IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: 15TH OCTOBER, 2021
SUIT NO: NICN/YEN/438/2016
BETWEEN:
MR. MFON MICHAEL JEREMIAH ----------------- CLAIMANT
AND
TECON OIL SERVICE LIMITED ----------------- DEFENDANT
REPRESENTATION:
M. U. Ejuwa for the Claimant.
C. Uriem for the Defendant.
JUDGMENT
1.1. The claimant commenced this suit by way of Complaint and Statement of Facts filed on the 24th of November, 2016. The Claimant filed an Amended Statement of Facts on the 18th March, 2019, and claims against the Defendant as follows:
1. A declaration that the Claimant is entitled to the sum of N12,133,013.00 (Twelve Million, One Hundred and Thirty-Three Thousand, Thirteen Naira) being his Terminal Benefit from the Defendant as per the terms and conditions of service for Senior Staff between the claimant and the Defendant.
2. An order directing the Defendant to pay the sum of N12,133,013.00 (Twelve Million, One Hundred and Thirty Three Thousand, Thirteen Naira) to the Claimant.
3. The sum of N350,000.00 (Three Hundred and Fifty Thousand Naira) monthly, being the Claimant’s monthly salary from the 1st day of November, 2016 until the Claimant’s terminal benefits are fully liquidated.
1.2. The Defendant’s Memorandum of Appearance, Statement of Defence together with other accompanying processes was filed on the 29th of June, 2017, but deemed by the court on the 4th of December, 2017. Consequent upon the Claimant’s Amended Statement of Facts, the Defendant filed a Consequential Amended Statement of Defence on the 10th of April, 2019.
1.3. Trial in this suit commenced on 11th of June, 2018 when the Claimant opened his case by testifying for himself as CW. It is however apposite to note that it was after the claimant concluded his evidence in chief, cross-examined by the defendant’s counsel and discharged that he sought and obtained leave of court to re-open his case. With the leave of court granted on the 13th of March, 2019, the claimant was recalled to give fresh evidence in chief in line with the Amended Statement of Facts. He re-opened his case on the 2nd day of December, 2019 by testifying for himself as CW. He then identified and adopted his statement on oath that was filed on the 18th of March, 2019. The following documents were then tendered through CW and admitted by the court:
1. Letter of appointment dated 6/1/2007 ---- exhibit CW1.
2. Letter titled, “End of employment with Tecon Oil Services Limited” dated 1/2/2016 -------- exhibit CW2.
3. Communiqué for Meeting of 14/11/2013 ------- exhibit CW3.
4. Communique for Meeting of 23/1/2004 -------- exhibit CW4.
5. Letter of salary review dated 15th April, 2011 ------------- exhibit CW5.
6. Letter of terminal benefits------- exhibit CW6.
7. Tecon Oil Services Nig. Ltd Conditions of Service for Senior Staff 2008-2010 ---------- exhibit CW7.
8. Tecon Oil Services Nig. Ltd Conditions of Service for Senior Staff 2010-2012 ---------- exhibit CW8
9. Tecon Oil Services Nig. Ltd Conditions of Service for Senior Staff 2006-2008 ---------- exhibit CW9.
10. Solicitor’s letter of Lawville Legal Practitioners dated 11/7/2016 ---------- exhibit CW10.
The witness (CW) was cross-examined by the Defendant’s counsel and re-examined by his counsel before being discharged. The Claimant then closed his case on the 2nd of December, 2019.
1.4. The Defendant opened its defence on the 21st of October, 2020 by calling its sole witness Chief Johnny Olisakwe Maduaforkwa (the International Director of the Defendant Company) who testified as DW. The witness identified and adopted his deposition that was made on the 10th of April, 2019, before tendering the following documents which were admitted by the court:
i. Copy of First Bank cheque dated 11th August, 2016 ----- exhibit DW1.
ii. Copy of First Bank Cheque dated 23rd May, 2016 ------- exhibit DW2.
1.5. The witness was cross-examined by the learned counsel to the Claimant without any re-examination before he was discharged. The Defendant closed its case on the 21st of October, 2020.
1.6. With the close of evidence, parties were directed to file their final written addresses beginning with the Defendant. While the Defendant’s Final Written Address dated 27th of October, 2020 was filed on the 26th of November, 2020, but deemed by the court on the 27th of July, 2021, that of the Claimant was filed on the 20th day of January, 2021. The Defendant filed a Reply on Points of Law on 10th of February, 2021. These processes were adopted by counsel on the 27th day of July, 2021, with M. U. Ejuwa, Esq. appearing for the Claimant, while C. Uriem, Esq. appeared with E. G. Umeje for the Defendant.
THE CASE OF THE CLAIMANT:
2.1. The case of the Claimant is that he was employed by the Defendant on the 6th of January, 2007 as a Superintendent/Head, Torque Master Jars Service Centre on a monthly salary of N200,000.00 which was later reviewed to N350, 000.00. That his employment was terminated on the 1st day of February, 2016. That for the period he worked for the defendant he was given three (3) different Staff Conditions of Service which are for the periods 2006-2008, 2008-2010 and 2010-2012, as well as two (2) communiqués executed by the defendant on 23rd January 2004 and 14th November, 2013.
2.2. According to the claimant, after the termination of his employment the defendant wrote and informed him that his terminal benefit was N4,000,000.00 (Four Million Naira) but he rejected same and instructed his solicitors who wrote to the defendant on the 11th of July, 2016. That rather than paying the total sum the defendant paid him only N3,000,000.00 (Three Million Naira only) out of his terminal benefits of N15,133,013.00 (Fifteen Million, One Hundred and Thirty Three Thousand, Thirteen Naira) leaving a balance of N12, 133, 013.00 (Twelve Million, One Hundred and Thirty Three Thousand, Thirteen Naira). That having worked for the defendant for nine (9) years, he is entitled to his terminal benefits and the refusal to pay him has caused untold hardship and psychological trauma to him because he finds it difficult to cater for his family. He therefore pleads the particulars of his entitlement to include:
a. 15 weeks gross pay per year served i.e. Basic salary of N350,000x12 months =N4,200,000.00\52 weeks =N80,769.23x15 weeks =N1,211,538.00x9 years =N10,903,846.00
b. Leave bonus for 2015 ------ N350,000.00
c. Leave bonus for January, 2016 ---- N29,167.00
d. Two months salary in lieu of notice -------- N700,000.00
e. Claimant’s salary for the month of February, 2016-October, 2016 ---- N3,150,000.00
Total = N15,133,013.00
Minus money paid by the Defendant --------- N3,000,000.00
Total balance sum due to Claimant ----------- N12,133,013.00
DEFENDANT’S CASE:
3.1. The Defendant avers that while it is true that the Claimant worked for her from 6th of January, 2007 to 1st of February, 2016 when his appointment was terminated (period of 9 years as a management staff), his salary was reviewed to the sum of N350,000.00 (Three Hundred and Fifty Thousand Naira), and also that the Defendant wrote to the Claimant informing him that his terminal benefit was N4,000,000.00 (Four Million Naira) out of which the Defendant has paid the Claimant N3,000,000.00 (Three Million Naira), it is however not true that the Claimant was given any Condition of Service for Senior Staff for the periods 2006-2008, 2008-2010 and 2010 – 2012. That staff in the Defendant are placed in three categories namely: Junior Staff, Senior Staff and Management Staff, and that while the senior staff are members of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), the management staff are not. That the Conditions of Service for Senior Staff is a Collective Agreement between Management and PENGASSAN. That the Claimant is a Management Staff and therefore not a member of PENGASSAN.
3.2. It was further averred that, the Claimant who was employed as a Superintendent/Head, Torque Master Jars Service Centre was never a Senior Staff of the Defendant. That having paid the Claimant the sum of N3,000,000.00 out of his terminal benefits of N4,000,000.00, the balance of N1,000,000.00 could not be paid to the Claimant because of the pendency of this suit. That the Claimant is not being owed the sum of N12,133,013.00 as terminal benefit as alleged by him. That the Claimant is not entitled to any of the claims in this suit, and the suit should therefore be dismissed with substantial cost.
DEFENDANT’S SUBMISSIONS.
4.1. The learned counsel to the Defendant identified the following four (4) issues for determination in this suit, to wit:
1. Whether exhibits CW4, 7, 8 and 9 creates(sic) any legally enforceable contractual obligation between the Claimant and the Defendant?
2. Whether there is any reasonable cause of action against the Defendant?
3. Whether the Claimant can benefit and/or claim under exhibit CW7, 8 and 9?
4. Whether the Claimant has any locus standi to institute this action.
4.2. With respect to issue one (1) learned counsel to the Defendant submitted that, the Claimant’s suit is hinged on exhibits CW7, CW8 and CW9 which are Collective Agreements, and exhibit CW4 which is a communiqué. That a Collective Agreement and a Communique cannot by any stretch of imagination be called a legally binding and enforceable agreement where same has not been expressly incorporated in the employee’s contract of employment. Hence the only condition precedent for exhibits CW4, CW7, CW8 and CW9 to be binding and enforceable between the Claimant and the Defendant in the instant case, is that same must have been expressly incorporated in the letter of employment and/or contract of employment of the Claimant. See Osoh & 40 Ors. V. Unity Bank Plc. (2013) 2 – 3 S. C. (Pt I) page 1.
4.3. That what governs the relationship between the Claimant and Defendant in this suit is exhibit CW1 (the letter of employment) which shows that exhibits CW4, CW7, CW8 and CW9 were never incorporated into and/or as forming part of the contract of service of the Claimant. That the Claimant has also not put into evidence and/or placed any other document on record wherein the Defendant expressly stated that the Claimant herein shall benefit from exhibits CW4, CW7, CW8 and CW9. That this Court cannot go outside the said Exhibit CW1 to determine the complaint of the Claimant in this case. See: Anaja V. U.B.A. Plc. (2011) 15 NWLR (Pt.1270) 377.
4.4. It was further argued that since exhibits CW4, CW7, CW8 and CW9 were never made and/or incorporated in the Claimant’s contract of employment by the Defendant, they are at best, a gentleman’s agreement which are not binding and enforceable on the Defendant as employer of labour, but are however, matters of negotiations between a Labour Union (PENGASSAN) and the Defendant. See Nigerian Society of Engineers V. Ozar (2015) 6 NWLR Part 1454 page 76 at page 94 paragraph A, and U.B.N. Ltd V. Edet (1993) 4 NWLR Part 287 page 288 at page 298 paragraph G – H. The court was therefore urged to answer this issue in the negative and in favour of the Defendant.
4.5. With respect to issue two (2), it was posited that, the term cause of action means every material fact and circumstance constituting an injury or wrong inflicted by the Defendant on the Claimant which if proved entitles him to a remedy in a Court of law. That the Claimant’s suit is bereft of any act of the Defendant that has adversely affected or is likely to affect the Claimant. That since Claimant’s suit against the Defendant as presented in his pleadings and evidence in this suit is pivoted solely on exhibits CW4, CW7, CW8 and CW9, the said exhibits not legally binding and justiciable, the net effect is that there is no factual basis which the law recognizes that gives the Claimant rights to claim the reliefs sought in this suit. That parties as well as the Court are bound by the pleadings of parties in the suit. The court was urged to hold that the instant suit has not disclosed reasonable cause of action against the Defendant. See Julius Berger Nig. Plc V. Omogui (2001) FWLR Part 64 page 305 at page 307 and Sogunro V. Yeku (2017) 9 NWLR Part 1570 page 290 at page 310 paragraph C.
4.6. On issues three (3) and four (4) which were argued together, learned counsel to the Defendant referred the court to the provision of section 3 (3) of the Trade Union Act Cap. T14 Laws of the Federation of Nigeria 2010, and submitted that the said provision precludes a staff recognized as a projection of management, within the management structure of any organization from being a member of or holding office in a trade union, if such membership of or the holding of such office in the trade union will lead to a conflict of his loyalties to either the union or the management. That the claimant who executed exhibits CW4, CW7, CW8 and CW9, in his capacity as a projection of management and as a representative of the Defendant cannot in another breathe contend to be a member of and/or beneficiary of PENGASSAN. That he cannot approbate and reprobate.
4.7. That since the Claimant admitted under cross-examination that he is not a member of PENGASSAN, such admitted fact does not require any further proof, referring to the case of Al-hassan V. Ishaku (2016) 10 NWLR (Part 1520) page 230 at page 299 paragraph B – C.
4.8. That since the Claimant does not fall within the category of persons eligible to benefit from exhibits CW7, CW8 and CW9 because the said exhibits were solely for the benefit of members of PENGASSAN in the employment of the Defendant, the Claimant has no locus standi to bring the instant action predicated on the exhibits.
4.9. That since the contents of exhibit CW4 (which is earlier in time) were not replicated and/or incorporated in exhibits CW7, CW8 and CW9 they are to all intents and purposes rescinded, referring to the case Akintokun V. L.P.D.C. (2014) 13 NWLR (Pt. 1423) 1 at 85 paragraphs E – H. That since no individual employee can claim to be a party to a collective agreement, no privity of contract arises between an individual employee and his employer by virtue of a collective agreement. See NNB Plc. V. Egun (2001) 7 NWLR Part 711 page 1 at pages 18 – 19 paragraph G – A.
4.10. It was further argued that, since in one breathe the claimant is claiming the sum of ₦12,133,013.00 (Twelve million, One Hundred and Thirty Three Thousand and thirteen Naira) as his terminal benefits in his Amended Statement of Facts and in another breathe he is claiming the sum of ₦11,283,012.82 as his terminal benefit in his Exhibit 10, his claim in this suit is predicated on a hypothetical guess and/or wishful thinking of what his actual terminal benefit is. See Mr. Emeka Ben Obiejemba V. Tecon Oil Services Limited (Suit No. NICN/YEN/90/2016) delivered on February 18, 2019, per B. A. Alkali J.
4.11. The court was urged to answer the issues in the negative in favour of the Defendant, and to dismiss the suit with punitive cost.
CLAIMANT’S SUBMISSIONS
5.1. The learned Claimant’s counsel submitted these three (3) issues for the court’s determination, to wit:
1. Whether there was an oral contract between the parties.
2. Whether the terms in Exhibits 7, 8 and 9 apply to the Claimant.
3. Whether the Claimant has proved his case as required by law.
5.2. With respect to issue one (1) learned counsel referred the court to paragraphs 7, 8 and 9 of the Claimant’s witness statement on oath filed on the 18th day of March, 2017 where he testified that he was given exhibits CW7, CW8 and CW9 and was informed that the terms applied to him, and the defendant used the terms to calculate all his benefits including leave period before his termination, as well as his answer under cross examination where he stated that the Human Resources Manager Mr. Musa gave him a copy of exhibit CW7 to read through if he will accept the terms and on the third day he accepted the job, and submitted that there was an oral contract between the parties which is binding. That in law a contract may be in writing or oral, and contracts voluntarily entered into by parties are binding on them, and a court of law will not sanction an unwarranted departure from them unless they have been lawfully abrogated or discharged. See Stabilini V. Obasa (1997) 9 NWLR (Pt. 520) Pg. 293 at 301 Para. E, FGN V. Zebra Energy Ltd (2002) 3 NWLR (Pt.754) Pg. 471 at 491 paras E-F and Artra Industries (Nig) Ltd V. Nigerian Bank for Commerce and Industry (1998) 4 NWLR (Pt 546) Pg.357 at 376 Para E.
5.3. That since the Defendant gave exhibit CW7 to the claimant, and stated that the terms applied to him, and also used the terms to calculate all his benefits including leave period before his termination, this has created an intention by the Defendant that the terms in exhibit CW7 are binding on the parties. That the court is not to make a contract for the parties but to construe the surrounding circumstances, including written and oral statements so as to give effect to the intention of the parties. See Omega Bank Plc V. O.B.C. (2005) 8 NWLR (Pt 298) Pg. 547-575 Paras H-A, Pg 576 Paras B-D. The court was urged to hold that there was an oral agreement between the parties in view of exhibits CW7, CW8 and CW9 relating to the terms and conditions of employment.
5.4. On issue two (2) it was posited that the terms of exhibits CW7, CW8 and CW9 are applicable to the claimant. That the claimant’s evidence was not that the exhibits were executed by the parties but that his attention was drawn to the terms orally and the claimant was informed that the terms would be applicable to him. Learned counsel referred to the answers elicited from both the Claimant and DW during cross-examination and submitted that there is no document before this court to show how the Defendant arrived at the sum of ₦4,000,000.00 calculated to be the Claimant’s terminal benefits because even the condition of service referred to by the defendant was not produced before the court. That it is an elementary principle of law that he who assets must prove, and there can only be the shifting of the burden after the initial burden of proof must have been discharged. See N.B. Ltd V. D.C Holdings Ltd (2004) 13 NWLR 436. That the burden shifted to the Defendant to show to the court the condition of service for the claimant and how the sum of ₦4,000,000.00 was arrived at as the terminal benefit for the claimant. See Gbafe V. Gbafe (1996) 6 NWLR (Pt 455) Pg 417 at 432 para D-F.
5.5. With respect to issue three (3) it was argued that, from the totality of the claimant’s evidence before the court he has proved his case. That since the Defendant admitted in paragraph 13 of the Consequential Amended Statement of Defence that the defendant is indebted to the claimant to the tune of ₦1,000,000.00, and under cross examination the defendant’s witness testified that the claimant was not paid any money in lieu of notice, the Claimant is therefore entitled to 2 months salary in lieu of notice as stated in Exhibit CW1. That where there is evidence that there exists a document on an issue before the court, the best evidence is the production of the document unless it has been destroyed or stolen, or cannot be procured by incurring heavy and substantial expenses. The production could either be by way of primary or secondary evidence. Failure to do so in the absence of a tenable explanation would be fatal to the case of the party. See sections 85 and 86 of the Evidence Act, and the case of Densy Industries Nig. Ltd. V. Sunday Uzokwe (1999) 2 NWLR (Pt. 591) 392 at 405. The court was finally urged to enter judgment in favour of the claimant.
DEFENDANT’S REPLY ON POINTS OF LAW.
6.1. It was further submitted by the learned counsel to the Defendant that once pleadings are ordered, filed and exchanged, the parties and the courts are bound by them and evidence must be led in accordance with the averments in the pleadings. That evidence which is not in conformity with the pleadings goes to no issue. See Sogunro V. Yeku (Supra) paragraph C – H. That nowhere in the Claimant’s Amended Statement of Facts filed on 18th March 2019, did the Claimant plead the issue of an oral contract with the Defendant. The Claimant also never led any evidence to substantiate the said contention. That the issue of oral contract which is being put out by the Claimant for the first time in his Final Address goes to no issue. That a party should be consistent in stating and proving his case before the court. He will not be allowed to take one stance in his pleadings; then turn summersault during trial as justice is much more than a game of hide and seek. See: Ajide V. Kelani (1985) 3 NWLR Part 12 page 248.
6.2. It was further argued that, even the Mr. Musa who the Claimant alleged gave him exhibit CW7 and also told him that he would benefit from same was not called to testify as to the veracity of the purported statement. That the said evidence is therefore hearsay evidence, referring to the case of Ojo V. Gharoro (2006) 10 NWLR (Part 987) page 173 at pages 198 – 199 paragraph H – B.
6.3. On the Claimant’s contention that he is entitled to 2 months’ salary in lieu of notice by reason of DW1’s testimony under cross examination, it was replied that, the claim for 2 months’ salary in lieu of notice does not form part of the Claimant’s Claim in this suit let alone his pleadings. That evidence given on facts not pleaded goes to no issue. See: Oyewusi V. Olagbami (2018) 14 NWLR (Part 1639) page 297 at page 317 paragraphs E – F.
6.4. On the Claimant’s contention that the Defendant ought to exhibit a contrary condition of service to determine which amongst the two the court will choose, it was replied that the law has always been that the burden of proof rests on the party who asserts, and the burden will shift to the Defendant once the Claimant discharges his burden. That the Claimant has failed in discharging the burden of proving that he is entitled to benefit from exhibit CW7. See Intercontinental Bank Ltd. V. Brifina Ltd. (2012) 13 NWLR (Part 1316) page 1 at page 23 paragraph A. The court was urged to dismiss the instant suit with punitive cost.
COURT’S DECISION:
7.1. Having pored over the pleadings, evidence and submissions of both learned counsel to the parties, this court shall adopt the Claimant’s issues two (2) and three (3) in determining this suit. These issues are, to wit:
1. Whether the terms in exhibits CW7, CW8 and CW9 apply to the Claimant.
2. Whether the Claimant has proved his case as required by law.
7.2. The contention of the Claimant with respect to issue one as can be gleaned from paragraph 5.2 of his final written address is that, he was issued exhibits CW7, CW8 and CW9 by the Defendant’s Human Resources Manager Mr. Musa who informed him orally that the terms in the said exhibits apply to him. That before the termination of his appointment the defendant had used the exhibits to calculate his benefits including leave period.
7.3. To start with, I have gone through the entire pleadings of the Claimant as contained in the Amended Statement of Facts as well as his evidence in his witness statement on oath both filed on the 18th of March, 2019, and nowhere did the claimant plead any oral agreement with the defendant not to talk of stating in his deposition that such oral agreement existed sequel to the alleged information he received from the Human Resources Manager of the Defendant (Mr. Musa). It was during the cross-examination of the Claimant that he told the court that Mr. Musa who was the Human Resources Manager verbally informed him that the Conditions of Service (exhibits CW7, CW8 and CW9) apply to him.The law is banal that parties are bound by their pleadings, and evidence on facts not pleaded goes to no issue. See Florence Achonu V. Oladipo Okuwobi (2017) LPELR-42102(SC), where the Apex Court per Galinje, JSC held thus, “The law is settled that a party will not be allowed after pleading a particular set of material facts to turn round and base his case on a totally different set of facts without an amendment of his pleading. In other words, parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings go to no issue and should be disregarded by the court. In the instant case, the evidence in chief of the Appellant at the trial Court was not in line with Paragraph 12 of the amended statement of claim and therefore went to no issue. See Emegokwue V. Okadigbo (1973) 4 SC 113. Ekpeyone V. Ayi (1973) 3 ECSLR 411. Odumosu V. ACB (1976) 11 SC 56; Njoku V. Ume (1973) 5 SC 293; Ogboda V. Adulugba (1971) 1 All NLR 68; Ehimare V. Emhonyon (1985) 1 NWLR (Pt.2) 177; Metalimpex V. Leventis Nig. Ltd (1976) 2 SC 91.”
7.4. The position of the law must be reiterated that in the absence of pleadings and evidence, the arguments or submissions of counsel no matter how beguiling and brilliant cannot take the place of such pleadings and evidence. The learned counsel to the Claimant argued vigorously in his written submission that an oral agreement existed between the Claimant and the Defendant. This to my mind is an exercise in futility as his submissions cannot be substitute for pleadings and evidence. See Mallam Yusuf Olagunju V. Chief E. O. Adesoye & Anor (2009) LPELR-2555(SC), Union Bank of Nigeria Plc V. Uwa Printers Nigeria Limited & Ors (2010) LPELR-11665(CA) and Mr. Peter Madubueze & Anor V. Mortgages PHB Limited & Ors (2021) LPELR-53821(CA).
7.5. There is no doubt that exhibits CW3, CW4, CW7, CW8 and CW9 are products of negotiations between the Defendant and the Trade Unions (Petroleum and Natural Gas Senior Staff Association of Nigeria, (PENGASSAN) and the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG). While exhibit CW3 is an agreement/communiqué between the defendant, NUPENG and PENGASSAN dated 14th November, 2013, exhibit CW4 is an agreement/communiqué between the defendant, NUPENG and PENGASSAN dated 23rd January, 2004, exhibit CW7 is the Defendant’s Conditions of Service for Senior Staff 2008 – 2010, exhibit CW8 is the Conditions of Service for Senior Staff 2010 – 2012, and exhibit CW9 is the Conditions of Service for Senior Staff 2006 – 2008. Clause 3 of exhibits CW7, CW8 and CW9 provides for the scope of the agreement in the following words: “The terms set out in this Agreement shall be binding on the Company and all regular employees of the Company who are members of the Association.” It is obvious that the Association referred to in the exhibits is the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) branch in the defendant. What is evident is that for the Agreements to apply to any employee, the employee must be a regular employee and also a member of PENGASSAN.
7.6. The Claimant pleaded at paragraph 5 of the Amended Statement of Facts that he worked for the Defendant for nine (9) years as a management staff. During his cross-examination the Claimant informed the court that exhibit CW8 is an agreement solely between the Defendant’s management, PENGASSAN and NUPENG, and that he is neither a member of PENGASSAN nor NUPENG. He further affirmed that even though he is aware that union dues are deducted from salaries of union members, no such deductions were made from his salary, and he did not pay any union dues when he worked with the Defendant.
7.7. It is clear even from the claimant’s evidence that he was not a member of either PENGASSAN or NUPENG. If one of the ways of determining membership of a trade union is the payment of union dues, I then wonder how someone whose salary was never deducted for union dues and never paid such dues can claim membership of a trade union and also take benefits from agreements reached by the trade unions for the benefits of their members. I therefore hold that the Claimant not being a member of PENGASSAN cannot take benefit of exhibits CW3, CW4, CW7, CW8 and CW9. The said exhibits are therefore not applicable to him.
7.8. That is not the end of the matter as far as issue one is concerned. The learned counsel to the defendant submitted that since exhibits CW4, CW7, CW8 and CW9 which are Collective Agreements were not incorporated into the Claimant’s contract of employment, they are not binding and enforceable. I cannot agree more with learned counsel on this argument. It is the law that for such Collective Agreements to be binding and enforceable, they must be incorporated into the terms of the contract either expressly or by implication. There is nothing is exhibit CW1 indicating the express or implied incorporation of the terms in exhibits CW3, CW4, CW7, CW8 and CW9. That being the case, I hold that the said exhibits are not binding and enforceable by the Claimant. See the case of The Rector, Kwara State Polytechnic & Ors. V. Mr. Ola Adefila & Ors (2006) LPELR-8248(CA) where the Court of Appeal put the legal principle aptly thus: “Where a collective agreement is embodied or incorporated in the conditions of a contract of service whether expressly or by implication, it will be binding on the parties.” See also Union Bank of Nigeria Plc V. Emmanuel Aderewaju Soares (2012) LPELR-8018(CA), Friday U. Abalogu V. The Shell Petroleum Development Company of Nigeria Limited (2017) 10 ACELR 62 at 87 and the decision of my brother the Hon. Justice Bashar A. Alkali in Suit No. NICN/YEN/90/2016 between Mr. Emeka Ben Obiejemba V. Tecon Oil Services Limited, delivered on the 18th of February, 2019. In the circumstance, issue one (1) is resolved in favour of the Defendant and against the Claimant.
7.9. With respect to issue two (2), it is evident that the claimant is asking for the sum of N12,133,013.00 which is the balance of his alleged terminal benefits of N15,133,013.00 having admitted that the Defendant has paid him the sum of N3,000,000.00. To the defendant however, the Claimant is only entitled to the sum of N1,000,000.00 since he has been paid N3,000,000.00 out of his total benefit of N4,000,000.00.
7.10. In order to establish his case before the court, the claimant gave evidence vide his deposition that was filed on the 18th of March, 2019. Suffice it to state that his evidence in chief is just a reproduction of his pleadings in this suit. During his cross-examination on the 2nd day of December, 2019, the claimant answered that his case before the court is that he was not paid in line with the Conditions of Service exhibit CW8 which he affirmed is an agreement solely between the Tecon Management, PENGASSAN and NUPENG. He affirmed that he is not a member of either PENGASSAN or NUPENG, and that even though he is aware that union dues are deducted from salaries of union members, there was no deduction from his salary and he did not pay any union dues while in the service of the Defendant. That it was the then Human Resource Manager (Musa) that informed him verbally that he was to benefit from the Collective Agreements. He further affirmed that the Defendant has paid him but the payment is not in line with the Conditions of Service. The witness insisted that exhibit CW8 was given to him upon his employment, and confirmed that paragraph 3 of exhibit CW4 was not replicated in exhibit CW8.
7.11. The defendant called one Chief Johnny Olisakwe Maduaforkwa (the International Director of the Defendant) who testified as DW. His evidence in chief is also a reproduction of the defendant’s pleadings in this suit. During cross-examination of the witness on the 21st of October, 2020, the witness answered that, he knows the Claimant very well because both of them attended Senior Management Meetings, and the Claimant worked for the Defendant from 2006 to 2017. The witness affirmed that the defendant has a Condition of Service, and that when the employment of a staff is terminated, such a staff is entitled to some financial benefits. That upon the termination of the claimant’s appointment his entitlement was calculated amounting to Four Million Naira out of which only Three Million Naira has been paid to the Claimant due to economic downturn. That the calculation was done by the Defendant’s Finance Department. That no notice was given to the Claimant and nobody was paid in lieu of notice including the Claimant. The witness refuted the contention that exhibit CW8 was given to the Claimant when he was employed, and that every worker in the employment of the Defendant is entitled to medical treatment. That to the best of his knowledge, when someone is employed he undergoes all the processes in the Human Resources Department where he is informed of all the hospitals to go for medical attention.
7.12. What is evident from the state of pleadings and evidence on record is that the fulcra of the case of the Claimant are exhibits CW3, CW4, CW7, CW8 and CW9. Unfortunately however, these exhibits which are the pillars upon which the claimant’s case is hinged have all been held not to be binding and enforceable since the Claimant admitted that he is not a member of either PENGASSAN or NUPENG who are the beneficiaries of the terms in the Collective Agreements. The claimant consistently informed the court during his cross-examination that he was issued exhibit CW8 by the Defendant upon his employment. From exhibit CW1 the Claimant was employed on the 6th of January, 2007, while exhibit CW8 was made on the 8th day of April, 2011. I then wonder how an agreement that was made in 2011 about four (4) years after his employment would have been given to the claimant in 2007 upon being employed.
7.13. I have equally looked at exhibit CW1 and the said exhibit which is the Claimant’s appointment letter has no provision for the claimant’s claims in this suit. The claimant has not informed the court how he arrived at the total sum of N15,133,013.00 as his terminal benefits. I say this because while he is alleging that the total of his entitlement is N15,133.013.00 as pleaded by him and also his evidence before the court, in exhibit CW10 the same claimant informed the Defendant that his total entitlement is the sum of N11,283,012.82.
7.14. The law is trite that the onus of proof is on the Claimant; particularly in the circumstance of this case where the Claimant’s case is in the nature of special damages. The Claimant must specially plead not only the damages with the particulars but must also prove same strictly with verifiable evidence. In other words, the claimant must not only plead and give the required particulars of the special damages sought, but he must also adduce credible evidence to support the claims in order to satisfy the court on how he arrived at the sum claimed as special damages. He must show the court how the amount was quantified or calculated. It will therefore be inappropriate for a court to award special damages which a claimant has not been able to establish or prove. See Ndukwe Okafor & Ors. V. Agwu Obiwo & Anor (1978) LPELR-2413(SC), Mantec Water Treatment Nig. Ltd. V. Petroleum (Special) Trust Fund (2007) LPELR-9030(CA) and sections 131, 132, 133 and 134 of the Evidence Act.
7.15. It is in evidence that the Claimant has been paid Three Million Naira by the Defendant. Exhibits DW1 and DW2 are copies of First Bank cheques for the sums of N1,500,000 each (totaling N3,000,000) dated 11th August, 2016 and 23rd May, 2016 respectively.
7.16. In the final result, I find no merit in the case of the Claimant, and hold that the claimant has failed to prove his case as required by law. Issue two (2) is resolved against the Claimant and in favour of the Defendant. The suit is accordingly dismissed for want of proof.
Judgment is entered accordingly.
I make no order as to cost.
Hon. Justice P. I. Hamman
Judge
