IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Date: March 07, 2023 Suit No: NICN/PHC/95/2019
Between:
1. Hon. Tamuno .I. Tamuno
2. Mr. Sotony Isaac
3. Mr. Biebele Promise
4. Mr. Deinma Tamunokuro ---------------------------- Claimants
5. Mr. Alalibo Tammy
6. Mr. Boma Akaluogbo
(For Themselves and as Representing
Kirikese Youth Movement of Okrika)
And
1. Bonny Channel Company Limited
2. Chief Opena Anobili
(The Group Head/General Manager
Commercial, Bonny Channel Company ------------------------- Defendants
Limited)
3. Mr. Innocent Wakama
(Secretary Bonny Channel Company
Limited)
Representation:
G. Moses with Edward Asikimabo – Ofori for the Claimants.
D. I. Iboroma with C.A. Orupabo (Miss.) for the defendants
COURT’S JUDGMENT
1. On August 5, 2019 the claimants instituted this suit against the Defendants seeking for the following reliefs:
i. A declaration that the complainants and others they represent have employment agreement with the defendants as to the payment monthly salaries of N80,000.00 (Eighty Thousand Naira) only per worker monthly for 30 workers from which the Defendants has been paying up to 17th December, 2008. The Defendants stopped paying from 1st January, 2009 to date except July 2017.
ii. A declaration that the Complainants are entitled to the arrears of salary from 1st January, 2009 to date except July 2017.
iii. An order of this Honourable Court directing the Defendants to pay the sum of N80,000.00 (Eighty Thousand Naira) only per worker monthly for 30 workers under the Kirikese Youth Movement from 1st January, 2009 to date except July 2017 as accumulated arrears and continues payment of their monthly salary until both parties vitiate the employment contact.
iv. And for any order orders the Honourable Court may deem fit to make.
2. Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearance through their counsel and filed their Statement of Defence together with other processes.
3. The Case of the Claimants as Pleaded
The case of the claimants is that they are members of the kirikese Youth Movement of Okrika and that 30 of their members were employed by the Bonny Channel Company Limited through the negotiation of the 2nd and 3rd Defendants. They stated further that had an agreement with the 1st Defendant represented by the 2nd and 3rd Defendants to play the role of watchdogs or surveillance on the equipment of the 1st Defendant Company in the course of its Operation within the Okrika Water ways. The claimants averred further that while the 1st Defendant initially paid the claimants through an accredited member of the Complaints’ Youth Body the sum of Two Million, Four Hundred Thousand Naira (#2, 400, 000. 00) only representing the monthly salary of the agreed thirty (30) youths at Eighty Thousand Naira (#80,000. 00) only each, the 1st Defendant suddenly stopped the payment and all effort to make the 1st Defendant keep to the agreement proved abortive.
4. The Case of the Defendants as Pleaded
The Defendants disagreed that they employed 30 members of Kirikese Youth Movement as employees of the 1st Defendant. Their deponent averred that the 1st Defendant carries out periodic removal of wrecks and silt in Bonny Channel leading to Port Harcourt Port to facilitate easy passage of vessels to the Port Harcourt Port and in the process made ex gratia payment to the members of the Kirikese Youth Movement similar to the ex gratia payment made to Ogu and Bonny communities during the 1st Defendant’s operations. That they assisted the 1st Defendant does not mean that it owes the Claimants any arrears of salary. They also averred that the 2nd and 3rd Defendants are employees of the 1st Defendant and so, they are not proper/necessary parties in this case.
5. During hearing of the case, parties agreed that the case be argued on record under Order 38 Rule 33 of NICN (CP) Rules, 2017. The Court subsequently directed counsel to the parties to file their respective Final Written Addresses in line with the Rules of this Court and they complied with the direction.
6. Claimant’s Final Written Arguments
In the Claimants’ Final Written Address, their counsel raised two issues for the determination of the Court this way:
i. Whether the money paid by the 1st Defendant to the Kirikese Youth Movement represented by the Complainants was paid ex gratia.
ii. Whether on the preponderance of evidence, the Complainants have proved their case to entitle them to the reliefs claimed before this Honourable Court.
7. In arguing issue one, counsel stated that from the Statement of Facts and the witness deposition of CW1, the Complainants are claiming that the 1st Defendant has been paying them the sum of (#2,400,000.00) only representing the monthly salary of the employed thirty (30) youths at Eighty Thousand Naira (#80,000.00) only each. Referring to paragraphs 4 and 5 of the Statement of Facts and paragraphs 4, 5 and 8 of the witness deposition of CW1, counsel argued that claimants unequivocally stated that the 1st Defendant has been paying them the sum of #2,400,000.00 only representing the monthly salary of the thirty (30) youths employed at Eighty Thousand Naira (#80,000.00) only each, which Defendants admitted in paragraph 7 (v) and paragraph 15 of the witness deposition of the DW1. Counsel submitted that it is trite law that facts admitted need no further proof, citing Section 123 of the Evidence Act, 2011: Adeshina v. BAC Electrical Co. Ltd [2007] All FWLR (Pt. 369) 1279 @ 1322, paras D-E; Ado v. Commissioner for Works, Benue State. [2007] 15 NWLR (Pt. 1058) 429 @ pp 441-442, Para. G-A. Nsefik v. Muna [2007] 10 NWLR (Pt. 1043) 502 @ 518, para. H.
8. Counsel went on that the contention of the defendants that the period of removal of wreck and silt from the Bonny Channel is usually not more than three weeks every year, hence, the 1st Defendant made payment ex gratia to the Claimants once a year is not supported by facts before the Court. That by paragraph 4 of the witness deposition of CW1, two cheques were pleaded and each cheque covers the sum of Two Million, Four Hundred Thousand Naira (#2, 400,000.00) only. One dated 3/12/2008 and the other dated 17/12/2008 being monies paid as November 2008 and December 2008 salaries respectively.
9. Counsel went on that when documentary evidence supports oral evidence, oral evidence becomes more credible because documentary evidence serves as an hanger from which to access oral testimony citing Uwah v. Akpabio [2014] 7NWLR (Pt. 1407) 472 at 489, Paras. D-E Alabi v. Onikosi [2013] All FWLR (Pt. 708) 954 at 964, Para. H; Onwadike v. Brawal Shipping Ng Ltd [1996] 1 NWLR (Pt. 422) 65 at 79-30. Odutola v. Mabogusje [2013] 1 MJSC (Pt. 11) 88 at Pp 113-114, paras G-E. Counsel submitted that the Claimants have proved that the several sum of money paid by the defendants to the Claimants was not paid as ex gratia but as salaries.
10. Arguing issue two, counsel submitted that the Claimants have proved that they have a relationship with the 1st Defendant wherein thirty of their members were employed and salaries paid until the 1st Defendant unilaterally stopped payment. He claimed that these pieces of evidence were not challenged by the Defendants. The letters of August 14, 2008 and November 3, 2008 which talked about salaries and list of thirty persons were well received by the 1st Defendant, yet there is no adverse letter or letters from the 1st Defendant denying the facts stated therein. Similarly, counsel submitted that the two cheques from the 1st Defendant issued in favour of the Claimants in December 2008 show the transaction between the parties to be monthly and not a one time off duty as claimed by the defendants.
11. Counsel submitted further that where there is a proven right, there should be a remedy, citing Oando v. Adjene (WA) Ltd. [2013] Vol. 5-7 (Pt. II) MJSC 40 @ 78, D.; Best (Nig) Ltd v. Blackwood Hodge (Nig.) Ltd. [2011] All FWLR (Pt.573) 1955 at 1967 paras A-B and Odonigi v. Oyeleke [2001] FWLR (Pt.42) 172 @185, Paras. E-F.
12. Defendants’ Final Written Arguments
From the Final Written Address of counsel to the Defendants, he formulated three issues for the determination of the Court:
i. Whether the 2nd and 3rd Defendants are proper/necessary parties in this suit?
ii. Whether there is a valid contract of employment between the Claimants and the 1st Defendant?
iii. Whether the payments made by the 1st Defendant to the Kirikese Youth Movement are ex gratia payments?
13. Arguing issue one, counsel referred the Court to paragraph 4 of the Claimants’ Statement of Facts and paragraph 6 (ii) of the Defendants’ Statement of Defence and submitted that the 2nd and 3rd Defendants being agents of a Disclosed Principal, are not proper/necessary parties in this suit. He cited in support Ukpanah v Ayaya [2011] 1 NWLR (Pt. 1227) 61 at 88 paragraphs B-C.
14. Arguing issues two and three together, counsel submitted that it is the Claimants who seek two declaratory reliefs in paragraphs (a) and (b) of their complaint as endorsed. Thus, the burden of proof, leading to credible evidence to be entitled to the declaratory reliefs is on the Claimants, citing Nigerian Gas Co. Ltd v Dudusola [2005] 18 NWLR (Pt. 957) 292 at 316 paragraphs F – H and Section 131 (2) of the Evidence Act, 2011. Counsel submitted that it is the duty of the Claimants to lead credible evidence to be entitled to the 4 reliefs they are seeking for. Counsel submitted again that the Defendants joined issues with the Claimants on their particular assertion that they were employees of the 1st Defendant thereby putting same in issue, citing Galadima v State [2018] 13 NWLR (Pt. 1636) 357 at 381 paragraph B.
15. In addition, counsel submitted that the letters dated August 14, 2008; November 3, 2008; 2nd December, 2008 and November 1, 2016 relied on by the claimants are not contracts of employment and do not meet the requirements of the law on contract of service. He went on to submit that the Claimants are not employees of the 1st Defendant but that the 1st Defendant only made ex gratia payment to the Claimants whenever it had operations. He went on that th isis payment evidenced in the Claimants’ letter of November 10, 2016 and July 12, 2017; referring to paragraph 7 of the Claimants’ letter dated July 12, 2017.
16. Counsel concluded that the Claimants are not employees of the 1st Defendant neither are they entitled to monthly salary of N80,000.00 (Eighty Thousand Naira) only per month for each of the 30 youths from September 2008 until this suit is determined. He urged the Court to dismiss the Claimants’ case with punitive cost as it has no merit.
17. COURT’S DECISION
17.1. INTRODUCTION
I have carefully read the facts of this case, the written arguments of the parties, including their counsel’s cited authorities, both case and statute laws. From all of these, I am of the considered view that the following issues need to be resolved by the Court between the parties:
i. Are the 2nd and 3rd Defendants proper/necessary parties in this suit?
ii. Was there a valid contract of employment between the Claimants and the 1st Defendant?
iii. Are the claimants (the 30 members of Kirikese Youth Movement) entitled to arrears of salary from the 1st defendant at N80,000.00 monthly for each of them from January 1, 2009 until the contract is terminated except for July 2017?
17.1.1. Before going to the merit of this case, let me state that on December 15, 2020; counsel to the parties agreed to argue this matter on record under Order 38 Rule 33 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. See the proceeding of the Court on the said date at pages 6 and 7 of the Proceedings’ file on this case. The Court obliged the parties with their request and directed their counsel to file their Final Written Addresses in line with Order 45 of the Rules of this Court. What this means is that parties dispensed with calling their witnesses to testify and they relied solely on the contents of the documents they frontloaded as their evidence. And so, they filed their Final Written Addresses. We should not also forget that legally, a Court can make reference to or make use of any document it finds necessary in the case before it, see the case of Umezinne v. FRN [2013] 13 NWLR (Pt. 1371) CA 269 at 289 paragraphs C-F.
17.1.2. While preparing this judgment, I noted in the parties’ Final Written Addresses that their counsel still referred to the Written Statements on Oath of their witnesses. Counsel cannot rely on the said statements when they argued their case on record, because no witness was called in evidence to adopt those written statements on oath as their evidence. In the circumstance, all reference to the written statements on oath of the parties’ witnesses in their arguments in this case is hereby discountenanced in this judgment.
18. RESOLUTION OF ISSUES FRAMED BY THE COURT
18.1. Are the 2nd and 3rd Defendants Necessary Parties in this Suit?
The first issue raised by the defendants in their final written arguments is whether the 2nd and 3rd Defendants are proper/necessary parties in this suit, more so that the parties agreed that the two defendants are employees of the 1st defendant; otherwise agents of a disclosed principal. For instance, in paragraph 4 of the Statement of Facts, the claimants averred that the 2nd and 3rd Defendants are Senior Staff of the 1st Defendant.
18.1.1. In Law, a necessary party to a suit is the one, who is not only interested in the subject matter of the proceedings, but he is one in whose absence the proceedings cannot be fairly dealt with. In other words, without his being a party to the suit in question, the court may not be able to effectually and completely adjudicate upon and settle all questions involved in the said suit; see Ojo v. Ogbe [2007] 9 NWLR (Pt. 1040) 542 and Mobile Oil Plc v. DENR Ltd. [2004] 1NWLR (Pt. 853) 145.
18.1.2. Since the claimants in the case at hand deposed that the 2nd and 3rd defendants are senior staff of the 1st defendant, I find that the 2nd and 3rd defendants are agents of a disclosed principle, which is the 1st defendant. I further find that, with the principal of the 2nd and 3rd defendants, being the 1st defendant before the Court, this case can effectually and effectively be adjudicated upon without the presence of the 2nd and 3rd defendants. Therefore, I hold that the 2nd and 3rd defendants are not necessary parties in this case. Accordingly, I direct that the names of Chief Opena Anobili and Mr. Innocent Wakama be struck out as 2nd and 3rd defendants respectively in this case.
18.2.0. Was There a Valid Contract of Employment Between the Parties?
The claimants answered this question in the affirmative, while the defendant answered the question in the negative. The Law is that where an employment relationship between employer and employee is not with statutory flavour but it is regulated by the service agreement or terms of service, then, it is only document(s) which show(s) the conditions of service, that the Court is entitled to examine, in order to determine the parties’ right/entitlements and duties. Put in another way, the Court can only look at the contract of service between the parties and nothing else to resolve issues on the agreement contract between them. This is because the contract of service is the bedrock upon, which the aggrieved employee must found his case. The claimant(s) succeeds or fails upon the terms thereof; see the cases of Sharu v. Federal Polytechnic Kaura Namoda & Anor [2016] 67 NLLR (Pt. 238) 143 at 165-166 para G-A and Gbedu v. Itie [2020] 3 NWLR (Pt.1710) SC 104 at 126 para F-H.
18.2.1. In the instant case, counsel to the claimants listed and frontloaded copies of 22 documents/letters they are relying on during trial. The list and copies of these documents are at pages 13 to 80 of the Record. It is pertinent to note that none of these documents state the terms and conditions governing the employment relationship between the parties. There is even nothing evidencing the alleged contract of employment between the parties before the court. It is trite law that whosever desires any Court to give him judgment on any legal right based on the existence of facts which he asserts, must prove that those facts exist. See Nammagi v. Akote [2021] 3 NWLR (Pt. 1762) SC 170 at 188, paras C-E. In Oyebode v. Gabriel [2013] All FWLR (Pt 669)1043 at 1083-Yakubu (JCA) held that by the provisions of section 137(1) of the Evidence Act, it is he who asserts the existence of a fact or set of facts, which are to his knowledge, that must prove those facts through evidence by him or his witnesses. See also the cases of: Agboola v. UBA [2011] All FWLR (Pt. 574) 74 SC and Alade v. Alic Nig. Ltd [2011] All FWLR (Pt. 563) 1849.
18.2.2. Regardless of the argument of counsel to the claimants in paragraph 2.01 of their Final Written Address that they had an oral contract of employment agreement with the 1st Defendant, this fact is not pleaded by the claimants in their Statement of Facts before the Court. It is trite that Address of counsel, no matter how brilliant cannot replace the party’s evidence. In other words, the claimants’ counsel is not allowed in law at address stage to manufacture or fabricate facts, which were previously not declared in the claimants’ pleadings neither was it given in evidence. See the cases of UBN Plc. & anor v. Ayodare & Sons (Nig.) [2007] All FWLR (pt. 383)1 at 42, paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt 494) 1605 at 1623. The reason for this principle is because, parties are bound by their pleadings and by the contract that they freely enter into. See the Gbedu v. Itie [2020] 3 NWLR (Pt.1710) SC 104 at 129-130 para H-A.
18.2.3. In the instant case, the claimants contended that they were employed by the 1st defendant orally and because, the 1st defendant paid them salaries. They actually frontloaded several letters of demand for salaries etc. In my considered view, letters of demand for salary from supposed employer is not enough to establish a contract of employment and I so find. The claimants who are contending that they were employees of the defendant is mandatorily required to satisfy the Court in this regard, by showing their contract of employment. We should bear in mind that by their pleadings, the claimants deposed that they belong to a corporate body registered under the law, see paragraph 2 of the Statement of Facts.
18.2.4. The claimants are in the circumstance, under an obligation to ensure that any company who employs their members must do so in writing. The contract of service/employment should state the name(s) of the parties to the contract, the nature of the employment, what his salary is monthly and so on. Such contract should state the offer, acceptance, consideration, capacity and intention to create legal relations. In essence, the basic requirement for the recognition of an employer-employee relationship is the existence of an enforceable contract of employment. This fact was reiterated in the case of Iyere v. Bendel Feed and flour Mill Ltd [2008] 12 CLRN 1 where Muhammed JSC held that “---, the legal basis of employment between the employer and employee is the contract of employment. The contract of employment is important in itself, in that it may give rise to a common law action for its enforcement or for damages for its breach”. And in a case like the instant one that the claimants are contending none payment of salary as a breach of the contract of their employment, they are mandatorily required to prove that such contract existed between the parties, how it was breached, etc; see the case of Afribank (Nig.) Plc. v. Osisanya [2000]1 NWLR (Pt. 642) 592.
18.2.5. However, none of these requirements is met by the claimants in the instant case. Therefore, I hold that the claimants have failed to satisfy this Court that they were employees of the defendant. I hold that there is no valid contract of employment between the claimants and the 1st defendant so as to bring this case under section 254C (a) of the Constitution of the FRN, 1999 (As Amended) and under section 7 (a) of the NIC Act, 2006. In the circumstance, I hold that the claimants are not employees of the defendant, Bonny Channel Company Limited.
18.3.0. Are the claimants entitled to arrears of salary from the 1st defendant at N80,000.00 monthly for each of their 30 member from January 1, 2009 until the contract is terminated?
I have held above that there is no contract of employment between the claimants and the remaining defendant in this case. Consequently, I hold that the claimants are not entitled to claim from the defendant any salary from January 1, 2009 till date and this claim is accordingly dismissed for lacking in merit.
19.0. On the whole, I hold and order as follows:
i. I hold that the 2nd and 3rd Defendants are not proper/necessary parties in this suit.
ii. I hold that there was no valid contract of employment between the Claimants and the Defendant, Bonny Channel Company Limited.
iii. I hold that the claimants are not entitled to any arrears of salary from the defendant.
iv. This case is accordingly dismissed for lacking in merit.
v. The claimants are to pay N500,000.00 cost to the defendant within 30 days from today.
20.0. Judgment is entered accordingly.
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HON. JUTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Presiding Judge