IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA (JUDGE)

 

                                                                              SUIT NO: NICN/YEN/444/2016

DATE:  MARCH 29, 2022

 

BETWEEN:

 

FEDISON MANPOWER SUPPLY LIMITED                                - CLAIMANT     

[For itself and on behalf of the personnel supplied

by the Claimant to the Defendant]    

                    

AND

NIGER BLOSSOM DRILLING NIGERIA LIMITED                  -DEFENDANT

                                                                    

REPRESENTATION:

Prince H.O Egielemai - for the Claimant;

C.Uriem, Esq.( with N. Chukwumati and E.C Omeje) - for the Defendant.

 

JUDGMENT

 

1.             By a General Form of Complaint with the accompanied frontloaded processes dated and issued on 30th November 2016, the Claimant, an Oil & Gas Labour Contracting and Recruitment Company, commenced this Suit against the Defendant, for itself and on behalf of the personnel supplied by the Claimant to the Defendant. The Claimant’s endorsed reliefs are:

“(1). The sum of seventy-two million, five hundred and twelve thousand, fifteen naira (N72,512,015) as special damages  being and representing the outstanding salaries, allowances, bonuses , payoff , award and commissions due to the Claimant and the workers hired by the Defendant from the Claimant in pursuant to their collective agreement dated 30th day of December, 2011 .

(2). The sum of Ten Million Naira (N10,000,000.00), being general damages for breach of contract”.

An unnumbered additional relief states: “The Defendant may pay this sum with cost to the Claimant or to the Claimant’s Legal Practitioner within the time allowed for appearance and upon such payment, the proceedings shall terminate”.

 

 

2.             The Defendant reacted with its counsel’s Memorandum of Appearance and Defendant’s Statement of Defence, with other defence frontloaded processes, all dated and filed on 15th November 2017, wherein the Defendant vehemently denied the Claimant’s claims. Also filed along is a Notice of Preliminary Objection dated 13th November 2017 and filed on 15th November 2017, challenging the jurisdiction of the Court, for failure of the Claimant to obtain leave of court before issuing the complaint out of state contrary to Sheriff and Civil Process Act . This Preliminary Objection was later withdrawn by the learned Defendant’s counsel, and struck out accordingly.

 

3.             The Suit which was filed at Yenagoa Division of the Court was later taken to Owerri Division and finally transferred to Port Harcourt Division and assigned to this Court. Trial commenced at the proceedings of 7th November 2019, wherein the Claimant Company fielded in one Olowolerekun Kayode (the Human Resources Manager of the Claimant Company), and he testified as the sole Claimant’s Witness (CW). He adopted his Written Statement on Oath deposed to on 30th November 2016, and tendered 11 sets of documents , all admitted in evidence and marked as exhibits C1-C11, as described in the Claimant’s list of documents, dated 25th November 2016. CW was cross-examined at the resumed trial proceedings of 5th February 2020, and there being no Re-examination, the Claimant’s case was closed.

 

4.             The Defendant Company opened its defence at the continued trial proceedings of 20th February 2020 and 13th July 2021, wherein one Chief Jonny Olisakwe Maduafokwa (the International Director of the Defendant Company) testified for the Defence as sole Defendant’s Witness (DW).  He adopted his Written Statement on Oath deposed to on 15th Nov.2017, and tendered 3 sets of documents, all admitted in evidence and marked as exhibits D1-D3, as described in the Defendant’s list of documents dated 15th November 2017. The Defendant’s case closed after cross-examination of the DW, there being no Re-examination for him.

 

CASE OF THE PARTIES

5.             Gleaning from the pleadings filed and exchanged between parties and evidence led at the trial, the case of the Claimant is that: as an oil and gas labour contracting and recruitment company, on 30th December 2011 it entered into an agreement with the Defendant to supply qualified and experienced personnel to the Defendant to enable the Defendant operate on a 750HP Drilling/Workover Rig, known as NIGER BLOSSOM RIG 102, following a Rig Contract the Defendant had with Pan Ocean Oil Company. That the relationship continued until May 2013 when Pan Ocean revoked its contract with the Defendant.

6.             It is also the case of the Claimant that in compliance with the terms of the said agreement, it supplied personnel to the Defendant who were categorized according to the employees’ qualifications and specialization. They were 55 in number and listed as follows: (1)Alozie Adolphus (2)Godspower Omovototu (3)Friday Amadi (4)Oriaku Kenneth (5)Godspower Amadi (6)Sabastine Uwonwa (7)Valentine Nduka (8)Joseph Oluwadamisi (9)Johnson Ugbenu (10)Mustapha Oloyede (11)Paul Oseni (12)Nathaniel Olisanyem (13)Isaac James (14)Okolo Stephen (15)Ochuko Tejiri (16)Oyeigbo Yomi (17)Chinedu Stephen (18)       John Ayo (19) Ezekiel Komo (20)Onyebuchi Mbanu (21)Tolu Olawumi(22)Joseph Ogbutu (23)Okpomor Sampson (24)Chalse Luka(25)  Nwanagwu Odigidawo (26)Ese Oyiade (27)Emma Ochuko (28)Nurudeen Adekola (29)Odamha Jimoh (30)Akinyemi Lawrence (31)Progress Amadi (32)        Seyefa Igbosi (33)Chikaodi Mbanu (34)Ezechine nnocent (35)Joel Aderemi (36)Sampson Ebile (37)Paul Timighie (38)Sampson Bayo (39)Akpos Adeghe (40)Kings Ehiagwina (41)Ughochukwu Inyama (42)Godspower Iwe(43)Sule Ibrahim (44)Chinaka Iroegbu (45)Andrew Ebireri (46)Bethel Onuigbo (47)Chima Martins (48)Cooper Ovedje (49)         Gameliel Ochuko (50)Patrick Chijioke (51)Hamzat Mayowa (52)Collins Inyora (53)Augustine Esebareme (54) Osamudiamen Omoregie; (55)Obinwah Uche. 

 

7.             CW further testified that  apart from the remuneration of personnel, the Defendant was obliged to pay the Claimant 20% of the total day rate of the employees for each month to enable the Claimant defray its administrative and other associated cost as commission for employees’ medical expenses, and also to pay the Claimant 10% of the total sum of the employees’ day rate for each month to defray bank charges for handling payments such as Christmas bonus, travel time allowance, responsibility allowance, course allowance, pay off and other related allowances. That on its part, it  duly discharged its obligations under the contract, as it paid taxes due from the employees to the government and obtained and renewed insurance policies required and took care of the workers’ medical and other welfare. CW went on that as at May 2012, 55 employees and personnel retained by the Defendant were unpaid from year 2012 to May 2013. That the owed sums constitute the outstanding remunerations of the personnel with the contract services sum, totalling N72,512,015. That this sum was arrived at after some disputed invoices were resolved by mutual agreement of the parties in an arbitral session set up to reconcile the outstanding sums and disputed invoices. That the Defendant agreed to offset the said debt, but failed. That after waiting for the Defendant to disburse the said sums to it without success, it instructed its Solicitors to write a demand letter, yet the Defendant refused to pay the money, hence this suit. CW concluded and prayed the court to grant the claims of the Claimant Company.

 

8.             On the part of the Defendant, the case of the Defendant tallies with that of the Claimant regarding the nature and performance of their contract of supply of labour in its Rig for the agreed duration, but differs markedly on the issue of the outstanding indebtedness the Claimant claims that the Defendant owes it. It is the Defendant’s case that, it not owing or indebted to the Claimant and neither its employees, nor personnel. That money due to the Claimant in 2012 and 2013 were paid to the Claimant.  DW went on, that in spite of the fact that on April 22, 2013, the contract for the hire of 750HP (5000 PSI WP) Rig 102, with Pan Ocean was suspended, owing to the negligent act of the Claimant’s personnel that caused severe damages to the crown block, and rendered the Rig inoperable, and the contract was terminated, yet the Defendant paid the Claimant for the months of Feb, March and April 2013. That the Claimant in connection with the community members seized the Defendant’s Rig, which was held for 120 days, which amounts to four months without releasing it, notwithstanding the huge amount involved in renting of the Rig, which costs about $USD23,950.00, which was a big loss to the Defendant.  DW further testified for the Defendant that the claimed sum of N72, 512,015, were already paid through its Bankers’ Inter switch instructions and First Bank Cheques issued at various dates in 2012 and 2013, copies of which were tendered as exhibits. That the Claimant, having been fully paid all the money due to him from the Defendant is not entitled to any payment, as the suit is purely gold digging, vexatious, malicious and lacking in bona fide. DW concluded and prayed the court to dismiss the suit against the Defendant.

 

COUNSEL’S SUBMISSIONS

9.             Learned counsel for the Defendant, Callistus Uriem,Esq, in his Final Written Address dated 9th September 2021 and filed on 29th September 2021, raised and canvassed arguments on two issues for determination-(a). Whether in view of the Statement of Fact and evidence adduced by the Claimant in this suit, this Honourable Court has the requisite jurisdiction to hear and determine this case? , and (b). Whether in view of the Statement of Facts and evidence adduced by the Claimant in this suit, the Claimant’s case is meritorious? On the part of the Claimant’s counsel, Prince H.O Egielemai, in his Final Written Address, dated and filed on 18th October 2021,  followed the  two-issue approach, and  raised and canvassed arguments in respect of two similar issues, viz: (a). Whether this Honourable Court has the jurisdiction to entertain and determine this action considering the statement of facts and evidence in support of Claimant’s case., and (b). Whether the Defendant has discharged the burden of proof foisted on it by law to be entitled to judgment in this case.

 

10.        At the resumed proceedings of 16th February 2022, both counsel adopted their respective Final Written Addresses, adumbrated on same, and urged the court to uphold their submissions as canvassed in their respective divide for the parties they represented. The Judgment was thereafter reserved. In the course of this judgment, full consideration would be accorded both counsel’s respective submissions on the issues raised and canvassed in their said respective Final Written Addresses.

 

COURT’S DECISION

11.        The engaging proceedings prompted my active involvement, as I read the pleadings and processes, reviewed along with the submissions canvassed in the Final Written Addresses filed and exchanged by respective counsel, as well as their oral adumbration in advancing the case of the parties they represent. I also keenly watched the witnesses testify, and have noted their demeanours, as well as carefully evaluated the evidence tendered as exhibits in the proceedings.

 

12.        I have noted that in their respective Final Written Addresses, both counsel had raised and canvassed arguments in support of their respective standpoints on the case of the parties they represent. Upon review of the issues and supporting submissions by both counsel, I have formed the view that the prong two-prong-issues-approaches adopted, and the respective issues so raised and canvassed by both counsel, are germane, closely related and encompassing. I would adopt same, but only need to fine-tune and streamline them to bring to the fore the main legal contentions underpinning the dispute. The two issues are: (1). Does this court have jurisdiction to adjudicate the dispute presented in this suit? (2). Given the state of pleadings and evidence led, is the Claimant entitled to the reliefs sought? I will proceed to resolve the dispute along line the terrain of these legal issues underpinning the dispute.

 

13.        On issue (1): Does this Court have jurisdiction to adjudicate the dispute presented in this suit:  Learned Defendant’s counsel dealt with this issue in his issue (a) of his Final Written Address: “Whether in view of the statement of facts and evidence adduced by the Claimant in this suit, this Honourable Court has the requisite jurisdiction to hear and determine this case?”. Counsel answered in the negative and canvassed arguments to support his ardent position that this Court lacks jurisdiction to adjudicate this suit. Counsel’s main grouse is that the Agreement entered into by the parties is in the nature of simple contract and not ‘collective agreement’, as curiously referred to it, by the Claimant’s counsel.  And being a simple contract, a breach thereof cannot be adjudicated in this Court, not being a Court conferred with jurisdiction to entertain matters bordering on simple contract. Counsel contended that  by virtue of Section 48(1) of the Trade Dispute Act and authority of Osoh & Ors v Unity Bank Plc (2013)2-3 SC (pt.1), the contract document (exh.C1), not being a ‘collective agreement‘ as it was erroneously refereed to, robs this Court of requisite jurisdiction.

 

14.        Buttressing his position, counsel enumerated items that form the subject matters of the jurisdiction of the National Industrial Court (this Court) under the Section 254C (1) of the Constitution. Counsel went on in Para.4.3 of his Final Written, to submit that: “It is our respectful submission that a careful examination of the jurisdiction conferred on this Honourable Court by Section 254C (1) of the 1999 Constitution does not expressly mention matters bothering on simple contract and/or breach of simple contract thereof”. To counsel, (as argued in the para.4.10 of his Written Address): “The net effect of our preceding submission is that the Claimant and the Defendant entered into a simple contract agreement and not a collective agreement as contended by the Claimant. This Honourable Court having not been expressly conferred with the requisite jurisdiction to hear and determine causes and/or matters bordering on simple contract cannot, with the greatest respect, hear and determine this suit”. Counsel concluded and urged the court the decline jurisdiction.

 

15.        In his reaction, learned Claimant’s counsel, had formulated and canvassed arguments in his own issue (a): “Whether this Honourable Court has the jurisdiction to entertain and determine this action considering the statement of facts and the evidence in support of Claimant’s case”.  Citing and relying on a host of authorities, such as: N.N. B Plc v. Egun [2001]7NWLR (Pt.711)1; N.N.B Plc v. Esoh [2001]13 NWLR (Pt.729)232; Union Bank of Nigeria v. Edet [1993]4NWLR (Pt.287)288, counsel hoarsely contended that this Court not only has jurisdiction but that “this matter is the exclusive preserve of this Honourable Court”. It is counsel’s vehement submission  that: “The Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act 2010, the National Industrial Court Act, 2006, the Trade Dispute Act and the Trade Union Act all created and vested the Court with similar jurisdiction to entertain matters relating to labour, employment, trade unions, industrial relations and matters arising from workplace, condition of service, including welfare of employees and workers, interpretation and application of Collective agreement , terms of settlement of trade or employment disputes, among others”.

 

 

 

16.        Counsel maintained that the Agreement in issue, which both parties entered into, a copy of which was tendered by both parties and marked as ‘exh.C1 and D1’, is a Collective Agreement. Counsel placed reliance on Section 54(1) of the National Industrial Court Act, 2006, which defines ‘Collective Agreement’ as meaning-“any agreement in writing regarding working conditions and terms of employment concluded between (a) an organization of employers or an organization representing employers (or an Association of such organization) of the one part, and (b) an organization of employees or an organization representing employees (or an Association of such organization) of the others part.” Counsel further pointed that “similar definition is given to that term in Section 48 of the Trade Dispute Act and section 91 of the Labour Act” And that: “‘Employer’ is defined under section 54(1) of the National Industrial Court Act, 2006 to mean any individual or body corporate or unincorporated who has entered into a contract of employment to employ any other person as an employee or apprentice. ‘Employee’ means a person employed by another under oral or written contract of employment whether on a continuous, part-time, temporary or casual basis and includes a domestic servant who is not a member of the family of the employer.”

 

17.        Referencing averments in the Claimant’s pleadings, counsel, submitted that the Agreement in issue contains all elements of employment for the fifty-five workers the Claimant supplied to the Defendant,  as it spelt out terms and conditions which include the employees’ salaries, allowance, terminal benefits, work hours and duration, public holidays, employees’ responsibilities, medical , safety , insurance and other welfare entitlements, etc. Counsel concluded that the law adequately bestowed this Court with jurisdiction to entertain this matter being employment and labour dispute, and urged the court to so hold and retain jurisdiction to adjudicate the dispute between the parties.

 

18.        Let me state right away that I have discountenanced the illicit use of the term ‘Collective Agreement’ in this suit, as I find that the issue as to the Agreement being a ‘Collective Agreement‘ is not anywhere in the Agreement under review. Rather, it a concoction brewed and served by the Claimant’s counsel, being that the said Agreement neither used the term ‘Collective Agreement’, nor purports by its terms to be a ‘Collective Agreement’ within the meaning ascribed to the concept in law. For instance, the Claimants in this suit did not form any union or employees’ representatives, which is the legal fulcrum of any ‘Collective Bargaining’ that would give rise to ‘Collective Agreement’, not to talk of its doubtful legal efficacy.

 

19.         Surprisingly, the learned Defendant’s counsel, who is in disagreement with the erroneous importation of this concept of ‘Collective Agreement’ by the learned Claimant’s counsel  also adopted such concept, and used it variously in the Defendant’s defence process. A prominent example is in paragraph 4 of the Statement of Defence, wherein it was averred that : “ The Defendant admits paragraph 4 only to the extent that on December, 30 2011, the Defendant entered into a Collective contract Agreement with the claimant to supply qualified and experienced personnel to operate on the Defendant’s rig known as NIGER BLOSSOM RIG 102. The said contract got terminated in April 2013, immediately Pan Ocean revoked its contract with the Defendant”.  

 

20.        I took this stand on a closer look at the said Contract between the parties, tendered, admitted in evidence and marked as exhibits C1 and D1 by the CW and DW, respectively, which shows that it is just a ‘Labour Contract Agreement’ and not a ‘Collective Agreement’ as erroneously introduced in this suit.  It is clearly titled: “LABOUR CONTRACTUAL AGREEMENT BETWEEN NIGERBLOSSOM DRILLING NIGERIA LIMITED AND FEDISON MANPOWER SUPPLY LIMITED”.  On that note, the Agreement remains what it is and will be so described in this Judgment. I so hold.

 

21.        The learned Defendant’s counsel had argued vehemently, that this Agreement is a ‘simple contract’, and therefore not within the jurisdictional radial of this court. Counsel anchored his submissions on absence of mention of ‘simple contract’ in the Section 254C (1) of the Constitution. Counsel had @ Para.4.3 and 4.4 of his Final Written Address, submitted, citing Mazeli v. Mazeli (2012) LPELR-19945(CA), that “the law is trite that in law, the express mention of some things is An express exclusion of the thing not mentioned”, and concluded that, this court does not have jurisdiction over disputes of simple contract, since the Constitution did not “expressly mention matters bothering on simple contract and/or breach of simple contract thereof”. To counsel, just mere absence of mention of ‘simple contract’ in the provisions of S.254C(1) of the Constitution robs this court of requisite jurisdiction, even when he did not make any exploratory taxonomy of the nature of contracts constituting ‘simple contract’, and how it differs from the contract forming the subject matter of the dispute in this suit. Counsel would have done more, as such generalized submission cannot sufficiently wrestle jurisdiction of a court of law, given the axiomatic legal expression that ‘Courts guard their jurisdiction jealously’.

 

 

 

22.        As issue of jurisdiction is threshold with radical posture, capable of forestalling the exercise of the court’s power of resolution of actual substantive dispute submitted by the parties for adjudication, it cannot be treated as a matter of course. I can only agree with the learned Defendant’s counsel if he had x-rayed the contract and explain-out how the contract in issue herein is a ‘simple contract’, as he canvassed. Counsel however, avoided the task of explaining ‘how simple is simple contract?’ Nevertheless, I would lead the discourse. The pertinent question is- what is the nature of this contract between the parties in this suit? Is it a simple contract, as alleged by the learned Defendant’s counsel, even in the face of the contract document titled: “LABOUR CONTRACTUAL AGREEMENT BETWEEN NIGERBLOSSOM DRILLING NIGERIA LIMITED AND FEDISON MANPOWER SUPPLY LIMITED”?  

 

23.        In legal taxonomy of contracts, classification of contracts is merely by fencing-off method, which enables a variant to emerge where law has carved out that class of agreement from the general agreements, and thus constitutes an independent class with separate legal regulation of its subject matter. For instance, marriage contract, though a contract like any other contract, has been carved out and guided by separate rules. Same way is labour-related agreements carved out as labour/employment contracts, and guided by the employment and labour relations laws/rules. In all, it is the generally unclassified contracts that form the group of contracts, termed ‘simple contract’, which deal generally with ‘chattels, property and merchandize’ as core subject matter, such as goods, commodities and stock-in-trade.

 

24.        Going by the foregoing analysis, ‘subject matter test’ is the basis of classification of contract as ‘simple contract’ or otherwise.  It is with this ‘subject matter’ test of contractual taxonomy that the contract in issue would be gauged to ascertain if it falls in the class of ‘simple contract’, and not ‘labour/employment contract’ (a core domain of this court’s jurisdiction). By exh.C1, the Claimant was described thus: “Messrs. FEDISON MANPOWER SUPPLY LIMITED, a labour contracting firm “…”The Labour Contractor is in the business of supply of skilled and unskilled manpower and has represented to the Company, that it has adequate resources and access to suitable personnel capable of efficient performance to achieve the objectives of this agreement as per the terms and condition hereafter appearing”.  Its Object in Article 1, states : “The Labour contractor will, at company’s specified written request, supply skilled personnel (per available and requested job positions listed in Appendix “A” of this Agreement), whose services will be required at the client’s drilling location, where company operates with its drilling rig NIGER BLOSSOM 102. In all cases, where personnel will be required, a personnel request order, specifying the category and number of personnel required, will be issued and duly signed by an authorized company representative sufficiently in advance to the labour contractor. Each candidates CV must have been presented in advance to the company by the contractor, and interview and acceptance of each candidate personnel must be obtained from both the company and its client(s) before personnel is mobilized”.

 

25.        It is clear, and I find, that this contract in exh.C1 deals with supply of human labour. Is it a ‘simple contract’? Undoubtedly, labour contract deals with human resource/personnel services; the use of human beings as object of a contract, the subject matter of which is human labour. Such special contract is certainly not ‘simple contract’. If such contract is still classified as ‘simple contract’ (dealing with chattel, property and merchandize), even after abolition of slave trade, it means that the concept of ‘human dignity in labour’ is still fraught with the awful nuances associated with slave trade. It is for the same reason of preserving human dignity in labour by not treating humans as property/chattel that marriage contract was excised from the general contract group of ‘simple contract’, and same with labour-related contracts. In the circumstance, I take a firm view, that the contract in issue herein, is not ‘simple contract’, but labour-related contract. To hold otherwise, would amount to regarding humans as commodities of trade/chattel which is subject matter of ‘simple contract’, thereby making a mockery of abolition of slave trade, and fundamental human rights provision in the Section 34 of the extant Constitution. More so, as International Labour Organization (ILO) Labour Standards frown at labour being regarded as ‘commodity of trade’. See: ILO Forced Labour (Supplementary Measures Recommendation)(R-203)2014. Put simply, Supply of Human Labour is not ‘Simple Contract’. I so hold.

 

26.        Having cleared the foggy arguments on the legal status of the contract and resolved that it is not ‘simple contract’, but ‘labour-related contract’, it remains to test whether this court has jurisdiction over labour-related contract dispute. To aid the discourse, I take liberty to reproduce the relevant provisions of the extant Constitution that confers jurisdiction on the National Industrial Court. The relevant Section 254C(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration Act 2010) effective 4th March 2011 (the extant Constitution) reads: “254C-(1) Notwithstanding the provisions of sections 251,257,272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith”.  Note that the Courts mentioned in Sections 251,257, and 272 of the extant Constitution are: Federal High Court, High Court of the Federal Capital Territory and States High Courts, respectively, which were all excluded from delving into matters within the jurisdiction of the National Industrial Court.

 

27.        What the learned Defendant’s counsel however, forgot in his tenacious posturing of jurisdictional challenge in this matter, is that this court has been imbued with jurisdiction over any matter arising from, related to or connected with employment, courtesy of the provisions of S.254C(1) 1999 Constitution (3rd Alteration ), effective 4th March 2011. I dare say that this provision has over time become a one stop-shop for gauging the amplification of the new jurisdictional mandate of this court in its one-subject matter adjudicatory-stock, which is- employment, workplace, labour- related, connected and/or arising matters! It is actually from the backdrop of the phrasal concept of ‘arising from, related to, connected with labour/employment/workplace’ used variously in the provisions of S.254C (1)-(5) of the extant Constitution that this court derives its amplified jurisdiction to entertain other core civil claims bordering on contract and tort, such as tenancy, libel, negligence, policy issues, fundamental human rights, and even criminal jurisdiction. I so hold.

 

28.        I need also to emphasize that the extant Constitution neither restricted this court’s jurisdiction to any class of parties nor limited it to class of dispute, as far as such civil dispute arises from, related to, or connected with labour/employment/workplace, it does not matter the type of parties (private/public/corporate) and the nature of the dispute (be it contractual or tortious claim or policy issues, and even criminal offence). The only limitation is as regards criminal matter, which by S.254C (5) of the extant Constitution, it shares jurisdiction with a High Court, and not with exclusive jurisdiction as in civil claims. Its jurisdiction is therefore based only on the ‘subject matter’ test i.e any dispute involving issues of labour/employment/workplace. See: Cocoa Cola (Nig) Ltd v. Akinsanya [2017] 17 NWLR (Pt.1593)74; Standard Chartered Bank v. Adegbite [2019]1NWLR (Pt.1653)348@369. I have taken similar position in a number of cases across various judicial divisions of this court where this sort of jurisdictional challenge was raised, such as:  West African Cotton Co Limited v. Oscar Amos (Suit No. NICN/YL/10/2015, Judgment delivered on June 13 2018); Amadi Okaka Lucy Erusi v. Henry Spencer (Nig.) Ltd & 3 Ors. (Suit No. PHC/135/2018, Judgment delivered on October 30 2020); Miebi Aguma & Anor v. NIMASA & Anor. (Suit No. NICN/PHC/26/2020, Judgment delivered on March 26 2021).

 

29.        In S.C.C (Nig) Ltd v. Sedi [2013]1 NWLR (Pt.1335) CA 230 (Sedi’s case), the court had cause to interpret similar provision of the S.254C (1) (a)(b) of the extant Constitution relating to jurisdiction over causes of action founded on workmen’s compensation. In arriving at its decision, Sections 38 and 41 of the then Workmen’s Compensation Act (now replaced with Employee Compensation Act 2010), which gave High Court jurisdiction on such civil causes, was construed and struck down when juxtaposed with the new provisions of the Constitution that vested exclusive jurisdiction on the National Industrial Court over such matters.  The reasoning of the Court of Appeal, per Mukhtar JCA @ Pp.247-248, Paras.G-C is illustrative and illuminating, thus:

The provisions of sections 38 and 41 of the Workmen’s Compensation Act clearly confer jurisdiction, in respect of claims under the Act, on a High Court which the National Industrial Court is obviously not. That would have led to the success of the appeal per force without much ado on the one hand. On the other, it is pertinent that the law has changed with the passing of the Constitution of the Federal Republic of Nigeria (Third Alteration) ACT 2010which, inter alia, creates section 254C(1) that vests the National Industrial Court with an exclusive jurisdiction in all causes and matters related to or connected with any labour, employment, trade unions, industrial relations and matters arising from work place, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. This new provision in the Constitution has reduced sections 38 and 41 of the Workmen’s Compensation Act to a total nullity. Thus even if the matter had been instituted in a High Court as provided by the Workmen’s Compensation Act, which was the correct position of the law before the constitutional amendment, it would have metamorphosed into incompetence and would have led to striking out the suit therefrom or transferring it to the National Industrial Court, the only forum where exclusive jurisdiction in the matter resides.  (Underlined emphasis supplied).

 

30.        Going forward, being enabled by the apt judicial support and community reading of the Section 254C (1) (a) and other provisions of the extant Constitution dealing with the jurisdiction of this court, copiously relied on by both counsel for the parties, it is my humble but stout view, that the dispute, as in the instant suit, involving a labour-related contracting parties, falls within the jurisdictional scope and competence of the National Industrial Court of Nigeria. I so hold. In consequence, I resolve this issue (1) in favour of the Claimant’s counsel. I accordingly assume full jurisdiction to adjudicate on the substantive dispute between the contracting parties, as presented in issue (2). I so hold.

 

31.        On Issue (2)-Given the state of pleadings and evidence led, if the Claimant is entitled to the reliefs sought:  The Claimant’s Relief (1) is asking for “The sum of seventy-two million, five hundred and twelve thousand, fifteen naira (N72,512,015) as special damages  being and representing the outstanding salaries, allowances, bonuses , payoff , award and commissions due to the Claimant and the workers hired by the Defendant from the Claimant in pursuant to their collective agreement dated 30th day of December, 2011”.  Learned Claimant’s counsel, had pointed that the Claimant sufficiently proved his case and, that the Defendant even admitted the indebtedness but stated that Defendant paid all the money due to the Claimant. Counsel refers to Paragraph 8 and 9 of the Defendant’s Statement of Defence and Paragraphs 12 and 13 of the Defendant’s Witness Statement on Oath, wherein the Defendant admitted averments in Paragraphs 10 and 11 of the Statement of Facts in respect of the indebtedness.  Counsel further pointed that the meeting which the Defendant referred to while admitting the indebtedness was set up to  arbitrate and reconcile the disputed invoices, after which the sum of N72,512,015 was agreed to be paid by the Defendant to the Claimant. But the Claimant had waited in vain to receive the said agreed sum, and the Defendant neither paid the money nor responded to demand letter by their Solicitors (exh.C11), which by itself constitutes further admission of all the issues therein, citing and relying on Abajue v. Adikpa [1994]1NWLR(Pt.322)62, on the legal consequence of un-replied legal correspondence.

 

32.        Calling in aid the authority of Mana v. PDP [2012]13 NWLR (Pt.1318)579, to the effect that ‘a party who avers to facts must adduce evidence to establish same’, it is therefore, counsel’s core contention that the Claimant is relieved of the burden of proof, as the burden of proof has shifted to the Defendant on how it made the payment it alleged was made to the Claimant. And that credible evidence should be led to support such averment, citing and relying on Omoboriowo v. Ajasin (1984)1SCNJ108; Trade Bank Plc v. Chami (2003)42 WRN129. Counsel contended that, the Defendant, in proof of its assertion tendered exh.D3 without more. And that the DW  while under cross-examination, confirmed that  exh.D3 are instructions  to its bankers to pay the sums contained therein, the DW did not confirm the payment, and only stated that if the money was not paid, the Claimant would have protested. And when confronted with the demand letter (exh.C11), DW stated that he was seeing it for the first time.  Citing Sections 133 and 134 of Evidence Act 2011, counsel urged the court to hold that the Claimant had proved its case on the balance of probability.

 

33.        On the Defendant’s part,  learned Defendant’s counsel submitted that the Claimant’s suit is predicated on its contention that exhs-C2-C10 were forwarded to the Dependant for payment but the Defendant failed to make the necessary payments thereof, thereby, making exhs.C2-C10 fundamental to the success of the Claimant’s case.  Detailing provisions of Article 10 of the exh.C1, counsel submitted that the exhs. C2-C10 were not verified in line with the provisions of Article 10 of the parties’ contract (exh.C1), which requires that: “ For all categories of personnel, wages shall be paid by the Labour Contractor (Employer) monthly and invoices to this effect shall be submitted to the Human Resource Department with the time card for verification . The time cards must be signed by the company Tool pusher or accredited supervisor for it to be valid”. Counsel pointed that the said invoices constituting exhs.C2-C10 were rigorously attacked by the Defendant’s counsel during cross-examination, and it was found that authenticity of some of the invoices were doubtful, even some of them were submitted as photocopies. And “the Claimant never issued any notice to the Defendant to produce the purported time cards , neither was the Defendant confronted with any issue as to authenticity and /or verification as stated in Exhibit C1”, counsel  queried.

 

34.        It is counsel’s further submission, as canvassed @Para.4.21 of his Final Written Address, that: “It is trite law that he who assert must prove. It is our submission therefore, that the onus is on the Claimant who asserts that there were time cards for the said invoices it submitted to prove the existence of same. The law is trite that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See: Section 167(d) of the Evidence Act 2011”. Arguing that the Claimant has failed to primarily substantiate and/prove the authenticity of exhs.C2-C10, which is the fulcrum of the Claimant’s claim, counsel further submitted @ para.4.22 of the Written Address that: “… it is our firm submission that this Honourable court cannot embark on voyage of discovery outside the evidence proffered by the Claimant to ascertain whether or not time card exist for the respective invoices in line with Article 10 of Exhibit A (sic)”. Counsel concluded and submitted @para.4.23 of his Address, that “the Claimant is not entitled to its claim by reason of the fact that there is no pivot on which its claims in this suit stand”.

 

 

 

 

 

35.        I must note that an intriguing scenario has played out. The Claimant and their learned counsel took the position that the Claimant’s claim in the sum of N72, 512,015 claimed in Relief (1) was expressly admitted by the Defendant, placing reliance on Paragraph 8 and 9 of the Defendant’s Statement of Defence and Paragraphs 12 and 13 of the Defendant’s Witness Statement on Oath, wherein the Defendant was said to have admitted averments in Paragraphs 10 and 11 of the Statement of Facts in respect of the indebtedness. On the other hand, the Defendant denied owing the Claimant, and through its sole Witness (DW) tendered exh.D3, being payment instructions (inter switch module payment and First Bank Cheques) to show how the payments were made by cheques and instructions for inter switch transfer to the Claimant. Yet, the Claimant and their counsel still insisted that such payment was never made as they did not receive such funds from the Defendant’s banker. It calls to ascertain, whether the debt was admitted by the Defendant, and who bears the evidential burden of proof as to whether the owed sums said to have been paid was actually paid by the Defendant and received by the Claimant, so as to settle the outstanding debt obligation in issue herein?

 

36.        I have reviewed the submissions of both learned counsel for the parties, and gauged them with the pleadings and evidence on record, inclusive of exhibits tendered and admitted in evidence by both parties. What has come out clearly, though seemingly beclouded by the submissions of the learned Defendant’s counsel centring mainly on the authenticity of exhibits evidencing the debt, is the issue of the Defendant’s express admission of the debt in its pleadings and evidence on record. If indeed, the Defendant unequivocally admitted the claim of the Claimant in respect of the sum due and payable to it by the Defendant, it would be a matter of law to apply the legal implication of admission in law, and then place the appropriate burden of proof on the parties as dictated by the Evidence Act 2011. In other words, the threshold task in resolution of the issue(2), is to enquire if the Defendant admitted owing the Claimant the sum of N72,512,015 claimed in Relief (1) under consideration , and if yes, what is the legal consequence of such admission, and what is the apportionment of burden of proof in the circumstance?

 

37.        I have taken a closer look at the said averments in the Defendant’s pleadings (Statement of Defence) and evidence (Witness Statement on Oath adopted at the trial), as well as the Claimant’s Statement of Facts, all forming part of the record of this court. For clarity, the said averments are reproduced below. Paragraph 8 of the Statement of Defence reads: “In response to paragraph 9 of the statement of fact, the Defendant avers that the Claimant was paid all the entitlements due to him and his employees since 2012 up till when the contract got terminated in April 2013. Defendant further avers that he (sic) is not owing the Claimant, and that it is the duty of the Claimant to pay wages or other allowance to his personnel from the money being paid to the Claimant by the Defendant as a labour contractor. The Defendant shall place reliance on the contract agreement between the Defendant and the Claimant at the trial of this suit, the payment module (inter switch) and First Bank cheques for the year 2012 showing the proof of payment made into the Claimants account”.  

 

38.        The Paragraph 9 reads: “(a) The Claimant submitted her invoices for the year 2012-2013 before and after the contract was terminated. The Defendant avers that immediately the invoices were submitted, the Defendant paid all the money due to the Claimant, despite the fact that the claimant and his crew members were the cause and the reason for the damage that occurred at the rig which led to the termination of the contract. (b) The Defendant further avers that it held a meeting with the Claimant due to the down turn and termination of the contract, thereafter, Management decided to pay the money due to the Claimant and they agreed to this effect. The Defendant further avers that the Claimant is not entitled to the sum claimed”. In the Paragraphs 12 and 13 of the Defendant’s Witness Statement on Oath (Chief Jonny Olisakwe Maduafokwa), the sole Defendant’s Witness (DW), adapted and reproduced the same averments in the said Paragraph 8 and 9 of the Defendant’s Statement of Defence.

 

39.         In buttressing its averment that it is not owing the Claimant, on the ground that the payment for the total alleged indebtedness of N72, 512,015 claimed by the Claimant has been paid, the DW tendered exh.D3, which are payment transfer instructions and First Bank cheques, all totalling the sum of N72, 512,015, being the sum claimed by the Claimant from the Defendant. Could this be an admission of the debt by the Defendant, so as to cede the aspect of whether it was indeed received by the Claimant, to another further enquiry in the resolution of the issue (2)?

 

40.        What is admission in law and its legal consequence? In Adusei v. Adebayo [2012]3NWLR (Pt.1288)SC 534, the Supreme Court held that “an admission is a statement, oral or written, expressed or implied, which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement”.  The Supreme Court went on to state the legal effect of admission, @P. 558, paras. A-B, thus: “A crucial fact which is admitted needs no further proof and same would be taken as established”. In Adebiyi v. Umar [2012]9NWLR (Pt.1305)CA279@296, para.G-H, it was held that: “By virtue of Section 75 of the Evidence Act, no fact need to be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.

 

41.        In Ihiabe v. Zakari [2012]12NWLR (Pt.1315) CA517 @535, para.D-E, the court held that: “By the provision of section 169 of the Evidence Act 2011, where a person has admitted that an existing fact is true in the proceeding, neither him nor his representative in interest shall be allowed, in the same proceeding between himself and that other party, to deny the truth of that thing”. And in Okoreaffia v. Agwu [2012]1NWLR (Pt.1282) CA 425 @ 453 para. G-H, it was held that: “once evidence is properly admitted, any party to the proceedings can utilize same to advance his cause”. From the record, particularly, going by the submissions of the learned Defendant’s counsel, the Defendant did not address this issue of admission of the Claimant’s claim. Rather, counsel dwelt on the arguments as to the validity of the invoices giving rise to the claims. Counsel seems to forget that the entire pleadings in the Claimant’s said paragraphs, explained out the whole invoices making up the outstanding debts, of which the Defendant in its pleadings and averments of the DW admitted that invoices were sent by Claimant upon which payment instructions were made vide exh.D3.

 

42.        I find that the Defendant did not even in its pleadings join issue with the Claimant regarding the genuineness of the invoices presented for the claim (exh.C2-C10), contrary to the posturing of the learned counsel for the Defendant in his Final Written Address and efforts in cross-examination on an issue not forming part of triable issues by the parties in the state of their pleadings.

 

43.        As evidence cannot be led on un-pleaded fact, so also, would counsel be reminded that “a counsel’s address, however brilliant and logical, cannot constitute evidence in a matter; and so, any submission on facts not pleaded goes to no issue” .See: S.S.GMBH v. T.D Ind. Ltd [2010]11NWLR (Pt.1206)SC589@613, para. C. And knowing that it is trite in civil trial that parties are bound by their pleadings and will not be allowed to set up in court a case that is at variance with the pleadings (See: S.P.D.C. (Nig.) Ltd. v. Ifeta [2001]11 NWLR (Pt. 724) 473;  Emegokwue v.Okadigbo (1973)4SC 113), this approach adopted by the learned Defendant’s counsel would defeat the very purpose of pleadings in civil trial, which is to “define or narrow down the issue in the case to avoid springing surprise”. So held in Hashidu v. Goje [2003]15NWLR (Pt.843)352, given that the object of pleading is “to settle and narrow the issues upon which the case between the parties is to be contested”. See: Ukaegbu v. Ugoji [1991]6NWLR (Pt.196)127.

44.        With such development, I find as grossly misplaced and non-sequitur, the efforts and submissions of learned counsel still arguing about the authenticity of the invoices, whereas the Defendant’s case is that it has made payments based on the said invoices presented by the Claimant.  From the foregoing analysis, I find that the Defendant admitted that it owed the Claimant the sum of N72, 512,015 which was presented in the Claimant‘s invoices tendered in evidence and marked as exhs.C2-C10. I so hold. The only remaining nagging issue is as to whether the Defendant indeed paid the said sum it admitted owing but contended that it has paid, placing reliance on exh. D3, which are various payment instructions and bank cheques made to its banker in respect of settlement of the said indebtedness.

 

45.        It is surprising that throughout the gamut of the submissions of the learned Defendant’s counsel in his Final Written Address, not even a lip service was paid to the very important triable issue underpinning the dispute between the parties, which is whether or not the owed sum has been paid to the Claimant. Could that be deliberate   or that counsel was overwhelmed by his vociferous submissions contending the genuineness of the invoices, which ironically, the Defendant, by its own express admission, has treated and used as basis for asserting that the Defendant has discharged the said indebtedness, and therefore, cannot be made to answer to a claim for payment of the same sums it has issued payment instructions to liquidate.  For the Defendant, its defence remains that it has paid the outstanding debt based on the invoices presented by the Claimant (exhs.C2-C10). Its evidence of the payment is based on the various payment instructions and cheques drawn in favour of the Claimant, as shown in exh.D3. 

 

46.        The critical part of the Defendant’s defence was captured in the highlighted part of the Paragraph 8 of the Statement of Defence, which reads: “In response to paragraph 9 of the statement of fact, the Defendant avers that the Claimant was paid all the entitlements due to him and his employees since 2012 up till when the contract got terminated in April 2013….The Defendant shall place reliance on the contract agreement between the Defendant and the Claimant at the trial of this suit, the payment module (inter switch) and First Bank cheques for the year 2012 showing the proof of payment made into the Claimants account”.(underlined emphasis supplied). The copies of those cheques and payment instructions were tendered in evidence by DW and admitted as exh.D3.

 

 

47.        For the Claimant, learned counsel took the opportunity of cross-examination to interrogate this assertion of the alleged payments made by the Defendant (exh.D3).  The Questions (Q) and Answers (A) are as follows:

“Q.8: Take a look at exh.D3 (payment module). The document is an instruction to the bank to pay the money to the parties including the claimant. Is that correct? A: Yes”. 

Q.9: The document does not show that the claimant received the money contained in the document? A: The claimant received the money as instructed in the document. If not, they would have protested”.

Q10: Before this suit was instituted, the claimant wrote a letter demanding for the amount of money claimed in this suit. Is that correct? (Take a look at exh.C11 (demand letter dated 10th June 2016). A: It is correct, though I saw the letter now, even though it was submitted the company”.

 

48.        From the exchange of cross-examination Questions and Answers between the Claimant’s counsel and the DW, I find that the only evidence the Defendant has for payment of the said owed sum, is based on the payment instructions in exh.D3. The Defendant through its witness can only confirm issuing instruction for payment but not that the payment was indeed made and received by the Claimant. This vital evidence elicited through the cross-examination strengthens the Claimant’s case that he is owed the sum claimed, and it remains to establish whether the payment instructions made were carried out by the Defendant’s banker, and the Claimant received value for the sum instructed to be paid. In Adeosun v. Gov. Ekiti State [2012]4NWLR (Pt.1291)SC581@602, para.A-B, the Supreme Court, per Onnoghen JSC (as he then was, later CJN rtd.) held that: “Evidence elicited from the cross-examination of a defence witness which is in line with the facts pleaded by the plaintiff forms a part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of facts in dispute between the parties”. 

 

49.        The arising question is- who (between the Claimant and the Defendant), has burden of proof to establish that the payment was indeed made as instructed in exh.D3? I also noted in the course of review of the submissions of both learned counsel, particularly that of counsel for the Defendant, that there seems to be a misconception of the placing and discharge of burden of proof in civil trial as in the instant suit. I would take a preliminary step to clarify the concept and application of burden of proof in civil adjudication applicable in the adversarial adjudicatory system of ours.

 

50.        I took similar approach in Elias Igbinakenzua v. First Aluminium Plc (Suit No. NICN /LA/317/2020, Judgment delivered May 14 2021, per Ogbuanya, J); Yemi Edokpayi v. ABN Ltd (Suit No. NICN/PHC/146/2020, Judgment delivered January 31 2022, per Ogbuanya,J), to streamline the discourse. To achieve a refined and justifiable evaluation of evidence on this matter by placing appropriate burden of proof on the deserving side, it is imperative to note the applicability of the basic principle of preponderance of evidential burden in civil adjudication, which has been enunciated in M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058) CA451@492-493 Para.G-C, as follows:

.. In civil cases the burden of first proving the existence or non –existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If the party adduced evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleading have been dealt with. Thus, generally in civil cases the burden of establishing a case can be gleaned from the pleadings lie ultimately on the plaintiff since if no evidence is adduced he would lose his case. Therefore the burden of establishing the contrary would shift to the defendant who would have judgment given against him if nothing is said to rebut the evidence given by the plaintiff. Thus, the burden of proof in civil cases preponderates, and the court is expected to give judgment on the preponderance of evidence after placing the totality of the respective evidence adduced by the parties on an imaginary scale of justice, weigh them and find out which of the two is heavier before arriving at its decision.

 

51.        From the governing statute, Section 136 (1) Evidence Act 2011 provides for placing of burden of proof as to particular fact, when it states: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”. S.136(2) goes ahead to state that: “In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively”.

 

52.        With these judicial and statutory prescription and exposition of the role- sharing of burden of proof and extent of proof to discharge the burden in civil trial, it is no longer in doubt who has the onerous burden to prove particular fact and at least, that the burden of proof in civil litigation is never static, but preponderates, depending on what material fact is in issue to be established, to assist in advancing the case of the either side of the divide, as in the instant case.  

 

53.        A potent dimension of placing and discharging burden of proof towards establishing claims relating to monetary claims in employment relations has been highlighted in Gbenga Ogbeyemi v. Aso Savings and Loans Bank Plc (Suit No. NICN/ABJ/136/2019, Judgment delivered on 24 March 2022), wherein His Lordship B.B Kanyip, PhD, Hon. PNICN, @ para.31 held thus: “The sum of it is that in labour relations, two things must be proved in monetary claim: the entitlement to the monetary claim, and how the quantum of the monetary claim was arrived at. In instant case, the question is whether the claimant has proved these two requirements to merit the award of the reliefs he claims”. On that note, I find from the record, that beyond the said admission of the Defendant of the indebtedness, the Claimant had set up  and laid evidence on the basis of the entitlement in both its pleadings (paragraphs 1-13 of the Statements of Facts) and evidence (testimony of the CW in paragraphs 1(1)-(14), as well as the exhibits tendered in respect of the accruals, shown in the contractual document (exh.C1), invoices (exh.C2-C10)and letter of demand (exh.C11). The indebtedness and basis thereof where clearly particularized and proved as required for special damages. In U.T.C v. Nwokoruku [1993]3NWLR (Pt.281)295@310-311, para.H-A, it was held that: “It is the law that special damages must be strictly proved, but the term ‘strict proof’ of special damages really requires no more than the evidence must show the same particularity as is necessary for its pleading”. It is my considered view, that the Claimant has therefore, satisfied the requirements of the two-step of discharging of onerous burden in monetary claim in labour relations dispute, as well as strict proof of special damages claim. I so hold. But then, even with this, the arising dilemma persists. 

 

54.        From the gamut of the submissions of both counsel, I hasten to lay forth the dilemma of the discourse. The standpoint of the Defendant’s case is that the Defendant has paid and no longer owing the Claimant. The Claimant, on the other side, did not dispute issuance of the payment instructions but denied not receiving any such payment. Both sides rely on the same exh.D3 to anchor their respective standpoints. While the Defendant believes that the instructions were carried out, the Claimant insisted that it ended in mere instruction.  I find that the particular fact in issue that needed to be established is - if payment was indeed received by the Claimant in discharge of the debt following the payment instructions made by the Defendant in exh.D3. This is an evidential burden which rests on a party which case would fail if the particular fact is not established.

 

 

55.        I find that it is the Defendant that has this evidential burden, and needed to establish same, to make plausible its defence that it has paid the debt. To discharge this evidential burden, I find that the Defendant did not do more than to tender and rely on exh.D3, being documentary evidence, which by law, speaks for itself. It remains to ask- how did it speak?

 

56.        I have taken resource to examine and evaluate the said exh.D3. It is a set of payment instructions in drawn cheques and instructions for inter- witch fund transfer. A closer look shows that there is nowhere a bank stamp was placed showing that the said instructions were indeed processed by the Bank. It remains a unilateral document which has not been treated by the bank for the purpose of carrying out the instruction therein, to disburse the funds and credit the account of the Claimant. The Defendant did not take extra step to confirm that the payment instruction was carried out, and did not also exhibit its bank statement to show that the said sums have been debit in its account and credited in the account of the Claimants. The Defendant did not even, call its banker as a witness to confirm how the said payment instructions was carried out, and confirm if the Claimant received value of the sums due.

 

57.        To my mind, in modern e-payment system, mere issuance of payment instruction does not relieve an obligation to pay owed debt, as the obligation subsists until the owed party receives the sum due as instructed to be paid. This should be a corollary to the new technological approach to e-payment system which is often fraught with manipulative practices, and even outright mischief.  I so hold. On the whole, I find that there is no evidence that the Defendant has in deed paid the Claimant the said owed sum, which though acknowledged by the Defendant and was said to have been paid through instructions in exh.D3, but which could not be established by credible evidence that such payment instructions were indeed carried out by the Defendant’s banker, so as to confirm that the Claimant in deed received payment of the owed sums by the Defendant. 

 

58.        In the circumstance Relief (1) succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of N72, 512,015 (seventy two million, five hundred and twelve thousand, fifteen naira), being and representing the outstanding salaries, allowances, bonuses, pay off, award and commissions due to the Claimant and the workers hired by the Defendant from the Claimant, pursuant to the labour contract agreement between the parties, dated 30th December 2011. I so hold.

 

 

59.        Relief (2) is for general damages for breach of contract in the sum of N10, 000.000.   In considering award of general damages for breach of contract of this nature, amounting to prolonged delay in payment of earned entitlement, the court  takes cognizance of the economic realities of the time , where the value of money keep depreciating due to the nascent downturn of the global economy.  The debt in the instant suit was due to be paid since 2013, but not paid and remains unpaid throughout the litigation period from 2016 till date.  It is trite that general damages are awardable per se upon breach, and is compensatory in nature in monetary form, as assessed by the court in exercise of its equitable jurisdiction to compensate the injured party by the act of the breach of contract or injury inflicted. In N.A.C.B Ltd v. Achagwa [2010]11 NWLR (Pt.1205) CA 339 @369. Paras. C-D, the court clarified how general damages are determined thus: “One of the characteristics of general damages is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of”.  See also: Odumosu v. A.C.B Ltd (1976)11SC55; Samouris v. Maja [1996]7NWLR (Pt.460)336; Union Bank of Nigeria v. Alhaji Adams Ajabule & Anor (2011) LPELR- 8239(SC).

 

60.        I find the aspect of breach of the contract of parties by the Defendant in not ensuring that the payment instruction given to liquidate the debt owed to the Claimant was effected and remitted by its banker, but prefers to litigate the matter, which conduct, amounts to unfair labour practice, and assuaged in award of damages to compensate for the wrong. Accordingly, Relief (2) succeeds to the extent that it is hereby ordered that the Defendant shall pay to the Claimant the sum of N2, 000, 000.00 (two million naira) as general damages for Defendant’s breach of the said parties’ contract.  I so hold.

 

61.        The Claimant also has an unnumbered Relief, which states that “The Defendant may pay this sum with cost to the Claimant or to the Claimant’s Solicitor within the time allowed for appearance and upon such payment, the proceeding shall terminate”. Whatever this means, I discountenance same, as I prefer to award cost in line with the Rules of this court. I so hold.

 

 

 

 

 

62.        For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:

(1)  On the challenge of the court’s jurisdiction raised by the Defendant’s counsel in issue(1), it is resolved that being enabled by the apt judicial support and community reading of the Section 254C (1) (a) and other provisions of the extant Constitution dealing with the jurisdiction of this court, copiously relied on by both counsel for the parties, the dispute, as in the instant suit, involving a labour-related contracting parties, falls within the jurisdictional scope and competence of the National Industrial Court of Nigeria.

 

(2)  Relief (1) succeeds to the extent that the Defendant is hereby ordered to pay to the Claimant the sum of N72, 512,015 (seventy two million, five hundred and twelve thousand, fifteen naira), being and representing the outstanding salaries, allowances, bonuses, pay off, award and commissions due to the Claimant and the workers hired by the Defendant from the Claimant, pursuant to the labour contract agreement between the parties, dated 30th December 2011.

 

(3)  Relief (2) succeeds to the extent that it is hereby ordered that the Defendant shall pay to the Claimant the sum of N2, 000, 000.00 (two million naira) as general damages for Defendant’s breach of the said parties’ contract.

 

(4)  In the circumstance of the suit, I award the sum of N300,000.00 (three  hundred thousand naira) as cost in favour of the Claimant against the Defendant, pursuant to Or.55 Rules 1,4 &5 of the Rules of this Court.

 

(5)The sums of money awarded and due in this Judgment shall be payable to the Claimant by the Defendant within 2(two) months of this Judgment, failing which it attracts 10% interest rate per annum until fully liquidated.

 

63.         Judgment is entered accordingly.

 

 

 

HON. JUSTICE N.C.S OGBUANYA

JUDGE

 

29/03/22