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PortHarcourt --His Lordship, Hon. Justice P. I. Hamman of the National Industrial Court of Nigeria, sitting in Portharcourt on Thursday 27th September, 2018 in a judgment dismissed suit against PORTS & TERMINAL OPERATORS (NIG) LTD, TERMINAL A brought by R. BASOENE D. ELEKIMA and 3 ORS for lacking merit. His Lordship declared that Claimants have failed to establish or prove their case to be entitled to the reliefs being sought from the court.
By an Originating Summons dated 27th November, 2013 the Claimants commenced this suit against the Defendant and claimed among others: AN ORDER of specific performance against the Defendant of the Agreement made between the Association of Private Operators of Seaport Terminals (the Defendant) and Maritime Workers Union of Nigeria (the Claimants) on minimum standard for the Docklabour Industry. Likewise AN ORDER of specific performance against the Defendant to carry out its part of the agreement and covenants to the Claimants and/or for the payment of the minimum gross wage of Thirty Three Thousand Naira (N33, 000.00) only subject of the Agreement mentioned in prayer 1 above.
It is the case of the Claimants that after the concessioning of the Nigerian Ports Authority (NPA) in 2005 to some Private Operators of Seaport Terminals including the Defendant which took over the Port Harcourt Seaport Terminals from HUBSON (Nig) Ltd, they were selected, screened, interviewed and thereafter employed and/or retained by the Defendant while the remaining dockworkers were laid off and paid their severance entitlements.
That in a bid to enhance the welfare and condition of service of all dockworkers in the Nigerian Maritime sector, an agreement was reached between the Association of Private Operators of Seaport Terminals (of which the Defendant is a member) and the Maritime Workers Union of Nigeria (of which the Claimants are members) which fixed the gross minimum wage of every dockworker at Thirty Three Thousand Naira (N33, 000) only at entry point on employment.
That since 2008 when the Agreement was made the Defendant has only been paying them according to CARGO TONNAGES which is supposed to be in addition to the gross minimum wage.
The Defendant’s case on the other hand is that, the Claimants are not permanent staff of the Defendant, but they were selected from a general pool of Dockworkers interviewed, registered and employed by NIMASA. That the Defendant was only mandated by the Rules applicable in the maritime sector to employ the Dockworkers, but the direct employer of the Claimants is NIMASA.
According to the Defendant, the Claimants do not have the authorization of all the Dockworkers in the Defendant to sue for and on their behalf in a representative capacity, and the Defendant apart from not being a party to the Agreement sought to be enforced by the Claimants, the Agreement is applicable only to permanent employees/Dockworkers and not temporary employees as the Claimants herein. That the Claimants being temporary employees are only entitled to be paid based on Cargo Tonnages as by the nature of the Defendant’s operations it does not employ permanent Dockworkers and the Claimants failed to first and foremost exhaust the administrative remedies before filing this suit thereby making the suit incompetent and liable to be struck therefore urged the court to dismiss this suit for lacking in merit.
The Defendant submitted inter alia for determination Whether the Claimants are permanent employees of the Defendant having regard to the mode and the letters of employment?
The learned counsel for the Defendant submitted that it has been established that the Claimants were employed as temporary workers and not permanent workers as being alleged by the Claimants, hence the N33,000.00 minimum wage does not apply to the Claimants.
Regarding the Defendant’s issue, the claimant submitted that, an arbitration clause in an agreement does not oust the jurisdiction of the court, and that either of the parties to the agreement may commence legal proceedings in court before submitting to arbitration.
After reviewing the argument of both parties, the Court Presided by Hon. Justice P. I. Hamman expressed thus;
“I have however gone through the documents annexed to the Originating Summons and no single letter of employment of either the named claimants or any of the claimants was frontloaded before the court. Even when the Claimants filed other processes in response to the processes filed by the Defendant, the Claimants still did not forward to the court any single letter of employment in proof of their case before the court, particularly to establish the claim that they are permanent employees of the Defendant.
“It is therefore my humble view that the Claimants not being permanent workers of the Defendant are not entitled to claim for the minimum wage of N33, 000.00 under the Agreement between the Association of Private Operators of Seaport Terminals and Maritime Workers Union of Nigeria on Minimum Standard for the Docklabour Industry.
“The Claimants have failed to establish or prove their case to be entitled to the reliefs being sought from the court. The two (2) questions submitted to the court for interpretation are hereby resolved against the Claimants.
“In the final result, the two (2) reliefs being sought from the court by the Claimants are hereby refused.
“Consequently, the Claimants’ case fails and same is hereby dismissed.” His Lordship Ruled.
