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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 9TH day of May, 2023                                SUIT NO:   NICN/PHC/87/2019

 

BETWEEN:

MR. OYIBO WISDOM ------------------------------------CLAIMANT

AND

WEST AFRICAN VENTURES LIMITED-----------------------DEFEDANT

Representations:

A. Derefeka for the Claimant.

C.S. Maduba for the  Defendant.

 

Judgment.

This suit was commenced by a general form of complaint filed on the 19th of July, 2019 along with a verifying affidavit, statement of fact, witness statement on oath, list of witnesses, list of documents to be relied upon and copies of the documents.

Arising from the complaint and statement of facts, the Claimant is seeking the following reliefs:

1.      A DECLARATION the employment contract entered into between the Complainant and the Defendant is valid and subsisting till date.

 

2.      A DECLARATION that the mere verbal directive and/or instruction issued to the Complainant by the Defendant on 14/1/2015 directing the Complainant not to resume work pending the outcome of the Police Investigation Report as well as the Panel Investigation Report relating to the allegation of stealing on board Vessel Jascon 66, did not terminate the Complainant's employment contract.

    3.     A DECLARATION that the Defendant's consistent and persistent refusal and/or failure to pay to the Complainant his arrears of salaries and other allowances/entitlements from year, 2015 till date even in the face of repeated demand for payment, constitutes unfair labour practices and same is unconstitutional and void.

   4.      AN ORDER mandating the Defendant to pay to the Complainant, the arrears of salaries and other related allowances/entitlements owed from the year 2015 till date (i.e. N10, 481,760 for year, 2018).

   5.      AN ORDER mandating the Defendant to pay to the Complainant the sum of N3,300,000.00 (Three Million, Three Hundred Thousand Naira) only, being arrears of ex-gratia payments/allowances owed the Complainant for the period of Eleven (11) years (i.e. year, 2008-year, 2019).

  6.       AN ORDER directing the Defendant to pay to the Complainant, the sum of N50,000,000 (Fifty Million Naira) only, being general and aggravated damages for the psychological pains, trauma and economic and financial hardships/distress suffered by the Complainant as a result of the unlawful conduct and activities of the Defendant.

  7.       AN ORDER of perpetual injunction mandating the Defendant to continue to pay the Complainant's salaries, allowances and other entitlements as at when due and to grant unhindered access to the Complainant to resume work at his duty post, Vessel Jascon 45 or any appropriate operational base, pending when the said employment contract is validly and formally terminated by a written notice in compliance with section 10 of the SEAFARER'S EMPLOYMENT AGREEMENT RATING (CONTRACT) entered into by the parties dated 1/12/2014, issued and served on the Complainant to that effect.

  8.       AN ORDER directing the Defendant to pay 10% interest rate on the arrears of salaries, allowances and other entitlements from the date of filing this suit till date judgment is so entered, and a further 10% interest rate on the judgment sum from the date judgment is delivered in this suit until the date the judgment is liquidated.

The Defendant reacted to the suit by filing on the 13th of January, 2020, a statement of Defence, witness statement on oath, list of witnesses, list of documents and copies of the said documents.

Claimant on the 5th of February, 2020 then filed an amended statement of fact, reply to the statement of defence and a witness statement on oath. Following which a motion for amendment was moved and reliefs sought granted on the 27th of February, 2020, another amended statement of fact was filed on the 3rd of March, 2020 while a list of documents pleaded but not listed was filed on the 22nd of February, 2021.

Trial commenced in this suit on the 25th of January, 2021 with the Claimant himself called as the sole witness for his case as CW1 and upon which he adopted his witness statement on oath filed on 22nd of February, 2021. Through the said CW1, 15 documents were tendered and admitted as Exhibits C2 – C16 except for Exhibits C7 – C9 and C12 – C15 which were admitted under protest.

Arising from the amended statement of fact and witness statement on oath, the case of the Claimant is that he was employed by the Defendant as a junior staff on 1/4/2008 and later promoted to the position of BOSUN/FOREMAN. Claimant averred that on 17/12/2014, he was transferred from Vessel Jascon 66 to Jascon 45 where he settled and resumed work until 13/1/2015 when one Captain Dave informed him that he was directed to produce the Claimant at the Company base and as he reported at the said base, he was arrested by Naval Officers and security officers before he was handed over to the Police on the allegation of theft of some of the Defendant’s properties on board vessel Jascon 66 and he made statement in that regard to the Police before he was granted administrative bail upon which he returned to work but he was prevented by the Defendant’s Company official Mr. Paul Nwagor who verbally informed the Claimant that he could not resume work while the investigation relating to the alleged theft was still on-going. Claimant added that a nine-man panel was set up to investigate the allegation and although he was never invited, the Panel presented a report on 14/1/2015 and he reported at work but he was refused access and has till date refused to pay his arrears of salaries and other entitlements.

Upon cross examination, CW1 admitted that he has had other contracts after his first and each distinct contract has a provision for voyage contract bonus for work well done. CW1 admitted that since he disembarked from Jackson 45, he did not get another contract and once his contract expired, he was not paid salaries while at home. CW1 admitted that he can only get salaries when there is a subsisting contract and posited that he is not a permanent staff while some seafarers are permanent staff of the Defendant. CW1 further admitted that the last time he worked for the Defendant was 14th January, 2015 and admitted that the document listed as No.10 was made after the expiration of his employment with the Defendant. CW1 stated that he doesn’t know the last inventory at Jackson 66 on 30/11/2014 as he was not on board. CW1 admitted further that document no. 11, 12, 13 and 14 have nothing to do with the Defendant while with regards to No. 2, it is usually not predictable how long one will stay on board.

Upon the discharge of the CW1 on 29th July 2021, there were series of legal rigmaroles on the part of the Defendant which was preceded by a series of unnecessary adjournments that led to the eventual foreclosure of the defendants.  K.O. Molokwu withdrew appearance unofficially while C.S. Maduba took over the defence of the Defendant and eventually commenced defence on the 23rd of January, 2023. DW1 was presented in the person of Stanley Onuosa (the company Secretary) who adopted his witness statement on oath filed on 26/10/22 marked as D1. Through the said DW1, 10 documents were tendered and admitted in evidence as D2 to D11.

Arising from the statement of defence and witness statement on oath, the case for the Defendant is that the Claimant was first engaged by a sister company Walvis Nigeria Limited in 2008 and while the Claimant is not a permanent staff of either the Defendant or its sister company, employment is usually with a specific commencement and termination dates hence the Claimant was not at any time in continuous employment of the Defendant from 2008 to 2015. The Defendant averred further that the Claimant resumed duties on board Jascon 45 on 18/12/2014 but left his personal belongings at Jascon 66 and was still visiting the station without official reason. The Defendant averred further that when inventory was carried out at Jascon 66, certain items were discovered missing and same led to the Defendant reporting at the Onne Police station and the Police requested to interview employees who had worked on board Jascon 66 from 30/11/2014 to 13/1/2019(sic). The Defendant stated that it is not in the knowledge of whether the Police detained and tortured the Claimant and added that the Defendant set up a 9-man Committee but rejected the report because it was unilaterally produced by the Security Manager and the Claimant along with other persons were not invited to testify and following that, the Claimant was invited but he refused to honour the invitation though the Claimant was indicted in the report of 20th October 2019 while contending that the Claimant has been paid all his entitled salaries pursuant to the Seafarer’s Agreement Rating (Contract) executed on 1/12/2014 and the Defendant is not indebted to the Claimant from 2015 to 2018 and the Claimant is not entitled to any of the reliefs sought.    

Upon cross examination, DW1 stated that Exhibit D3 is not applicable to this set of facts as it deals with termination of the agreement and added that the contract comes to an end at the expiry date while adding that the Claimant disembarked beyond the expiry date of the agreement. DW1 also added that the Claimant was released on the same day of his arrest and that the Claimant worked for a fixed term contract and not continuously for a certain number of years.

Upon discharge of DW1, matter was adjourned for adoption of final written address and the Defendant filed their final written address on the 2nd of February, 2023 and arising therefrom, counsel to the Defendant formulated two issues for determination to wit:

1.         Whether the Claimant from the terms of his employment has a valid and subsisting contract of employment with the Defendant.

2.         Whether from the facts of this case and on the preponderance of evidence before the Court; the Claimant can be said to have proved his case as to be entitled to the reliefs sought.

 

In arguing issue one, counsel contended that it is a long established principle of law that the relationship between an employer and his employee is generally to be found in the service agreement or letter of employment. Counsel added that the Court is not entitled to look outside the contract of service as to the terms and conditions. Counsel cited the case of  AJI V. C.B.D.A (2015) 16 NWLR (Pt. 1486) 554 @ 559; LAYADE V. PANALPINA WORLD TRANSP LIMITED (1996) 6 NWLR (456) 544 (1996) 7 SCNJ.

Counsel added that in the instant case, by the wordings of Exhibit D3, the terms of contract between the Claimant and the Defendant is but for a fixed term. Counsel posited that a Contract of employment can be fixed term or indefinite term and cited Section 7(1)(d) of the Labour Act (Cap L1 LFN 2004)

 Counsel referred to the definition of ‘fixed term’ as provided in Black’s Law Dictionary, Tenth Edition at page 755 and Sam Erugo in his book titled; introduction to Nigerian Labour Law, contract of Employment and Labour Practice, second Edition 2019, Princeton & Associates Publishing Co. ltd.

Counsel added that where a contract of service is for a fixed term, the term of service is pre-determined at the commencement of the contract as in the instant case between the Claimant and the Defendant. Counsel cited the case of  IGBE V. GOVERNOR OF BENDEL STATE (1983) 2 S.C 14 and then referred to Exhibit D2 and D4 to contend that the contracts of employment between the Claimant and the Defendant or the Defendant's sister company, Walvis Nigeria Limited were all for a definite term or specific period as they all have commencement dates and termination dates while also adding that the last contract entered into by the parties stated that the Claimant’s contract was for a period commencing on 1/12/14 and ending on 31/12/14.

In arguing issue two, counsel submitted that the burden of establishing facts upon which legal rights and liabilities by virtue of section 131 (1) & (2) and 132 of the EVIDENCE ACT, 2011 is on the person who asserts the existence of such facts.

Counsel argued further that the law is trite that in a civil claim, a Claimant succeeds on the strength of his case and not on the weakness of the Defendant’s case hence, an employee or former employee who complains that he was wrongly terminated has the onus to place before the Court, the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. Counsel cited the cases of U.T.C. (NIG) PLC v. PETERS (2022) LPELR-57289(SC); ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR-3544 SC.

Counsel posited that in the instant case where the Claimant is alleging wrongful termination of employment by the Defendant, the onus is on the Claimant to prove not only the existence of a contract of employment between him and the Defendant but also the terms of the very contract breached in bringing the contract to an end.  Counsel added that the letter of employment is the bedrock on which any party can lay claim to being an employee of an Employer. Counsel cited the case of MAMMAN V. INDEPENDENT CORRUPT PRACTICES & OTHER RELATED OFFENCES COMMISSION (2021) LPELR-56683 and CBN V. MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 @ 419A - 420A.

Counsel reiterated that it is not the function of the Court to make contract for the parties or rewrite the one which they have made as the words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties.

Counsel relayed the testimony of Claimant during cross examination and contended that a major factor that proves that the Claimant is not entitled to the reliefs sought are the contradictory evidence led by the Claimant in the course of this matter.  Counsel added that a party must be consistent with the case he presents and cited the cases of NASKO & ANOR V. BELLO & ORS (2020) LPELR-52530 (SC) and REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA & ORS V. MEDICAL AND HEALTH WORKERS OF NIGERIA & ORS (2008) LPELR-3196 (SC)

Counsel submitted that the Claimant’s volte-face is nothing short of a gold digging exercise considering that he turned around to claim that there is a subsisting contract with the Defendant and claim unpaid salaries from the Defendant.

With regards to documents admitted under protest, counsel contended that Exhibits C7 –C9 tendered by the Claimant showed no nexus with the Defendant. Counsel added that it is trite that relevance is key to admissibility as it is settled law that it is relevance of a document and not the weight to be attached to it that is paramount. Counsel cited the case of ABUBAKAR V. CHUKS (2007) LPELR-52 (SC) AT 13, PARAS. C- G, (2007) 18 NWLR (PT. 1066) 386 @ PAGE 403.

With regards to Exhibits C12-C15, counsel posited the documents were not signed by anybody or the maker and it is trite law that an unsigned document is a worthless document in that it has no evidential value. Counsel cited the cases of MAKU v. AL-MAKURA & ORS (2016) LPELR-48123(SC), A.P.G.A. v. AL-MAKURA & ORS (2016) LPELR-47053(SC).

Counsel contended that the Claimant is not entitled to the declaratory reliefs and damages sought while adding that the Defendant’s evidence is unrebutted by the Claimant.

Counsel concluded by urging the Court to dismiss the case of the Claimant in its entirety as the Claimant has failed woefully to prove his case to be entitled to the reliefs sought.

Reacting to the foregoing, Claimant filed his final written address on the 3rd of March, 2023 and arising therefrom, counsel to the Claimant formulated three issues for determination to wit:

1.      Whether from the documentary evidence adduced by the claimant/the defendant act of directing the claimant to stop work on the 14/01/2015 amounts to formal sacking of the claimant devoid of any written correspondents to that effect. And if the answer is the negative whether such order or directive of stoppage of work is competent were parties have in their contract of employment undertaken to serve one (1) day notice. See section 4 of the voyage contract agreement (Rating) day written notice and or seven (7) days notice as agreed with the Sea fears union, which the claimant is a member.

 

2.      Whether the mere allegation of crime in a contract of employment could attract the summary dismissal or sacking of the employee by the employer?

 

3.      Whether the actions of the company which were primarily based on suspicion of commission of crime on Vessel 66 without prove does constitute an unfair labour practice and equally amounts to violation of the Constitutional Right of the Claimant?

 

In arguing issue one and two together, counsel  posited that it is trite law that he who asserts, must prove and cited section 131-134 of the Evidence Act, 2011. Counsel added that parties seeking to establish any facts must prove that those facts exists by evidence in chief and must be cross-examined to ascertain the credibility or otherwise of the testimony of the witness. Counsel cited section 134 of Evidence Act and the case NNB PLC VS EGUN – (2001) 7 NWLR PART PT 711 AT PP 16_17 Para (B-D).

Counsel posited further that all the documents tendered by the Claimant were admitted by the court and the claimant seeks to rely heavily on each and every of these exhibits in prove of his own case. Counsel recounted the case of the Claimant and posited that the situation meted out to PW1 is what the court describe as Acts of INFAMY AND STIGMA. Counsel cited the case of Union Bank of Nigeria VS Soares (2012) II NWLR (Pt 1312) 550 at 572.

Counsel added that it is now a settled law by the Apex court that once an allegation of misconduct involves crime known to our criminal laws, it must first be tried before a criminal court before any disciplinary action could be taken against the culprit.

Counsel urged the court to admit both Exhibits 3, Section 4 of Voyage agreement and Section 10 Exhibit II as the instruments establishing the terms of employment and service of CW1 and added that the Claimant was not given any written notice to stop work with the Defendant and at best, the actions of the Defendant amount to issuance of inquiry Notice.

Counsel argued that assuming but not conceding that the Panel of Investigation report did not formally indict (CW1) the law still requires that CW1 should formally be charged to court to face criminal proceeding to determine his involvement or otherwise before he could be disciplined by the employer, and not just a unilateral action of the employer to just accuse an employee and punish him thereafter. Counsel urged the court to hold that the verbal instruction of Stoppage of Work is unacceptable in law and does not constitute termination known to our laws.

In arguing issue two, counsel contended that what has gradually evolved from the cases in recent years, is the count’s benchmarking on the quantum of damages as against a commensurate numbers of years’ worth of salaries the successful claimant would have been entitled to, had employment continued. Counsel added that the claimant’s employment had lasted from 2008 to 14/01/2015 and despite the fact that the claimant had at different times been made to endorse different contracts, but as a matter of policy the claimant contract had always been renewed as evident from the various contracts claimant even tendered as exhibit and affirmed by the Defendant under cross-examination.

Counsel contended that it is now almost certain to discern a pattern in the award of compensatory damages and that the Defendant’s conduct and actions has indeed exposed the claimant to unimaginable hardship for years, thus claimant tendered exhibits which were all steps claimant took to ameliorate the hardship occasioned on him without any cause whatsoever. Counsel cited the cases of Olusewere V Airtel (unreported suit No. NICN/1B/9012014, the judgment of which was delivered April 7, 2022, per Hon. Justice J. D. Peters) and Philip V Notore (unreported suit No. NICN/XIEN/56/2022 per Hon. Justice N. C. S. Ogbuanya).

Counsel posited that the testimony of DW1 is laced with falsehood and urged the court to enter judgment in favour of the claimant by awarding him reasonable damages on the strength that the entire gamut of Defendant actions are illegal and unlawful.

The Defendant in reaction to the address of the Claimant filed a reply on point of law on the 25th of March, 2023 and arising therefrom, counsel to the Defendant proffered counter arguments in relation to factual assertions and allusion to the evidence before the court as contended by counsel to the Claimant in the final address.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and the Defendant’s reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and the reply on point of law, the sole issue for the determination of this suit is to wit:

Whether or not Claimant is entitled to the reliefs sought in view of the facts and evidence before this court. 

 

Before resolving the sole issue, it is imperative to pronounce on the status of the exhibit C7 – C9 and C12 – C15 which were admitted under protest. In this wise, I reckon that counsel to the Defendant challenged the admissibility of Exhibits C7 – C9 on the ground that all the documents are not signed particularly C7 – C9 while C12 to C14 have no nexus with the Defendant hence irrelevant.

 

Counsel to the Claimant in response posited that the hallmark of admissibility is relevance and it is the court that determines relevance of a document.  

 

Bearing the foregoing in mind, I have taken a close look at the Exhibits in question and find that Exhibit C7 to C9 are letters written by the Claimant to three different entities and while the Claimant did not sign them, his name is clearly written at the complimentary close of all three letters making it unmistakable as to the identity of the author.

 

Exhibits C12 to C15 on the other hand are letters written to the Claimant – one from a school and the other two from Woko Global Resources. The said letters were duly signed and there is no basis upon which same can be said to be inadmissible since same was addressed to the Claimant and it suffices to make same relevant. It is noteworthy, both counsel understands that relevance and weight to be attached to a document are two distinct things.

 

In the light of the foregoing finding, I must quickly state that the rule of evidence is not absolute in the course of adjudication at the National Industrial Court. This is because, section 12(2)(b) of the National Industrial Court Act, 2006 provides for departure from the application of the rules of the Evidence Act in the interest of justice.

 

Bearing the said section in mind, and upon the consideration of the feature of the Exhibits in question having been pleaded and considered relevant, I find that the said documents be admitted in the interest of justice. Consequently, exhibit C7 – C9 and C12 – C15 are admitted in evidence in the interest of justice.

 

Having said that, I now turn to the sole issue for the determination and in considering the said issue, I find it apposite to foremost state that the Claimant who presented declaratory reliefs before the court has the onus of establishing the said reliefs notwithstanding the weakness of the defence. The court in the case of  ONWUSOR V. MAINA & ORS (2021) LPELR-53368(CA) held that:

“The purpose of a declaratory relief sought from the Court is that it is essentially an equitable relief in which the plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to pronounce on an existing state of affairs in law in his favour as may be discernible from the averments in his statement of claim - Osuji V Ekeocha (2009) LPELR-2816(SC) 31, F, per Adekeye, JSC. The Supreme Court in the case of Nduul V Wayo (2018) LPELR-45151(SC) 53-54, C-B, per Kekere-Ekun, JSC summed it up beautifully in this way: "Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on an admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory rights calls for the exercise of the Court's discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour. See Williams V Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 @ 152; Ogolo V Ogolo (2003) 18 NWLR (Pt. 852) 494; Okoye V Nwankwo (supra). Reliefs 1-5 of the appellant's Originating Summons, reproduced earlier in this judgment, are declaratory. Reliefs 6-11 are ancillary to the declaratory reliefs. The burden was therefore on the appellant to satisfy the Court that he was entitled to those reliefs, notwithstanding any perceived weakness of the defence."  Per SANKEY ,J.C.A in onwusor v. maina & ors   (Pp. 20-21 paras. A)

In the light of the foregoing, a highlight of the Claimant’s relief as can be gleaned from the lead relief sought by the Claimant is to declare that his employment with the Defendant is still subsisting and that the verbal directive for the Claimant not to resume work pending an investigation is not capable of terminating the Claimant’s employment hence it is an unfair labour practice for the Claimant not to have been paid salaries from 2015 till date.

Bearing the narrative in mind, it is irrefutable that the paramount task this court has is to peruse and consider the contract of employment which the Claimant is alleging to be subsisting to determine whether or not such is the case. In view of the fact that the onus is on the Claimant to establish by providing reliable and concrete evidence that his employment is indeed subsisting, I reckon that the Claimant tendered Exhibit C3 as his letter of employment.

I have accordingly taken a look at the said exhibit C3 and find as contended by the Defendant that the employment of the Claimant is for a fixed term. The said contract is headed as Seafarers’ Employment Agreement Rating (Contract) with the stamp on the last page reading that the Agreement was entered into on 16th October, 2014 and on clause 2.1. of the said agreement, I find that same reads:

“your employment is for a period commencing on 16/10/14 and ending on 15/11/14 unless it is terminated for justified reason(s) as contained in section 11 of this employment agreement.”

The words in the above clause is clear, unambiguous and in tandem with the facts before this court to the effect that the Claimant’s employment is for a fixed term. Therefore, what is left of this court is to make a pronouncement of same. The court in WEMA BANK PLC v. OSILARU (2008) 10 NWLR (Pt.1094) 150 at 177, paras. F-G (CA)  held that “It is trite that where the language of an agreement is clear and unambiguous, the only interpretative jurisdiction of the court is to make pronouncement on the clear and unambiguous agreement and agree with them. The court is not to interfere at all. See First Bank of Nigeria v. Songonuga (2007) 3 NWLR (pt. 1021) 230." Per OKORO, J.C.A. (Pp. 28-29, paras. D-A).

For emphasis, the court can only interpret the provisions of the agreement without more. The court in the case of SEVEN-UP BOTTLING COMPANY PLC v. AJAYI (2007) LPELR-8765(CA) posited with authority that:

"It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390." Per SHOREMI, J.C.A (P. 25, paras. A-B)

In addition, the court in ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) held that:

“Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356”. Per NDUKWE-ANYANWU, J.C.A. (Pp. 20-25, paras. B-G)

In another breath, especially in view of the fact that the Defendant presented a clearer narrative of the nature of Claimant’s employment starting with the employment with the sister company named WALVIS Nigeria Limited as shown in Exhibit D2, the court in JOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA) stated that:

"It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of parties thereto." Per GUMEL. J.C.A (P. 10, para. C).

Bearing all the foregoing authorities in mind, I reckon that the Claimant is well aware of the nature of employment he has with the Defendant and notwithstanding the Claimant was out of work in an undesirable circumstance, the fact remains that the Claimant is not a permanent employee of the Defendant. The Claimant himself during cross examination admitted that he is not a Permanent staff of the Defendant even though other Seafarers are and that after his employment contract in December, 2014, he has not entered another one.

These are facts backed by evidence which precludes this court from making the declaration that Claimant’s contract is subsisting. In addition, though I reckon that the Claimant contended that he was arrested by the police over an allegation of theft and was not allowed to resume duty after his release, I must state in this regard that the issue of resumption of duty is subsumed by the fact that the engagement agreement with the Defendant had expired and this fact was admitted by the Claimant himself.

This means the Claimant has by his own making created an incongruity in his own case. Claimant averred that he was employed in 2008 but the employment the Claimant tendered bears no such narrative, it was the Defendant who presented the evidence showing that it was a sister company that engaged the Claimant in 2008 and that the employment of the Claimant is usually for a fixed period. Hence, a verbal directive to the Claimant that he should not resume is of no moment in the face of the expiration of the Claimant’s contract. 

For abundance of caution, I have taken a look at the evidence presented by the Defendant to find that Exhibit D9 and D10 which are letters of instruction to Fidelity Bank for payment of salaries and end of contract bonuses for January 2015 were written on the letter head of one WALVIS Nigeria Limited which the Defendant posited to be the sister company of the Defendant and by the said instruction, the name of the Claimant respectively appears on number 79 and 19.

The Claimant by the said documents earned the sum of N133,875.00 as salary and N5,100 as end of contract bonus. What this finding concretizes is the fact that as at January 2015, the Claimant had concluded a contract and earned his pay and for him to earn another, he would have to enter into another contract and no such new renewed or subsisting contract was placed before this court

For want of emphasis, I reckon also that the Claimant is contending that he has not been paid salaries since 2015 till date. In this regard, I must state that the Claimant admitted during cross examination that the last day he worked for the Defendant was 14th January, 2015. In view of this admission, there is no gainsaying that the consideration for work is wages (salary), and the consideration for wages (salary) is work. See Browning v. Crumlin Valley Collieries Ltd. (1964) All ER 936. According to Black’s Law Dictionary, tenth edition, at page 1537, Salary is “an agreed compensation for services”. The said dictionary also defines accrued salary to be a “salary that has been earned but not yet paid”. The Labour Act on its part adopts the word ‘wages’ instead of salary and defines wages thus:

"wages" means remuneration or earnings (however designated or calculated) capable of being expressed in terms of money and fixed by mutual agreement or by law which are payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.

Bearing the foregoing meaning of salaries in mind, and upon a consideration of the fact that the Claimant’s employment is not one with statutory flavor but one for a specific defined period which I find not to be subsisting as contended by Claimant, the inference that can be made with regards to salaries is that the Claimant has not earned any accrued salary having not worked for the Defendant since 14th January 2015.

What the foregoing means is that the Claimant has failed to, on the strength of his own case establish the fact that his employment is subsisting and that the Defendant has wrongfully denied him payment of salaries.

The consequence of the foregoing is that the lone issue formulated for determination of the instant suit is resolved against the Claimant and in favour of the Defendant to the effect that in view of the facts and evidence before this court, Claimant is not entitled to any of the reliefs sought. 

In the final analysis, the case of the Claimant lacks merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered.

 

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE