IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F.I KOLA – OLALERE
(FCIArb) (UK)
Date: April 21, 2026 Suit-No: NICN/YEN/121/2016
Between
Uzodinma
Aju Oworo -------------- Claimant
And
1.
Shell Nigeria Exploration
Production Company Limited
---------------
Defendants
2.
The Shell Petroleum Development
Company of
Nigeria Limited
Representation
George Ogara with C. A. Menkiti, O. O. Eriwona
(Mrs.), Q. O. Epia (Miss) & F. C. Nnajiofor (Mrs.) for Claimant.
C.A. Ajuyah (SAN), Thompson Okpoko (SAN) with O.J.
Irerhime, G.C. Aguma (Miss.), C. E.
Nwokedi (Miss) & I. D. Iboroma for the Defendants.
COURT’S JUDGMENT
1.0.
On June 29, 2016; the Claimant
sued the Defendant by way of Complaint seeking for the determination of the
following reliefs:
i. A Declaration that the action of the 2nd
Defendant in terminating the Claimant’s Contract of Employment with the 1st
Defendant by a letter written by the 2nd Defendant dated 4/4/2016 is
unlawful and a breach of the Terms and Conditions of Employment between the Claimant
and the 1st Defendant
ii. An
Order of Court setting aside the letter dated 4th April, 2016 issued
to the Claimant by the 2nd Defendant for being illegal.
iii. An
Order of Court setting aside the warning letters dated 19/6/2015 and 30/9/2015
issued to the Claimant by the 2nd Defendant for being illegal.
iv. The
sum of N2,031,341,289.18k (Two Billion
and Thirty One Million, Three Hundred and Forty One Thousand, Two Hundred and
Eighty Nine Naira, Eighteen Kobo) being the Claimant’s expected total
salary/emoluments from April 2016 to 30th
July, 2037.
v. The
sum of N273,841,716.95k (Two Hundred
and Seventy Three Million, Eight Hundred and Forty One, Thousand, Seven Hundred
and Sixteen Naira, Ninety Five Kobo)
being the gratuity due to the Claimant from the 1st Defendant
Company upon retirement in the year July, 2037.
vi. The
sum of N2,053,812,877.11 (Two Billion
and Fifty Three Million, Eight Hundred and Twelve Thousand, Eight Hundred and
Seventy Seven Naira, Eleven Kobo) being total annual pension due to the Claimant
from the Defendant for 15 years upon retirement in July 2037.
2.0. Other initiating processes were filed
along with the Complaint in line with the rules of this court. In response, the
Defendant entered appearance through his Counsel and filed its Statement of Defence
together with other defence processes in compliance with the Rules of this
Court.
3.0. The
Case of the Claimant as Pleaded
It is the Claimant’s case that he was
employed by the 1st Defendant via a letter of Offer of Employment dated July 31, 2006; which appointed
him as the Shipping/Customs Supervisor in its
Logistics Department. On August 2, 2007 the 1st Defendant confirmed his
appointment. He went on that due to his hard work, honesty, diligence and
satisfactory manner he discharged his official duties; the 1st Defendant
promoted him to the position of Well/Warehouse Yard Drilling Coordinator.
3.1. The
Claimant continued that all through his employment, he was never queried for
any wrong doing neither was he found wanting in any way. He stated further that
his salary grew over time and that on two occasions, he received warning
letters from the 2nd Defendant who had no contractual relationship
with him. That to his shock on April 4, 2016 he received a letter from the 2nd
Defendant summarily terminating his employment. The Letter of Summary Termination
is titled: “Release From Company Service” with an offer to pay him the sum of N2,644,403.48 as three months’ salary in
lieu of notice.
3.2. Claimant
stated again that he has not exhibited any behaviour warranting disciplinary
action or summary dismissal in the 1st Defendant Company and that
the purported warning letters issued by the 2nd Defendant Company
were intentionally made for the purpose of interfering with and violating his
Contract with the 1st Defendant.
4.0. The
Case of the Defendants as pleaded
It
is the Defendants’ case that the Claimant’s application for employment as
Shipping/Customs Supervisor was received by the 2nd Defendant and that
after the Claimant’s interview was conducted by the 2nd Defendant, he
was offered employment by the 2nd Defendant as Shipping/Customs
Supervisor in the Logistics Department and seconded to 1st Defendant.
The Defendants continued that there was a collaborative work arrangements between
the 1st Defendant and 2nd Defendant as affiliated
companies in many respects, including maintaining a uniform Human Resources
Policy and Terms and Conditions of Service for their individual employees. The
2nd Defendant continued that from
August 3, 2006 and April 4, 2016; the Claimant was an employee who was assigned
to perform duties & functions with the 1st Defendant.
4.1. The
Defendants continued that the Claimant assumed duty in the 2nd Defendant’s
office in Marina Lagos and that his letter of termination was also issued by
the 2nd Defendant as his employer as his services was no longer
required by the Defendants. The Defendants confirmed paying to the Claimant,
his three months ’salary in lieu of notice together with his other terminal
benefits, (gratuity and lump sum pension) as provided in their Conditions of Service.
The Defendants maintained that with the payment, they are no longer indebted to
the Claimant as the contract of employment between the parties was master and
servant relationship.
5.0. Claimant’s Written Arguments
In the Claimant’s Final Written Address at page 993
of the records, his Counsel formulated the following issues for the Court’s determination:
i. Whether
the Claimant’s employment was validly terminated
ii. Whether by the
evidence led, the Claimant is entitled to reliefs sought.
6.0. On
Issue One
Whether the Claimant’s employment was validly
terminated
Counsel submitted that by Exhibit ‘C.9’ titled “Offer
of Employment” the Claimant and 1st Defendant entered into a
contract of employment on July 31, 2006 and that the Terms and Conditions of
the Employment, is Exhibit ‘C10’. To Counsel, the 1st and 2nd
Defendants are separate entities in law and have separate powers to employ or
terminate their employees. He went on that Exhibit C.26 at page 753 of the
record, (C.A.C. Notice of Change of Name of Directors or in the name,
Residential or Postal Address) of the Claimant shows that the two Defendants
are separate legal entities. He contended that Exhibit ‘C10’ did not give the 2nd
Defendant power to determine the contract of employment between the Claimant
and 1st Defendant.
6.1. Counsel
continued that when a contract of employment is terminated without regard to
the Terms and Conditions of the Employment, it will be resisted and usually
declared wrongful with appropriate damages awarded to the plaintiffs or Claimants.
He cited the case of Samuel Isheno v.
Julius Berger Nig. Plc [2005] LPELR – 1544 SC per Onnoghen, J.S.C. He went
on that the Claimant’s employment was terminated via Exhibit C.20 without a
valid reason relating to his work capability or competence; see page 185 of the
record.
6.2. To
counsel, the common law principles of Master and Servant relationship where an
employer can hires and fire without any reason has been done away with. He
argued that Exhibit C10 did not empower the 1st Defendant to
delegate the termination of the Claimant Contract of Employment to the 2nd
Defendant. He argued further that Nigerian Oil and Gas Industry Content
Development Act, 2010 and the Guidelines made pursuant to Regulation 15(a) of
Petroleum Regulations 1969 (as amended), clearly show that the Defendants as
operators in the Oil and Gas Industry are duty bound by the procedure in that
Act for staff release in the Oil and Gas Industry in Nigeria, particularly,
Section 4.0 of the Guidelines, which the Defendants failed to follow.
7.0. On Issue 2
Whether by the evidence led, the Claimant is
entitled to reliefs sought.
Counsel to the Claimant submitted that the Courts
have established in a plethora of cases that where the termination of the
employee’s appointment is carried out contrary to the terms of the agreement
between the parties, the employee is entitled to damages for wrongful
termination of his employment, citing the case of NITEL Plc. v. Ocholi
[2001] 10 N.W.L.R. (Pt. 720) 188 where the Court of Appeal held thus: “In the event the termination of an
employee’s appointment is carried out contrary to the terms of the agreement
between the parties, the employer must pay damages for the breach.” He
further cited the cases of Mobil
Producing Nig. Unlimited v. Asuah
[2001] 16 N.W.L.R. (Pt. 740) 723; and Perm
Sec. v. Akinlaye [2000] 14
N.W.L.R. (Pt. 686) 100.
7.1. Counsel argued further that the CW2 waived
off Exhibit C. 23, (Expected Remuneration Stream of Uzodinma Aju Oworo, showing
the amount the Claimant would have earned as salary had he continued in the
employment of the 1st Defendant till 2037 and the terminal pension
due to the Claimant upon his retirement in 2037) that the exhibit is not
tenable. Counsel submitted that the payment of salary is a right which subsists
until the employment of the Claimant is lawfully terminated by the Defendants;
citing the case of B. A. Morohunfola v. Kwara State College of Technology [1990]
4 N.W.L.R. (Pt. 145) at page 506. He maintained that the remedies available for
breach of contract of employment of the Claimant are his salaries and other
emoluments, citing the case of Selcon
Tannery Limited v. Mr. Baka Abubakar
& Ors. (2018) 14 ACELR 100 as 104. He urged the Court to give
judgment in favour of the Claimant.
8.0. DEFENDANTS’
FINAL WRITTEN ARGUMENTS
In the Defendants’ Final
Written Address at page 1026 of the
records, counsel for the Defendants raised the following issues for
determination:
(i) Whether Claimant was employed by 1st
Defendant?
(ii) Whether the Claimant proved that his
employment was wrongfully terminated by the 2nd Defendant?
(iii) Whether Claimant has proved his entitlement to
each of the reliefs sought in this case?
9.0. Before arguing his framed issues, counsel
to the defendant objected to the admissibility of Exhibit C.25, which is
a copy of the Guidelines for Release of staff in
the Nigerian Oil and Gas Industry, 2015. Counsel argued that Exhibit C.25
at pages 750 – 752(a) of the record is not admissible in evidence because (i). It is not shown to have been made by
any authority of Government or a Department of Government; ii. It is not shown
to be a Gazette that the Honourable Court can take judicial notice of its
contents and iii. It is not a certified true copy of a public document given
under the hand of State Official in custody of it. He submitted that the
exhibit is therefore, not admissible in evidence. He referred to Sections
102(a), 104(1), 106 of the Evidence Act and also the case of Ekere
v. Emmanuel [2022] 11
NWLR (Pt. 1841) 339.
9.1. Counsel continued that the Exhibit in question is not signed neither is it
authenticated by anyone as its Maker. Therefore, he submitted that it is not
admissible, citing the case of Omega
Bank Nigeria Plc. v. O.B.C Ltd. [2005] 8 NWLR (Pt. 928) 547 @ 576 paras E-F, where the court per Musdapher
JSC (as he then was) held that: “--- where a document is not signed, it may not be
admitted in evidence. Even if it is admitted in
evidence, the Court should not attach any probative value to it. This is because a document not signed, has no
origin in terms of its maker.”
9.2. Counsel
argued further that the Exhibit was not in existence at the time the Claimant
was employed and that the Claimant has not shown the Court that it is relevant
to this case as there is no evidence showing that it was incorporated into the Claimant’s
contract of employment, citing the case of Chukwuma v. SPDC [1993] 4 NWLR (Pt. 289) 512 @ 543 H-A &
544 E-F & 567 B-D. He urged the Court to expunge Exhibit C.25 and not to
rely on it in this judgment.
10.0. On
Issue One
Whether Claimant Was Employed By 1st Defendant?
Counsel
for the Defendants submitted that the Claimant did not tender any evidence to show that he
was employed by 1st Defendant. He continued that during his cross
examination, the Claimant admitted that it was the 2nd Defendant
that employed him and that the letter of acceptance, Exhibit C.20 – Letter of Release from 2nd Defendant at page
185, same as Exhibit D.5 at page 880 was addressed to the 2nd Defendant
by the Claimant. Counsel contended that the Claimant’s entire claims ought to
be dismissed based on his admissions, citing the case of Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 @ 475.
11.0. ISSUE TWO:
Whether The Claimant
Proved That His Employment Was Wrongfully Terminated By The 2nd Defendant?
To Counsel, since the Claimant
could not prove that he was employed by the 1st Defendant neither
could he contradict the evidence of the 2nd Defendant of being his employer;
he maintained that it was the 2nd Defendant’s right to fire the Claimant
at will as well. Counsel further argued
that a person that has the right to hire has the right to determine the
employment. He continued that it is the law that it is within the right of
either the employer or the employee to determine their contract of employment,
citing the cases of Obanye v. UBN Plc. [2018] 17 NWLR (Pt. 1648) 375 SC and Spring Bank Plc v. Babatunde [2012]
5 NWLR (Pt. 1292).
11.1. In addition, Counsel argued that the Defendants
rely on Exhibit D.2, the Letter of Employment dated July 31, 2006 issued by 2nd
Defendant to Claimant and Exhibit D4 and the Claimant’s Letter of Acceptance of
that Employment; see pages 877 and 879 of the record. Counsel contended that both
exhibits confirm that there was a contract of employment between Claimant and 2nd
Defendant. The letter of termination of the Claimant’s employment (the letter
of release from company service) is Exhibit D5 and dated April 4, 2016 at page
880 of the record and that by letter to the 2nd Defendant, the Claimant
accepted to undergo final medical examination after the termination in Exhibit
D6, see page 881 of the record.
11.2. Counsel submitted on the issue raised by the Claimant
that the letter of termination captioned “Release from Company Services”
(termination of the Claimant’s employment) is a disciplinary action and
therefore unlawful that Exhibit C.20 at page 185 of the record, same as Exhibit
D.5 at page 880 did not convey a disciplinary action or decision against the Claimant
but simply exercised a contractual right to terminate the contract by the 2nd
Defendant. Counsel also argued that the reason contained therein for the
termination in Exhibits C.20/D.5 is that the services of the Claimant was no
longer required. To him, intention and motive of the termination is irrelevant once the terms of
the employment were complied with and relied on the case of Agbo
v. CBN [1996] 10 NWLR (Pt.
478) 370 @ 377 E-G.
11.3. On
the Claimant’s Claim that he was employed to serve the Defendants until 2037 which was cut short by
Exhibit C.20 (Letter of Termination), counsel to the Defendants submitted that
Exhibits C.9/D.2; (same letter of employment by the
2nd Defendant at pages 39 & 877 of the record) by which Claimant
was employed, imposed no duty on the 2nd Defendant to employ Claimant
until 2037 neither did it give to the Claimant a right to be employed up till
2037. Counsel continued that the Claimant’s employment is not one with statutory
flavour and that Exhibit C10 (terms and conditions of employment at page 40 –
164 of the record) did not give any right to the Claimant to remain in the
employment till 2037. He argued further that by Exhibit C10, the 2nd
Defendant has right to terminate the employment of the Claimant under clause
1.82(c) of Exhibit C10.
11.4. On the Claimant’s reliance on Exhibit C.22 (Termination of
Employment Convention C.158 of 1982 of the ILO) that the Defendant must give
valid reason related to performance of work for the Claimant’s dismissal;
Counsel submitted that Exhibit C.22 was neither adopted by nor incorporated in
Exhibits C.9 and C.10 as part of the Claimant’s terms and conditions of the
contract of employment. Counsel argued again that Exhibit D.7 (Ratification of
termination of employment convention C158, 1982 at pages 641 & 642 of the
record) and Exhibit D8 (Certificate of compliance in line with section 84 E. A.
at pages 780 & 781 of the record) proved that Nigeria has not ratified the
convention and that by virtue of Sections 12 and 254 C (1) (2) of the
Constitution of the FRN 1999 (as amended), this Court lacks the power or
jurisdiction to apply it; relying also on Abacha
v. Fawehinmi [2000] 6 NWLR (Pt.
660) 228 @ 356 – 357.
12.0. On Issue Three
Whether The Claimant has
proved his Entitlement to Each of the Reliefs Sought in this Case?
Counsel contended
that the Defendants have
sufficiently made the point that Claimant did not prove this claim by
preponderance of evidence and submitted that by the oral evidence of DW1 and
DW2 together with the documentary evidence tendered, the declaration sought
cannot be granted on the basis of the incredible oral evidence of the Claimant
before the Court.
12.1. On the Claimant’s application for orders to
set aside Exhibit C.20, Counsel submitted that it is not an illegal letter and
no illegality was proved by the Claimant as it effectively determined the
contract of employment. He relied on A. G. Adamawa v. A. G. Fed. [2005] 18 NWLR (Pt. 958) 583 and Lakanmi
v. Adene [2003] 10 NWLR (Pt. 828) 354. He again submitted that the
Claimant’s arguments on Exhibits C.18 – warning letter of June 19, 2015 at page
183 and C.19 another warning letter of September 30, 2015 at page 184 are
merely academic, as the Claimant did not complain when he received them.
12.2. On the alleged terminal entitlements of
N2,031,341,289.18 as Claimant’s salaries till 2037, the sum of N273,841,716.95 as
his gratuity upon retirement in July 2037 and the sum of N2,053,812,877.11 as
his total pension due upon retirement in 2037; Counsel submitted that
these claims, by their nature are in the realm of special damages and they must
be specially pleaded and strictly proved; citing the cases of F.H.A.
v. Warner 1986 5 NWLR
(Pt. 42) 473; Ajagbe v. Idowu
[2011] 17 NWLR (Pt. 1276) 446 and Calabar East Co. Op v. Ikot (1999) 14 NWLR (Pt. 638) 225.
12.3. Counsel continued that Claimant failed to
prove each of the heads of his Claims, but that the terminal benefits due to
and paid by 2nd Defendant to the Claimant under the contract was
pleaded by the 2nd Defendant and the Claimant admitted it by his
pleading and evidence that he received all the sums pleaded by the Defendants. Counsel
went further that the expert witness called by the Claimant (CW2) offered no
proof or credible evidence to substantiate any of the monetary claims in the
Statement of claim and that CW2 did not show that he is qualified as an expert
to compute the salary, pension or gratuity as he did neither did he demonstrate
that he is an expert in pension or gratuity matters, citing the cases of Tuah
v. Michael [2010] 10
NWLR (Pt. 1203) 519 and Oguonzee v. State [1998] 5 NWLR
(Pt. 551) 521.
12.4. On the Computation of the Claimant’s Three
Months’ Pay in Lieu of Notice, counsel submitted that in the determination of the 3 months’ salary in
lieu of Notice, the Exhibit C10 provides 3 months’ basic pay (Net of
PAYE TAX); he referred to clauses 1.81.1 and 1.82(c) of Exhibit C 10. He went
on that CW2 did not compute on the basis pay as provided in Exhibit C10 but
wrongly did on the basis of “assumed incremental salary of 10% which is not
provided in Exhibit C10” and arrived at the wrong sum of N2,031,341,289.18.
Counsel stated further that the gratuity computation and lump sum compensation
claimed were not derived from Exhibit 10 and submitted that the Claimant failed
to prove his alleged entitlements in line with Exhibit C10. Therefore, he is
not entitled to the reliefs claimed. He
urged the Court to resolve this issue against the Claimant and to dismiss it in
its entirety.
13.0. Defendants’ Reply on Points of Law to Claimants’
Written Address.
Counsel submitted that the Claimant’s argument that 1st and 2nd Defendants are separate entities
and not affiliate companies does not hold waters as the Claimant
overlooked Exhibit C.9 that he tendered in evidence and his letter of
acceptance of Exhibit C9 which is Exhibit D4. He continued
that with Exhibits C9 & D.4 before the court, the Claimant is
estopped from turning back and arguing that 2nd Defendant is not his
employer, referring to section.168 of the Evidence Act, 2011 (as
amended) and the Courts’ decisions in Chukwuma v. Ifeloye [2008] 18 NWLR (Pt. 1118) 204; Ondo State University. v. Folayan
[1994] 7 NWLR (Pt. 354) 1 @25 on the legal principles of estoppel by
conduct. He again referred to Cyprian v. Uzo [2015] LPELR- 40764 and International Drilling Co. Nig. (Ltd.) v. Ajijola [1976] 1 All NLR 117 at 130.
13.1. Counsel continued that by the letter of employment Exhibit C9,
there is Privity of contract established between Claimant and 2nd Defendant. He urged the Court to reject the Claimant’s
argument that an employer must furnish a valid reason for terminating an employee’s
employment when the employer has acted within the scope of the contract, citing
the case of Oak Pensions Limited &
Ors. v. Mr. Michael Oladipo Olayinka [2017] LPELR- 43207(CA).
13.2. On the issue of recourse to the Minister of Petroleum in
the Guidelines for the release of staff in the Oil and Gas Industry in Nigeria,
he referred to paragraphs 2.2, 2.3, 3.14 – 3.16 of Defendants’ final written
address that the Guideline are inapplicable. To him, no such power is conferred
by any Act of the National Assembly or the Constitution of the FRN to regulate
the employment relationship in a private company, citing Michael Smith Atoe v Petrofac Energy Services Nig. Ltd.
(Unreported) Suit No. NICN/LA/506/2015 and Chukwumah
v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512.
14.0. COURT’S DECISION
I have carefully read through the facts of this
case as pleaded and testified on by the parties in this case; including the
contents of various exhibits tendered by the parties. I have also read through
the written arguments of counsel to the parties together with their cited
authorities, both case and statute laws. In all of these, I am of the considered
view that the following issues need to be resolved between the parties by this
court:
i.
Was Exhibit C.25; the
Guidelines for release, rightly admitted and is it applicable to this case?
ii.
Who was the employer of
the Claimant; the 1st or 2nd Defendant or both of them?
iii.
Was the Claimant’s
employment rightly determined?
iv.
Is the Claimant
entitled to his reliefs sought: a. the sum of N2,031,341,289.18k
as his expected total salary and emoluments from April 2016 to July 30, 2037; b. the sum of N273,841,716.95k as his gratuity upon
retirement in July 2037; c. the sum of N2,053,812,877.11
as his total annual pension due for 15 years upon retirement in July 2037?
15.0. RESOLUTION OF ISSUES
16.0. ISSUE
ONE: Was Exhibit C.25; the
Guidelines for release, rightly
admitted and is it applicable to this case?
Exhibit C.25 is titled: “Guidelines for the release
of staff in the Nigerian Oil and Gas Industry, 2019.” it is at pages 750 to
752(a) of the record. Each page of this Exhibit has the logo and name of
Department of Petroleum Resources. However, its author or maker is not known.
The Court does not know whether this Exhibit is a public document and if it is,
the part of the Government that made it. The Court is not sure whether the
exhibit is the complete document or a part of that document. In short, I find
in this circumstance that the provision of the Evidence Act, 2011 (As Amended)
particularly sections 102, 104 and 106 thereof were not complied with in exhibiting
this document before the Court and I so hold.
16.1. Besides,
this suit was initiated in this Court on June 29, 2016 (see page 1 of the
record) while this document, Exhibit C.25; the Guidelines for the release of
staff in the Nigerian Oil and Gas Industry was made in year 2019, see pages 750
to 752(a) of the record. It means the Exhibit was made three years after this
matter was instituted and proceedings on it had commenced. By the provision of
section 83(3) of the Evidence Act, 2011 (As Amended), I find that Exhibit C.25
is not relevant to this case and that it was wrongly admitted in evidence.
Consequently, I hold that Exhibit C.25, titled: “Guidelines for the release of
staff in the Nigerian Oil and Gas Industry 2019” is not relevant to this case
and it was wrongly admitted in evidence in this case. The exhibit will not be
considered in this judgment and it is accordingly expunged from this case.
17.0.
Who was the employer of the Claimant; the 1st
or 2nd Defendant or both of them?
On this issue the Claimant’s
position is that the 1st Defendant was his employer because he was
employed by it via a letter of offer of
Employment dated July 31, 2006 as the
Shipping/Customs Supervisor in its Logistics Department. He went on that on
August 2, 2007 the 1st Defendant confirmed his appointment and that
due to his hard work, honesty, diligence and satisfactory manner he discharged
his official duties; the 1st Defendant promoted him several times
until he was given the position of Well/Warehouse Yard Drilling Coordinator.
17.1.
On the other hand, it
is the Defendants’ contention that the Claimant was employed by the 2nd
Defendant as Shipping/Customs Supervisor in the Logistics Department and
seconded to 1st Defendant. They contended further that there is
collaborative work arrangements between the 1st and 2nd Defendants
as affiliated companies in maintaining a uniform Human Resources Policy and
Terms and Conditions of Service for their individual employees. To the 2nd
Defendant, from August 3, 2006 to April
4, 2016; the Claimant was its employee who was assigned to work with the 1st
Defendant. The Defendants continued that as his employer, the 2nd Defendant
also issued the Claimant’s letter of termination.
17.2.
The DW2 (Defendant
Witness 2), Mr. Moses Ajika stated in paragraph 7 of his witness statement on
oath that the 1st and 2nd Defendants as affiliate
companies work collaboratively in many respects, including maintaining a
uniform Human Resources Policy and terms and conditions of Service for their
individual employees. He went on that both Defendants also have arrangements by
which the 2nd Defendant seconds its employees to work for the 1st
Defendant from time to time. He explained that under such Secondment
arrangements, the 1st Defendant is authorized to manage such
employee’s day to day work schedule, administer his career including
promotions, issue necessary personnel correspondences and also pay his
remunerations as specified. The Defendants went on that, regardless of the
arrangement in question between the two Defendants, the Employer/Employee’s
relationship between the 2nd Defendant and its individual employee
on Secondment remains intact until the determination of the employment by
either party.
17.3.
In addition, the letter
of employment, which the Claimant relied on in this case is Exhibit C.9, it is
at page 39 of the record. It was issued by the 2nd Defendant on July
31, 2006. The 1st paragraph of this letter states inter alia:
“--- We are pleased to offer you
employment as Shipping/Customs Supervisor in the Logistics Department of our
Shell Nigeria Exploration and Production Company (SNEPCO) ---”
17.4.
Also, in support of the
Defendants’ arguments on this point, they exhibited two documents, which are:
i. Exhibits D.2 titled ‘Offer of Employment’ at page 877. This exhibit is the
same as Exhibit C.9 and ii. Exhibit D.4 at page 879, titled: ‘Offer Acceptance/Rejection
slip’. It is signed by the Claimant on August 3, 2006 and addressed to the 2nd
Defendant. In Exhibit D.4, the Claimant informed the 2nd Defendant
that he will assume work on August 24, 2006. From these findings of this court,
it is clear that it was the 2nd Defendant that employed the Claimant
and it was also to this 2nd Defendant that the Claimant submitted
his letter of acceptance of his offer of employment. Furthermore, in the letter
of employment, Exhibits C.9 and D.2, the employment in question was given to
the Claimant in the Logistics Department
of - Shell Nigeria Exploration and Production Company (SNEPCO). In other
words, the 2nd Defendant employed the Claimant to work for the 1st
Defendant and I so find.
17.5.
In the case of PENGASSON v. Mobil Oil Producing Nigeria
Unlimited [2013] 32 NLLR (Pt. 92) page 323 (paras B-F) and page 325
(paras c-d), the Court held that the determination of the existence of an
employment relationship should be guided by the facts of what was actually
agreed on and performed by the parties and not by the name that the parties
gave the contract. The Court held further that the existence of an employment
relationship between parties depends on certain objective conditions being met;
such as, the form in which the worker and the employer have established their
respective positions, rights and obligations, and the actual services to be
provided.
17.6.
In appropriate cases,
the courts have upheld the existence of a co-employer status between two
employers in relation to an employee (otherwise known as the Triangular
Employment). In the present circumstance therefore, I find that the 2nd
Defendant was the primary employer of the Claimant, while the 1st Defendant,
with whom the Claimant actually worked, was his secondary employer. Consequently,
I hold that the two Defendants before the Court were co-employers of the Claimant
and that there was a Triangular Employment relationship between the parties in
this case. See also the unreported decision of this Court per Agbadu-Fishim J.
NIC in the case between Zakariah
Ishaya v. Fidelity Bank Plc. Suit No: NICN/YL/04/2017, Judgment of
which was delivered on October 14, 2024.
18.0.
Was The Claimant’s Employment Validly Determined?
The letter of termination of the Claimant’s
employment was issued on and dated April 4, 2016. This letter is Exhibits C.20
& D.5 in this case. Exhibit C.20 is at page 185, while Exhibit D.5 is at page
880 of the record. The Exhibit is titled: ‘Release from Company Service’ and it
was issued by the 2nd Defendant. The Exhibit states in part:
We refer to the contract of service between this company
and yourself and wish to inform you that your services are no longer required
with effect from Wednesday 6th April, 2016. Your final date on the
company’s pay-roll will therefore, be Tuesday 5th April, 2016 and
you will be paid your current salary and allowances up to and including that
date.
Attached is a cheque for N2,644,403.48 (Two
Million, Six Hundred and Forty Four Thousand, Four Hundred and Three Naira,
Forty Eight Kobo only) being three months’ basic salary (Net of tax) in lieu of
notice. All other contractual entitlements up to 5th April, 2016
including your end of service benefits payments will be paid to you less your
indebtedness (if any) to the company. ---.
18.1.
The Claimant’s argument
is that, his employment was not validly determined because, no reason was given
for the said determination or release. However, the Defendants’ contended that
the contract of employment between the parties is that of Master and Servant in
which the employer can terminate the employment of his employee with bad or no
reason at all.
18.2.
Let me make a clear
point straight away here that presently, Labour jurisprudence has evolved pass
the common law and colonial (slavery) era when an employer can just waking up
one day and fire his employee with bad reason or with no reason at all. It is
judicially noticed that with effect from October 1, 1960; Nigeria got its
independence from Britain. From then onward, every Nigerian, including all employees
in various types of employments; either public, private or even ‘employee at
will’ are no more treated as slaves but as human beings with some basic rights
and dignities. It is therefore, absurd in my firm view that after close to
seventy years of independence, it is still being contended in Nigerian courts
that some of these draconian, inhuman and slavery laws/practices of
pre-independent era backed by common law like the one being considered in the
instant case; should still be said to be applicable in this country.
18.3.
By the agreement of the
parties in the instant case, the Claimant worked with the Defendants for close
to ten years; from August 2006 to April 2016. During this period, his
employment was confirmed with effect from August 24, 2007; see Exhibit C.11 at
page 165 of the record. This means that the said employment was permanent and
pensionable. The Claimant was promoted to ‘Salary Group 6’ with effect from October 1, 2010;
with his basic salary increased from N3,368,949.00 to N7,423,002.00 per annum
with other increased allowances attached, see Exhibit C.14 at pages 166 &
167 of the record.
18.4.
In addition, on March
21, 2007 the Claimant was given ‘Special Recognition Award to Offshore Supply
Base’. See Exhibit C. 12 at page 181 of the record. Again, on June 1, 2015; he
was given ‘Special Appreciation and Recognition Award’; see Exhibit C.13 at
page 182 of the record. These four Exhibits were issued by the 1st Defendant
to the Claimant and the Defendants did not challenge their authenticities. In
my considered view, it will be very unfair, inhuman and unjust in the
circumstance, to allow the Defendants; though private companies, to treat the Claimant
with disdain as they did here, by merely dispensing with his services without
any reason after close to ten years of his service with them and also
regardless of his high position and valuable contributions to service of the Defendants,
which they duly acknowledged with various awards and promotions.
18.5.
Besides, by the
provision of section 254C (1) (f) & (h) of the supreme law of Nigeria, the
Constitution of the Federal Republic of Nigeria, 1999 (As Amended by 3rd
Alteration Act, 2010); this Court is allowed to apply International Best
Practices and International Labour Standard while adjudicating on labour matters.
One of such Practices and Standards is International Labour Organization
Convention No.158 on Termination of Employment (1982). Basically, this
Convention states that the termination of employment of an employee should be
with valid reason and that such reason should be connected with the performance
of the employee’s work or based on the operational requirement of his
Establishment (the two Defendants). This is the global labour Law position and
practice on employment relationship now; it is the current International labour
Standard and International best practice. Even though this Convention has not
been ratified by Nigeria, section 254C (1) (f) & (h) of the Constitution of
the FRN, 1999 (As Amended) still allows this court to look at it and consider
it while adjudicating on cases like the one at hand. See the case of Ebere Onyekachi Aloysius v. Diamond Bank
Plc. [2015] 58 NLLR (Pt.199) 92 at page 134 paragraphs A – F. NIC.
Moreover, Nigeria cannot operate in isolation as it is part of the globe. Thus,
Nigeria must move as the globe moves and rotates.
18.6.
Furthermore, the 2nd
Defendant issued the Claimant two different warnings in this case via Exhibits
C.18 and C.19; see pages 183 and 184 of the record. Exhibit C.18 is dated June
19, 2015 and it states:
We
refer to investigations into a report of breaches of Shell Business Principles
(SGBP) and Shell Code of Conduct (SCoC) section on Protection of Assets in the procurement
process for five sizes of Yoko-Rub Sea Rlex hoses (Single Point Mooring (SPM)
required for Bonga FPSO operations in 2013.
We wish
to inform you that this matter has been extensively investigated and the facts
of the case, including your explanations noted. The investigations established
that you used "Dummy Values" in raising Work Orders instead of
indicating the actual cost of the hoses which were available in SAP at the time
of raising the request and also splitted the Work Orders to align with NAPIMS
allowable threshold per requisition to avoid requisite approvals ("Salami
Slicing"). Your behaviour is viewed as intentional breach of Company
procurement procedures and Core Values of integrity and honesty.
Your
behaviour is viewed with serious concern by the Company, for which you are
hereby issued a WRITTEN WARNING. A copy of this first warning will be placed in
your file. You are advised to guard against a reoccurrence of this behaviour,
as any future misconduct on your part will attract more severe disciplinary
actions from Management.
Exhibit C.18 is signed by Goy
KENT; Senior Procurement Manager CP Upstream Nigeria, for the 2nd Defendant.
18.7.
Again, on September 30, 2015 the 2nd Defendant
through this same Goy Kent wrote another letter of warning to the Claimant
(Exhibit C.19), the letter states:
We
refer to investigations into a report of breaches of Shell Business Principles
(SGBP) and Shell Code of Conduct (SCoC) section on Protection of Assets in the
procurement process for eight (8) units of Refrigerated Containers for SNEPCo
operations in 2013.
We
wish to inform you that this matter has been extensively investigated and the
facts of the case, including your explanations noted. The investigations
established that you used "Dummy Values" in raising Work Orders
instead of indicating the actual cost of the hoses and also splitted the Work
Orders to align with NAPIMS allowable threshold per requisition to avoid
requisite approvals ("Salami Slicing"). Your behaviour is viewed as
intentional breach of Company procurement procedures and Core Values of
integrity and honesty.
Your
behaviour is viewed with serious concern by the Company, for which you are
hereby issued a FINAL WRITTEN WARNING. A copy of this will be placed in your
file. You are advised to guard against a reoccurrence of this behaviour, as any
future misconduct on your part will attract more severe disciplinary actions
from Management.
18.8.
It was after this 2nd
warning that the 2nd Defendant issued the Claimant with letter of
release, Exhibits C.20 & D.5 and determined his employment in April 2016
with no reason. The Defendants neither challenged nor controverted issuing the
two warnings letters to the Claimant prior to the determination of his
employment. This means that the 2nd Defendant actually issued Exhibits
C.18 & C.19 to the Claimant and I so find. From the contents of Exhibits
C.18 & C.19, the Defendants viewed the behaviours
of the Claimant complained of as intentional
breach of Company procurement procedures and Core Values of integrity and
honesty. Why did the Defendants then not state their purpose of the Claimant’s
release in his letter of release, more so that copies of the two warning
letters were filed in his confidential file?
18.9.
It is my considered
view that the justice of this matter demands that the reason(s) for the
determination of the Claimant’s employment ought to have been stated in his
letter of release, Exhibits C.20 & D.5 but the Defendants failed to state
any reason. Courts, including this Court have always been described as Temples
of Justice, while Judges and counsel, even including Court Registrars are
Ministers of various grades in these sacred Temples. This means that none of
the minsters in this hallowed Temple is allowed to hide any relevant fact that
could aid the delivery of justice in any particular case from the Temple. This
is because, justice must be seeing to be clearly done in each case by litigants
and the public at large. I find in this circumstance that for the Defendants’
failure to state the reason(s) for the release of the Claimant from their
employment, the Defendants did not properly determine the employment of the Claimant.
Consequently, I hold that the employment of the Claimant in this instance, was
wrongfully determined by the Defendants. For this wrongful determination of the
Claimant’s employment, the Defendants are to jointly pay him his two years’
salary as a model compensation at the rate of N7,423,002.00 (Seven Million,
Four Hundred and Twenty Three Thousand and Two Naira) per annum.
19.0.
Issue 4: Is
the Claimant entitled to his reliefs sought: a. the sum of
N2,031,341,289.18k as his expected total salary and emoluments from April 2016 to July 30, 2037;
b. the sum of N273,841,716.95k as his
gratuity upon retirement in July 2037; c. the sum of N2,053,812,877.11k as his total annual pension due for 15 years upon
retirement in July 2037?
Relief four endorsed on the Claimant’s complaint is
for the sum of N2,031,341,289.18k as his
expected total salary and emoluments from April 2016 to end of July 2037. His relief
Five is for the sum of N273,841,716.95k as his gratuity from the 1st
Defendant upon his retirement in July 2037. And his relief Six is for the sum
of N2,053,812,877.11k; being his total annual pension from the Defendants for 15
years upon retirement in July 2037. See the endorsements on his complaint at
page 2, and his pleadings at page 6, particularly, paragraph 48 at pages 18 and
19 of the record.
19.1.
It is not stated in the
Claimant’s letter of employment, Exhibits C.9 & D.2 that his employment
with the Defendants will last till year 2037. Furthermore, there is no
provision in the terms and conditions of his employment, Exhibit C.10 that he
can make these claims on his employment up to year 2037. Moreover, the Claimant
did not lead evidence to the fact that his employment with the Defendants was
with statutory flavour as there is nothing before the Court showing that his
employment was either created by statute or that the determination of the said
employment must be in compliance with the provision of any law, statute or
Rules made from a statute.
19.2.
In the case of Adedeji & ors v. CBN & Anor
[2022] LPELR-59629 (SC) the Supreme Court held that in a contract with
statutory flavour, the conditions for appointment and termination of the
contract are governed and protected by an enabling statute or regulations made
from statute. See also another recent Supreme Court decision on the same
principle in Ovivie &Ors .v. Delta
Steel Co. Ltd [2023] LPELR-60460 (SC). Therefore, since there is no
evidence before the Court that the Claimant’s employment with the Defendants
was with statutory flavour, it is my finding and holding that the Claimant had
a Private Employment with the Defendants; which was formerly known as Master
and Servant Relationship. In Private Employments, the rights and obligations of
the parties are strictly based on the terms and conditions of the employment;
which in the instant case are stated in Exhibits C.9, D.2 and C.10.
19.3. In the case of Sakamori Construction (Nig.) Ltd v. Lagos State Water Corporation
[2021] LPELR-56606(SC) Per Mary Ukaego Peter-Odili, JSC (Pp 71 - 72 Paras E -
B) held that “this Court has repeatedly warned that Courts of law must avoid
mere conjectures and speculation in the determination of cases”. Furthermore,
in Juwape v. Gov of Lagos State &
Anor [2025] LPELR-81599(CA), the Court of Appeal quoted with approval
its decision in the case of Unanowo v.
Union Bank [2018] LPELR-47307(CA) (PP. 67-68 para. A), in which it held
that: "Now, it is the law that a Court of law, not being a traditional or
spiritual medium, should not base its decision on mere conjecture or
speculation but rather on facts and evidence as presented by the parties. Thus,
the duty of the Court is to decide issues on the facts as established before
them by evidence and on the law. This is so because a Court is only but a Court
of law and fact. It must therefore, at all times avoid relying on conjectures
or mere surmise or sympathy and or glorifying mere speculations without any
hard concrete evidence in proof thereof. See Isah v. State [2007] 12 NWLR (Pt. 1049) 582 @ p. 614, where
it was held inter alia that: "A trial Court must not base its decision on
speculation and extraneous matters not supported by evidence before it as this
will occasion miscarriage of justice. In other words, the Court's finding must
be supported by concrete and real evidence and not speculation." --- See these
other cases: Ejezie v. Anuwu [2008]
12 NWLR (Pt. 1101) 446 @ p. 490; Agip
(Nig.) Ltd. v. Agip Petroli Int'l [2010] 5 NWLR (Pt. 1187) 348 @ p. 413
and ACB Plc. v. Emostrade Ltd.
[2002] 8 NWLR (Pt. 770) 501." Per Uwabunkeonye Onwosi, JCA (Pp 13 - 14
Paras B - C)
19.4. The
Law is that, he who asserts must prove. See the case of West Africa Examination Counsel v. Oshionebo [2015] NLLR
(Pt.187) 165 at 189 paras. C-E, where the Court held that the case of a
plaintiff (Claimant in the instant case) stands or falls upon his own evidence
and not upon the weakness of the defence; and that he who assets must prove,
see again Obaje v. Nama [2023]
LPELR-61645 (SC). And so, because the Claimant’s employment with the Defendants
was not with statutory flavour and it was not for a fixed period that was to
end in July 2037, I hold that he is not entitled to the sum of N2,031,341,289.18k he is claiming as his
expected total salary and emoluments from April 2016 when his employment was
determined, to end of July 2037; regardless of the fact that I have held in
this judgment that the determination of his employment was wrongful. I further hold
that the Claimant failed to prove this claim; the claim is accordingly declined
and dismissed.
19.3.
The Claimant is also
claiming the sum of N273,841,716.95k as his gratuity upon retirement in July
2037. Issue of gratuity claim is a special claim or damages that must be
clearly pleaded and strictly proved. The Claimant is required to prove his
entitlement to this claim on the balance of probabilities in line with the
provision of sections 134 and 136 (1) of the Evidence Act, 2011 (As Amended) but,
the Claimant failed to prove his bases for this claim in the instant case and I
so hold. Therefore, I further hold that this claim lacks merit, it is
accordingly declined and dismissed.
19.4.
Again, the Claimant is
claiming the sum of N2,053,812,877.11 as
his total annual pension for 15 years upon retirement in July 2037. I find that
this claim too is not supported by any of the clauses in the terms and
conditions of his employment in Exhibits C.9, D.2 or C.10. In the circumstance,
I hold that the Claimant failed to prove his entitlement to this claimed sum to
the satisfaction of the Court as required in the Evidence Act, 2011 (As
Amended). Relief 6 is accordingly declined. As found and held above, the last
three claims of the Claimant from April 2016 to 2037 are speculative. From the record,
the facts of this contract ended in April 2016 and so, any other claim by the Claimant
thereon are based on speculations, which this court does not recon with based
on the case law principle enunciated above. Consequently, I hold that reliefs
4, 5 & 6 as endorsed on the Claimant’s complaint lack merit and they are
accordingly dismissed.
20.0.
On the whole, I hold
and order as follows:
i.
I hold that Exhibit
C.25; “the Guidelines for release, 2019” was wrongly admitted in evidence, it
is not applicable to this case and it was discountenanced in this judgment.
ii.
I hold that the two Defendants
were co-employers of the Claimant in this case.
iii.
I hold that the
employment of the Claimant was wrongly determined.
iv.
I hold that for the
wrongful determination of the Claimant’s employment, the Defendants are to
jointly pay him his two years’ salary as a model compensation at the rate of
N7,423,002.00 (Seven Million, Four Hundred and Twenty Three Thousand and Two
Naira) per annum.
v.
I hold that the Claimant
is not entitled to his reliefs 4, 5 and 6; which are for the sum of N2,031,341,289.18k as his expected total
salary and emoluments from April 2016 to
July 30, 2037; the sum of N273,841,716.95k
as his gratuity upon retirement in July 2037 and for the sum of N2,053,812,877.11 as his total annual
pension due for 15 years upon retirement in July 2037. This is because, these
reliefs were not supported by the terms and conditions of the Claimant’s
employment and by his evidence before the Court. They are speculative and they
are accordingly declined and dismissed.
vi.
I hereby direct that
the two Defendants to jointly pay N500,000.00 to the Claimant as cost.
vii. I further direct the Defendants to pay the judgment
sum of N7,423,002.00 X 2 years, which equals to N14,846,004.00 plus N500,000.00
which comes to a total sum of N15,346,004.00 (Fifteen Million, Three
Hundred and Forty Six Thousand and Four Naira) only to the Claimant within thirty
days from today.
21.0.
Judgment is entered
accordingly.
-------------------------------------------
Hon. Justice F. I.
Kola-Olalere
Presiding
Judge