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Yenagoa –His Lordship, Hon. Justice B. A. Alkali of the National Industrial Court of Nigeria, Yenagoa Judicial division on Thursday 21th February 2019 in a judgment dismissed case filed by Mr. Toritse Mller Martins (Claimant) against DON MAC LIMITED & Anor (defendant) for lacking merit.
On 21st of September, 2017, the claimant by way of complaint sought against defendant among others; A DECLARATION that the Defendants breached the terms of the Claimant’s contract of service as provided in the Memorandum of Understanding dated the 28th day of September 2016, executed by the Parties.
AN ORDER compelling the Defendants to pay the balance contract sum of N25, 170,250.00 (Twenty Five Million, One Hundred and Seventy Thousand, Two Hundred and Fifty Naira) only to the Claimant, being the amount of money for which the latter was short-changed by the Defendants for a period of eight months.
Likewise, AN ORDER compelling the Defendants to pay the sum of N10, 000,000.00 (Ten Million Naira) only to the Claimant, being general damages for the Defendants’ breach of contract and cost of litigation.
The brief fact of the case is that the Claimant was a welder and an employee of the 1st Defendant in the provision of Offshore Pipeline Construction Services. The Claimant was engaged along with 15 other welders in respect of a Pipeline Replacement Subcontract.
Claimed that Defendants have breached the terms of the Memorandum of Understanding they entered into. The Claimant further claimed that by the said MOU, he and his group were supposed to be paid N3,800 per inch welding on the circumference of each pipe, multiplied by the total number of pipe joints. To him, despite expecting payments to be made to him at the end of each month based on the circumference of each pipe joint, the Defendants rather paid him based on the diameter of the pipe joints, thereby short-changing him and his group members.
After several complaints, the Claimant approached his lawyers to write the Defendants compelling them to comply with the contract of service as provided for in the MOU.
Under cross-examination, the Claimant stated that MAC DONALD AMADI - 2nd Defendant was not a signatory to the MOU, just the Managing Director of the 1st Defendant.
The Defendants witness averred that it was not the agreement between the Defendants and welders that payment will be made based on the circumference of each pipe joint welded.
When placed under cross-examination, defendant witness testified there was nothing in the agreement which suggested that they were to be paid based on the pipes they welded either in circumference or diameter but that it was the agreement between the welders and the 1st Defendant that they will be paid based on diameter.
Learned Counsel for the Defendants asked for determination whether the 2nd Defendant is a necessary party to this suit and or Whether from the evidence adduced before this Honourable Court, the Claimant has discharged the evidential burden placed on him by the law
In reply, Learned Counsel to the Claimant submitted that the number of joints welded by him and his team ought to be calculated based on the circumference of the pipe and not based on the diameter of the pipe.
After careful evaluation of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice B. A. Alkali held that no reasonable cause of action against the 2nd Defendant linking him to the matter in controversy and expressed thus;
“I have looked at Memorandum of Understanding and I do not find contained therein any clause which suggests payment to be calculated using either diameter or circumference.
“For an objective settlement of this vivacious but persistent issue, I have had to place reliance on MOU and Qualification Test which showed the type of pipes and the calculation used during the Welders’ Qualification Test and which Parties also admitted is similar to the pipes worked on at the site of the construction. It is not in doubt that the calculations were made on a 16 inches diameter with nothing suggesting otherwise.
“This Court also took its time to consider the application of pipe welding calculations as is obtainable in the welding practice and came to the realization that in construction projects, both Inch Diameter and Inch Metre are generally considered as units for measurement of quantum of piping jobs (mainly for welding/erection of piping, hydro test measurements). “This being the general usage or custom of the business of welding, satisfies this court on the determination of the issue.
“Having said that, I resolved all the issues in favour of the Defendant, I hold that all the reliefs sought by the Claimant must fail. The case of the Claimant is hereby dismissed. I so hold.”
