement of defence and also called one witness in the case. The witness is one LADI DARE, Human Resources Workforce Planning Supervisor in the 1^st Defendant. He testified that by a letter dated 9/2/2015, the Claimant’s first employment with the 1^st Defendant was terminated and he was paid his terminal benefits in the sum of N1,089,476.00. The Claimant was later re-engaged in a letter dated 30/7/2015 but this employment was terminated with effect from 1/4/2016 through a letter dated 16/3/2016 where the Claimant’s status changed from active to inactive with effect from 1/4/2016 on the conditions that the Claimant’s accrued benefits shall be paid up to 31/3/2016; monthly salary shall cease until otherwise advised; medical coverage for the Claimant and 4 children and spouse shall continue until otherwise advised; no benefit shall accrue while inactive but shall resume upon return to active status; Claimant to return Identity card. The Claimant accepted the inactive status by acknowledging the letter and also executed the redundancy benefits form of the sum of N5,618,088.00 as his final accrued benefits. On 6/4/2016, the Claimant also executed a discharge and release undertaking wherein he confirmed receipt of the sum of N5,618,088.00 in full final settlement of all claims he may have against the  1^st Defendant. The 1^st Defendant paid the sum into the Claimant’s GTB account. In view of these, the Claimant’s employment with the 1^st Defendant terminated from 1/4/2016. The Claimant was no longer in the 1^st Defendant’s employment from that date but in the employ of the 2^nd Defendant.

 

In the Claimant’s certificate of fitness dated 24/9/2014, he was certified medically fit for unrestricted offshore work. The Claimant was no longer in the 1^st Defendant’s employment as at the time of the medical report on 23/7/2016. The Claimant never sustained any injury while in the employment of the 1^st Defendant. The 1^st Defendant was at no time negligent and was not responsible for the injury allegedly suffered by the Claimant. In a meeting held on 31/3/2016 between the 1^st Defendant and PENGASAN, it was agreed that from 1/4/2016, crew members on the 1^st Defendant’s rig 1 will be required to work 28 days in and 14 days out. But the Claimant was no longer in the 1^st Defendant’s employment as at that date. The Claimant was not in the employ of the 1^st Defendant at the material time. The 1^st Defendant is not indebted to the Claimant in any way.

 

2^ND DEFENDANT’S CASE

The 2^nd Defendant similarly filed a statement of defence and called Mr. KALU ANYA, a manager of the 2^nd Defendant as its only witness. This witness testified that the Claimant was assigned by the 1^st Defendant to the 2^nd Defendant for employment as staff of the 2^nd Defendant. A fresh letter of employment was issued to the Claimant and he accepted the terms of the employment. The Claimant was thus an employee of the 2^nd Defendant but was drafted to work for the 1^st Defendant. The Claimant was paid his salaries by the 2^nd Defendant until his employment was terminated on 31/7/2016. The Claimant worked for the 2^nd Defendant for only 4 months and he was paid for the period he worked for the 2^nd Defendant and after termination, he was paid his redundancy benefits. The Claimant is not owed salary from August to December 2016 as he was not in the employ of the 2^nd Defendant in those months. The Claimant and his family were also enrolled for medical services. After termination of the Claimant’s employment, he was paid his redundancy benefits. The 2^nd Defendant had no knowledge of the Claimant’s medical condition as at the time he was employed. The medical report of 12/12/2016 was obtained long after the Claimant had been terminated. The Claimant was not placed on indefinite suspension. His services were no longer required and he was accordingly terminated. The 2^nd Defendant does not owe any obligation to the Claimant from the date of termination of his employment. The 2^nd Defendant is also not liable for the claims of the Claimant.

 

Upon the close of evidence, counsels for the parties filed their final written addresses which were adopted on 9^th April 2018.

 

FINAL WRITTEN ADDRESS OF THE 1^ST DEFENDANT

The 1^st Defendant filed its final address on 12^th December 2017 and submitted that the Claimant's testimony lacks any real evidential value and he was unable to substantiate all his claims before this Court, particularly his employment in the 1^st Defendant, because at the time the cause of action in this action arose, his employment with the 1^st Defendant had been terminated.

 

Again, Counsel argued that the Claimant's lack of evidence for his first claim was revealed during cross examination, when he admitted that his first employment was terminated on the 9^th February 2015, to which he was given another appointment letter dated 30^th July 2015, which was terminated by Exhibit C3, and then was paid off. It was submitted by Counsel that the admission of the Claimant elicited during cross-examination is inconsistent, when a comparison is made of Exhibits C3, C4, C5, C14, C15 and Exhibit DD1, because in Exhibits C14 and C15 there is evidence of full payment of redundancy and accrued benefits as well as a release and discharge undertaking.

 

On the issue of the Claimant’s medical situation, Counsel submitted that the fact that he did not appear to be well informed on the state of his health suggests that his testimony is untrue.

Furthermore, counsel contended that the 1^st Defendant’s witness was at all relevant time to this suit, employed by the Defendant, and when cross- examined by the Claimant’s counsel, admitted that the Claimant’s employment was terminated on the 9^th February, 2015, and he was later engaged, and Exhibit C5 and C15 are the same, differing only on the basis that C5 does not show endorsement while C15 does. According to Counsel, the 1^st Defendant witness’ testimony indicated that the employment of the Claimant with the 1^st Defendant Company was terminated and ended effectively on the 15^th of April 2017, which was corroborated by the 2^nd Defendant’s witness.

 

After these initial arguments, Counsel identified one issue for determination in this suit: Whether or not the contractual relationship between the Claimant and the 1^st Defendant was terminated effectively on the 1^st of April 2016, and if so, whether or not the Claimant is entitled to any of his monetary claims.

 

Before arguing his sole issue, Counsel proceeded with the Court’s leave to raise his objection to the admissibility of Exhibits C9, C13 and DD2 respectively. Counsel’s view was that these exhibits are inadmissible, because they do not strictly comply with the condition precedent for the admissibility of computer generated evidence provided for in Section 84 of the Evidence Act 2011 being the relevant law governing the admissibility of documents, and cannot be circumscribed in its application during the course of judicial proceedings. See KUBOR AND ANOR vs. DICKSON & 2 ORS (2012) LPELR-15364 (CA) 50-51.

Similarly, counsel submitted that the provisions of Section 84 (1), (2) and (4) of the Evidence Act 2011 as regards the admissibility of electronically generated evidence must be strictly complied with, as same cannot be waived, and this court can only act upon legally admissible evidence in view of the decision of DAWODU vs. STANBIC IBTC Bank Plc. (2016) 66 N.L.L.R (Pt. 236) 372. Counsel urged the Court to discountenance Exhibits C9, C13 and DD2 for having failed to comply with the strict and mandatory provisions of Section 84 (1) (2) and (4) of the Evidence Act 2011.

 

Regarding the sole issue raised, Counsel submitted that Exhibit C15 established that the Claimant's employment with the 1^st Defendant was effectively terminated with all entitlements duly paid to the Claimant after which the Claimant was engaged in the employment of the 2^nd Defendant as its staff as evidenced in Exhibit DD1. Also, counsel argued that there were significant additions omitted by the Claimant at the time of tendering Exhibits C3, C4, and C5 which was not denied by the Claimant and in the case of Exhibits C14 and C15 there is clear evidence of full payment of redundancy and accrued benefits as well as a release and discharge undertaking. According to counsel, Exhibits C3, C4, and C5 were tampered with, in order to mislead the Court into believing that these documents were not executed and/or acknowledged by the Claimant.

According to Counsel, the Claimant’s inability to proffer plausible evidence establishing his claims for general and special damages in the sum of N50,000,000.00 (Fifty Million Naira) as special and general damages for hospital expenses and the sum of $17,000 (Seventeen Thousand United States Dollars) or its equivalent of N8,000,000.00 (Eight Million Naira) for the alleged cost of surgery in Artemis Hospital in India; shows that he is not a witness of truth; especially in the light of  paragraph 13 of his Witness Deposition dated 2^nd December 2016. Despite this deposition and the admission of the Claimant that his medical condition is “a continuous problem till date,” the Claimant throughout his appearance in Court walked without mobility aid, stood upright whilst in the witness box and never requested to sit whilst either being examined-in-chief or cross-examined and most significantly, never exhibited any symptoms to suggest that he was actually suffering from lumber spoudylosis with degenerative disc disease, multilevel posterior disc which according to him will ordinarily result in severe back pain difficult in standing erect/walking.

 

It is the submission of Counsel that upon concluding that the Claimant is not a witness of truth, the Court is enjoined to treat his testimony with little regard. The case of FALOWO vs. BANIGBE & ORS. (2007) LPELR-I 1850 (CA) 33, was relied on by counsel, where it was held that the credibility of the oral testimony of witnesses is an important aspect of adjudication. If the credibility of a witness is destroyed, the evidence he has given loses cogency and probative value. See also ABIODUN OGUNDE vs. ALHAJA MEMUNAT ABDULSALAM (2017) LPELR-41875 (CA) 57-59, AGBI vs. OGBEH (2006) LPELR-240 (SC) 54 and Section 223 of the Evidence Act 2011. Counsel urged the court to discountenance the testimony and evidence of the Claimant in its entirety.

 

Again, it was argued by Counsel that the case of the 1^st Defendant has been that after the 1^st of April 2016 its contractual relationship with the Claimant had come to an end, which was evinced by Exhibit C2, which terminated the employment of the Claimant, and by Exhibit C15 where the Claimant was duly paid all his entitlements termed redundancy and accrued benefits. Counsel cited the case of OLANIYAN vs. UNILAG (1985) 2 NWLR (Pt. 9) 599, and submitted that the relationship between an employee and employer is guided predominantly by the contract of employment. The case of W.A.E.C vs. OSHIONEBO (2006) LPELR-7739 (CA) 15-16, was also cited by counsel where it was held that in a master and servant relationship, which is purely contractual, the termination of the employment of an employee by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract of employment. In this regard, counsel contended that the terms of engagement as contained in the Claimant's letter of offer of employment formed the bedrock of the contractual relationship between the Claimant and the 1^st Defendant, at the third page of Exhibit C2 provided for one month notice, or one month salary in lieu of notice as the harbinger for “Termination/Resignation”.

Therefore, counsel asserted that the Claimant’s employment was not only terminated in accordance with the terms of his employment, but more importantly, all his accrued redundancy and accrued benefits were also duly settled.

It was submitted by counsel that in the event the Court holds that the termination of the employment was wrongful, the Claimant executed a Release and Discharge Undertaking dated 6^th April 2016 in consideration of which the sum of N5,618,088.00 (Five Million Six Hundred and Eighteen Thousand and Eighty Eight Naira) was paid to the Claimant in full and final settlement of all claims that he may have against the 1^st Defendant, its affiliates, subsidiaries, servants, employees and agents with respect to his employment; thus having executed the Release and Discharge Form dated 6^th April 2016 of page 3 of Exhibit C15, and  Section 169 of the Evidence Act 2011, the Claimant waived his rights to institute this claim against the 1^st Defendant.

Relying on the case of UNITED CALABAR CO. vs. ELDER DEMPSTER LINES LTD. (1972) LPELR-3406 (SC) 17-18, counsel contended that the Claimant having executed the Release and Discharge Form dated 6^th April 2016 has expressly waived his right to present this suit, and must be estopped from pursuing this suit.

Counsel also drew the Court’s attention to DIAMOND BANK LIMITED vs. UGOCHUKWU (2008) 1 NWLR (Pt. 1067) 1 at 26 where it was held as follows:

“A person shall not be allowed to say one thing at one time and the opposite at another time. Estoppel binds both parties and privies and the rule of estoppel is based on equity and good conscience. Put in another way it means that a party is estopped from denying or withdrawing his previous assertion or from going back on his own act, even if it is to tell the truth. The reasoning is simple. It would promote fraud and litigation if a party is allowed to resile from his from his own act or representation on which the other part acted. The object of estoppel has always been to prevent fraud and enthrone justice between the parties by ensuring that there is honesty add good faith at all times”.

It was Counsel’s view that when estoppel is successfully invoked, the jurisdiction of the court is ousted. A party is therefore prevented from proving any facts in contradistinction to his earlier acts or declaration to the prejudice of the other party who has, in reliance, acted on it. See TIJANI IKOTUN vs. OBA SAMSON OYEKANMI & ANOR (2008) LPELR-1485 (SC).

Counsel urged the court to hold that the Claimant is estopped from pursuing claims in this suit against the 1^st Defendant.

 

Again, counsel argued that there is no reasonable cause of action against the 1^st Defendant, within the explanation of what constitutes a Cause of action in BELLO vs. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (Pt. 45) 876, as the aggregate of the facts culminating in a claimant’s right to institute an action or make a claim against another person, the factual situation stated by the Plaintiff which if substantiated, entitles him to remedy against the Defendant.

Furthermore, counsel submitted that in order to determine whether the Claimant's case discloses a reasonable cause of action against the Defendant, the Court is bound to examine the averments contained in the Statement of Claim and not the Statement of Defence. See the case of THOMAS vs. OLUFOSOYE (1986) I NWLR. 669 at 682.

 

According to Counsel, with the 1^st Defendant’s averment that the Claimant was effectively terminated by Exhibit C15, the claims sought by the Claimant from which the cause of action arose, commenced from the month of August 2016 onwards, a period long after the lawful termination of his employment with the 1^st Defendant, when the Claimant was under the strict employment management and control of the 2^nd Defendant effective from 1^st April 2016 as evinced by Exhibit DD1.

 

Counsel submitted that this case as constituted does not disclose any reasonable cause of action against the 1^st Defendant, based on the fact that there was no privity of contract of employment between the Claimant and the 1^st Defendant. On this principle, counsel cited the English case of DUNLOP PNEUMATIC TYRE CO. LTD vs. SELFRIDGE LTD (1915) AC 847 at 853, where it was held that only a person who is a party to a contract can sue and be sued on it. Also, counsel cited the cases of ILESA LOCAL PLANNING AUTHORITY vs. OLAYIDE (1994) 5 NWLR (Pt. 342) 91, and U.B.A PLC vs. JARGABA (2007) 11 NWLR (Pt. 1045) 247 where it was held thus:

“The doctrine of privity of contract is all about sanctity of contract between the parties in it. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to make him a shield or scapegoat against the non-performance by one of the parties.”

Counsel urged the court to dismiss the suit against the 1^st Defendant in its entirety because there is no reasonable cause of action, premised on the lack of privity of contract between the Claimant and the 1^st Defendant.

 

Also, counsel contended that with a non-existent contractual relationship between the 1^st Defendant and Claimant after 1^st April 2016, and with the Claimant failing to establish any breach of contract against the 1^st Defendant, he is not entitled to the award of his claims against the 1^st Defendant. Counsel contended further that a contract of employment is lawfully terminated upon the issuance of the requisite notice or payment of salary in lieu as was decided in UNION BANK OF NIGERIA PLC vs. CHARLES OLUSOLA TOYINBO (2008) LPELR-5056 (CA) 62-64 where it was held that the master/employer reserves the right to hire and fire a servant at any time provided the servant is given the requisite notice or paid salary in lieu of notice in accordance with the terms of their contract. See also the case of OSISANYA vs. AFRIBANK NIGERIA PLC. (2007) LPELR-2809 (SC) 15 -17.

 

Similarly, counsel submitted that the effect of the issuance of notice or payment of salary in lieu of notice on a contract of employment bars the Claimant from seeking further benefits from his employer, and under the terms of his contract of employment, all said payments have been made, as clearly shown in Exhibit C15. Counsel went further that the Claimant is not entitled to seek monetary reliefs beyond the realm of his entitlements under the terms of his contract of employment. In support of his submission, Counsel relied on

WILBROS NIGERIA LIMITED & ANOR vs. MACAULAY (2009) LPELR-850 (CA) 26 – 27, where the Court of Appeal held that a plaintiff in an action for wrongful or unlawful dismissal is not entitled to general damages because such general damages belong to the realm of claims in tort while actions for damages for wrongful or unlawful dismissal are based on contract. See also GABRIEL ATIVIE vs. KABELMETAL NIGERIA LTD. (2008) LPELR-591 (SC).

 

Flowing from the above, counsel urged the Court to dismiss all the reliefs sought against the 1^st Defendant, on the following grounds:

1.      The Claimants employment with the 1^st Defendant was effectively terminated on 1^st April 2016 and at the time all accruable salaries, benefits and emoluments were duly paid up.

2.      The Claimant is not entitled to the award of general damages, which are outside the terms of his contract of employment.

3.      There is no evidence to support all his monetary claims relating to the alleged medical treatment, and special damages ought to be specifically pleaded and proved by way of cogent and credible evidence, from the decision in OSUJI & ANOR. vs. ISIOCHA (1989) LPELR-2815(SC) 12.

 

Also, counsel submitted that the Claimant has not established his entitlement to the award of cost, and cited the case of HADEJIA RIVER BASIN DEVELOPMENT AUTHORITY vs. CHIMANDE (NIG) LTD (2016) LPELR-40202 (CA) 22 at Paragraphs B to D, where it was held that in awarding costs, a Court is entitled to consider among other factors, the following (a) the summons fee; (b) the duration of the case; (c) legal representation; (d) expenses incurred by the successful party in the ordinary course of prosecuting the case; (e) the value or purchasing power of the Naira at the time of the award. According to counsel, there is nothing before the Court particularizing the cost associated with the prosecution of the Claimant’s case in order to ascertain the basis of the Claimant's cost of action in the sum of N1,000,000.00 (One Million Naira). In conclusion, counsel urged the Court to uphold his arguments and dismiss with substantial cost, all reliefs sought by the Claimant.

 

FINAL WRITTEN ADDRESS OF THE 2^ND DEFENDANT

One issue was identified for determination in this suit in the 2^nd Defendant Counsel’s final address filed on 18^th January 2018:

Whether there was a contractual relationship with the Claimant and at what period did it commenced and therefore was his employment lawfully discharged by the 2^nd Defendant.

Counsel contended that by the 2^nd Defendant’s Exhibit DD1 there was a contractual relationship between the 2^nd Defendant and the Claimant which was voluntarily entered into by the Claimant, and contrary to the averment in paragraph 3, 7 and 8 of the statement of facts that the 2^nd Defendant was an agent of the 1^st Defendant especially in order to avoid liabilities and community matters; the doctrine of agency which ensures the apparent authority to the 2^nd Defendant, the Claimant cannot complain afterwards.

 

Further, counsel submitted on the authority of OPUO vs. NNPC (2002) FWLR (Pt. 84) 15, that the Claimant is estopped from denying the authority of the 2^nd Defendant over him. Whether or not the Claimant signed the said Exhibit DD1, there exists a legally binding contract between the 2^nd Defendant and the Claimant by reason of Exhibit DD1. Counsel urged that Exhibit C3 should be discountenanced and Exhibit DD1 be given its proper interpretation to the effect that there exists a master/servant relationship which commenced in April 2016 and terminated in July 2016, and that no extrinsic evidence should be allowed by this court to vary and alter the effect of a written contract. See IDUFUCKO vs. PFIZER (2014) 58 (Pt. 1) NSQR 627-628.

 

Further on this point, counsel contended that it is the law that where a misrepresentation is made by the Claimant which caused the 2^nd Defendant to believe in certain things, especially with the Claimant’s averment that he accepted the letter of appointment, however did not sign it, but received salaries and other benefits from the 2^nd Defendant from April to July 2016 until his appointment was terminated, the Claimant who knowingly made the false representation is estopped from averring afterwards that such a state of things do not exist as at the time. See IGE & ORS vs. AMAKIRI & ORS (1976) 11 SC 1 at 12-13, and UNILORIN vs. ADESINA (2009) 26 WRN 107.

In the same vein, counsel argued that a person who is not under any legal disability should be the best judge of his own interest, with the Claimant having full knowledge of his right, yet decided to give it up by accepting salaries and other benefits from the 2^nd Defendant, cannot be heard to complain afterwards; and the Claimant should be held to have waived his rights, in view of GUINNESS (NIG) PLC vs. ONEGBEDAN (2012) 1 WRN 165.

It was counsel’s contention that where the principal of an agent is known or disclosed, the correct party to sue for anything done or neglected to be done by the agents and by extension of an agent is the principal. See AKALONU vs. OMOKARO (2003) FWLR (Pt. 175) 496. Furthermore, counsel submitted that for the Claimant to prove to the satisfaction of this court that his employment was wrongfully terminated, he must prove in what manner the said term were breached by the employer, and it is not the duty of the 2^nd Defendant to prove. See ZIIDEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (Pt. 354) 245.

 

Counsel submitted further that in the face of the absence of the Claimant denying the receipt of his letter of appointment into the employment of the 2^nd Defendant through Exhibit C3; the Claimant has failed to prove that his termination was wrongful or not in accordance with the terms and conditions of his employment.

 

It was asserted by counsel that Exhibit C3 was doctored to deceive the Court. Counsel urged the court relying on Section 108(1) of the Evidence Act, to compare the signatures in Exhibit DD1 and that of the Claimant in Exhibit C2, to arrive at the only conclusion that both signatures are that of the Claimant who signed these letters of offer at the material time, but in order to mislead this court, fabricated Exhibit C3 in an attempt to deny acknowledging any appointment letter from the 2^nd Defendant; and that the signature of the sole witness of the 2^nd Defendant in Exhibit C3 is radically different from the signature appearing in Exhibit DD1, also the logo in the middle of the Claimant’s exhibit is missing in the Defendant’s Exhibit DD1, and several other anomalies when viewed critically will show that Exhibit C3 and Exhibit DD1 are not the same and did not emanate from one and the same person.

 

Likewise, counsel argued that with the Claimant admitting under cross examination by the counsel to the 1^st Defendant that the signature in Exhibit C5 belongs to him, the court is empowered to use same to compare with Exhibit DD1 in order to arrive at a logical conclusion that the Claimant indeed signed the said Exhibit DD1 and had full knowledge that his employment has been moved to the 2^nd Defendant. In the event that the court agrees with Counsel’s argument on this note, counsel stated that the Claimant has nothing to show any contractual relationship with the 2^nd Defendant which is strictly governed by the terms and condition of employment, he is not entitled to make any claim from the 2^nd Defendant. See W.A.P.C PLC vs. ODUNIYI (2005) All FWLR (Pt. 264) 978, and EZECHUKWU vs. ONWUKA (2005) All FWLR (Pt. 280) 1517.

 

Also, counsel submitted that where the claimant failed to prove his employment with the 2^nd Defendant by a duly authenticated letter of offer of appointment, it means that there is no written agreement between the Claimant and the 2^nd Defendant, as the law provides; and such transaction be treated, decided or governed on a quantum merit basis, in light of the holding in OKONEDO EGHAREGBAMI vs. JULIUS BERGER (1995) NWLR (Pt. 398) 699, because the 2^nd Defendant was not a party and never consented to the agreement of 21/10/2014 between the Claimant and the 1^st Defendant on record as appeared in the first relief of the Claimant in this action.

 

Again, it was argued by Counsel that considering Exhibit DD6, the Claimant had been lawfully terminated in full compliance with the terms and conditions appearing on Exhibit DD1, and from paragraph 2 (vii) of the reply to the 2^nd Defendant’s statement of defence, to the effect that notice of the Claimant’s intending sack was sent to the 2^nd Defendant on Friday the 22/7/2016. No letter of 31/7/2016 (Exhibit DD6) could emanate from the office of the 2^nd Defendant because it was on Sunday.

According to counsel, the Claimant admitted that he has never visited but had always communicated via mail and telephone, in his evidence given on 9/6/2017, while the sole witness in his oral evidence given on 16/11/2016 asserted otherwise to the effect that the Claimant’s employment was terminated in accordance to the said instruction and that the 2nd defendant are not limited to only working days.

 

Similarly, counsel argued that with the appointment of the Claimant having been terminated as per Exhibit DD6, the Claimant ceased to be in the 2^nd Defendant’s employment. The Claimant cannot at his own option keep alive a contract of employment which has been determined by the employer in compliance with the terms and conditions, and demand for wages he did not work for or earn; particularly after he received his full salaries and every other entitlement, all payments processed through the claimant’s Bank Account No. 0037856497 with Guaranty Trust Bank and every other such entitlement UBA Trustee was directed to furnish him accordingly as shown in Exhibits DD7, DD8, DD9, DD10 and DD11. See JOMBO vs. PEFMB (2005) All FWLR (Pt. 280) 1436.

 

It was counsel’s opinion that the damages recoverable by a Claimant for breach of contract of employment are the losses reasonably foreseeable by the parties at the time of entering into the contract. Where the terms provided for a specific period of notice before termination or salary in law, the only remedy available to an employee who is wrongly terminated is the award of salary for the period and other legitimate entitlement due to him at the time the employment was brought to an end. The award of general damages is inappropriate. See ATIVIC vs. KABEL METAL NIG LTD (SUPRA). In like manner, counsel contended that the Claimant is not entitled to seek monetary reliefs above his entitlement, with no evidence to support his special damages including monies relating to the alleged medical treatment. Counsel urged the court to dismiss his reliefs.

 

With respect to the Claimant’s counsel’s objection to the admissibility of Exhibit DD7 to D11 on the grounds of non-compliance with Section 84 of the Evidence Act, counsel submitted that while the provision of Section 84 (1) (2) and (4) of the Evidence Act 2011 as regards the admissibility of electronically generated evidence must be strictly complied with, Order 5 Rule 6 (A) and (B) of the NICN Rules empowers the court to regulate its procedure and proceedings, and in appropriate circumstances depart from the Evidence Act as provided in Section 12(2)(b) of the National Industrial Court, 2006 in the interest of justice, equity and fair play. Counsel urged the court to depart from the Evidence Act to do justice and fair play in this matter, in view of abundant evidence that the Claimant and the 2^nd Defendant mostly dealt with each other with emails and telephone communication.

 

In conclusion, counsel submitted that from his earlier submissions, it is evident that the claims in this suit have not been proved by credible evidence, thus he beckoned on the court to dismiss the suit.

 

FINAL WRITTEN ADDRESS OF THE CLAIMANT

In the claimant’s Counsel final address filed on 18^th January 2018, one issue was formulated for resolution, thus: whether the Claimant has proved his case with preponderance of evidence in view of the pleadings, evidence and exhibits tendered before the court to entitle him to all his claims before this honourable court.

Counsel submitted that a Claimant is to prove his case on the preponderance of evidence as it is the general principle of law that all civil cases or claims are proved on the balance of probabilities and preponderance of evidence. He cited the following cases in support of his submission: ISHOLA vs. UNION BANK LTD (2005) 2 SC (Pt. 11) 80, AITIEGBEMILIN vs. RTAG NIG. (2012) 44 WRN 120, and ISEOGBEKUN vs. ADELAKUN (2013) All FWLR (Pt. 664) 168 at 188. According to counsel, the Claimant's case is basically documentary in nature, and in law, documentary evidence is the best evidence that the court can rely on. See OBIAZIKWO vs. OBIAZIKWO (2007) 37 WRN 106 at 131. The case of the Claimant was that he was working for both Defendants, and that it was the 1^st Defendant that engaged him and later assigned him to the 2^nd Defendant. This the 1^st Defendant denied, but was according to counsel, established during cross examination of the Defence witness.  

It is counsel’s opinion that it was in fulfilment of the 1^st clause of Exhibit C5 that the 1^st Defendant prepared the release and discharge undertaking and the cheque of N5,618,088.00 (Five Million, Six Hundred am Eighteen Thousand, Eighty Eight Naira). Also, the 1^st Defendant did not give any other written instruction to the Claimant who along with his family enjoyed free medical care in accordance with Exhibit C5, a fact which DW1 confirmed under cross examination.

 

It is Counsel’s opinion that from the evidence in this case, both Defendants were the employers of the Claimant at the same time; or at worst, what existed between the parties was a triangular employment described in OYEWUMI OYETAYO vs. ZENITH BANK PLC (unreported) Suit No. NIC/IL/01/2012 delivered on September 25, 2012; where it was held that during the pendency of an employment relationship, the character of that relationship may be altered between the parties with or without the interposition of third parties, and it is in this sense that the triangular employment relationship evolved. See also INIMGBA vs. INTEGRATED CORPORATE SERVICES LTD & ANOR (2015) 57 N.L.L.R (Pt. 195) 268 at 281. According to counsel, the 1^st Defendant was still the employer of the Claimant beyond March 2016 since the Claimant has established the fact that both Defendants were his employers and has brought this action jointly and severally against both Defendants.

 

For the first relief sought, counsel submitted that from paragraphs 1, 13, 36 and 38, paragraphs 2, 14, 37 and 39 of the statement of facts and the Claimant’s witness deposition respectively; it is evident that the monthly salary of the Claimant was N1,060.025.00, which  from the evidence of the 2^nd Defendant's sole witness and statement of defence of the 2^nd Defendant, was last paid in July 2016. From Exhibit C12, clause 10 at page 11, the Claimant is entitled to one-months’ notice or payment in lieu of notice; while in respect of Exhibit C2, the Claimant is entitled to two months’ notice or two months’ salary in lieu of notice.

According to counsel, nowhere was it stated by the Defendants that notice was given to the Claimant. It was only during cross-examination of DW2 that he told the court that he called the Claimant to inform him of his termination, though he could not remember the date and time he made the said call.  Counsel urged the Court to expunge this piece of evidence from the records, as facts not pleaded goes to no issue. See ORIE vs. CITY SCRAPE INTERNATIONAL PLC (2015) 53 NLLR 429 at 444.

 

Counsel urged the court to hold that the Claimant is entitled to two months’ notice or two months’ salary in lieu of notice as provided for in Exhibit C2, and he wasn’t given such notice or payment in lieu.  Also, counsel argued that the 2^nd Defendant's witness could not prove that Exhibit DD6 was issued and served on the Claimant. The Claimant denied the receipt of the letter of termination (Exhibit DD6) in his pleadings, yet none of the Defendants during cross examination confronted the Claimant as to his receipt of it, especially when there is no acknowledgment copy or proof of delivery as required by law, and as set out in NLEWEDIM vs. UDUMA (supra) where the Supreme Court held inter alia that where there is an allegation that a document was sent to a person and that person denies receiving such document, proof of the receipt by that person can be established by evidence of dispatch by registered post, by dispatch book indicating the receipt; or evidence of witnesses, credible enough that the person was served with the document. See also ANAMBRA STATE GOVERNMENT vs. AMALGAMATED UNION OF PUBLIC CORPORATIONS, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICES EMPLOYEES (AUPCTRE) & ORS, Appeal No: NICN/LA/21/2010 delivered on 18^th October, 2011.

 

Counsel argued further that from paragraph 16 of the 2^nd Defendant's statement of defence, the 2^nd Defendant did not deny that it did not reply to the letter, it was the 1^st Defendant that claimed that it replied to Exhibit C10 through Exhibit D1 which is inadmissible in evidence, because it was not signed by and in the name of a legal practitioner and no seal of any legal practitioner was affixed to it in accordance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007 and the case of SARKIN YAKI vs. BAGUDU (2015) 18 NWLR (Pt. 1491) 288. On this same issue, counsel referred to the case of OMEGA BANK vs. OBC. Ltd (2005) 8 NWLR (Pt. 928) 547, and submitted that an unsigned document is a worthless document which does not have any efficacy in law and such a document need not be admitted in evidence and where it is inadvertently admitted in evidence, the court should not attach any probative value to it. It was argued by counsel that a document or processes in a firm’s name is incurably bad as in Exhibit D1 where the 1^st Defendant only put the firm's name and nothing more. See ATANSUYI vs. KUFEJI (2014) 3 WRN 135. Counsel urged the court to discountenance Exhibit D1 on the above-stated grounds, and hold that the Claimant has established his case that he was suspended by the Defendants in July, and not terminated.

 

It is the submission of counsel that there is no provision in the Defendants’ Handbooks or letter of employment where suspension without pay is provided for. It was held in the case of AKINTOYE vs. HOTEL BONVOYAGE (2014) 42 N.L.L.R. 354 at 376 that an employer has the right to suspend any employee, but there must be a contractual right to suspend without pay and such must be in the letter of employment or in the handbook of the employer, and must be specifically stated in the memo or letter communicating such to the employee. There was no agreement to suspend without pay in Exhibits C1, C2, C3 and C9, yet the Claimant was suspended. His employment was still subsisting.

According to counsel, the Claimant became aware that his service was no longer needed after the receipt of the 2^nd Defendant's statement of defence in January 2017. He urged the court to hold that the Claimant is entitled to unpaid salaries from August 2016 to December, 2016 and all his claims in paragraph 36 of the statement of facts.

 

With respect to the second relief, counsel contended that the Claimant has established in his pleadings and evidence, that he was fit health wise before joining the Defendants, and his health problem started in the course of working for the Defendants. Such evidence was not controverted by any of the Defendants either in their statement of defence or during cross-examination of the Claimant. Counsel pointed out that the Defendants’ witnesses during cross-examination stated that they were not in the right position to know the health condition of the Claimant since they were not working on the rig. None of the Defendants tendered any contrary report in the course of hearing contradicting those tendered by the Claimant. Thus, counsel urged the court to accept the evidence and exhibits tendered by the Claimant in this case and to hold that the health of the Claimant was affected during the course of working for the Defendants.

Contrary to the 1^st Defendant counsel’s submission that the Claimant looked healthy during the proceedings in this case, counsel asserted that the Claimant averred clearly that he is receiving treatment, always in and out of hospital, with severe pain when on duty. Counsel urged the court to hold that the Claimant has proved his case on the health issue.

 

It is counsel’s further submission that the claims in this suit with reference to paragraphs 23, 24, 30, 31, 32, 39 and 41 of the statement of facts have been proved; the defence not having controverted his evidence, especially regarding workmen compensation against the Defendants, which the Defendants’ witnesses told the court that the Claimant is entitled to like other staff. To counsel, it is very clear that the Claimant has established his entitlement to the workmen compensation and the premium to be N10 million.

 

Regarding claim three (claim for N1,000,000.00 being the cost of instituting this case), counsel left this head of claim to the Court’s discretion.

 

With respect to the fourth claim for 10% post judgment interest, counsel submitted that Order 47 Rule 7 of the NICN Rules, 2017 provides for interest at a rate not less than 10% per annum on the judgment sum. See MODIBBO vs. HAMMANJODA (2014) 38 WRN 110 at 131-32.  Counsel submitted that the Claimant has proved his case with preponderance of evidence as required in law, and urged the court to resolve this sole issue in favour of the Claimant.

In reply to the issues raised by the 1^st Defendant in its Final Written Address, counsel submitted that the 1^st Defendant did not understand the Claimant’s case. According to counsel, the 1^st Defendant’s counsel’s address, apart from being vulgar, reveals a clear misconception which seems to indicate that the Claimant was untruthful and had waived his right to institute this action. To counsel, the submission of counsel cannot take the position of pleading and evidence. See OBITUNDE vs. ONYESOM COMMUNITY BANK LTD (2014) 36 WRN 1 at 30-31.

 

The Claimant specifically stated in paragraph 4 of the statement of facts and Exhibits C10 and C5 that he was paid his entitlement, and that the 1^st Defendant did not allow its workers to be in its employment more than a year so as to avoid long service award and other entitlement.  The case to be settled by the Court borders on claims from April 2016 till judgment is given, and does not cover claims that have been settled by the 1^st Defendant.

 

With respect to the issue of waiver, it was argued by Counsel that the averment in paragraph 2(v) of the Claimant's Reply to the 1^st Defendant's statement of defence indicated that the release and discharge of 6/4/2016 executed was in respect of what transpired between the 1^st Defendant and the Claimant till 31/3/2016, and not beyond.

 

Counsel referred the Court to Exhibit C5 and C15 respectively, which includes the clear words that “Release and Discharge undertaking cannot cover any other claims or liabilities that might occur in months or years to come”, and submitted that the doctrine of waiver raised by the Defendants’ counsel does not apply. Counsel argued that from the averment in paragraphs 4 and 6 of the 2^nd Defendant’s statement of defence, and Exhibit C5, the 1^st Defendant stopped the medical treatment in July 2016 without further recourse to the Claimant as the identity card of the 1^st Defendant was still the only means of identification recognized by THT and the hospital, Same card was tendered in court as Exhibit C16.

 

In addition, counsel contended that with the provision in Order 13 Rules 4, 6(1) and 7 of the NICN Rules, which allows a Claimant to join as Defendants all persons he reasonably believe he wants a relief against and that such Defendant joined need not to be interested in all the reliefs; and the pleadings and evidence including DW1’s admissions during cross-examination in the present case, there is a reasonable cause of action against the 1^st Defendant. The case of AMOPE vs. GAMBARI (2014) 2 WRN 64 at 73-74, was relied by counsel where a cause of action was defined as facts which if proved will entitle to a remedy against the Defendant, and includes: a cause of complaint; civil right or obligation fit for determination by a court of law; a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. Counsel submitted that a cause of action is determined by reference to the Claimant's Statement of facts and the complaint, which in the present case establishes a cause of action against both Defendants jointly and severally.

 

Regarding the 1^st Defendant counsel’s objection to the admissibility of Exhibits C9, C13 and DD2, Counsel adopted the ruling of this court delivered in this matter on 29/9/2017 and 5/5/2017, and also referred to Order 5 Rule 6(2) (a), (b) and (3) of the NICN Rules 2017, Section 12 (1) (2) (a) and (b) of the National Industrial Court Act, in his submission that the National Industrial Court is enjoined to do all it thinks fit to ensure that justice is done in cases. See also OLANIYAN vs. ASKAR PAINTS (NIG) LTD (2014) 42 N.L.L.R. (Pt. 129) 102 at 130-131.

 

It was contended by counsel that the bulk of cases cited by the 1^st defendants’ counsel on the admissibility of the said exhibits are inapplicable in this case, because they were decided based on either Federal High Court Rules or State High Court Rules. Counsel referred to the case of SOKUNLE & ORS vs. FIRST BANK PLC (2015) 53 N.L.L.R (Pt. 178) 284 at 297, where it was held that the specialized nature of disputes before the National Industrial Court requires speed, flexibility and a certain measure of informality; and urged the Court to discountenance the objections of the 1^st Defendant as all the documents were the Defendants' documents and the Defendants were sued jointly and severally.

Furthermore, counsel submitted that the 2^nd Defendant failed to plead and prove how the payment of terminal benefit was communicated to the Claimant, as required by law, in view of paragraph 2(iii), (ix), (x) of the Reply to the 2^nd Defendants’ statement of defence where it was averred that the Claimant was not paid any entitlement and was never informed of his termination and terminal benefit.

In conclusion, the Court was urged by counsel to grant all the claims of the Claimant as argued in his final address and in the statement of fact.

 

 

1^ST DEFENDANT’S COUNSEL’S REPLY ON POINTS OF LAW TO THE CLAIMANT’S WRITTEN ADDRESS

Counsel for the 1^st Defendant in his Reply on points of law filed on 22^nd January 2018, responded to counsel’s submission in paragraph 4.12 to 4.15 of the Claimant’s final written address to the effect that the 1^st and 2^nd Defendants are co-employers of the Claimant. In urging the court to discountenance that argument of the Claimant, counsel for the 1^st Defendant narrated the facts in the case of PENGASSAN vs. MOBIL PRODUCING NIGERIA UNLIMITED NICN/LA/47/2011 among other cases cited by the Claimant in support of his argument, viz-a-viz the principle of co-employment. Counsel cited the case of NITEL vs. JATTAU (1996) 1 NWLR (Pt. 425) 392 CA among other cases, to distinguish between this suit and a co-employment. He submitted that from the facts and evidence in this case, there absolutely exists no co-employment or triangular relationship between the Claimant and the 1^st and 2^nd Defendant, especially as the Claimant had received all his benefits from the 1^st Defendant, his employment with them having been effectively determined, especially as the release and discharge undertaking signed by the Claimant had the effect of waiving all the Claims the Claimant may have against the 1^st Defendant. Counsel urged the court to discountenance the Claimant’s arguments and hold that this case is an exception to the doctrine co-employment/triangular employment.     

 

CLAIMANT’S COUNSEL’S REPLY ON POINTS OF LAW TO THE 2^ND DEFENDANT’S WRITTEN ADDRESS.

Learned counsel to the Claimant, on the 19^th day of February 2018, filed a Reply on points of law to the Defendants’ final addresses. Counsel argued that the 2^nd Defendant did not understand the case of the Claimant, because there was never a time that the Claimant ever denied the 2^nd Defendant, and the introduction of the Agency principle by the 2^nd Defendant is not applicable in this matter, for the NICN Rules permits the Claimant to sue and join all the parties he has one or two claims against in one suit as was done in this matter. The Court was urged to discountenance all the arguments of the 2^nd Defendant’s counsel in this regard. Also, counsel contended that the case of the Claimant is not wrongful termination, and the assertion by the 2^nd Defendant that Exhibit C3 was forged ought to have been pleaded, so that the Claimant could have replied to the allegation, and it is the law that no matter how well drafted and researched the final written address of a counsel is, it cannot substitute for evidence and pleadings, as was decided in OYEYEMI vs. OWOEYE (2017) 21 WRN 1 at 28.

 

Again, counsel argued that the 2^nd Defendant’s counsel misquoted paragraphs 2(vii) of the reply to the 2^nd Defendant's statement of defence, and the onus to prove that Exhibit DD6 was ever issued and served is on the 2^nd Defendant, who throughout the pleadings and during hearing did not prove the service of the said letter in any of the ways stated by the Supreme Court in the case of NLEWEDIM vs. UDUMA (1995) 6 NWLR (Pt. 402) 388. The Court was urged to discountenance the argument of the 2^nd Defendant in this respect. Also, counsel asserted that the payment of April to July, 2016 salary was never an issue in this matter, so all the documents in respect of payment of salary for April to July 2016 are not relevant. Furthermore, counsel was of the opinion that despite the 2^nd Defendant’s pleadings that the UBA Trustees was instructed to settle all the entitlements of the Claimant, no proof was tendered to show the court that the instruction was carried out since the Claimant denied receiving such payment in his reply.

 

Counsel argued further that the 2^nd Defendant’s counsel missed the claims of the Claimant when he submitted that the Claimant is not entitled to seek monetary relief beyond his entitlements. The case of the Claimant is for monetary claims based on his salaries and expenses incurred which the Claimant is entitled to. In conclusion, counsel urged the Court to grant all the claims of the Claimant and to discountenance the defence of the 2^nd Defendant to this case.

 

COURT’S DECISION

From the facts of the case of the parties and the submissions of counsels in their final written addresses, it is my view that the sole issue for determination in this case is whether the Claimant has proved his case and entitled to judgment as per his claims.

 

One of the issues arising from the case of the Claimant is whether he was an employee of the Defendants as the date of this action. This issue is important for the determination of the claims of the Claimant. The Claimant instituted this action on 22^nd December 2016. In his evidence, the Claimant stated that he was employed by the 1^st Defendant since October 2014 but in March 2016, the 1^st Defendant informed its workers that from April 2016, it would engage the 2^nd Defendant to handle issues of recruitment, welfare of workers and payment of salaries. The 2^nd Defendant subsequently issued a new employment letter to the Claimant on 1/4/2016. But the Claimant continued to work in the 1^st Defendant’s rig.  To the Claimant, the new employment with the 2^nd Defendant is an extension of and same with his employment with the 1^st Defendant. The Claimant also stated that his employment has not been terminated but he was only placed on indefinite suspension by the 2^nd Defendant. This is the reason the Claimant sued both employers and claim jointly against them.  The case of the 1^st and 2^nd Defendants is that the Claimant was first employed by the 1^st Defendant on 24/10/2014 but that employment was terminated on 9/2/2015 and the Claimant was paid his terminal benefits. The Claimant was re-employed by the 1^st Defendant on 30/7/2015 but this employment too was terminated with effect from 1/4/2016 through a letter dated 16/3/2016. The Claimant was then employed by the 2^nd Defendant on 1/4/2016 which employment has also been terminated on 31/7/2016.

 

It is not in dispute that the 1^st Defendant first employed the Claimant on 24/10/2014 vide Exhibit C1. On 9/2/2015, the 1^st Defendant gave the Claimant Exhibit C4 or C14 terminating that employment. It is also not in dispute that the 1^st Defendant re-employed the Claimant on 30/7/2015 vide Exhibit C2.  The dispute now is whether that 2^nd employment still subsists between the Claimant and 1^st Defendant as at the date of this action. The 1^st Defendant said it had been terminated. In the evidence of DW1 who testified for the 1^st Defendant, he said the Claimant’s employment was terminated with effect from 1/4/2016 through a letter dated 16/3/2016, Exhibit C5. In this letter, the Claimant was told that his status has changed from active to inactive, and the Claimant accepted the inactive status by acknowledging the letter and also executed a discharge and release undertaking wherein he confirmed receipt of the sum of N5,618,088.00 as his final accrued benefits and in full and final settlement of all claims he may have against the  1^st Defendant. In his reply to the 1^st Defendant’s statement of defence and in his further evidence, the Claimant asserted that the letter of status change from Active to Inactive is not a termination letter. The Claimant also stated that the release and discharge undertaking he executed on 6/4/2016 only covered his activities up till March 2016 and there is no clause in the undertaking which says that his employment had been terminated.

 

From the pleading and evidence of the Claimant, he has admitted that he was served the letter of 16/3/2016 for status change and he also made the release and discharge undertaking on 6/4/2016. The letter of 16/3/2016 is Exhibit C5 or C15. They are the same letter tendered by the parties. It is a letter from the 1^st Defendant to the Claimant dated 16/3/2016. The Claimant was informed that as a result of reduction in the 1^st Defendant’s rigs, the Claimant’s employment status has changed from Active to Inactive with effect from 1/4/2016. Consequently, the following conditions applied to his inactive status: His accrued benefits shall be paid up to 31/3/2016; his monthly salary shall cease until otherwise advised; medical coverage for him and 4 children and spouse shall continue until otherwise advised; no benefit shall accrue while inactive but shall resume upon return to active status; the Claimant was also to return his Identity card. Attached to the letter is redundancy benefits form. The sum of N5,618,088.00 was calculated as the Claimant’s total redundancy benefits. This includes leave pay, leave allowance, 13^th month, redundancy pay, ex-gratia, salary in lieu of notice, repatriation pay and housing allowance. From the content of the letter and the redundancy benefits form, it is clear that the Claimant was disengaged by the 1^st Defendant on grounds of redundancy. The benefits calculated to be paid to the Claimant include terminal benefits. Therefore, the purpose of Exhibit C5 or C15 was a termination of the Claimant’s employment.

 

The Claimant has contended that the notice of change of status was not a termination because it never contained anything indicating that the Claimant’s employment had been terminated. The word “termination” need not be expressly used in the letter before it is understood to be a termination letter. Redundancy is a method of termination of employment by employer when business is no longer viable as a way of saving cost by reducing the workforce. An employee placed on redundancy is altogether on termination. In this case, the conditions stated in the letter are even clear as to the status of the Claimant’s employment. The Claimant’s monthly salary will cease and he was required to return his Identity card. His accrued benefits up to 31/3/2016 will be paid. These conditions indicate that the employment relationship between him and the 1^st Defendant had ended in the interim. Furthermore, the Claimant’s terminal benefits were attached to the letter and he read it in the letter. It should have been clear to him that the letter was a termination of his employment.

 

Also attached to the letter is a release and discharge undertaking executed by the claimant on 6/4/2016. In the undertaking, the Claimant confirmed receipt of the sum of N5,618,088.00 in full settlement of all claims he may have against the 1^st Defendant. This sum is the amount of the terminal benefits which the Claimant is entitled to in Exhibit C5/C15. The Claimant, by the undertaking, acknowledged payment of the sum to him. Under cross examination by counsel for the 1^st Defendant, the Claimant agreed that he signed Exhibit C15 and he was paid off. I find therefore, that the Claimant’s employment with the 1^st Defendant had been terminated with effect from 1/4/2016 and he has also been paid his terminal benefits including payment in lieu of notice.

 

The Claimant told this court that the workers of the 1^st Defendant were informed by the 1^st Defendant in March 2016 that the 2^nd Defendant will be engaged to handle workers’ issues. Subsequently, the 2^nd Defendant gave the workers, including the Claimant, new employment letters on 1/4/2016. This employment letter is Exhibit C3 or DD1. The Defendants’ case is that from the date of the 2^nd Defendant’s letter of 1/4/2016 to the Claimant, the Claimant became an employee of the 2^nd Defendant. The 2^nd Defendant added that the Claimant was assigned by the 1^st Defendant to the 2^nd Defendant for employment as staff of the 2^nd Defendant. A fresh letter of employment was issued to the Claimant and he accepted the terms of the employment. The Claimant was an employee of the 2^nd Defendant and was paid his salaries by the 2^nd Defendant but was drafted to work for the 1^st Defendant. Exhibit C3/DD1 is the employment letter from the 2^nd Defendant. The Claimant was employed by the 2^nd Defendant as assistant driller with effect from 1/4/2016. The employment has its terms and conditions and the Claimant signed the letter accepting the employment and its conditions.

 

From the evidence and the content of Exhibit C3/DD1, the Claimant became an employee of the 2^nd Defendant from 1/4/2016. The Claimant’s employment with the 1^st Defendant was terminated on 1/4/2016 and he was paid off. The Claimant was no longer an employee in the 1^st Defendant’s employment since 1/4/2016. The employment letter by the 2^nd Defendant is a different and separate contract with its terms and conditions. It’s a different employment from the employment with the 1^st Defendant.

 

Now, the Claimant said on 31/7/2016, he received an email from the 2^nd Defendant suspending him from duty indefinitely. The Claimant said the 2^nd Defendant at no time terminated his appointment but only placed him on indefinite suspension. The Claimant further averred that there is procedure for terminating employment of staff but the 2^nd Defendant did not follow the procedure; as such, his employment has not been terminated till date; neither was he served the letter dated 31/7/2016. On the other hand, the 2^nd Defendant averred that the Claimant’s employment was terminated on 31/7/2016 vide a letter of that date. The Claimant worked for the 2^nd Defendant for only 4 months before his employment was terminated. The Claimant was not placed on indefinite suspension. The 2^nd Defendant also alleged that upon termination, the Claimant was paid his redundancy benefits.

 

The said email by which the Claimant was suspended is Exhibit C9. The date on it is Sunday July 31, 2016. Counsel for the 1^st Defendant had objected to the admissibility of the document on grounds of non-compliance with Section 84 of the Evidence Act 2011. I have examined the document. It does not even look like an e-mail printout to me. Since the Claimant said it was an email message, he ought to have tendered it with a certificate in compliance with Section 84 of the Evidence Act. The document is also not signed, raising issue of its authenticity in view of the fact the 2^nd Defendant has denied sending it to the Claimant. In view of these observations, I will reject and expunge the document from evidence. I so hold.

 

Exhibit DD6 is the letter dated 31/7/2016 which the 2^nd Defendant said was the termination letter of the Claimant’s employment. The letter simply stated that the service of the Claimant was no longer required from 31/7/2016. The Claimant contended that he was not served that letter and his counsel made a big issue about this assertion in his written address. Whether or not the Claimant was served the letter is of no moment in this case in view of available evidence disclosing that the Claimant’s employment had been terminated by the 2^nd Defendant. Let me emphasise the point that the 2^nd Defendant is entitled to terminate the employment in any way that will convey to the Claimant that his employment has been terminated. Evidence from the Claimant shows that his employment was actually terminated and he was aware of that fact. He said the last salary he was paid was for July 2016 and from August 2016, he was not paid any salary. He also said since August 2016, the Defendant instructed the hospitals to stop attending to him and his medical was stopped. He also said the 2^nd Defendant refused to recall him from the alleged suspension. In view of these facts present to the Claimant, I think the Claimant needed no soothsayer to tell him that his employment had been terminated by the 2^nd Defendant. From the evidence before me, the Claimant is no longer in the employment of the 2^nd Defendant. The exit was by way of termination and not a suspension as alleged by the Claimant. From the foregoing, it is clear that the Claimant was not an employee of either of the Defendants as at the time he instituted this suit. The employment with the 1^st Defendant terminated on 1/4/2016 while his employment with the 2^nd Defendant terminated on 31/7/2016.

 

The first claim of the Claimant is for the sum of N7,620,175.00 being unpaid salaries from August 2016 to December 2016 and other entitlements including shopping allowance and terminal benefits. In paragraph 36 of his statement of facts, the Claimant pleaded that his unpaid salaries and entitlements from April to December 2016 are N7,620,175.00 covering salary from August to December 2016 and allowances including N1,060,025 as salary in lieu of notice; N1,060,025.00 end of year bonus and N220,000.00 shopping allowance. The Defendants deny these allegations of the Claimant. I have found in this judgment that the Claimant’s employment with the 1^st Defendant terminated on 1/4/2016 while his employment with the 2^nd Defendant terminated on 31^st July 2016. He was no longer in the employment of either Defendant from August 2016 to December 2016. The Claimant has stated that he was paid salaries up to July 2016. That is to say he was not owed salary for the period he worked for the Defendants. The unpaid salaries claimed for the months of August to December 2016 cannot be granted because he was no longer in the employment of the Defendants in those months, neither is he entitled to be paid for the period he did not render any services for any of the Defendants. Let me also mention that in respect of the 1^st Defendant, the Claimant was paid his full terminal benefits and he accepted the sum as full settlement of all claims he may have against the 1^st Defendant. The Claimant is accordingly, precluded from making any other claim against the 1^st Defendant in respect of his entitlements while in the 1^st Defendant’s employment.

 

The claim in relief 1 includes a claim for payment of shopping allowance. In his evidence, the Claimant said he has the sum of N220,000.00 shopping allowance unpaid to him. The Claimant did not however substantiate his allegation of the unpaid shopping allowances or how he became entitled to it. I have examined the items of the Claimant’s remuneration and allowances in his employment letter by the 2^nd Defendant, Exhibit C3, but I cannot find shopping allowance to be among the allowances payable to the Claimant during the employment.

 

Terminal benefit is included in the sum claimed by the Claimant in relief 1. He mentioned N1,060,025.00 as salary in lieu of notice and N1,060,025.00 end of year bonus in his evidence. There is no evidence to establish these sums claimed. End of year bonus is not part of the Claimant’s entitlements in Exhibit C3. The employment letter however contains that either party may terminate the employment by giving 7 days’ notice or pay 7 days consolidated basic salary in lieu of notice. The Claimants consolidated basic salary per month, as stated in the letter, was the sum of N617,671.00. Therefore, 7 days salary will be the sum of N144,123.23. This sum is less than the sum alleged by the Claimant to be what he is entitled to as salary in lieu of notice.

 

By Claiming for terminal benefits, it appears the Claimant contends that he was not paid salary in lieu of notice. The Claimant has even alleged that the procedure for termination of employment was not followed in his case. By Exhibit C3, the Claimant is entitled to be given 7 days notice or pay 7 days consolidated basic salary in lieu of notice to terminate his employment. Exhibit DD6 was dated 31/7/2016 terminating the Claimant’s employment with effect from that same day. The Claimant was not given 7 days notice by the 2^nd Defendant. The Claimant ought to be paid 7 days salary in lieu of notice. Evidence of the 2^nd Defendant only show that the Claimant was paid his redundancy benefits and Exhibit DD5 was tendered to establish that fact. I cannot find any sum representing payment in lieu of notice in the payment schedule attached to Exhibit DD5. It is clear to me that the Claimant was not paid any sum as salary in lieu of notice. Consequently, I hold that the Claimant is entitled to be paid the sum of N144,123.23 being 7 days salary in lieu of notice.

 

In his evidence, the Claimant said he has been suffering from certain medical conditions which have resulted to severe back pain and difficulty in standing erect or walking. He also said he suffered this injury because of the nature of work he was given to do in the rig. According the Claimant, he was medically fit before joining the 1^st Defendant’s employment in 2014 as disclosed in a certificate of fitness issued to him by Medbury Medical Services after an examination of fitness conducted on him in 2014. This certificate is Exhibit C6.  This is, perhaps, to show that it was in the employment he developed the injury. The Claimant also relied on a medical result dated 17/7/2016 and 12/12/2016. These are Exhibits C7 and C11. The 1^st Defendant denied the allegation of the Claimant and further averred that the claimant did not sustain the alleged injury while in the employment of the 1^st Defendant. The 1^st Defendant added that it was at no time negligent and was not responsible for the injury allegedly suffered by the claimant.  With respect to the Claimant’s certificate of fitness dated 24/9/2014, the 1^st Defendant said the Claimant was only certified medically fit for unrestricted offshore work and as for the medical reports of 17/7/2016 and 12/12/2016, the 1^st Defendant said the Claimant was no longer in the 1^st Defendant’s employment as at the time they were made. The 2^nd Defendant’s case is that it had no knowledge of the Claimant’s medical condition when he was employed, and the medical report of 12/12/2016 was obtained long after the Claimant’s employment had been terminated, thus, the 2^nd Defendant is not liable for the claims of the Claimant.

 

From his case, the Claimant wants the Defendants held liable for his alleged injury; that is why he claims in relief 2, special and general damages for the permanent injury he suffered which was caused “by the defendants’ nature of work and negligence…” Going by his claim in relief 2, the Claimant has attributed the alleged injury to the fault of the Defendants in terms of the nature of work he performed, and negligence on the path of the Defendants. Therefore, to be entitled to his claims, the Claimant is required to establish the nature of work he did, and how it resulted to the alleged injury. He also must prove the acts of negligence of the Defendants which caused the injury to occur.

 

The 1^st Defendant is a drilling company and employed the Claimant as an assistant driller in October 2014 and later in July 2015. The Claimant said he worked in the 1^st Defendant’s rigs since his employment. His allegation however is that he suffered severe back pain as a result of the nature of work he was assigned to do in the rig. That was all that the Claimant said about the cause of his injury. I am left to wonder what the nature of work he was assigned to do was, which caused the injury. I cannot find the answer in the evidence of the Claimant. The Claimant was employed as an assistant driller. His work, ordinarily, is that of drilling. If he was given any work to do different from or inconsistent with the work of drilling in the rig, there is no evidence to that effect. Having accepted to work as a driller in the 1^st Defendant’s rig, it is until the Claimant proves that he worked other than as a driller that the 1^st Defendant can be presumed to have acted in a way resulting to the injury. From the evidence of the Claimant, he has not proved that the 1^st defendant was negligent in any way in respect of the injury he allegedly suffered.

 

In paragraph 26 of the statement of facts, the claimant alleged that his back pain increased when the 2^nd defendant took over his employment because he was made to work 28 days in and 14 days out as against international best practice of 14 days in and 14 days out or 28 days in and 28 days out. Hence, the 1^st Defendant was negligent not to have checked and insisted on international best practice of drilling. This is the only place the Claimant made any allegation of negligence against the 1^st Defendant. First, it was the 2^nd Defendant who made the Claimant work 28 days in and 14 days out. Not the 1^st Defendant. Secondly, the 1^st Defendant is not a party to the contract of employment between the Claimant and the 2^nd Defendant. I do not see why the 1^st Defendant is to be held responsible for not insisting on international best practice. If anybody is to be held responsible for the number of days of work imposed on the Claimant, it should be his employer, the 2^nd Defendant and not the 1^st Defendant. Therefore, the allegation of negligence made against the 1^st Defendant because he did not check or insist on international best practice regarding the Claimant’s days of work does not hold any water

 

The Claimant placed heavy reliance on the certificate of fitness dated 23/9/2014 which certified him fit for offshore work as at the time of his employment. The fact that he was certified fit is not proof that the injury resulted from the fault of the 1^st Defendant or during the employment. In my view, in order to hold the 1^st Defendant liable for the alleged injury, it is beyond merely alleging that the injury arose during the employment. The Claimant must go further to prove that it resulted from the 1^st Defendant’s negligent act or omission. The Claimant did not offer the required proof and it is not the duty of this court to make any assumption for the Claimant.

 

In his evidence, the Claimant said the pain started in 2015. When he was cross examined by counsel for the 1^st Defendant, the Claimant said the back pain started in January 2015. The Claimant was employed by the 2^nd Defendant on 1/4/2016. That is to say the claimant did not develop the alleged pain in the employment of the 2^nd Defendant. The Claimant’s allegation against the 2^nd Defendant is that the pain increased when the 2^nd defendant took over. The Claimant said he was made to work 28 days in and 14 days out by the 2^nd Defendant contrary to international best practices and this increased the severity of the back pain and difficulty in standing erect and walking. According to the Claimant, best practice all over the world is that a driller either works 14 days in and 14 days out or 28 days in and 28 days out. It would appear that the Claimant’s allegation is that the number of days he was made to work by the 2^nd Defendant was what increased the back pain. He also appears to say that the number of days of work was against international best practice. These are the areas in he wants the 2^nd Defendant liable for his medical condition.

 

In the Claimant’s employment letter with the 2^nd Defendant, Exhibit C3/DD1, one of the conditions of service stated in the letter is the number of days of work. It was expressly stated that the work days are 28 days on and 14 days off. The Claimant accepted the terms of the employment and commenced work. He worked in accordance with that term of his employment from April to July 2016 when his employment was terminated. The Claimant read the terms of the employment and accepted them. He knew he was to work 28 days in and 14 days out, yet he accepted the employment. He did not reject the employment when he knew that the number of days of work contained therein was against international best practice. Secondly, as at the time the Claimant was employed by the 2^nd Defendant, he knew that he was suffering from the alleged back pain. When he saw the number of days he was to work in the employment, he should have pitied himself and declined the employment. But he accepted it and started work. Now he complains that the work increased the pain and wants the 2^nd Defendant punished for it. In my view, the fact that the pain increased in the employment of the 2^nd Defendant is substantially the fault of the Claimant and nobody else. He was the one who willingly accepted the terms of the employment and he went to work for the 2^nd Defendant as a driller, knowing that he suffers from back pain. I do not find the 2^nd Defendant negligent in any way or blameworthy for the alleged injury of the Claimant.

 

It is also necessary to point it out that the Claimant did not disclose his alleged injury or pain to the 2^nd Defendant at the point of his employment with the 2^nd Defendant. In his evidence, the Claimant said the 2^nd Defendant did not conduct any health examination on him when he was employed but relied on the Claimant’s medical examination with which he was employed by the 1^st Defendant, which is the certificate of fitness. That is to say, the information the 2^nd Defendant had about the Claimant’s health at the point of employment was the clean bill contained in Exhibit C6. The Claimant did not submit any other medical result to the 2^nd Defendant disclosing that he suffers from the alleged back pain.

 

It also appears that the Defendants are not even aware of the alleged injury or pain of the Claimant until this suit. The Claimant stated that the 1^st Defendant made arrangement for his medical treatment with a hospital while in the employment together with his spouse and 4 children for free. However, throughout his pleading and evidence, the Claimant did not mention that at any time since the said back pain started in 2015 and the time he exited the employment in 2016, he complained to the hospital he was enrolled in by the Defendants and he was treated for the pain. No report of such complaint or treatment in the Defendant’s hospitals was shown to this court. Again, Exhibits C7 and C11 are medical reports of the Claimant’s health status dated 17/7/2016 and 12/12/2016 respectively. Going by the dates of the medical reports, they were obtained after the Claimant had left the employment of both Defendants. Under cross examination by counsel for the 2^nd Defendant, the Claimant said Exhibits C7 and C11 were issued in July and December 2016 and he did not submit them to the Defendants because he was on suspension and he was not allowed into their facilities. It means that up to the time the Claimant left the employment of the Defendants, the only medical report they had about him was Exhibit C6 certifying him fit to work. The Claimant did not, during the employment, have any other medical report submitted to the Defendants showing his current state of health. It is clear that Exhibits C7 and C11 were obtained by the Claimant after he was no longer in the employment of either of the Defendants, and they were not submitted to any of the Defendants. It is obvious that none of the Defendants have seen the medical results or aware of the Claimant’s alleged health condition until this suit. This fact is strengthened by the letter from the Claimant’s solicitor to the 1^st Defendant dated 11/11/2016. That is Exhibit C10. The Claimant’s solicitor made demands for the Claimant’s recall to work and payment of his entitlements but no mention was made of any injury suffered by the Claimant from the employment. This suit was instituted about a month after the date of that letter. It appears to me therefore, that the Defendants are hearing about the Claimant’s alleged injury for the first time in this suit. In that case, how then can the Claimant allege that the Defendants refused to treat him or pay for his surgery when he never disclosed to them that he suffers from any injury or back pain?

 

Let me also add my personal observations of the Claimant during the trial of this case, if it is anything to go by. The Claimant has alleged that the injury has resulted to severe back pain causing him difficulty in standing erect or walking. However, the Claimant did not exhibit any of these health problems when he testified in this case. The Claimant stood in the witness box all through his evidence and cross examination. He stood upright. I have also watched him walk. There is no indication that he has any difficulty walking. It is in doubt if the Claimant actually suffers from the medical conditions he claims. It is also noteworthy that the Claimant did not call any expert witness to testify of the severity of his injury. Perhaps the evidence of such an expert may have shed more light and probably provided an explanation linking the purported injury to the Claimant’s job schedule, or better still, provided a detailed explanation of the content of Exhibits C7 and C11 in layman’s terms. In that case, my personal observations above would even be of no moment.

 

I find, from all the foregoing, that the Claimant has not proved that his alleged injury or back pain was caused by the negligent act or omission of any of the Defendants.  The Claimant has not proved that any of the Defendants was responsible for his alleged injury. That takes me to the Claimant’s claim in relief 2 for the sum of N50,000,000.00 as special and general damages. This sum includes monthly hospital bills at N75,000.00 from August 2016 and the sum of N8,000,000.00 required for his surgery in India. I have already found in this case that the Claimant has not proved the Defendants liability for his injury. Therefore, the claim for damages ought to fail on this ground. The Claimant has also not proved the alleged monthly hospital bills. The only document tendered to this effect by the Claimant is Exhibit C13 dated 10/10/16. The receipt only show a bill of N35,000.00. The Claimant has failed to prove that he expends the sum of N75,000.00 monthly in treatment from August 2016. As for the sum alleged to be cost of the surgery in India, there is no evidence to establish the allegation that he is billed for surgery in India or the cost of the surgery. The Claimant failed totally to prove special or general damages.

 

I find in conclusion that the Claimant’s case has no merit. His case is hereby dismissed. I will order however that the 2^nd Defendant pays the sum of N144,123.23 to the Claimant being 7 days salary in lieu of notice he is entitled to for termination of his employment. Notwithstanding the dismissal of the Claimant’s case, I am empowered in Section 14 of the National Industrial Court Act 2006 to make this order. No order as to cost.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge