IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE

DATE: THURSDAY 28TH JULY, 2022      

                                                                                                          CONSOLIDATED SUIT NUMBERS

                                                                                   NICN/OW/10/2015

                                                                                   NICN/YEN/442/2016                      

BETWEEN:

1.     MR. OMOLOLA ROBERTS            

2.     MR. SAMUEL NADUEBA

3.     MR. HARSANU MOHAMMED                                      

4.     MR. FEMI ALADESAE

5.     MR. GBENEKANU KOTE

6.     SAMSON OMOREGBE

7.     MARINUS NWACHUKWU

8.     KOKOROKO ROLAND

9.     OGUNU K. EBI

10. MOSES C. OSAYA

11. BROWN EMUBO I.                                                        CLAIMANTS

12. SAMSON SUNDAY BABATUNDE                           

13. OMOEFE EMMANUEL

14. GOGO HART

15. MR. OLUMIDE SODIPO

16. MR. JOHN NDAHBROS

17. MR. GOODLUCK OKITO

18. MR. JOHN OMOLOGE

19. MR. OBERA FRANCIS

20. MR. MOSES OMAGHERE

21. MR. PAUL CHIKE

22. MR. ABEL CHIMA

 

AND

 

DTD SERVICES LTD                                 ----------------     DEFENDANT

 

 

 

 

JUDGMENT

 

1.1.           The claimants commenced this suit against the defendant including Axxis Petroconsultants Ltd, Elizabeth C. Rig and Addax Petroleum Development (Nig) Ltd on the 18th day of February, 2015. While the name of Addax Petroleum Development (Nig) Ltd as the 4th defendant was struck out of the suit on the 14th of May, 2015, the name of Elizabeth C. Rig as the 3rd defendant was struck out of the suit on the 17th day of June, 2015. The 2nd Defendant (Axxis Petroconsultants Ltd) was on the other hand struck out of the suit on the 10th of December, 2019. With the leave of court granted on the 10th day of December, 2019 this Suit No. NICN/OW/10/2015 was consolidated with the sister case of Suit No. NICN/YEN/442/2016, and the Claimants filed Amended Complaint and Amended Statement of Facts on the 16th day of December, 2019, wherein they claim the following reliefs against the Defendant:

 

1.      The sum of N186,124,186.72 (One Hundred and Eighty Six Million, One Hundred and Twenty Four Thousand, One Hundred and Eighty Six Naira, Seventy Two Kobo) only being the total of unpaid salaries comprising full salaries of all the Claimants for the month of May, 2013 and April, 2013 salary and the overtime of the 5th, 17th – 21st Claimants, also the agreed 35% unpaid standby salaries from June, 2013 to June, 2015 for the 1st and 15th Claimants and from June, 2013 to October, 2016 for the 16th – 22nd Claimants which the Defendant has refused to pay to the Claimants.

 

2.      The sum of N5,613,270.957 (Five Million, Six Hundred and Thirteen Thousand, Two Hundred and Seventy Naira, Nine Hundred and Fifty Seven Kobo) only being the monthly agreed 35% salaries from July, 2015 for the 1st – 15th Claimants and from November, 2016 for the 16th – 22nd Claimants until judgment is delivered.

 

3.      The sum of N102,309,136 (One Hundred and Two Million, Three Hundred and Nine Thousand, One Hundred and Thirty Six Naira) only being the total redundancy sum comprising 2 months full payment for payment in lieu of notice and one month for each completed years as agreed in the agreement of 19-4-2013 between the Claimants and the Defendant.

 

4.      10% post judgment interest on the total judgment sum until the entire judgment sum is fully paid by the Defendant.

5.      N1,000,000.00 (One Million Naira) only being the cost of instituting this suit.

 

1.2.           Trial in this suit started on the 22nd day of July, 2021 when the claimants called their witness John Ndahbros who testified as CW1. The witness who swore on the Holy Bible identified and adopted his statement on oath that was filed on the 4th of March, 2020. The following documents were tendered and admitted through the witness:

 

1.      Pay slip for the month of March, 2013 in the name of John Ndabros --- exhibit CW1.

2.      DTD Services Ltd ID Card in the name of Ndabros John --- exhibit CW2.

3.      Offer of employment in the name of Mr. Goodluck O. Okito dated 2nd July, 2012  ----- exhibit CW3.

4.       Pay slip for the month of March, 2013 in the name of Goodluck Okito --- exhibit CW4.

5.      Offer of employment in the name of Mr. Omologe E. John dated 22nd November, 2012  ---exhibit CW5.

6.      Terms of Agreement in the name of Omologe E. John dated 6th December, 2012 ----------- exhibit CW6.

7.      Offer of contract of employment in the name of Mr. Francis Obera dated 19th February, 2013 -------- exhibit CW7.

8.      Letter of Rig Maintenance Standby in the name of Mr. Francis Obera dated 22nd May, 2013 ------------ exhibit CW8.

9.      Pay slip for the month of March 2013 in the name of Francis Obera ------- exhibit CW9.

10.  Letter of confirmation of contract in the name of Mr. Moses Omaghere dated 22nd April, 2013 ---------- exhibit CW10.

11.  Pay slip for the month of August, 2012 in the name of Moses Omaghere ----- exhibit CW11.

12.  Offer of contract of employment in the name of Mr. Paul Chike dated 12th October, 2012 ---------- exhibit CW12.

13.  Pay slip for the month of November, 2012 in the name of Paul Chike ------ exhibit CW13.

14.  Communiqué issued at the end of the Meeting between Axxis/DTD Management and Workers Representatives/Union Representatives on 26th April, 2013 ----------- exhibit CW14.

15.  Letter of Rig Maintenance Standby in the name of Mr. Moses Omaghere dated 22nd May, 2013 ----------- exhibit CW15.

16.  Axxis Petroconsultants Ltd Timesheet from 2nd May -5th June, 2013 ---- exhibit CW16.

17.  Axxis Petroconsultants Ltd Timesheet from 4th June – 2nd July, 2013 ---- exhibit CW17.

18.  Axxis Petroconsultants Ltd Timesheet from 3rd – 29th July, 2013 ---- exhibit CW18.

19.  Solicitor’s letter of Yemi George & Co. dated 1st November, 2016 ---- exhibit CW19.

20.  Cedar Express Ltd Waybill dated 2nd November, 2016 addressed to the MD DTD Services Limited --- exhibit CW20.

21.  Cedar Express Ltd Waybill dated 2nd November, 2016 addressed to the MD Axxis Petroconsultants Ltd --------- exhibit CW21.

22.  Bundle of documents comprising of confirmation letter dated 22nd April, 2013, Offer of contract of employment dated 20th July, 2012, letter of Rig Maintenance Standby dated 22nd May, 2013, Staff ID Card  and pay slip for the month of March 2013 all in the name of Omolola Roberts --- exhibit CW22.

23.  Bundle of documents comprising of offer of employment dated 8th October, 2013, Letter of Rig Maintenance Standby dated 22nd May, 2013, pay slip for the month of March, 2013 and staff ID Card all in the name of Mr. Samuel Nadueba ------ exhibit CW23.

24.  Bundle of documents comprising of offer of employment dated 2nd July, 2012, Terms of Agreement dated 7th July, 2012, pay slips for the months of November, 2012 and January, 2013 all in the name of Mr. Mohammed Bello Harsanu ------ exhibit CW24.

25.  Bundle of documents comprising of letter of confirmation of employment dated 24th January, 2013, Terms of Agreement dated 24th of July, 2012 and Letter of Rig Maintenance Standby dated 22nd May, 2013 all in the name of Mr. Femi Aladesae ------ exhibit CW25.

26.  Bundle of documents comprising of letter of confirmation of employment dated 24th January, 2013, Offer of employment dated 20th July, 2012, Terms of Agreement dated 27th July, 2012, Letter of Rig Maintenance Standby dated 22nd May, 2013, pay slip for the month of March, 2013 and pay slip for the month of February, 2013 all in the name of Mr. Gbenekanu Kote ------ exhibit CW26.

27.  Bundle of documents comprising of letter of confirmation of employment dated 10th January, 2013, Terms of Agreement dated 12th of July, 2012 and Letter of Rig Maintenance Standby dated 22nd May, 2013 all in the name of Mr. Samson O. Omoregbee ------ exhibit CW27.

28.  Bundle of documents comprising of offer of employment dated 8th August, 2012, Letter of Rig Maintenance Standby dated 1st July, 2013 and staff ID Card all in the name of Mr. Martinus Emeka Nwachukwu   ------ exhibit CW28.

29.  Letter of Rig Maintenance Standby dated 1st July, 2013 in the name of Mr. Roland Kokoroko ------------ exhibit CW29.

30.  Bundle of documents comprising of offer of employment dated 11th July, 2012, pay slip for the month of January 2013 and staff ID Card all in the name of Mr. Kinle Ogonu ------ exhibit CW30.

31.  Bundle of documents comprising of offer of employment dated 3rd September, 2012, Terms of Agreement dated 7th of September, 2012 Letter of Rig Maintenance Standby dated 1st of July, 2013 and pay slip for the month of February, 2013 all in the name of Mr. Moses Osaya ------ exhibit CW31.

32.  Letter of Rig Maintenance Standby dated 31st July, 2013 in the name of Mr. Emubo Brown -------- exhibit CW32.

33.  Pay slip for the month of March, 2013 in the name of Brown Emubo ---- exhibit CW33.

34.  Bundle of documents comprising of letter of confirmation of employment dated 22nd April, 2013, Offer of employment dated 2nd July, 2012, Letter of Rig Maintenance Standby dated 22nd May, 2013, pay slip for the month of September, 2012 and staff ID Card all in the name of Mr. Sunday S. Babatunde ------ exhibit CW34.

35.  Bundle of documents comprising of offer of employment dated 20th July, 2012, Letter of confirmation of employment dated 22nd April, 2013, pay slips for the months of January, 2013 and February, 2013 all in the name of Mr. Emmanuel Omoefe ------ exhibit CW35.

36.  Bundle of documents comprising of offer of employment dated 15th August, 2012, Letter of confirmation of employment dated 22nd April, 2013 and Letter of Rig Maintenance Standby dated 31st July, 2013 all in the name of Mr. Olumide Sodipo ------ exhibit CW36.

37.  Bundle of documents comprising of offer of employment dated 2nd July, 2012, Letter of Confirmation of Employment dated 22nd April, 2013 and pay slips for the months of January and March, 2013 all in the name of Mr. Abel R. Chima ------ exhibit CW37.

38.  Pay slip for the month of March, 2013 in the name of John Ndabros  ---- exhibit CW38.

39.  Letter of Rig Maintenance Standby dated 22nd May, 2013 in the name of Mr. Sunday S. Babatunde --------- exhibit CW39.

The witness was cross-examined by the learned counsel to the Defendant and discharged on the 5th of October, 2021 without any re-examination. The claimants closed their case on the 5th of October, 2021.

 

1.3.           It is instructive to note that the defendant’s counsel Chief Ikechi Wagbara by a letter dated 6th of December, 2021 notified this court of their intention to withdraw their appearance for the defendant in this suit. The court then ordered hearing notices to be served on the defendant directly at its address on record. Since the defendant failed to appear to defend the suit despite repeated service of hearing notices on the defendant, the court foreclosed the defendant from defending the suit on the 17th of January, 2022, and adjourned the matter for adoption of final written addresses. While the claimants filed their final written address on the 7th day of February, 2022, the defendant did not file any address in the suit. The claimants’ counsel O. G. Ojo adopted the final written address on the 26th day of May, 2022. The defendant was neither in court nor represented by counsel.

THE CASE OF THE CLAIMANTS:

 

2.1.           It is the case of the Claimants that they were employed into different positions by the Defendant and deployed or seconded to a company known and called “Axxis Petroconsultants Ltd”. That they worked for clients of the Defendant in Bayelsa, Delta, Rivers and Cross River  States especially in the rigs of some of the clients of the Defendant and are still working in the Rigs of Axxis Petroconsultants Ltd till the filing of this suit in court, notwithstanding that the rig is undergoing maintenance. They listed some of the projects they worked on to include ORYX Petroleum, Emerad Energy on OML 141C, Britania-U. Nigeria Ltd, OML 90 and Express Petroleum/Addax Petroleum on OML 227 to mention but a few, and the contracts ran into billions of dollars  and which the defendant has been paid.

2.2.           They averred further that sometimes in April, 2013 Elizabeth C Rig was due for turnaround maintenance and the Claimants on behalf of the Defendant’s client took the rig to Calabar for maintenance where the 5th Claimant, 18th Claimant, 19th Claimant, 20th Claimant and 21st Claimant spent excess days in the Rig and the defendant has not paid May, 2013 salary till date, while 5th claimant worked extra 16 days in the Elizabeth  C Rig in Calabar as follows:

i.          5th Claimant = N1,200,000.00

ii.         17th Claimant - 17 excess days = N1,942,857.07

iii.       18th Claimant - 14 excess days = N920,000.00

iv.        19th Claimant - 21 days at the rate of N28,571.43 per day = N600,000.03

v.         20th Claimant - 17 excess days = N570,714.31

vi.        21st Claimant - 4 excess days = N125,000.00    

 

2.3.           That they are financial members of PENGASSAN Port Harcourt Zone, and by a letter dated 22nd May, 2013 they were all placed on standby for the period of the Rig maintenance and to communicate to them if there is going to be change in the arrangement. That the Defendant owes them salaries, allowances and excess days payment since April, 2013 and have not paid any of them notwithstanding several assurances given by the Defendant to that effect. That they have been waiting anxiously and patiently for almost three years without payment of their outstanding salaries since April, 2013 till October, 2016 and cannot engage themselves in another salary work because the defendant insisted that they should remain on standby until contrary instruction is communicated to them. They pleaded their respective 35% standby monthly for June, 2013  as follows:

a.         1st Claimant - N203,124.95 per month.

b.         2nd Claimant - N670,833.1 per month.

c.         3rd Claimant -  N233,333.3 per month.

d.         4th Claimant -  N466,666.5 per month.

e.         5th claimant - N306,250 per month.

f.          6th Claimant - N670,833.1 per month.

g.         7th Claimant - N116,561 per month.

h.         8th Claimant - N156,135 per month.

i.          9th Claimant - N203,124 per month.

j.          10th Claimant - N306,250 per month.

k.         11th Claimant - N145,833.3 per month.

1.         12th Claimant - N116,666.6 per month.

m.        13th Claimant - N116,561.5 per month.

n.         14th Claimant - N145,833.3 per month.

o.         15th Claimant - N163,625 per month.

p.         16th Claimant -  N306,403.12 per month.

q.         17th Claimant -N466,666.6 per month

r.         18th Claimant - N247,916.6 per month

s.         19th Claimant -N116,666.6 per month

t.          20th Claimant - N137,083.3 per month

u.         21st Claimant - N153,277.0 per month

v.         22nd Claimant - N163,625 per month.

 

2.4.           The claimants further pleaded the 35% for each Claimant from June, 2013 to June, 2015 and October, 2016 with the full salaries for May, 2013 and additional April, 2013 salary for the 5th Claimant and excess days for the 5th, 17th, 18th, 19th, 20th and 21st  claimants as follows:-

S/N

NAMES OF THE CLAIMANTS

FULL SALARIES FOR MAY, 2013

35% STANDBY SALARIES FOR THE 1ST – 15TH CLAIMANTS FROM JUNE, 2013 TO JUNE, 2015

TOTAL OF OUTSTANDING SALARIES

1

MR. OMOLOLA ROBERTS

N541,666.72

N203,124.95 x 25 Months N5,078.72

N5,619,066.72

2

MR. SAMUEL NADUEBA

N1,916,666

N670,833.01 x 25 Months N16,770,825

N18,687,491

3

MR. HARSANU MOHAMMED

N666,666

N233,333.335 x 25 Months = N5,833,325

N6,499,991

4

MR. FEMI ALADESAE

N1,300,000

N466,666.55 x 25 Months = N11,666,065

N12,966,650.00

5

MR. GBENEKANU KOTE

N2,075,000.00 APRIL, MAY & OVERTIME

N306,250.00 x 25 Months = N7,656,025

N9,731,025.00

6

SAMSON OMOREGBE

N1,916,666.00

N670,833.01 x 25 Months = N16,770,825.00

N18,687,491

7

MARINUS NWACHUKWU

N333,033.00

N116,561.55 x 25 Months = N2,914,025

N3,247,058

8

KOKOROKO ROLAND

N416,666

N156,135.0 x 25 Months = N3,903,375

N4,390,041

9

OGUNU K. EBI

N541,666

N203,124.95 x 25 Months = N5,078.1

N5,619,766.00

10

MOSES OSAYA

N875,000.00

N306,250.00 x 25 Months = N7,656.25

N8,531,250.00

11

BROWN EMUBO. I.

N416,666.00

N145,833,335 x 25 Months = N3,645,825

N4,062,491.00

12

SAMSON SUNDAY BABATUNDE

N333,333

N166,666.6 * 25 Months = N2,916,65

N3,249,983.00

13

OMOEFE EMMANUEL

N333,033

N116,561.55 x 25 Months = N2, 914,025

N3,247,058.00

14

GOGO HART

N416,667

N145,833.3 x 25 Months = N3,645,825

N4,062,492.00

15

MR. OLUMIDE

SODIPO

N467,500

 

N163,625 x 25 Months = N4,090,625

N4,558,125.00

16

MR. JOHN

NDAHBROS

N875,437.00

N306,403,125 x 41

Months = N12,562,523

N13,538,060

17

MR.

GOODLUCK OKITO           

N1,333,333

N466,666.66 x 41

Months =

N19,133,306

N20,466,639 +

N1,942,857 excess days = N22,409,496

18

MR. JOHN

OMOLOGUE

N708,333.00

N247,916.666 x 41

Months = N10,164,556

N10,972,889 + N920,000 excess  days = N11,892,889

19

MR. OBERA

FRANCIS

N333,333

Nl16,666.666 x 41

Months = N4,783,306.00

N5,116,639 + N600,000 excess days = N5,716,634.00

20

MR. MOSES

OMAGHERE

N391,666

N137,083.331 x 41

Months = N5,620,403           

N6,012,069 + N570,714 excess days = N6,582,783.00                       

21

MR. PAUL CHIKE

N437,934.00

N153,277.082 x 41 =N6,284,357

N6,722,291 +N125,000 excess days N6,847,291

22

MR. ABEL CHIMA

N467,500.00

N163,625 x 41 Months = N6,708,625

N7,176,125

 

2.5.           That while the 1st – 15th claimants’ contract with the Defendant is still running and they are entitled to their monthly salaries from July, 2015 till the determination of this suit, the 16th to 22nd Claimants are entitled to their monthly salaries from November, 2016 till the determination of this suit. That they are entitled to redundancy entitlement in accordance with the defendant's policy, particularly the Agreement of 19th April, 2013 as full two months salaries and one month salary for every completed year.

S/N

NAMES OF THE CLAIMANTS

MONTHLY SALARIES

SALARIES IN LIEU  OF NOTICE

ONE MONTH SALARY COMPLETED YEAR(S)

1

MR. OMOLOLA ROBERTS

N580,357.00

N580,357.00 x 2 N1,l60.714

N580,357.00 x 4 = N2,321,428

2

MR. SAMUEL NADUEBA

N1,916,666

N1,9l6,666 x 2 = N3,833,332

N1,916,666 x 4 = N7,666,664

3

MR. HARSANU MOHAMMED

N666,666.67

N666,666 x 2 = N1,333,332   

N666,666 x 4 =

N2,666,664

4

MR. FEMI ALADESAE

N1,333,333

N1,333,333 x 2 =

N2,666,666

N1,333,333 x 4 =

N5,333,332

5

MR. GBENEKANU KOTE

N875,000

N875,000 x 2 = N1,750,000

N875,000 x 4 = N3,500,000

6

SAMSON OMOREGBE

N1,916,666.00

N1,916,666 x 2 = N3,833,332

N1,916,666 x 4 = N7,666,664

7

MARINUS NWACHUKWU

N333,033.00

N333,033 x 2 = N666,066

N333,033 x 4 = N1,332,132

8

KOKOROKO ROLAND

N446,100

N446,100  x 2  = N892,200.00

N446,100 x 4 = N1,784,400.00

9

OGUNU K. EBI

N580,357

N580,357 x 2 = N1,160,714

N580,357 x 4 = N2,321,428

10

MOSES C. OSAYA

N875,000

N870,000 x 2 = N1,750,000

N870,000 x 4 = N3, 500,000

11

BROWN EMUBO. I.

N416,666.00

N416,666 x 2 = N833,332

N416,666 x 4 = N1,666,664

12

SAMSON SUNDAY BABATUNDE

N333,333

N333,333 x 2 = N666,666.00

N333,333 x 4 = N1,333,332

13

OMOEFE EMMANUEL

N333,033

N333,033 x 2

= N666,066            

N333,033 x 4 =

N1,332,132

14

GOGO HART

N416,666

N416,666 x 2

N833,332              

N416,666 x 4 =

N1,666,664          

15

MR. OLUMIDE

SODIPO

N467,500

N467,500 x 2

N935,000

N467,500 x 4 =

N1,870,000

16

MR. JOHN

NDAHBROS

N875,437.00

N875,437.00 x 2 =

N1,750,874

N875,437 x 4 =

N3,501,748

17

MR.

GOODLUCK OKITO           

N1,333,333

 

N1,333,333 x 2 =

N2,666,666

N1,333,333 x 4 =

N5,333,333

18

MR. JOHN

OMOLOGUE

N708,333.00

N708,333 x 2 =

N1,4l6,666

N708,333 x 4 =

N2,833,332

19

MR. OBERA

FRANCIS

N333,333

N333,333 x 2 =

N666,666

N333,333 x 3 =

N999,999.00

20

MR. MOSES

OMAGHERE

N391,666

N391,666 x 2 =

N783,332

N39l,666 x 4 =

N1,566,664

21

MR. PAUL CHIKE

N437,934.00

N437,934 x 2 =

N875,868

N437,934 x 4 =

N1,751,736

22

MR. ABEL CHIMA

N467,500

N467,500 x 2 =

N935,000

N467,500 x 4 =

Nl,870.00

2.6.           The claimants therefore plead their respective total entitlements as tabulated below:

S/N

NAMES OF THE CLAIMANTS

UNPAID SALARIES

REDUNDANCY

TOTAL

1

MR. OMOLOLA ROBERTS

N5,619,766.72

N3,482,142

N9,101,908

2

MR. SAMUEL NADUEBA

N18,687,491

N11,499,996

N30,187,487

3

MR. HARSANU MOHAMMED

N6,499,991

N3,998,996

N10,498,987

4

MR. FEMI ALADESAE

N12,966,650

N7,999,998

N20,966,648

5

MR. GBENEKANU KOTE

N8,531,250

N11,499,996

N20,031,246

6

SAMSON OMOREGBE

N18,687,491

N11,499,996

N30,187,487

7

MARINUS NWACHUKWU

N3,247,058

N1,998,198

N4,579,190

8

KOKOROKO ROLAND

N4,390,041

N2,676,600

N7,066,641

9

OGUNU K. EBI

N5,619,766

N3,482,142

N9,101,908

10

MOSES C. OSAYA

N8,531,250

N5,250,000

N13,781,250

11

BROWN EMUBO. I.

N4,062,491

N2,499,996

N6,562,487

12

SAMSON SUNDAY BABATUNDE

N3,249,983

N1,999,998

N5,249,981

13

OMOEFE EMMANUEL

N3,247,058

N2,l65,198

N5,412,256

14

GOGO HART

N4,062,492

N2,499,996

  N6,562,488

15

MR. OLUMIDE

SODIPO

N4,558,125

N2,805,000

N7,363,125

16

MR. JOHN

NDAHBROS

N13,538,060

N5,252,622

N18,790,682

17

MR.

GOODLUCK OKITO

N22,409,496.00

N7,999,999

N30,409,495.00

18

MR. JOHN

OMOLOGUE

N11,892,889

N4,249,998

N16,142,887

19

MR. OBERA

FRANCIS

N5,716,639.00

N1,666,665

N7,383,304.00

20

MR. MOSES

OMAGHERE

N6,582,783

N2,349,996

N8,932,779

21

MR. PAUL CHIKE

N6,847,291

N2,626,604

N9,473,895

22

MR. ABEL CHIMA

N7,176,125

N2,805,000

N9,981,125

 

TOTAL

N186,124,186.72

N102,309,136

N288,433,322.72

 

2.7.           It was finally pleaded by the claimants that the defendant failed to remit the deducted contributory pension to their various Pension Fund Administrators since October, 2012 to October, 2016 and never added their own agreed 17.5% to it as stipulated. They pray the court to grant their claims in the suit.

 

CLAIMANTS’ SUBMISSIONS:

3.1.           The learned Claimants’ counsel identified this lone issue for determination, to wit: Whether with the pleadings of parties, evidence of the claimants and exhibits tendered by the Claimants coupled with the abandonment of the Defence by the Defendant, Claimants have established their case as required by law against the Defendant?

 

3.2.           It was submitted by way of preliminary argument that since the defendant abandoned its pleadings by not calling any witness to adopt its Witness Statement on Oath, it is deemed to have admitted the claims of the claimants, and that an admitted fact needs no further proof. See Today’s Cars Ltd V. Lassaco Asso. Plc (2016) 48 WRN 143 at 173, Onwuegbu and Ors. V. The Abia State Judicial Service Commission (2016) 67 NLLR (Pt.238) 40 at 43, Bossa and Ors V. Julius Berger Plc (2016) 66 NLLR (Pt. 237) 502 at 515 ratio 16, Lawal V. UTC (Nig.) Plc (2005) 13 NWLR (Pt.943) 601 at 622 and Dahiru V. Kigbu and Ors (2020) 7 WRN 74 at 81.

 

3.3.           With respect to the sole issue identified for determination, learned counsel to the claimants reproduced the reliefs in this suit and also referred to exhibits CW1 to CW39 and argued that since the defendant abandoned its pleadings, the court should invoke the provisions of Order 38 Rule 16 (4) of the Rules of this Honourable Court and deem the witness statement on oath of the defendant as having been abandoned. That since the suit is uncontested the Claimants will only be expected to prove their claims with minimal evidence. That in law all civil cases or claims are to be proved on the balance of probabilities and preponderance of evidence. See Ishola V. Union Bank Ltd (2005) 2 SC (Pt. 11) 70 and Altiegbemilin V. RTAG Nig. Ltd (2012) 44 WRN 120.

 

3.4.           That since the claims in this suit are documentary in nature, the court should rely on the claimants’ documentary evidence which is the best evidence that the court can rely on. See Obiazikwor V. Obiazikwor (2007) 37 WRN 106 at 131 and Dawodu V. Stanbic IBTC Bank Plc (2016) 66 NLLR (Pt.236) 372 at 418.

 

3.5.           That while the defendant tried to prove through the cross examination of the CW1 that the Claimants were employees of AXXIS Petroconsultants Ltd, the letters of offer of contract of employment before the Court however show that the Defendant was the employer of the Claimants who seconded the Claimants to AXXIS Petroconsultants and created triangular employment. See Inimgba V. Integrated Corporate Services Ltd and Anor (2015) 57 NLLR (Pt. 195) 268 at 309.

 

3.6.           That since the defendant did not contradict the evidence of the claimants that their employments have not been terminated after being placed on standby, the unchallenged evidence is deemed to have been admitted and the court can rely on it in arriving at its judgment. See Incorp. Trustees United Visionary Youth of Nigeria V. Amb. Sukubo (2021) 26 WRN 31 at 54. That employment relationship can only be effectively brought to an end by a letter of termination from the date such letter is received by either the employer or employee. See Funlola V. C & M Exchange (2016) 64 NLLR (Pt. 228) 553 at 574 paras D-H.

 

 

3.7.           With respect to relief 3 for the sum of N102,309,136.00 (One Hundred and Two million, Three Hundred and Nine Thousand, One Hundred and Thirty Six Naira) only being the total redundancy sum comprising 2 months full payment for payment in lieu of notice and one month for each completed year as agreed in the agreement of 19th of April, 2013, learned counsel referred the court to paragraphs 1-22, 31, 32, 43, 44, 45 and 46 of the Amended Statement of Facts and paragraphs 2-23,32, 33, 46, 47, 48 and 49 of the deposition of CW1 as well as paragraph 8 of exhibit CW14 and posited that in law parties are bound by their agreement voluntarily entered into. That where the content of a document is clear and unambiguous the court cannot go outside of same in deciding the matter in controversy between the parties. See Ogiamein V. Gulf Manning Services Nig. Ltd (2016) 66 NLLR (Pt. 235) 210 at 250-251. That the claimants have proved that they are entitled to relief 3.

 

3.8.           For relief 4 which is for 10% post judgment interest on the total judgment sum until the entire judgment sum is fully paid by the Defendant, learned counsel referred to Order 47 Rule 7 of the Rules of this court, 2017 which provides for interest at a rate not less than 10% per annum on a judgment sum. See the case of Modibbo V. Hammanjoda (2014) 38 WRN 110 at 131-132. The court was urged to grant 10% post-judgment interest on the judgment sum as claimed by the claimants.

 

3.9.           With respect to relief 5 for the sum of N1,000,000.00 (One Million Naira) only being the cost of instituting this suit, learned counsel submitted that he does not intend to further pursue the relief. He withdrew the said relief 5 and urged the court to strike it out.

 

3.10.       The court was finally urged to grant reliefs 1 to 4 except relief 5 which has been withdrawn.

 

COURT’S DECISION:

 

4.1   Having carefully considered the pleadings, evidence and submissions of the learned counsel to the claimants, this court is of the considered view that since the defendant did not file any address in the suit the matter shall be determined based on the lone issue identified by the claimants’ counsel which is modified as follows: Whether upon the pleadings and evidence proffered by the Claimants, the Claimants have proved their case and therefore entitled to the reliefs sought.

 

4.2   It is apposite to state that even though the defendant filed Statement of Defence and other processes in this suit, the defendant did not call any witness for the purpose of adopting the witness statement on oath of its witness with a view to giving life to its pleadings. That being the case, the processes of the defendant in defence of this suit are hereby deemed to have been abandoned and are accordingly struck out. See Union Bank of Nigeria Plc V. E. D. Emole (2001) LPELR-3292(SC) and Jerome Igbe Tivlumun V. I. Compliance Tech. Nigeria Limited (2020) LPELR-52291(CA) where it was held at page 14 Paras B-D of the report that, “The law is that where evidence is not led in support of an averment in a pleading, the same is deemed abandoned.  See Emmanuel V. Umana (2016) All FWLR (Pt. 856) 214 and Ahmed V. Registered Trustees of Archdiocese of Kaduna of the Roman Catholic Church (2019) 5 NWLR (Pt. 1665) 300” See also Alhaji Ibrahim Mohammed V. Klargester Nigeria Limited (2002) LPELR-1897(SC) and Engineer Goodnews Agbi & Anor V. Chief Audu Ogbeh & Ors (2006) LPELR-240(SC) where the apex court also held thus: “It is now firmly settled that pleadings do not constitute or tantamount to evidence. Also, that where there is no evidence in support of any pleading, that pleading or averment is deemed to have been abandoned. There are too many decided authorities in this regard. See Raimi Olarewaju V. Amos Bamigboye & Ors. (1987) 3 NWLR (Pt. 60) 353, 359, 362; Alhaji Bala & Ors. V. Mrs. Bankole (1986) 3 NWLR (Pt. 27) 141; Magnusson V. Koiki & 2 Ors. (1993) 12 SCNJ 114 AT 124 (1993) 9 NWLR (Pt. 317) 287 – per Kutigi, JSC.” See also Order 38 Rule 16(4) of the Rules of this court 2017

 

4.3   I have seen from the unchallenged pleadings and evidence adduced by the claimants that they were indeed employed by the defendant and deployed to Axxis Petroconsultants Ltd. They pleaded the facts relating to their employment at paragraphs 1 - 28 of the Amended Statement of Facts filed on the 16th of December, 2019 and also deposed to such facts at paragraphs 1 – 29 of the statement on oath of their witness John Ndahbros  filed on the 4th of March, 2020. I have also seen that exhibits CW1 to CW39 tendered by the claimants are all documents relating to the employment of the claimants by the defendant such as pay slips, ID Cards, employment letters, letters of standby, attendance time sheets, confirmation letters e.t.c.

4.4   The point must be made that the onus of proof in this suit is on the claimants who are to plead and lead cogent evidence to support their claims before the court. It is the law that he who asserts must prove. In the circumstance of this case where the claims before the court are in the nature of special damages, the claims must be specifically pleaded with the particulars and strictly proved with verifiable and cogent evidence. The claimants must not only plead and give the required particulars of the special damages sought, but they must also adduce credible evidence to support the claims in order to satisfy the court on how they arrived at the sums claimed as special damages. Having pored over paragraphs 27, 29, 40, 41, 45 and 46 of the Amended Statement of Facts where they particularized the claims and paragraphs 28, 42, 44, 48 and 49 of the written statement on oath of their witness, I hold the humble view that they have satisfied these legal requirements, and have proved part of the claims as required by law.  See Ndukwe Okafor & Ors. V. Agwu Obiwo & Anor (1978) LPELR-2413(SC), Mantec Water Treatment Nig. Ltd. V. Petroleum (Special) Trust Fund (2007) LPELR-9030(CA) and sections 131, 132, 133 and 134 of the Evidence Act, 2011.

 

4.5   The claimants gave evidence in this suit through the deposition of their sole witness John Ndahbros filed on the 4th of March, 2020, and also tendered exhibits CW1 to CW39. During the cross-examination of the witness by the defendant’s counsel U. B. Bobmanuel on the 5th of October, 2021 prior to the withdrawal of the defendant’s counsel from this suit, the witness answered that he is the 16th claimant in this case and he is testifying for himself and all the other claimants. That he knows the defendant because he had worked for the defendant on Elizabeth C Rig, and that the defendant seconds its workers to Axxis Petroconsultants Ltd and they were in the payroll of the defendant. He refuted the insinuation that for all intents and purposes he worked for Axxis Petroconsultants, but that the claimants were not employed the same time and did not also work for the same duration. That he is an Assistant Driller, and they had finished all the projects they had before being placed on standby. That he is not aware that the defendant could not pay them because Axxis failed to disburse their salary to the defendant, and that it is not correct that they were working for Axxis Petroconsultants who owns the Elizabeth C Rig. That the defendant has the discretion to deploy them to any of their client’s rig, and that the maintenance of the Elizabeth C Rig should not have frustrated their contract. That he knows one Mrs. Joy Ezenwala who was present at their recruitment exercise, and that prior to his deployment to Axxis Petroconsultants he had been deployed to a Rig different from the Elizabeth C Rig. That before the standby they were owed retirement benefits, unpaid salaries and standby salaries from 2013 till date.

4.6   I have held in this judgment that the suit is unchallenged because the defendant did not call any witness in this suit. The law is settled that, once an averment or evidence is not challenged or denied by the opposite party who has ample opportunity to do so, the court can accept and act on it as the opposing party would be deemed to have admitted the facts except where such facts are implausible. See D. I. D. Al-Aman Company Nigeria Limited and Anor V. Malam Minko and Ors (2020) LPELR-52108(CA), Edward Essien V. College of Education, Oro (2014) LPELR-23784(CA), Augustine James V. Federal Republic of Nigeria and Ors. (2021) LPELR-52843(CA) and Elizabeth Mabamije V. Hans Wolfgang Otto (2016) LPELR-26058(SC) where the apex court held thus at pages 37 – 38 paragraphs F – E of the report, “What the learned Justices of the Court below did is difficult to fault as with the unchallenged evidence before the trial Court which remained unchallenged and the import of the facts deposed showed that the Appellant was estopped from bringing another suit against the Respondent. I refer to the cases of Omoregbe v. Lawani (1980) 3 – 4 SC 108 at 117; Nzeribe v. Dave Engineering Co. Ltd (1994) NWLR (Pt. 351) 124 at 137 wherein Iguh JSC stated clearly which I accept as guide as follows: “Where evidence given by a party to any proceedings or by his witness is not challenged by the opposite party who has the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it… This is because in such circumstance the evidence before the trial Court obviously goes one way with the other set of facts or evidence weighing against it. There is nothing in such a situation to put on the other side of that proverbial or imaginary scale or balance, as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is naturally discharged on a minimal of proof.”

 

4.7   It is therefore evident that since the evidence of the claimants is unchallenged they have proved part of their case before the court. I so find and hold.

 

4.8   In the circumstance reliefs 1, 3 and 4 are hereby granted. Since relief 1 has been granted, I do not see any basis to grant relief 2 which seems to cover the same periods as in relief 1. Relief 5 for the sum of N1,000,000.00 (One Million Naira only) as cost of litigation which was withdrawn by the claimants’ counsel is accordingly struck out. The case of the claimants therefore succeeds in part, and the lone issue is resolved in favour of the claimants. For avoidance of doubt, the court hereby orders as follows:

 

1.      The defendant is hereby ordered to pay to the claimants the sum of N186,124,186.72 (One Hundred and Eighty Six Million, One Hundred and Twenty Four Thousand, One Hundred and Eighty Six Naira, Seventy Two Kobo) only being the total of unpaid salaries comprising full salaries of all the Claimants for the month of May, 2013 and April, 2013 salary and the overtime of the 5th, 17th – 21st Claimants, also the agreed 35% unpaid standby salaries from June, 2013 to June, 2015 for the 1st and 15th Claimants and from June, 2013 to October, 2016 for the 16th – 22nd Claimants which the Defendant has refused to pay to the Claimants.

 

2.      The Defendant is hereby ordered to pay to the Claimants the sum of N102,309,136.00 (One Hundred and Two Million, Three Hundred and Nine Thousand, One Hundred and Thirty Six Naira) only being the total redundancy sum comprising 2 months full payment for payment in lieu of notice and one month for each completed year as agreed in the agreement of 19-4-2013 between the Claimants and the Defendant.

 

3.      Failure to comply with the terms of this judgment within 30 days from the date of delivery shall attract 10% simple interest on the sum per annum until fully liquidated.

 

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

 

5.      This judgment shall apply to Suit No. NICN/YEN/442/2016 which has been consolidated with this Suit No. NICN/OW/10/2015 because the six claimants in that suit have all been included in the Amended Statement of Facts relied upon in this suit.

 

 

 

Hon. Justice P. I. Hamman

Judge

 

REPRESENTATION:

 

O. G. Ojo Esq. for the Claimants

No representation for the Defendant.