IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE R.B.HAASTRUP
21ST MARCH 2023 SUIT NO. NICN/ABJ/316/2021
BETWEEN:
MR. THOMAS EDUN …………………………………………………………..…………CLAIMANT
AND
AFRIKDELTA MARINE LIMITED ………………………………………………DEFENDANT
Legal Representation
A. O. Uwangue Esq. for Claimant
Bolaji Ramos Esq. for Defendant
JUDGMENT
Introduction and Claims
[1] The Claimant herein by reason of a Complaint dated and filed 8th November 2021 claims the reliefs hereunder reproduced thus;
a. A declaration that the Defendant’s unilateral act of arbitrarily adjusting the Claimant’s salary structure from N558, 052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty kobo) (sic) to about N700, 000.00 (Seven Hundred Thousand Naira) only instead of about N900, 000.00 (Nine Hundred Thousand Naira) violated/breached the Claimant’s contract of employment and conditions of service signed by both parties hereof.
b. A declaration that the Defendant’s unilateral act of arbitrarily adjusting the Claimant’s salary structure from N558, 052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty kobo) (sic) to about N700, 000.00 (Seven Hundred Thousand Naira) only instead of about N900, 000.00 (Nine Hundred Thousand Naira), amounted to the Defendant’s constructive determination of the Claimant’s employment.
c. An Order for the immediate payment of the sum of N558,052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty kobo)(sic) only to the Claimant, representing one-month salary in lieu of notice for the breach of Claimant’s contract of employment with the Defendant.
d. An Order for the immediate payment to the Claimant, of the sum of N2,008,988.71 (Two Million, Eight Thousand, Nine Hundred and Eighty-Eight Naira, Seventy-One Kobo) only, being twenty percent (20%) interest on the above sum of N558,052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty Kobo) (sic) only, from the month of February 2020 to July, 2021.
e. The sum of N111, 610.84 (One Hundred and Eleven Thousand, Six Hundred Ten Naira) only, being twenty percent (20%) interest per month on the sum of N558, 052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty Kobo) from the month of August 2021 until judgment is delivered.
f. The sum of N20, 000,000.00 (Twenty Million Naira) only, as general, exemplary and or aggravated damages for the Defendant’s oppressive conduct against the Claimant.
g. Ten percent (10%) interest per annum on the total Judgment sum from the date of Judgment until the entire Judgment sum is fully paid.
[2] Having been served with the Claimant’s originating processes, the Defendant filed its Memorandum of Appearance, Statement of Defence and Counter-Claim dated 29th November 2021 and filed 30th November 2021, wherein it claimed as follows;
a. An Order directing the Claimant/Defendant to Counter-Claim to pay to the Defendant/Counter-Claimant the sum of N558,052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty kobo) only, being his salary in lieu of notice which he failed to give the Defendant/Counter-Claimant.
b. An Order directing the Claimant/Defendant to Counter-Claim to pay to the Defendant/Counter-Claimant the sum of N5,000,000.00 (Five Million Naira) being the professional fee paid by the Defendant/Counter-Claimant to its lawyers for the prosecution of this suit.
Thereafter, the Claimant’s Reply to the Defendant’s Statement of Defence and Defence to Counter-Claim was filed on 31st January, 2022, but deemed as properly filed by Order of Court made on 17th June, 2022.
[3] Trial commenced on 2nd February 2022, while Claimant opened his case on 17th June 2022, testified for himself as CW1 and tendered twelve documents admitted and marked as Exhibits C1-C12. For the Defendant, its defence was opened on 22nd July 2022 and closed on 9th November 2022 during which time one Omotayo Ismaila, the Human Resource Manager of the Defendant testified as DW1 and through him three documents were also admitted and marked Exhibits D1-D3.
After the close of evidence, the Defendant/Counter-Claimant filed their Final Written Address on 28th November 2022 to which Claimant/Defendant to Counter-Claim filed his Final Written Address on 11th January 2023 and finally, Defendant/Counter-Claimant’s Reply Address was filed on 17th January 2023. The said Addresses were all adopted on 18th January 2023.
Claimant’s Case
[4] The case of the Claimant is that he is a Captain and Seafarer who vide Exhibit C1 (Application Form) was offered employment in the defendant company evidenced in Exhibit C2, to work as a Master on a salary structure in the sum of N558,052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty kobo) only. That sometime in the year 2019, the Defendant unilaterally imposed a new salary structure and new contract agreement on the Claimant, without his consent, in breach of the contract of employment that existed between both parties covered by clauses 1 (1.4) and 39 of the Conditions of Service (Exhibit C3).
Consequent upon the above, Claimant put in his resignation through an email vide Exhibit C4, dated 3rd January, 2020 in protest of the breach of the contract, which was viewed as constructive termination of employment. That his resignation was acknowledged with a promise to pay his entitlements, yet none was paid, thus forming the basis for his complaint in the court.
The Claimant, as Defendant to the Counter-Claimant, denied any liability to the Defendant/Counter-Claimant.
Claimant’s Counsel Legal Submissions
[5] The Claimant Counsel submitted four issues for determination of the Court as follows:
a. Whether the Claimant can enforce Exhibit C3 having been rightly admitted in evidence as a contractual document between the parties to this suit.
b. Whether the Defendant’s breach of the contractual agreement between the parties to this suit, amount to constructive determination (discharge) of the contract of employment that existed between the parties to this suit.
c. Whether the Claimant is entitled to the reliefs claimed in this suit.
d. Whether the Defendant/Counter-Claimant has proved her Counter-Claim.
[6] It is Claimant’s counsel submission as to his issue one that from the pleadings and evidence before the court and under the exceptions to the general principles of labour law, he can enforce the contents of Exhibit C3 (Collective Agreement) which had been admitted in evidence as a contractual document between the parties herein. He posited that a general principle of labour law as to Collective Agreements is that they are not binding on the individual employees and the employer, except where same has been incorporated into the contract of employment of the particular employee; which he stated formed the grounds of Defendant/Counter-Claimant’s arguments at paragraphs 3 and 5 (e) and (h) of its Statement of Defence/Counter-Claim, that Claimant cannot enforce Exhibit C3 as it did not enter into the said collective agreement personally with the Claimant by reason of the principle of privity of contract.
Counsel here argued that the Defendant counsel did not avert his mind to the
exception provided under such general principle which is that once such collective agreement has been incorporated into the contract of employment, it is enforceable as he cited the case of OSOH V. UNITY BANK PLC (2013) 9 NWLR (Pt. 1358) RATIO 9 S.C and A.C.B. PLC V. NWODIKA (1996) 4 NWLR (Pt. 443) Page 475 RATIO 4, which is to the effect that a number of factors to be considered in the applicability of a collective Agreement on an employee and his employer are:
a. their incorporation into the contract of service if one exists;
b. the state of pleadings;
c. the evidence before the Court; and
d. the conduct of the parties.”
It was then posited that both parties had pleaded and relied on the said collective agreement to which under cross examination DW1 had confirmed that it formed part of the Claimant’s contract of employment. Thus he argued that the Defendant cannot rely on the Collective Agreement when it suits it and reject it when it does not suit it and as such that Exhibits C2 and C3 are binding on the parties.
[7] On the contention by the Claimant counsel that it was the Defendant who breached Clauses 1 (1.4) and 39 of the collective agreement which was denied by the Defendant, Claimant counsel posited that having joined issues thereon in their various pleadings, the law is trite that when parties join issues on a particular subject matter, the only duty saddled on the court is to proceed to deliver judgment on those issues. He relied on the case of ARDO v. INEC
[8] On the 2nd issue, Claimant counsel submitted that based on the pleadings and evidence on record, the Defendant’s breach of the contractual agreement between the parties amounted to constructive determination (discharge) of the contract of employment that existed. Also, that Claimant’s involuntary resignation is in law viewed as a kind of unlawful termination of employment known as constructive dismissal or constructive discharge (termination)which upon prove gives right to a cause of action. He relied on the authorities of C.B.N. v. ARIBO (2018) 4 NWLR (PT. 1608) 130 @ 144 RATIO 16; BALONWU V. VOLUNTARY SERVICE OVERSEAS (VSO) INTERNATIONAL, (Unreported) SUIT NO. NICN/ABJ/280/2018, where this court held that “constructive dismissal/discharge once proved evinces a poor and unfair labour practice on the part of the employer”.
[9] Going further, another consideration for constructive dismissal or termination to succeed is that the claimant must show that he resigned soon after the incident(s) he is complaining about as held in JOSEPH OKAFOR V. NIGERIAN AVIATION HANDLING COMPANY PLC (UNREPORTED SUIT NO. NICN/LA/29/2016). Also, that constructive discharges fall into one of two basic fact patterns which could be by breaching the employee’s contract of employment in some manner short of termination or where the employer can make the working conditions so intolerable that the employee feels compelled to quit.
Relating the above position of the law to the instant case, claimant counsel posited that even though the Defendant did not ask him to resign, but that its actions at paragraphs 9-15 of his Statement of Material Fact and paragraphs 7 (d), (h), (i), (j), 8 (c) and (g) of the Claimant’s Reply to Defence and Defence to Counter-Claim by unilaterally imposing a new salary structure while the old one still subsisted, suffices as acts resulting to his subsequent resignation. More so, that in the Claimant’s letter of resignation dated 3rd January, 2020 (Exhibit C4), the reasons for his resignation was stated to be in protest of the breach of clauses 1 (1.4) and 39 of the Conditions of Service which was supported by Claimant’s evidence under cross-examination. Claimant counsel urged the court to reject the evidence of DW1 that it negotiated a new contract with Claimant’s Union which it never produced in court and that such fact was never pleaded, thus it goes to no issue. He cited the case of LADIPO V AJANI (1997) 8 NWLR (PT. 517) @ 365 PARA. B, among others.
Premised on the above submissions and Exhibits C3, C4 and C11, Claimant counsel urged the court to resolve issue 2 in favour of the Claimant and hold that the Defendant’s breach of the contractual agreement between the parties amounts to constructive determination (discharge) of the contract of employment.
[10] On the 3rd issue, it is the position of Claimant’s Counsel that the Claimant is entitled to the reliefs sought in this suit. He stated that the requirement of the standard of proof in civil cases is on balance of probabilities or preponderance of evidence which requires the trial Judge to rely on his judicial and judicious mind to arrive at where the imaginary scale preponderates. He relied on NWANO V. OBAZE (2012) ALL FWLR (PT. 605) 231 AT 292; amidst a host of other cases.
He further submitted that a party seeking a declaratory relief must prove that he has an interest or right which forms a foundation for the relief sought before the court as he relied on the case of UMAR V. GEIDAM (2019) 1 NWLR (PT.1652) 29 SC, and others and went on to posit that claimant has by his pleadings and evidence been able to establish his legal right which was infringed by the Defendant’s actions in breaching the contract of employment between the parties.
[11] Claimant counsel stated that the existence of a contract of employment relationship between the parties was established via paragraphs 5 and 6 of the Claimant’s Statement of Material Fact and same was admitted by the defendant, thus that facts admitted need no further proof. He cited the case of NDUKWE V. LPDC (2007) 5 NWLR (Pt. 1026) 1 SC, in support of his submissions. That where claims for declaratory relief has been made as in the instant case, it is for the court to declare what the law is on the issue at hand and in order to have an enforceable legal right from a declaratory judgment or order, the successful party must in addition, seek injunctive orders or damages. Reliance was placed on the authority of OLORUNTOBA-OJU V. DOPAMU (2008) 7 NWLR (Pt. 1085) 1 S.C.
Claimant Counsel rehashed his submissions that it was the Defendant who breached the contract of employment relationship between the parties thus resulting in constructive termination of his employment. He stated that in support of this he had tendered the following; Letter of salary review dated 18th December, 2019, the new contract of employment agreement titled “SEAFARER’S EMPLOYMENT AGREEMENT with its accompanying documents titled SPC-VSL-03-3001-001-Master and Management of Alcohol and Drugs, collectively marked as Exhibit CT11 and these facts were admitted by DW1 under cross examination, upon which the Claimant now seeks a declaratory order from this Honourable Court.
[12] Counsel here argued that where there is an employer-employee dispute, it is the conditions of service or terms stipulated in the contract that must be considered and that no court should look outside those terms and conditions as stipulated in the documents in deciding the rights and obligations of the parties to the agreement. Reference was made to the cases of MOHAMMED V. NIGERIAN ARMY COUNCIL (2021) 13 NWLR (PT. 1793) 259 C.A. That a declaratory relief being equitable in nature, is usually granted upon a party proving favourable exercise to the discretion and that the claimant has fulfilled the above requirements by establishing the conditions of his employment and in what manner it was breached. He relied on the cases of NITEL PLC. V. AKWA (2006) 2 NWLR (PT. 964) 391 C.A., ANGEL SPINNING & DYEING LTD. V. AJAH (2000) 13 NWLR (PT. 685) 532.
[13] Further to the above, claimant counsel challenged the contentions and arguments of the Defendant at paragraphs 6.3 to 6.23, pages 12-24 of their Written Address as being misplaced, as both pleadings and evidence before the court show that both are in agreement to the fact that Exhibit C3 binds the parties hereof and that letter dated 18 December, 2019, and an unsigned employment agreement dated December, 2019 annexed to Exhibit C11, were the new contract of employment issued to the Claimant by the Defendant in the midst of a subsisting contract of employment between both parties hereof as presently constituted in this case.
[14] In reacting to the Defendant’s Counsel argument that because the new contract of employment agreement titled “SEAFARER’S EMPLOYMENT AGREEMENT”, dated December, 2019, was not signed by parties hereof, that the court cannot give probative value to the said document; it is claimant’s counsel’s submission that as a general principle of law, an unsigned document carries no weight even if it had been admitted in evidence, however an exception will be where the maker of the unsigned document gives evidence on it as held in the cases of AREGBESOLA V. OYINLOLA (2011) 9 NWLR (Pt. 1253) 458 CA., Also, that there is evidence showing that Defendant had issued the said unsigned new Contract of Employment Agreement titled “SEAFARER’S EMPLOYMENT AGREEMENT, while the old contract still subsisted.
The claimant counsel, in support of his position made reference to the case of ASHAKACEM PLC V. A.M. INV. LTD. (2019) 5 NWLR (Pt. 1666) 447 S.C., among others where the apex court stated that the purpose of signing a document is to identify the author of such document upon which credence will be given to same even though not signed.
[15] It was submitted further on behalf of the Claimant that a combined effect of Exhibits C2 and C3 precludes the Defendant from unilaterally increasing the salary of the Claimant and altering the subsisting contract of employment between parties, as such actions are to be taken mandatorily in line with Clauses 1 (1.4) and 39 of the conditions of service. That the failure to comply with the laid down procedure makes the entire exercise null and void. He cited the cases of clause 39 of the Conditions of Service (Exhibit C3) uses the word “shall” is not discretional but mandatory when it comes to altering or amending any of the terms in it.
That where a declaratory relief has been granted, the Court should proceed and grant the consequential reliefs as prayed in Claimant’s reliefs 25 (c) to (g) of Statement of Material Facts of the Claimant in order to give effect the declaratory reliefs.
[17] With regard to issue 4 of the Claimant which centres on the Defendant’s Counter-claim, counsel here submitted that the defendant/counterclaimant is not entitled to her Counter-Claim. That the onus of proving the counterclaim rests on the Counterclaimant who are relying on Exhibits C3, C4, C12 and D3 to support their stance.
It is claimant’s counsel’s contention that Defendant’s Counsel argument at paragraphs 6.24 to 6.33 of his Final Written Address are misplaced as it not backed by evidence as he argued against the claim for payment of one month salary in lieu of notice arising from claimant’s breach of clause 28 of Exhibit C3.
Defendant’s Case
[19] The Defendant’s case is that the Claimant went on a 3-week rotational leave and was to return on the 30th January, 2020 but refused to resume work and instead, sent a letter of resignation (Exhibit C4) without a pre-requisite one-month notice or salary in lieu. That claimant in resigning his appointment did not follow the procedure laid down in clauses 28 and 35 of the Conditions of Service (Exhibit C3) before instituting the action.
Also, that Claimant cannot enforce the Conditions of Service (Exhibit C3) on the grounds that the Defendant did not enter into the said collective agreement personally with the Claimant, and as such, the Claimant cannot enforce the said collective agreement. Then, that contrary to Claimant’s assertion, defendant did not impose any new salary structure on the Claimant.
Defendant’s Counsel Legal Submissions
[20] In the Defendant’s Final Written Address, the counsel submitted two issues for the determination of the court thus;
a. Whether the Claimant is entitled to its claims as contained in the General Form of Complaint and Statement of Facts.
b. Whether, in the light of the evidence before the court, the Defendant has proved and is entitled to the relief sought in its counterclaim.
[21] Defendant counsel while arguing his 1st issue decided to do so by x-raying each of the seven reliefs claimed by the Claimant. He posited that in order to ascertain if claimant is entitled to his first relief, the court must consider Exhibits C2 and C3, as well as the evidence before the court in relation thereto.
With reference to Exhibit C2, that there is nothing contained therein to suggest that the Defendant cannot increase claimant’s salary, neither is there anything constituting a breach which will necessitate claimant’s resignation. Then as to Exhibit C3, it was contended on behalf of the defendant that even though Clause 1(4) provides for negotiation which includes discussion relating to salaries, Clause 39 relates only to amendment of Exhibit C3 which cannot be done without the consent of the other party to the agreement.
[22] Further to the above, Defendant counsel submitted that the Claimant failed to place any cogent evidence before the court to show that the Defendant unilaterally amended Clause 39 of Exhibit C3 with reference to a new salary structure on the Claimant. That the reliance by claimant on a letter dated 18th December 2019 alongside an unsigned employment agreement dated December 2019 annexed to Exhibit C11 does not support his assertions as the portion to be signed by both parties at page 5 is still yet to be signed by either of the parties; nothing therein also suggests the alleged increment from N558, 052.42 to N750, 000.00 instead of N900,000.00; and that Claimant was given the option of agreeing to the terms in it or rejecting it.
Flowing from the above, Defendant counsel argued that this court cannot place any probative value on the employment agreement dated December 2019 annexed to Exhibit C11, as same was neither signed by the parties nor constitute any contract between them as it is only but a worthless document with no legal status. He relied on the Supreme Court case of MAKU v. AL-MAKURA & ORS (2016) LPELR-48123(SC) Pp. 55-56, PARA. E-B, and Court of Appeal case of ETIM v. STATE (2019) LPELR-47461 (CA) Pp. 32-33, PARAS E-A. Thus, that claimant has been unable to show that the Defendant breached Clause 39 of Exhibit C3. He urged the court to so hold.
[23] In Defendant’s counsel arguments against Claimant’s second relief, he reiterated his argument above and in addition submitted that the reliance on claimant’s resignation letter Exhibit C4 and C11 in order to establish his claim of constructive termination must be considered in the light of the facts leading to the Claimant’s resignation as to whether he was coerced directly or indirectly by the Defendant, and whether he followed due process in his resignation.
[24] That contrary to claimant’s case that the defendant unilaterally increased his salary from N558, 052.42 to N750,000.00, defendant case is that Claimant went on leave and to resume on 30th January 2020, instead he sent his letter of resignation by email to the Defendant on 3rd February 2020 even though backdated to 3rd January 2020, with a view to evading the required one-month notice under Clause 28 of Exhibit C3. Also, that in the face of any grievances, claimant was to follow the five steps procedure under Clause 35 of Exhibit C3 before proceeding to Court, which the defendant counsel contended that claimant failed to comply with and cannot turn around to allege that the Defendant breached Clauses 1(4) and 39 of Exhibit C3.
[25] Defendant counsel the posited that based on pleadings and evidence before this court, it has established that the alleged unilateral increment of salary happened sometime in 2019; while Claimant’s letter of resignation was sent on 3rd February 2020 and he had admitted under cross examination, that ‘Exhibit C12 was actually forwarded on 3rd February 2020. It is on the strength of the foregoing that the defendant counsel submitted that claimant did not come to this court with clean hands and that he cannot complain of constructive termination upon the reasons already argued in addition to the fact that he first breached the contract between them.
[26] Then with regard to Claimant’s reliefs 3 to 8, or C to G for the payment of certain sums, defendant counsel argued that they are not grantable by this Court for two major reasons. Firstly, that the said reliefs under consideration are ancilliary to the principal reliefs which are Nos. 1 and 2, thus if there is no material evidence for the court to rely upon in granting the principal reliefs, then the ancillary reliefs 3 to 8 should fail as held in ATUNKA & ANOR V. ABOKI & ANOR (2016) LPELR-41199 (CA), MCDONALD SCIENTIFIC EMPORIUM LTD v. ACCESS BANK (2021) LPELR-53301(CA), as he urged the court to dismiss the Claimant’s entire claim and resolve issue one in favour of the Defendant.
[27] Defendant/Counterclaimant’s submission on issue two is squared on the reliefs in the counterclaim. With regard to the claim for payment of one month salary in lieu of notice, defendant counsel submitted that this had been proved through cogent evidence as the Claimant did not give the requisite one-month notice of termination in line with Clause 28 of Exhibit C3, and that further evidence in this regard was given in paragraph 6 of the witness statement on oath of DW1 which was never controverted by the claimant. Defendant counsel thus urged the court to hold that it is entitled to the sum of N558.052.42 from the Claimant as salary in lieu of notice.
[28] On the second head of the Defendant’s counterclaim for the sum of N5, 000,000.00 as legal fees, counsel referred the court to the case of AGBALUGO & ANOR v. IZUAKOR (2017) LPELR-43289(CA) to substantiate his argument that so long as the claim has been specifically pleaded and established by credible evidence, as it has done in this case vide paragraph 13 of DW1’s witness statement on oath and exhibit D3, the defendant is entitled to such claim. On the strength of the foregoing, Defendant Counsel urged the court to grant the counterclaim and resolve this issue in favour of the Defendant/Counterclaimant.
Decision
[29] The facts of this case are simple and straight forward. The Claimant as employee of the defendant worked as a master from 1st July 2016 vide exhibit C1 to sometime between January and February 2020 when he resigned his appointment with the defendant (see exhibit C4). He was on a monthly salary in the sum of N558, 052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty two kobo). Conflict between the parties started when according to the Claimant, the defendant unilaterally imposed a new salary structure on him from the sum of N558, 052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty two kobo) to the sum of N613, 858.00 (Six hundred and Thirteen Thousand, Eight Hundred and Fifty Eight Naira) only instead of about N900, 000.00 (Nine Hundred Thousand Naira) which gave rise to constructive termination of his employment with the Defendant.
[30] The defendant on the other hand disputes the claimant’s assertions and stated that the new salary structure referred to by the claimant as contained in exhibit C11 was not an imposition as claimant was given the opportunity to accept the offer or not, in addition to their claim that claimant resigned his appointment vide an email dated 3rd January 2020, even though sent to the defendant on 3rd February 2020, hence he is liable to pay them one month salary in lieu of notice as required by clause 28 of exhibit C3.
Having gone through the processes filed and evidence led in this case, as well as the final written addresses of the parties, this court adopts the issues distilled by the Defendant/Counterclaimant as its issues for determination.
Resolution of Issues
In proof of a party’s claims in civil cases, it is the requirement of the law that such a party must prove his case on the preponderance of evidence and that the onus rests on him who will fail if no evidence is adduced on either side of the case. See sections 131-133 of the Evidence Act 2011 (As Amended) and the case of LONGE V. CBN (2006) 3 NWLR (PT.967) 228.
Issue one
Whether the Claimant has proved his case to be entitled to the reliefs sought?
[31] Claimant herein claims against the defendant for payment of one month salary in lieu of notice for creating a situation of constructive termination of his appointment which resulted in his resignation vide exhibit C4, contrary to the provisions of Clause 35 of the conditions of service (exhibit C3). What first needs to be resolved is whether exhibit C3 is applicable to the employment relationship between the parties as the defendant counsel had strongly argued that the said exhibit is not binding on the parties since the defendant did not execute it personally with the Claimant, but the Nigerian Merchant Navy Officers and Water Transport Senior Staff Association and that there is no privity of contract between them. In challenge of this contention is claimant’s submission that as an exception to defendant’s position is where the said conditions of service were incorporated into the employment agreement in addition to his claim that both parties had pleaded and relied on it in prove of their respective positions. As such that they cannot choose when it becomes applicable to them and when it will not.
[32] I have gone through the contents of exhibit C3 which on the face of it shows that it is a collective agreement which was reached between “Lamnalco Nigeria Limited Branch and The Nigerian Merchant Navy Officers and Water Transport Senior Staff Association”. However, a critical look at paragraph 10 of exhibit C2 reflects as follows;
“All other conditions are as per the collective agreement between Afrik Delta Marine Limited and Nigerian Merchant Navy Officers & Water Transport Senior Staff Association.”
Also, at paragraph 5 (e) of Defendants statement of defence, the Defendant had also made reference to and even relied on clauses 28 and 35 of exhibit C3 to push his position in this case before the court.
[33] In the recent Supreme Court case of TOYINBO V. UNION BANK PLC (2023) 1 NWLR (PT.1865) 403 @ 424 PARAS. D-E, the court had held that a collective agreement is not ordinarily applicable to an individual employee, but that where same has been incorporated into the employment agreement, an individual employee can claim a right personally from it. There is ample evidence from the above that exhibit C3 was incorporated into the employment agreement between the parties herein in addition to the fact that, the defendant had in this court relied on the same exhibit to make claims against the claimant, thus it cannot deny its applicability between the parties as that will amount to approbating and reprobating at the same time. More so, the evidence of the defendant through its witness that it is claimant’s union that should sue it to court if there is any misunderstanding arising from the implementation of the terms contained in exhibit C3 and that it had an understanding with the union, I find untenable especially in the light of the fact that such understanding was never pleaded nor tendered before the court.
[34] Moving on to the next point is whether from the facts of this case the defendant’s action of issuing a new salary structure to the claimant via the attachment to exhibit C11 amounts to constructive termination resulting in the resignation of claimant from its employment?
The term constructive termination/dismissal presupposes a situation where an employer either expressly or by certain acts causes the employee to involuntarily resign his appointment. It is a forced or compulsory resignation of appointment by an employee engineered by the employer. See the case of CBN V. ARIBO (2018) 4 NWLR (PT. 1608) 130 @ 172 PARAS. C-E.
[35] In the instant case, there is evidence before this court to show that there was an offer for a new salary structure by the defendant contained in Exhibit C11 which is captured in a cover letter from the defendant dated 18th December 2019 with an annexure titled “SEAFARER’S EMPLOYMENT AGREEMENT (SEA) (PART I): SENIORS”. At the end of the document was a column provided with a sub heading “CONFRIMATION OF AGREEMENT” which reads as follows;
“I have examined and agreed to the terms and conditions of employment in Parts I and II and have entered into this employment agreement voluntarily.”
Thereafter, is a column for the claimant and the Regional HR Manager of the defendant to sign, which is still unsigned. The defendant counsel had argued vehemently and rightly so that the law is trite that a document which is not signed is worthless and without any legal value to be attached to it, which should not be admitted in evidence, but where admitted, should not be given any probative value by the court. See the case of ANYAOHA V.OBIOHA (2014) 6 NWLR (PT. 1404) 445 @ 475 PARAS. F-G. From the Final Written Address of the Claimant, it is my observation that he did not proffer any argument against the defendant’s position of the exhibit under consideration being unsigned. It is my finding thus that the document titled: “SEAFARER’S EMPLOYMENT AGREEMENT (SEA) (PART I): SENIORS” annexed to the bundle of documents marked as exhibit C11 being unsigned is nothing but a useless document as it does not bind any of the parties herein and cannot create any right or obligation there under, I so hold.
[36] This is in addition to the fact that the covering letter of the Defendant company introduced the “SEAFARER’S EMPLOYMENT AGREEMENT (SEA) (PART I): SENIORS” as an offer being made to the claimant who had the option of accepting or rejecting same or even making a counter offer. More so, contrary to claimant’s assertion that the said salary review was an imposition of a new “salary structure without remorse or considering the persisting hardship”; he never pleaded nor led any evidence to establish how and why he felt he ought to be paid the sum of about N900,000.00 (Nine Hundred Thousand Naira) as claimed in his reliefs 1 and 2 contrary to what the defendant was offering nor did he give any particulars of the poor socio-economic status or persisting hardship contained at paragraph 2 of exhibit C4 that the staff were going through to convince this court that the acts of the defendant compelled him to resign as he claims, and consequently resulting in constructive termination of his appointment. I so hold.
[37] Hence, I find that the claim for constructive termination/discharge by reason of the contents of the “SEAFARER’S EMPLOYMENT AGREEMENT (SEA) (PART I): SENIORS” forming part of exhibit C11 to be unfounded the said document lacking any legal value and in the absence of any other compelling factual evidence and it is consequently refused.
[38] Flowing from the above, since this court has held that the claimant has been unable to establish that the action of the Defendant amounted to constructive termination/discharge of his employment, it is of natural consequence also as rightly argued by the Defendant counsel that the ancillary reliefs 3-8 for monetary claims must equally fail as their success was dependent on the success of the main reliefs and I so hold. See the case of OLAYEMI V. F.H.A. (2023) 3NWLR (PT.1872) 445 @ 500 PARA. E.
Issue Two
[39] The 2nd issue borders on the Counterclaim of the defendant/counterclaimant for the payment of one month salary in lieu of notice required to be given by the claimant upon his resignation and then the claim for legal fees.
It should be stated from the earliest point of the resolution of this issue that a Counterclaim is a separate action of its own which exists independent of the original suit, and its survival is not hinged on the success or failure of the original suit. See the case of GOWON V. IKE-OKONGWU & ORS (2003) LPELR- 1336 (SC). In the same manner as an original suit, the Counterclaimant is expected to prove his case on the preponderance of evidence in order to succeed on his claims and cannot rely on the weakness of the defence. See also AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65.
[40] The 1st claim of the counterclaimant herein is for the payment of one month salary in lieu of notice of resignation by the claimant/defendant to counterclaim for which the counterclaimant alluded that it was contrary to the provisions of clause 28 of exhibit C3 which provides as follows;
“RESIGNATION: An employee terminating his/her employment with the company shall also give the appropriate one month notice or may elect to pay in lieu…”
In further support of the counterclaimant’s claim above is their evidence that the defendant to counterclaim resigned his appointment with them on 3rd February 2020 in his email dated 3rd January 2020 (i.e. exhibits C12 and D1), which was further confirmed in CW1’s oral evidence under cross examination thus;
“DC: Exhibit C12 was actually forwarded on 3/02/2020 and not 3/01/2020.
CW: I sent Email on 3/02/2020 which was date I was to resume duty”
[41] The above excerpt without a doubt supports the counterclaimant’s position that the requisite one month’s notice upon resignation was not given by the defendant to counterclaim as required by the conditions of service of the parties and I so hold. The foregoing simply means that having failed to comply with the requirement of clause 28 in exhibit C3, Defendant to counterclaim is liable to the counterclaimant for one month pay in lieu of notice and since his monthly salary as at the time he resigned his appointment was the sum of N558,052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty two kobo), he shall pay over the said sum to the counterclaimant. I so hold.
The arguments of defendant to counterclaim with regard to exhibit C8 on conflicting amount alluded to by the counterclaimant is not strong enough to derogate from the established fact of what his monthly salary was as at the time of resignation and as such does not have any effect on the claim for one salary in lieu of notice I so hold.
[42] The next claim for professional fees of engaging a counsel to prosecute their counterclaim in the sum of N5, 000, 000.00 (Five Million naira) only was sought on the basis that had the defendant to counterclaim paid the required sum, Counterclaimant would have had no need to seek service for legal representation which the counsel posited only needs to be pleaded and specifically proved and cited the authority of AGBALUGO & ANOR v. IZUAKOR (2017) LPELR-43289(CA) to support such claim. Against this claim is the defendant to counterclaim’s submission that payment of legal fees is not supported by law as held in the cases of U.B.A. PLC V. VERTEX AGRO LTD.,
[43] There have been a number of decisions from the Court of Appeal and the Apex court as to the issue of granting orders for payment of professional legal fees arising from legal representation as a form of damages. In the case of SUFFOLK PET. SERVICES LTD V. ADNAN MANSOR (NIG) LTD. (2019) 2 NWLR (PT. 1655) 1 @ the Court of Appeal delivered on 19th January 2018, the decision of the court therein aligned with that of U.B.A. PLC V. VERTEX AGRO LTD.,
From above, it is obvious that the current position is not to grant as special damages payment for solicitors or legal fees as claimed by the counterclaimant herein. On the strength of the above, counterclaimant’s relief two is hereby refused.
[44] On the whole, this court finds that the case of the claimant fails in its entirety and is accordingly dismissed, while the counterclaim succeeds in part as follows;
1. The Claimant/Defendant to counterclaims is ordered to pay the sum of N558, 052.42 (Five Hundred and Fifty-Eight Thousand, Fifty-Two Naira and Forty two kobo) only to the Defendant/Counterclaimant as payment of salary in lieu of notice.
2. The claim for professional legal fees fails.
Judgment is hereby entered
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Hon. Justice R. B. Haastrup
