IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

BEFORE HER LORDSHIP HON. JUSTICE ELIZABETH A. OJI, PhD

 

DATE:  THURSDAY 2ND JULY 2020              

SUIT NO: NICN/LA/118/2018

 

BETWEEN

MOSES ONI                                                                                        CLAIMANT

AND

PAN OCEAN OIL CORP. (NIG) LTD                                                  

DR. F.A. FADEYI                                                                                        

NATIONAL PETROLEUM INVESTMENTS

MANAGEMENT SERVICE (NAPIMS)                                                DEFENDANTS            

NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC)      

 

Representation:

Dr. Yemi Oke, with Rahmat Sulaiman appear for the Claimant

O A R Ogunde SAN, with O Falaiye and Miss O Odusonya appear for the Defendants

 

JUDGMENT

 

Introduction and Claim:

 

1.   On 23rd day of February, 2018.  the Claimant filed a General Form of Complaint, together with the Statement of Facts, list of Claimant’s witnesses, the Claimant’s witness on oath, verifying Affidavit, list of Documents all dated the same  23rd day of February, 2018; and copies of the documents to be relied on by Claimant at the trial.  The Claimant claims against the Defendants as follows:

 

1)   An order directing the 1st and 2nd Defendants to pay the sum ofN45,853,052.04 (Forty-Five Million Eight Hundred and Fifty-Three Thousand, Fifty-Two Naira Four Kobo) to the Claimant being the net outstanding retirement entitlement.

2)   An order directing the 1st and 2nd Defendants to pay the Claimant the sum of N212, 326, 649.69 (Two Hundred and Twelve Million Three Hundred and Twenty Six Thousand Six Hundred and Forty Nine Naira Sixty Nine Kobo) being the total entitlement calculation of amount due to the Claimant as at 31st December, 2017 based on Industry Standard.

3)   An order directing the 1st and 2nd Defendants to remit to the Claimant his contributory pension Deductions into his Pension Fund Account No. PEN100104951064 with the Claimant’s Pension Fund Administrator, Stanbic IBTC Pension Managers amounting to N10, 175, 485.34 from April 2015 till date December, 2017 together with the accrued interest until the date of payment.

4)   AN ORDER directing the 1st and 2nd Defendants to pay an interest rate of 21% of the principal sum of the Claimant’s outstanding entitlement and thereafter at the rate of 7% until the judgment debt is finally liquidated.

5)   AN ORDER directing the 1st and 2nd Defendants to pay the Claimant the Sum of N20, 000,000.00(Twenty Million Naira) as damages for the emotional trauma, mental stress willfully caused to the Claimant for wrongful termination of his employment and failure to pay the Claimant’s retirement entitlements immediately.

6)   An order directing the 1st and 2nd Defendants to pay the Claimant the sum of N10, 000, 000.00 (Ten Million Naira) as damages for emotional trauma suffered due to the loss of employment since May 2016 till date.

7)   AN ORDER directing the 1st and 2nd Defendants to write a letter of apology to the Claimant for the disgraceful and punitive treatment meted on the Claimant while being exited from the company upon disengagement

8)   AN ORDER directing the 3rd and 4th Defendant to compel the 1st and 2nd Defendant to pay the Claimant his retirement entitlements immediately.

9)   An Order of Court for the cost of this suit against the Defendants.

And such further or other orders as the Honourable court may deem fit to make the circumstances.

 

2.  In response to the claim, the Defendants filed their Joint Statement of Defence on 19th March, 2018 together with a List of Defendants’ Witness and witness Statement Oath deposed to by Olayiwola Sufianu, List of documents and copies of document to be relied on at the trial.  In response to the Defendant statement of Defence, the Claimant filed his Reply to the Statement of Defence on 20th April, 2018.  

 

3.  Trial commenced in the suit on 16th of July, 2018 and was concluded on 26th November 2018.  The Claimant gave evidence for himself as CW1, by adopting his Witness Statement on Oath deposed to on 23rd day of February, 2018. The Claimant was thereafter Cross-examined. During the examination in chief, the Claimant tendered in evidence the following documents:

 

1.      Letter dated 15th December, 1998                        EXHIBIT C1.         

2.      Letter of promotion                                                 EXHIBIT C2.

3.      Letter of acknowledgement dated

 26th December, 2016                                        EXHIBIT C3.

4.      The Letter of acknowledgement

dated 10th January, 2017                                        EXHIBIT C4.

5.      Letter dated 27th January, 2017                             EXHIBIT C5.

6.      Letter dated 7th February, 2017                 EXHIBIT C6.

7.      The Letter dated 20th March, 2017                        EXHIBIT C7.

8.      Letter dated 18th April, 2017                                  EXHIBIT C8.

9.      Copy of Letter dated 24th April, 2017        EXHIBIT C9

10. The Collective Bargaining Agreement   EXHIBIT C10.

11. Letter of reply dated 8th May, 2017          EXHIBIT C11.

12. The Letter dated 25th May, 2017             EXHIBIT C12.

13. Appreciation letter dated 28th July, 2017 EXHIBIT C13.

14. Letter dated 21st September, 2017           EXHIBIT C14.

15. Letter of instruction dated 19/10/2017    EXHIBIT C15.

16. Notice of Law suit dated 06/12/2017      EXHIBIT C16.

17. Letter dated 21st December, 2017         EXHIBIT C17.

18. Final Notice of Lawsuit dated 17/01/2018 EXHIBIT C18.

19. Final entitlement calculation                       EXHIBIT C19.

4.  The Defendants’ witness, Mr. Olayiwola Sufianu gave evidence by adopting his Witness Statement on Oath deposed to on 19th day of March 2018 and he was cross-examined.  The Defendant tendered two exhibits (emails) marked as Exhibit D1(document dated 31st May 2016) and exhibit D2 (document dated 1st June 2016.  At the end of trial, the Court Order the parties to file their respective final written address. The Final Written Addresses were adopted on 11th June 2020 and the Court adjourned for Judgment.

 

CASE OF THE CLAIMANT

 

5.  By a letter dated 15th December 1998, the Claimant was offered employment as an Accountant by the 1st and 2nd Defendant with an annual remuneration of N850,000.00 (Eight Hundred and Fifty Thousand Naira).  He was promoted four times up to the Rank of Deputy Manager and occupied the position of Head, Internal Audit  and Finance Lead-PSC-OML147 as at the time his appointment  was terminated.  It is the case of the Claimant that on 19th May, 2016, the Claimant alongside other Managers received notice that the Chairman/Managing Director wanted to have personal interview with the individual Managers the following day.  The Claimant stated that at the meeting the next day, they found out that there was no interview but they were instead informed of their immediate disengagement from the 1st Defendant’s employment which they had served meritoriously for almost twenty (20) years.  That the 1st and 2nd Defendant informed him that the decision became necessary due to the financial hard times the Company was facing and that the proposed disengagement should be seen as a sacrifice towards the survival of the 1st Defendant.  The Claimant agreed to leave provided all his entitlements were paid as is the usual practice in the Company and in the Oil and Gas Industry. The entitlement proposed by the Human Resources was the sum of N101,915,564.48 which the Claimant immediately rejected as being a wrong calculation of the company’s standard severance package from six (6) weeks to four (4) weeks for every year spent. The Claimant submitted his calculation totaling the sum of N136, 297, 884.15 based on the six weeks policy, including the paid arrears in 2016. The Claimant stated that on the 1st of June 2016, he went to the office as usual only to be forcefully ejected from the office premises without payment of his entitlement. Sometime in August 2016, the 1st Defendant credited the Claimant’s account with the first part payment of the Claimant entitlement in the sum of N50, 220,364.18. In November 2016, the Claimant discovered that the 4th Defendant remitted second phase of the staff entitlement but the 1st Defendant failed to pay the balance to the Claimant.  The Claimant said he approached the 1st Defendant verbally to demand for his entitlement but to no avail.  After the balance of the entitlement remained unpaid, the Claimant wrote to the 1st Defendant acknowledging the part payment and demanding for the outstanding balance. Subsequently, he wrote to the 3rd and 4th Defendants requesting for their intervention.   The 1st and 2nd Defendants thereafter invited the Claimant to discuss the letter requesting the intervention of the 3rd and 4th Defendants.    

 

6.  The 1st and 2nd Defendant on 30th January, 2017 paid the Claimant the sum of N18, 538,441.21 remaining outstanding balance of N76,378,988.92.  The Claimant was dissatisfied and wrote a letter of demand to the Defendants and N30,574,668,40 payment was made on 17th March, 2017, leaving an outstanding of N45,853,057,04. Thereafter, Claimant received a letter from the 1st Defendant that the entitlement has been paid in full in accordance with Company policies and stated that the calculation was based on severance policy for Management staff and not that of Unionized Employees.  The Claimant states that the Defendant further stated that salary increment was a Collective Bargaining Agreements (CBA) which applies only to junior and senior staff; and that the 5th item which is on interest on the terminal benefit was not made as the company lacked the fund and the Claimant’s money was not being traded with. That the Defendants also stated that they are committed to defraying outstanding Pension for the exited Managers between April and May 2017 and appealed to the Group General Manager of the 3rd Defendant to convene a tripartite meeting so that the issues can be extensively discussed and hopefully resolved. The Claimant replied via letter dated 8th May, 2017 wherein he stated that there were six levels of Management Staff in the 1st Defendant and that he was at the entry Level M1 Assistant Manager when he was disengaged.  The Claimant also stated that there has been no policy concerning Management staff in 1st Defendant as 1st Defendant Staff policies are directed at all Staff and implemented across board, Management Staff inclusive, according to the Collective Bargaining Agreements (CBA’s) for Junior and Senior Staff CBA being the minimum for Managers. After the 3rd Defendant met with the Claimant and the representative of one of the affected Managers on 1st June 2017, and after defending their various claims, the Claimant wrote a letter of appreciation dated 28th July, 2017 to the Group General Manager of the 3rd Defendant and informed them that since the meeting of 1st June, 2017 the Claimant had failed or neglected to pay his entitlement.  While preparing for the Court case, after the 1st Defendant refused all entreaties to pay, the Claimant took his time to do a correct calculation of the total amount due to him and arrived at N338,151,656.44(Three Hundred and Thirty-Eight Million One Hundred and Fifty-One Thousand Six Hundred and Fifty-Six Naira Forty-Four Kobo).  The Claimant states that he has been paid the total sum of N124,826,006.75 (One hundred and Twenty-Four Million Eight Hundred and Twenty-Six Thousand Six Naira Seventy-Five Kobo) and the amount outstanding as at 31st December, 2017 is N212,326,649.69 (Two Hundred and Twelve Million Three Hundred and Twenty Six Thousand Six Hundred and Forty Nine Naira Sixty Nine Kobo). 

 

CASE OF THE DEFENDANT

7.  The case of the 1st Defendant is that having decided to disengage the Claimant alongside eight other managers for operational reasons, it elected to involve the 2nd Defendant in recognition of the management status of the Claimant and the other managers and the many years the Claimant and these other persons had served the 1st Defendant.  It was for these reasons that the 2nd Defendant personally met the Claimant and the other managers individually to inform them of the decision of the 1st Defendant with regard to their employment.  The 1st Defendant states that the letter dated 23rd May 2016 was not a draft letter but an official letter of disengagement which the Claimant refused to accept or acknowledge. The Claimant’s calculation of his gratuity was N83,893.39 (Eighty-Three Million and Eight Hundred, Ninety-Three Thousand and One Hundred and One Naira and Thirty-Nine Kobo) while the 1st Defendant’s calculation of the gratuity came to N55,604.258.10 (Fifty-Five Million, Six Hundred and Four Thousand, Two Hundred and Fifty-Eight Naira, Ten Kobo).  The severance claim of N48,030,401.56 (Forty-Eight Million and Thirty Thousand Thirty Thousand Four Hundred and One Naira Fifty-Six kobo) made by the Claimant against the N31 Million Nine Hundred and Fifty Six Thousand Four Hundred and Seventy Naira Seventeen Kobo) put forward by the 1st Defendant was based on the assumption of the Claimant that he was entitled to six weeks’ severance pay for every year he had worked instead of the four weeks that he was entitled to as a member of management.  The car running allowance and status car annuity payment of N1,558,333.33 (One Million Five Hundred and Fifty Eight Thousand Three Hundred and Thirty Three Hundred Thirty Three Kobo) and N4.682,291.67 (Four Million Six Hundred and Eighty Two Thousand Two Hundred and Ninety Two Naira Sixty Seven Kobo) respectively were disputed on grounds of availability of funds as there were other managers who were still in employment that did not have cars nor were being paid car running allowance.  The prorated 13th month allowance included in the Claimant’s was calculated in full on the basis of the claimant having worked for the entire period of 2016 and as such entitled to a full month’s salary as 13th month bonus whereas the 1st Defendant calculated same in a prorated manner to cover the period of the year the Claimant had worked in 2016 vis-à-vis his monthly salary.  The 1st Defendant states that no forceful ejection of the Claimant ever took place.  The 1st Defendant further states that in a subsequent letter of the Claimant, the Claimant put forward the claim of N136,297,884.15 as against his previous calculation attached to his email of 31/5/2016 which was N152,518,964.36.  In addition the Claimant also claimed interest on the said sum from 1st June 2016 to 1st January 2017 in the sum of N11.469,611.22 making a total claim of N147,767,495.38.  The 1st Defendant states that the newly computed figure by the Claimant even though now worked by the Claimant on the years of service of 17.33 differs from the 1st Defendants figures on the grounds that the Claimant’s computations were premised on what is payable to unionized staff, instead of what is payable to management staff to which the Claimant belonged to.  The 1st Defendant states that the claim for interest which the Claimant included in his computation was groundless as the severance policy of the 1st Defendant contains no provision for payment of interest and there was no provision put forward by the Claimant in his contract of employment or in any document applicable to the Claimant which entitles him to interest payment.

 

8.  The 1st Defendant stated that it voluntarily submitted to the mediation by the 3rd Defendant as initiated by the Claimant and the 3rd Defendant advised that in the interest of peace and for the sake of long standing relationship, the 1st Defendant pay a sum which was based on “six weeks for every one year worked”, rather than “four weeks for every year worked” severance package which the 1st Defendant had insisted on previously.  The said amount included payment in lieu of official car and maintenance allowance that the Claimant had insisted on being paid.  The Defendants state that the Claimant was officially disengaged to his knowledge on 31st May 2016. That the entitlement the Claimant had insisted on immediately after he was disengaged was N152,518,964.36 which the Claimant later reduced to N136,826,006.75 plus interest at the time of mediation by NAPIMS and which amount after mediation was finally accepted by both parties to be N124,826,006.75 which has been settled by the 1st Defendant.  The 1st Defendant states that the Claimant’s employment is not governed by any general standard policy but strictly by the contract of employment between the Claimant and the 1st Defendant and other company policies applicable to the Claimant.

 

REPLY TO THE DEFENDANT STATEMENT OF DEFENCE

 

9.   In Response to the Defendants’ case, the Claimant stated that he never received any official letter of disengagement dated 23rd May 2016 from the 1st Defendant neither did he send an email on 31st May 2016 to the 1st Defendant through Mr.Olayiwo laSufianu in respect of his own computation of his severance benefit.  He states that his entitlement by his own calculation was always N136,297 884.15  not  N152, 518,964.36 as alleged by the Defendants.  He states that his employment with the Defendant is governed by his contract of employment and the Collective Bargaining Agreement.      

 

SUBMISSION ON BEHALF OF THE DEFENDANT

 

10.  As a preliminary issue, the Defendants raised objection to the joinder of the 2nd, 3rd and 4th Defendants.  On the propriety of the joinder of the 2nd Defendant, the Defendants argued that the Claimant has failed to show any reasonable cause of action against the 2nd Defendant and that from all evidence placed before the court, it shows that the 2nd Defendant has no personal deal with the Claimant and has not in any way deprived the Claimant from collecting his entitlement.

 

11.  With respect to the joinder of the 3rd Defendant, the Defendants argue that the Claimant failed to place evidence of incorporation certificate of the 2nd Defendant to establish that it is a corporate person capable of being sued.

 

12.  On the propriety of the joinder of the 3th Defendant, the Defendants contend that the 4th Defendant should be struck out on the ground of non-compliance with section 12 of the NNPC Act which requires that the Claimant must give a pre-action notice to the 4th defendant before it can be joined in this suit.  The Defendants submit that the non-service of the pre-action notice on the 4th defendant by a Claimant will result in the striking out of the 4th defendant, notwithstanding the fact that it is a juristic person. 

 

13.  The Defendants in their Final Written Address raised five issues for determination:

 

i.        Having regard to the pleadings of the parties, can the claimant claim that he was still in the employment of the 1st defendant from June, 2016 till December, 2017, after receiving the notice of his disengagement in May, 2016 and thereafter ceased to work in the 1st defendant’s employment?

 

ii.      Even if, (which is denied) the claimant was still in the employment of the 1st defendant after May, 2016, has the claimant by his pleadings and evidence established an entitlement to the sum of N212,326,649.69 (Two hundred and Twelve million, Three hundred and Twenty-Six thousand, Six hundred and Forty-Nine naira, Sixty-Nine kobo)?

 

iii.    Has the claimant established a claim for damages for emotional trauma, mental stress willfully caused by the 1st defendant for wrongful termination of his employment and failure to pay the claimant his retirement entitlements immediately?

 

iv.    Has the claimant established a claim against the 1st defendant for a letter of apology to the claimant for any disgraceful and punitive treatment meted on the claimant in the process of his disengagement from the 1st defendant’s employment?

14.   On issue one, the Defendant argued that the Claimant having accepted his disengagement and not challenged the lawfulness of same in his pleadings, cannot properly state that he has been in the employment of the 1st Defendant up till December, 2017.  The Defendants argued that the Claimant needed to plead the fact and circumstances of the termination vis-avis the terms of his contract, to show that his employment was not terminated according to the terms of the contract; and is bound in law to give notice of the said challenge in his pleadings and seek a proper declaratory relief for the Court to hold that he remained an employee of the 1st Defendant up till December, 2017, which the Defendant did not do.

 

15.   On issue two, the Defendants noted that that the Claimant’s calculation of his entitlement at the time of his disengagement was put by him as ₦136,297,884.15 (One Hundred and Thirty-Six Million, Two Hundred and Ninety-Seven Thousand, Eight Hundred and Eighty-Four Naira, Fifteen Kobo) and that even when the Claimant increased his entitlement to the sum of ₦147,767,495.38 (One Hundred and Forty-Seven Million, Seven Hundred in January, 2017 and Sixty-Seven Thousand, Four Hundred and Ninety-Five Naira and Thirty-Eight Kobo), the heads of claim did not change but the total amount only increased by the inclusion of interest from June, 2016 to January, 2017. The Defendants argued that the 3rd Defendant convened a meeting at the request of the Claimant  and a compromised award of ₦124,826,006.75 (One Hundred and Twenty-Four Million and Eight Hundred and Twenty-Six Thousand and Six Naira and Seventy-Five Kobo) by the  3rd Defendant was made in favour of the Claimant, which the 1st Defendant has fully paid.  The Defendants argue that the claimant cannot go against the mediation which he initiated and accepted upon its resolution in his favour to  increase his claim from N147,767,495.38 (One Hundred and Forty-Seven Million, Seven Hundred  and Sixty-Seven Thousand, Four Hundred and Ninety-Five Naira and Thirty-Eight Kobo) to the sum  N338,151,656.44 (Three hundred and Thirty-Eight million, One hundred and Fifty-One thousand, Six hundred and Fifty-Six naira, Forty-Four kobo).

 

16.  The Defendants argued issues 3 and 4 together and urged the Court to discountenance the relief sought for damages on the basis of emotional trauma, mental stress occasioned by wrongful termination of his employment and the consequent demand for a letter of apology on the ground that the claims sought by Claimant does not include wrongful termination of employment.  The Defendants also submit that in cases of breach of contract, the Claimant cannot make any general claim for damages in tort such as injury to feelings, emotional stress and any other form of distress and is only entitled to whatever benefit he ought to have received for the breach.  The Defendants relied on the case of Kwara Investment Co. LTD v Garuba (2000) 10 NWLR PT. 674 25 and Strabag Constr. v Nig. Ltd v Adeyefa (2001) 15 NWLR PT.735. 

 

SUBMISSON ON BEHALF OF CLAIMANT

17.  The Claimant in his Final Written Address raised the following five issues for determination:

 

1.      Whether the joinder of the 2nd – 4th Defendant is proper in the circumstances of this case?

2.      Whether the Claimant is entitled to salary from June, 2016 to December, 2017 having received notice of his disengagement in May 2016.

3.      Whether based on Exhibit C17, letter dated 23rd May, 2016 where it was agreed that parties will jointly endorse an agreed figure to be the final entitlement of the Claimant, having not signed or agreed with such document the sum of N212, 326, 649, 69 can be assumed to be the final payment of the Claimant’s entitlement

4.      Whether the appointment of the Claimant was wrongly terminated by the Defendants, and if yes whether the Claimant is entitled to damages for wrongful dismissal of his appointment.

5.      Whether by several demand letters written by Claimant and his counsel to the defendants and without any document contradicting the amount demanded, the Claimant is entitled to the balance of N212, 326, 649, 69 as his entitlement. 

 

18.  On issue one, the Claimant argued that from the statement of facts, he has shown the position of the 2nd defendant as the alter ego of the 1st Defendant, and, if this case ends in favour of the Claimant, the 2nd Defendant will be the person to carry out the execution of the judgment hence, the 2nd Defendant is a necessary party.  The Claimant submits that a Director of a company can be joined as a Defendant in an action against the Company as held in the case of ACB Plc v. Nwaigwe & Ors(2000) LPELR-5212. The Claimant argued that the 3rd Defendant is a necessary party being the Head of Corporate Services Unit and also served as the mediator between the Claimant and 1st and 2nd Defendant and is the party that will ensure the 1st Defendant complied with the judgment of court.  The Claimant also argued that the 4th Defendant is joined to this suit by virtue of its duties as the regulatory agency of the oil exploration industry.

 

19.  On issue two, the Claimant argued that the letter of appointment dated 15th December, 1998 tendered by the Claimant shows that the Claimant is entitled to one month notice or payment in lieu thereof and that he had pleaded that the Defendant should not force him out office until all his entitlements were paid.

 

20.  On issue three, the Claimant argued that exhibit C17 was the wrong calculation of the his entitlement done by the Defendant and was he  never to it.  The Claimant stated that he is not bound by exhibit C17.  The Claimant pointed out that the DW had accepted during trial that there was no document jointly endorsed by both parties on an agreed sum.   The Claimant submits that on this ground the Claimant is entitled to the sum of N 212, 326, 649, 69 being the total entitlement calculation of amount due to the him as at 31st December, 2017 based on Industry Standard.

 

21.  On whether the appointment of the Claimant was wrongfully terminated by the Defendants entitling him to damages for wrongful dismissal of his appointment, the Claimant argued that the employment of the Claimant was wrongful terminated without considering the terms of contract. 

 

22.  On whether the Claimant is entitled to the balance of 212, 326, 649.69 as his entitlement; the Claimant argued that that there is no document whatsoever by the Defendants contradicting the amount demanded by the Claimant.    

 

DEFENDANTS’ REPLY ON POINTS OF LAW

 

23.  The Defendants in their Reply on Point of Law stated that before the Claimant can succeed in joining the 2nd, 3rd and 4th Defendants, he must show the role of the parties joined in the breach of contract him.  The Defendants argued that assuming without conceding that the Claimant’s employment was wrongfully terminated by exhibit C1, the Claimant would be entitled to payment of one month salary as provided in exhibit C1.  They argue that mere tendering exhibit C1 is not enough to formulate an issue for determination without linking same to any declarative relief or pleading. The Defendants contend that the reasons given for the joinder of the 2nd 3rd and 4th defendants are insufficient in law.

 

Decision:

 

24.  I have considered the processes filed in this matter, the evidence led and the arguments of Counsel.  I adopt the following issues for determination:

 

1.     Whether the 2nd, 3rd and 4th Defendants are necessary parties to this suit.

2.     Whether exhibit C10 – the Collective Agreement between 1st Defendant and the Petroleum and Natural Gas Senior Staff Association of Nigeria (Pan Ocean Branch) applies to the Defendant.

3.     Whether there is a Mediation award binding on the parties made by the 3rd Defendant.

4.     Whether the Claimant’s employment continued up to 31st December 2017. 

5.     Whether the Claimant is entitled to the reliefs he seeks. 

 

25.  I have considered the arguments of Counsel on the propriety of the joinder of the 2nd, 3rd, and 4th Defendants.  The 2nd Defendant is the Chairman/Managing Director of the 1st Defendant and its alter ego.  As stated by the Defendants, the Claimant’s case is predominantly on the computation of his entitlements, and the claim is made against the 1st and 2nd Defendants jointly and severally.  The 2nd Defendant is definitely the authority under which officers of the 1st Defendant acted and was himself actively involved in the determination of Claimant’s entitlements.  Order 13 Rule 1 of the Rules of this Court 2017 provides with respect to those who can be joined as parties, as follows:

 

All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.

Based on the above provision, I find that the 2nd Defendant is properly joined in this suit, and I so hold.

 

26.  On the propriety of the joinder of the 3rd Defendant, the Defendants’ argument is that it is not shown to be a juristic person, and even if it were, there is no relief against it.  The Claimant on the other hand argues that the 3rd Defendant is “Corporate Services Unit (CSU) charged with the responsibility of managing Federal Government’s investment in the upstream sector of the Oil and Gas industry “.  The Claimant did not address the issue of whether the 3rd Defendant was a juristic person, capable of being sued; the Defendants having challenged its status.  The Claimant further argued that since the 3rd Defendant was the mediator in the dispute between him and the 1st and 2nd Defendant it is a proper party in order to ensure the 1st and 2nd Defendants’ comply with any Judgment of the Court.  I have considered this argument and note that it was the Claimant himself who had stated that there was no mediation by the 3rd Defendant and that its intervention did not yield any result.  To now rely on the denied role of the 3rd Defendant to join it as a party is tantamount to approbating and reprobating which is not allowed in law.  I agree with the Defendants’ argument that “conjecture as to success in a matter has at no point in time played any role with regard to the joinder of a party but rather, it is the live issues disclosed from the pleadings that determines same.”  In the absence of any live issues against the 3rd Claimant, and in the absence of proof of the 3rd Claimant’s status as a juristic person, I find that the 3rd Claimant is not a proper party to this suit.  I so hold.  In consequence, the 3rd Defendant is hereby struck out as a party to this suit.

 

27.  I have considered the arguments for and against the joinder of the 4th Defendant.  The Defendants’ argument against the joinder of the 4th Defendant is that the Claimant failed to issue a pre-action notice as required by section 12(2) of the Nigerian National Petroleum Corporation Act Cap N124 LFN 2004.  The Claimant did not respond to this submission by the Defendants.  The Claimant never tendered any pre-action notice, neither in his reply did he plead that any was sent to the 4th Defendant.  The presumption is that the Claimant never complied with the said Section 12(2) of the NNPC Act.  The said section provides as follows:

(2)  No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.

 

28.  In the case of Nnonye v. Anyichie (2005) 1 SC (Pt.II) 96 @ 103 and 104, it was held that non-service of a preaction notice puts the jurisdiction of the court on hold pending compliance with the pre-condition. See further the cases of Ondo State Dev. & Prop. Cor.v. Jimzest Hotel Dev. Co. Ltd (2011) LPELR-4782(CA), Barclays Bank Ltd. v. Central Bank of Nigeria (1976) 6 SC 175.  Additionally, I do not find from the set of facts, that there is any cause of action against the 4th Defendant, except the assertion that it will make the 1st Defendant to comply with the judgment of this Court.    As a result of the above, I find that the 4th Defendant is not a proper party to this suit; I so hold.  The 4th Defendant is hereby struck out from this suit.

 

29.  Issue two is whether exhibit C10 – the Collective Agreement between 1st Defendant and the Petroleum and Natural Gas Senior Staff Association of Nigeria (Pan Ocean Branch) applies to the Defendant.  A serious contention between the parties is how the gratuity is to be calculated.  The Claimant’s position is that it is calculable on six (6) weeks for every year spent in service as against four (4) weeks for every year spent used by the Defendants.  The Claimant relied on the Collective Bargaining Agreement but the 1st and 2nd Defendants stated that Claimant’s computation is the severance pay-off paid to junior and senior employees and their own computation based on the severance policy for Management staff and not that of Unionized Employees. Their argument therefore is that the Claimant belonged to the Management cadre and not unionised staff.  Exhibit C10 becomes relevant therefore, to determine if the collective agreement applies to the Claimant.  I have gone through exhibit C10.  Clause 1 stipulates the scope of the agreement.  It provides that the agreement shall apply to all the company’s senior staff who are financial members of the Association.  The Claimant gave evidence that there has been no policy concerning Management staff in Pan Ocean as all Pan Ocean Staff policies are directed at all Staff and implemented across board, Management Staff inclusive, according to the Collective Bargaining Agreements (CBA’s) for Junior and Senior Staff CBA being the minimum for Managers.  The Claimant gave evidence that by Clause 37 of exhibit C10, the 1st Defendant had always applied cash calls as provided in Clause 37 to all staff, across board.  In the face of these assertions, the Defendant did not present any other document used for the severance of management staff.  Claimants claim that exhibit C10 applies to him finds corroboration in Clause 33 of exhibit C10 on Housing Assistance Grant.  This has an entitlement graduated based on grade levels.  It provides varying sums for different grades from Grades 7 and 8 to grade 15, The Claimant testified that he was on entry level M1 Assistant Manager.  This piece of evidence was not controverted by the Defendant either by challenge or by tendering any other document that applies to the Claimant.  By the above, I find that exhibit C10 applies to the Claimant.  As such, I find that Clause 29 applies to the Claimant.  I so hold.  Clause 29 provides as follows:

 

                        REDUNDANCY

Each regular full-time employee, whose appointment has been confirmed and was terminated because of Company’s redundancy, shall receive the following:

(a)    One month’s notice, or at the Company’s option, one month’s base pay in lieu of notice

(b)  Pro-rated salary vacation allowance equivalent to any unused vacation entitlement.

(c)   6 weeks’ base salary for each year of service on pro-rated basis.

(d)  Gratuity.

Any additional severance will be negotiated with Management.

When the issue of redundancy arise Management shall initiate a meeting before such action or actions are carried out with a view to discussing the matter to ensure that all parties are informed and carried along on the matter.

 

30.  Further on the above, the DW in his evidence stated at paragraph 30 that by the mediation award, the 3rd Defendant advised that in the interest of peace and for the sake of long standing relationship, the 1st Defendant should pay a sum based on “six weeks for every one year worked” rather than the “four weeks for every year worked”.  This to me confirms the practice in the industry to be “six weeks for every one year worked”. 

 

31.  Issue three - Whether there is a Mediation award binding on the parties made by the 3rd Defendant.  It is the Defendants’ position that the claimant cannot go against the mediation which he initiated and accepted upon its resolution in his favour to  increase his claim from N147,767,495.38 (One Hundred and Forty-Seven Million, Seven Hundred  and Sixty-Seven Thousand, Four Hundred and Ninety-Five Naira and Thirty-Eight Kobo) to the sum  N338,151,656.44 (Three hundred and Thirty-Eight million, One hundred and Fifty-One thousand, Six hundred and Fifty-Six naira, Forty-Four kobo).  They further submit that the claimant cannot in law go back to make a new claim on the basis of estoppels, relying on the case of Abe v. Skye Bank Plc. (2015) 4 NWLR PT. 1450 512 and Trans Bridge Co. Ltd v Survey Intl. Ltd (1986) 4 NWLR PT.  The Defendant further argued that no evidence was placed before the court to justify the increase made by the Claimant.  On the other hand, the Claimant denied that there was any mediation by the 3rd Defendant; rather that it was an intervention.   In the absence of any document evidencing the outcome of the mediation or intervention, I cannot find that the parties agreed to any amount as a result of the 3rd Defendant’s mediation/intervention.

 

32.  Issue four is whether the Claimant’s employment continued up to 31st December 2017.  The Claimant in his evidence stated that after he decided to come to Court, he reviewed his claim based on new facts which became available to him.  The Claim changed from what was originally sought in the sum of N147,767,495.91 to N338,151,656.44.  This increase came to be as a result of Claimant’s extending the period covered by his claim to 31st December 2017.  This, according to the Claimant is because his appointment had not been formally terminated up to that date.  From the evidence before the Court, it is not in doubt that the Claimant himself admitted that he was disengaged from the 1st Defendant on 30th May, 2016. The entire evidence of the Claimant shows an acknowledgement that his employment ended in May 2016.  His claiming under Clause 29 of exhibit C10 shows that he understood the nature of his disengagement, hence the subsequent agitations for the payment of his entitlements.  I find in the exchange of letters (exhibits C3, C4, C5, C6, C7, C8, C11, C12, C13, and C14, all show that the Claimant had sought and accepted the portions of his entitlements that was paid.  The Claimant has not furnished the basis of his contention that his contract persisted until the 31st of December 2017.  Though the 1st Defendant stated that he issued a letter of disengagement, attached to exhibit C17, the Claimant stated that he never received any official letter of disengagement dated 23rd May 2016 from the 1stDefendant neither did he send an email of 31st May 2016 to the 1st Defendant.  Assuming the disengagement was wrongful, by any consideration, that fact should be pleaded and made the basis for the award of damages.  I therefore find that the Claimant’s employment did not continue till the 31st of December 2017.  I so hold. 

 

33.  Issue five is Whether the Claimant is entitled to the reliefs he seeks.  In determining this issue, I shall take the reliefs seriatim:

 

Relief one is for:

 

1)   An order directing the 1st and 2nd Defendants to pay the sum ofN45,853,052.04 000 (Forty-Five Million Eight Hundred and Fifty-Three Thousand, Fifty-Two Naira Four Kobo) to the Claimant being the net outstanding retirement entitlement.

 

The Claimant up to the preparation for legal action had represented his claim as ₦147,767,495.38 (One Hundred and Forty-Seven Million, Seven Hundred in January, 2017 and Sixty-Seven Thousand, Four Hundred and Ninety-Five Naira and Thirty-Eight Kobo).  This is comprised of the Claimant’s own computation and the interest on it.  The Defendants acknowledged this when in their submission they stated that:

As stated above, the claimant’s claims remained ₦147,767,495.38 (One Hundred and Forty-Seven Million, Seven Hundred in January, 2017 and Sixty-Seven Thousand, Four Hundred and Ninety-Five Naira and Thirty-Eight Kobo) until the commencement of this suit. It was this sum the claimant submitted for mediation by NAPIMS and had accepted the compromised award of ₦124,826,006.75 (One Hundred and Twenty-Four Million and Eight Hundred and Twenty-Six Thousand and Six Naira and Seventy-Five Kobo) by NAPIMS.

 

34.   In their evidence, the Defendants stated that the Claimant had by exhibit D1 presented the sum of N152,518,954.36 which the Claimant denied.  There is no evidence to prove that it was indeed written by the Claimant since it not signed.  The Claimant on the other hand relies on a document containing a less claim.  This is expressed in exhibit C4 and all the other letters emanating from the Claimant up till the time of preparing to go to Court when the Claimant increased the claim by including the months of June 2016 to December 2017.  This was done under the belief of an entitlement to benefits for those months if the employment had continued.  I have already found that the Claimant’s employment did not extend to December 2017. It means that the Claimant is not entitled to all claims dependent and founded on those extra months.  I so hold. 

 

35.  The Defendants in their evidence disagreed with the Claimant’s figure of ₦147,767,495.38 (One Hundred and Forty-Seven Million, Seven Hundred in January, 2017 and Sixty-Seven Thousand, Four Hundred and Ninety-Five Naira and Thirty-Eight Kobo) and N338,151,656.44 on the following grounds(see paragraph 24 of Defendants’ evidence):

a.      The 10% (Ten Percent) 2016 increment claimed by the Claimant in his computation was only paid to unionised staff and the claimant being a staff in the management cadre and not a unionised staff was not entitled to it. 

 

I have already found that the Claimant was entitled to the benefits provided in exhibit C10 – the collective agreement.  The Claimant is therefore entitled to this head of claim.

 

b.     The severance claim of N52,715,258,37 made by the Claimant as against the N31,956,470.17 put forward by the first Defendant was based on the assumption of the Claimant that he was entitled to six weeks’ severance pay for every year he had worked instead of the four weeks that he was entitled to as a member of staff of management status.

 

I have also already found that the Claimant was entitled to the computation using six weeks’ severance pay for every year worked.  The Claimant is therefore entitled to this head of claim.

                       

c.    The car running allowance and status car annuity payment of N1,558,333.33 and N4,708,333.33 respectively were disputed on grounds of availability of funds as there were other managers who were still in employment that did not have cars…

 

I have considered this position of the Defendants against the provision of Clause 38 of exhibit C10.  This Clause provides that “the company shall pay to employees who are covered by the agreement a fuel/car maintenance allowance of N200,000.00 flat rate for each member per annum….”.  This provision is not dependent on the reasons proffered by the Defendant for the non-payment.  I find therefore that the Claimant is entitled to this head of claim.

 

d.   The prorated 13th month allowance and arrears paid to staff which were included in the Claimant’s computation were also based on the 2016 increment to which the Claimant was not entitled being a member of staff of management status.

 

By the finding under issue one, I hold that the Claimant is entitled to this claim.

 

e.   The purported claim for interest of N5,640,865.31 and N5,828,745.91 respectively which the Claimant included in his computation is groundless as the severance policy of the 1st Defendant contains no provision for payment of interest and there was no provision put forward by the Claimant in his contract of employment or in any document applicable to the Claimant which entitles him to interest payment.

 

I have considered this claim vis-à-vis the evidence of Claimant supporting it.  In exhibit C11, the Claimant justified the interest on terminal benefits as follows:

Joint Venture Policy states that before IOC can cash call for any expenditure, expenses should be verified by the senior partner (NAPIMS) before reimbursement or for future expenses like terminal benefits, IOC equity contribution must be in the JV bank account before payment of NAPIMS’ equity contribution.

 

36.  This explanation by the Claimant does not in any way establish his entitlement to the interest sought.  The Supreme has in the case of Daniel Holdings Ltd. v. UBA Plc (2005) 13 NWLR (Pt.943)533 stated the conditions under which interest can be claimed.  In Interdrill (Nig) Ltd & Anor v. UBA Plc (2017) LPELR-41907(SC) the apex Court on the same issue stated as follows:

 

I, entirely, endorse this submission for it accords with this Court's position that:

...interest may be awarded in a case in two distinct circumstances, namely: (i) As of right; and (ii) Where there is a power conferred by Statute to do so, in exercise of the Court's discretion. Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship, see, London, Chatham & Amp; Dover Railway v. S. E. Railway (1893) A.C. 429 at p. 434. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead fact which show such an entitlement in the statement of claim.

Ekwunife v Wayne (West Africa) Ltd [1989] 3 NSCC 352, 359; [italics supplied for emphasis]; T. O. N. P. C Unltd v Pedmar Nig Ltd LPELR -3145 (SC) 19-20; C-A; Veepee Industr+ies Ltd v Cocoa Industries Ltd (2008) LPELR - 3461 (SC) 14; C-E." Per NWEZE, J.S.C. (Pp. 21-22, Paras. D-C)

37.  I find that the Claimant has not established his entitlement to the claim for interest. I therefore refuse it and cause it to be deducted from the outstanding amount sought in this relief.  This is because the basis for the Defendants’ objection to the other heads of claim making up this relief, have not been sustained. The total amount sought as interest added up comes to N11,467,610.69.  The Claimant having not established his entitlement to it, this sum is bound to be removed from the computation in exhibit C4, leaving the original sum of N136,297884.15.  Exhibit C4 represents computations up to the period of disengagement while exhibit C19 represents computation up to 31st December 2017.  Having already found that Claimant’s employment was determined in May 2016, it means that exhibit C4 represents Claimants entitlement, consideration first having been had to the Defendants’ basis for challenge and the Courts finding on them.  Other basis for the justification of a difference in the basic salary was not established before the Court as exhibit C11 referred to by Claimant as the extra information justifying the figures in exhibit C19, is a letter by the Claimant and another staff to the 2nd Defendant.  It does not establish the entitlements in exhibit C19.  Both parties agree that the sum of N124,826,006.75 has been paid.  If N124,826,006.75 is taken away from the total sum N136.297,884.15, it will leave a balance of N11,471,877.30.    This is what I find the Claimant entitled to.  I so hold.

 

38.  Claimant’s second relief is for:

 

2)   An order directing the 1st and 2nd Defendants to pay the Claimant the sum of N212, 326, 649.69 (Two Hundred and Twelve Million Three Hundred and Twenty Six Thousand Six Hundred and Forty Nine Naira Sixty Nine Kobo) being the total entitlement calculation of amount due to the Claimant as at 31st December, 2017 based on Industry Standard.

 

I have already found that the Claimant is not entitled to any computation that extends his employment to 31st December 2017, since his employment, to his knowledge had come to an end before then.  The figure N212, 326, 649.69 is a product of the belief that the Claimant was entitled to salary up to the end of 2017.  Except as extracted above under relief one and determined, this relief cannot be granted.  Apart from the inclusion of June 2016 to December 2017 in the computation of his entitlements, the Claimant included new heads of entitlement in exhibit C19, not part of the computation in exhibit C4.  The Claimant during cross examination stated that he got new information of other entitlements which he included in the computation in exhibit C19.  However, there is nothing in the pleadings with regard to how some of these entitlements ware arrived at.  For instance, item 16 of exhibit C19 is for arrears of 2014 – 2017 increment/unpaid salary for N56, 530,475.53; no evidence was led to show how it was arrived at.  Item 18 for training at N28,500,00.00 has no evidence to establish how the Claimant became entitled to it.  Other items on the list pro-rated up to 2017 cannot be granted.  Exhibit C19 justifying relief two cannot be relied on to grant any relief under this head. 

 

39.  Relief three is for:

 

3)   An order directing the 1st and 2nd Defendants to remit to the Claimant his contributory pension Deductions into his Pension Fund Account No. PEN100104951064 with the Claimant’s Pension Fund Administrator, Stanbic IBTC Pension Managers amounting to N10, 175, 485.34 from April 2015 till date December, 2017 together with the accrued interest until the date of payment.

 

It would appear that apart from stating this relief, the Claimant made no further mention of it, either in his pleadings or in his evidence.  There is no evidence of how the said pension was arrived at, or how it became due. It is expected of the Claimant to exhibit the statement of account showing the contribution and how much has become due. As stated in Society Bic S.A & Ors v. Charzin Industries Ltd (2014) LPELR-22256(SC), the only conclusion to reach under this circumstance, is that the Claimant has abandoned this relief.  The Supreme Court in the case of Society Bic S.A & Ors v. Charzin Industries Ltd (Supra) stated that:

 

"A need to reiterate a rather trite point is that a party or counsel on his behalf has to be up and doing in canvassing what relief they seek. Therefore a party must move the court on each prayer or relief and any of such prayer or prayers that are left unattended would be taken by the court as abandoned. The court cannot on its own get into such an abandoned relief to grant or even make comments thereon. This is because the duty of court is streamlined and must be carried out with the jurisdiction to entertain whatever has been presented before him or assumed to have been so presented." Per PETER-ODILI, J.S.C. (P. 56, paras. B-E)

 

40.  The principle has always been that mere averments without evidence in proof of pleaded facts go to no issue see Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC).   In the circumstance, I find no basis for the consideration of the Claimant’s entitlement to this relief. 

 

41.  Relief four is for pre-judgment interest.  The law is trite that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties, or under mercantile custom or under principle of the equity. See Dantama v. Unity Bank Plc (2015) LPELR-24448(CA). It is for the Claimant to prove his entitlement to the stated pre judgment interest. This accords with the age old principle that he who asserts must prove same. The Claimant has not proved how he became entitled to the interest claimed. Not having proved same this head of relief is refused.  See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC; Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc Suit No. NICN/LA/122/2014 judgment delivered on 12th July 2016.

 

42.  Relief five is for an order directing the 1st and 2nd Defendants to pay the Claimant the Sum of N20, 000,000.00(Twenty Million Naira) as damages for the emotional trauma, mental stress wilfully caused to the Claimant for wrongful termination of his employment and failure to pay the Claimant’s retirement entitlements immediately.  The Claimant in this suit has not sought any relief whatsoever seeking to declare the termination of his employment as wrongful; it will therefore be preposterous to make an order for damages for emotional trauma, mental stress caused to the Claimant for wrongful termination, when such has not been declared.  Additionally, the Claimant has not supplied any evidence supporting the claim that he suffered emotional trauma and mental stress as a result of failure to pay the retirement entitlements immediately.  According to the Court in Kolade v. Sanni (2017) LPELR-43135(CA):

To be entitled to the award, it must be shown, I hold that the damage for which the Respondent is claiming, flowed from the act of the Appellant, leaving the Court to make an assessment of the damage said to be a natural and probable consequence of the Defendant's acts. There is however, no "emotional trauma, anguish, distress and internal nervous shock" shown to have afflicted the Respondent from the attempted auction sale of the property and the subsequent payment to the Bank for release of the title documents to him."  Per ADEFOPE-OKOJIE, J.C.A. (P. 26, Paras. A-C)

42.  In the same vein, I do not find that the Claimant has established a case for emotional trauma, and mental stress wilfully caused to him by the Defendants by their conduct.  This relief is therefore declined.  The reasoning and finding in relation to relief five, also applies to relief six for an order directing the 1st and 2nd Defendants to pay the Claimant the sum of N10, 000, 000.00 (Ten Million Naira) as damages for emotional trauma suffered due to the loss of employment since May 2016 till date. Relief seven is also refused as I do not find that the Claimant established the disgraceful and punitive nature of the treatment meted to him by the Claimant.  Though the Claimant gave evidence that he was ordered to leave the premises of the 1st Defendant upon his disengagement, the Defendant denied this action.  It was for the Claimant to establish by credible evidence that the 1st Defendant forcefully ejected him from its premises; which the Claimant failed to do.  Having failed to prove reliefs five and six, relief seven becomes superfluous.   Relief eight is overtaken by the striking out of the 3rd and 4th Defendants. 

 

43.  The sum of N11,471,877.30 (Eleven Million Four Hundred and Seventy One Thousand Eight Hundred and Seventy Seven Naira Thirty Kobo) is  adjudged the balance of Claimant’s entitlement.  The 1st and 2nd Defendants are ordered to pay to Claimant the said sum of N11,471,877.30 not later than 30 days from this judgment, after which it shall attract an interest of 20% per annum.

 

 

Judgment is entered accordingly. I make no order as to cost.

 

 

                                              …………………………………….

Hon. Justice Elizabeth A. Oji PhD