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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

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

 

DATE: TUESDAY 2ND SEPTEMBER, 2025      SUIT NO: NICN/YEN/02/2022

 

BETWEEN:

 

  1. MR. ORU MIKE
  2. MR. ONOFOMI ORITSEJE DAVID
  3. OKIMIJI DOPIN
  4. MR. ALADETAN KEHINDE
  5. MR. ONWUDIEWE DAVID
  6. MR. MARSHALL YOUNGREEN
  7. MR. BOYO JOHN
  8. MR. NIEMEGHA JOSEPH
  9. MR. TAMARATUBO FREDRICK
  10.  MR. ERORUN THOMAS
  11.  MR. TIMINI AUGUSTINE
  12.  MR. DAIBO TUOYO
  13.  MR. ARIWEI RUBEN
  14.  MR. EBIYA JOHN KELVIN                                  CLAIMANTS
  15.  MR. MEBAWONDUN KOSEDA
  16.  MR. GHEGBOR EMMANUEL
  17.  MR. OFFOR ISIOMA STEPHEN
  18.  MR. ATIGOLO JOHN
  19.  MR. ROSTON ISAAC
  20.  MR. OGUNGBEJE OLUWAFEMI
  21.  MR. TONWE GODWIN
  22.  MR. ALARI ANTHONY
  23.  MR. SATURDAY JOEL
  24.  MR. MADERUN ADEBANJO
  25.  MR. IKALAMO TAUBMAN
  26.  MR. TUNDE IBANI
  27.  MR. LUCKY ALBERT
  28.  MR. MADUKAIRO ALEX
  29.  MR. OFOMIYONGHAN GODWILL
  30.  MR. BOYO ALBERT
  31.  MR. SOBO DAVID
  32.  MR. OMATSEYE EWATAN PRINCE
  33.  MR. TONUKANRIN CHURCHILL
  34.  MR. AKINRUNTAN BANJI
  35.  MR. PIRAH SAMUEL
  36.  MR. ADUKE ANDERSON
  37.  MR. IROWAINU JONAS
  38.  MR. EMORIOLOYE SEGUN
  39.  MR. WALKER GODWIN
  40.  MR. EJUEYITSI JAPHET
  41.  MR. THADEUS OWOSENI ALPHEUS
  42.  MR. JAKPA SAMUEL
  43.  MR. EKUBO MAXWELL
  44.  MR. BENJAMIN WILLIAM
  45.  MR. KRESEIMO ERIC
  46.  MR. AFARI JOHNSON
  47.  MR. OWA WILLIAMS                                                        CLAIMANTS
  48.  MR. LAZARUS LETZOU
  49.  MR. KEMEGHEN SOLUTION
  50.  MR. AZANA S. AZANA
  51.  MR. EDO MARTINS
  52.  MR. GEORGEWILL ALARIGU
  53.  MR. DIDEN HAMILTON OMAGHOMI
  54.  MR. EDUWA KAYODE
  55.  MR. MENE LAMSON
  56.  MR. UWANIKONE KENNETH
  57.  MR. UKUDIEYIN FRIDAY
  58.  MR. NOMIYE KELLY
  59.  MR. OKOME MAGNUS
  60.  MR. MOJU JOHNBULL
  61.  MR. AMOS ELLIOT
  62.  MR. AGBALAGHA DAVID
  63.  MR. SAMSON MICHAEL
  64.  MR. ABIYE KORA GOODLUCK
  65.  MR. CLEVER EMMANUEL
  66.  MR. EDEMA FRANK
  67.  MR. KOROKORO ROWLAND
  68.  MR. AGINTUKU OMA
  69.  MR. ZIPEREBEIN ABILO
  70.  MR. TORO LAGBO
  71.  MR. OGHALE EMMANUEL
  72.  MR. GILLOW DENNIS
  73.  MR. JAPHTAN MONDAY
  74.  MR. MICHAEL FRANK
  75.  MR. OMIETIMI NANA
  76.  MR. DAJE LAWRENCE
  77.  MR. IHEME GODWIN
  78.  MR. UKUEWU BAMALD
  79.  MR. ANUKE JOSEPH
  80.  MR. INEBEDON JAMES
  81.  MR. ORUGBOH SOLOMON
  82.  MR. OTONE OSCAR
  83.  MR. ADEBAWO OLASOJI                                              CLAIMANTS
  84.  MR. EBIEJURA DOLU
  85.  MR. EHIMIKA FRIDAY
  86.  MR. ONWUKAIKE SAMUEL
  87.  MR. KALAMA SAMUEL
  88.  IDIBRA OGHENEKARO
  89.  MR. ALELE LAWRENCE
  90.  MR. EGBE DARLINGTON
  91.  MR. OTUARO ERIC
  92.  MR. OGUNFEYIMI GIBSON
  93.  MR. OGUNGBEJE ADEFOWOPE
  94.  MR. EREPAMO MIENYE
  95.  MR. BRAYE WILLIAM
  96.  MR. AMAKIRI MORGAN
  97.  MR. EKUBO JONATHAN
  98.  MR. SEIMODE FEMI
  99.  MR. ZIKORU SAMUEL

Suing through their lawful attorney Crowther F. Okiakpe.

AND

 

  1. FIELD OFFSHORE DESIGN ENG. LTD
  2. CHEVRON NIG. LTD                                           DEFENDANTS

JUDGMENT

 

  1. The claimants filed this Complaint and Statement of Facts together with other processes on the 28th day of January, 2022. By an Amended Statement of Facts filed on the 30th May, 2023, the claimants claim the following declarations against the Defendants jointly and severally:

 

  1. The Claimants were employees of the 1st defendant; the collective agreement is their terms of contract and they are bound by them as provided in the Labour Act and the 2nd defendant is the recruiter of the claimants and bound to ensure that the 1st defendant meet its obligation under the contract as required under the Labour Act and Guidelines on Labour Administration Issues in Contract Staffing/Outsourcing and are therefore jointly and severally liable to pay the claimants.

 

  1. The 1st defendant has breached the term of contract between the claimants and the 1st defendant contrary to the provision of Sections 1(2), 7(6) 20 of the Labour Act and Article 4 of the Guidelines of Labour Administration Issues in Contract Staffing/Outsourcing, their collective agreement and the applicable terms in the Oil Industry.

 

  1. The 2nd defendant is the recruiter of the claimants and owe a duty to the claimant to ensure that the 1st defendant was not an entity that would breach their terms of contract and are therefore liable to the claimants as guarantors of the 1st defendants (sic) as stipulated in Labour Act and Article 4(2) Guidelines on Labour Administration Issues in Contract Staffing/Outsourcing.

 

  1. The 1st and 2nd defendants are jointly and severally liable to the claimants for 12 months’ salaries being owed to them to the tune of N468, 306, 859.20 (Four Hundred and Sixty Eight Million, Three Hundred and Six Thousand, Eight Hundred and Fifty Nine Naira, Twenty Kobo).

 

  1. The 1st and 2nd defendants were in control of the rig which exploded and cause (sic) the claimants to their property which is put at the cost of N49, 500.00 (Forty Nine Million, Five Hundred Thousand Naira) and other lawful benefits. (sic)

 

  1. The claimants are entitled to their repatriation payment from the defendants having been employed at various states which are Bayelsa State, Ondo State and Delta State and taken to Funuwa Field to work on Rig K. S Endeavour and ex gratia payment as stated in the schedule of their entitlement as shown in the documents attached which is put at N99, 000, 000.00 (Ninety Nine Million Naira).

 

  1. The claimants are entitled to the sum of N1,065,000,000.00 (One Billion, Sixty Five Million Naira) being ex-gratia payment as required under the collective agreement.

 

  1. The claimants are entitled to one-month salary in lieu of notice, 6 weeks gross pay, 4 months prorated, 4 months leave allowance and three months end of year bonus which is put at N135, 029, 080.6161 (One Hundred and Thirty Five Million, Twenty Nine Thousand, Eighty Naira and Sixty One Kobo).

They pray for the following Orders:

  1. 1st and 2nd defendants are jointly and severally liable to the claimants for 12 months’ salaries being owed to them to the tune of N468, 306, 859.20 (Four Hundred and Sixty-Eight Million, Three Hundred and Six Thousand, Eight Hundred and Fifty Nine Naira, Twenty Kobo).
  2. The 1st and 2nd defendants were in control of the rig which exploded and cause(sic) the claimants the loss of their property which is put at the cost of N49,500.00 (Forty Nine Million and Five Hundred Thousand Naira) and therefore jointly and severally liable to the claimants of the stated sum.
  3. The Claimants are entitled to their repatriation payment having been employed at various states which are Bayelsa State, Ondo State and Delta State and taken to Funuwa Field to work on Rig K.S. Endeavour and ex gratia payment as stated in the schedule of their entitlement as shown in the documents attached. Which is put at N99,000,000.00 (Ninety Nine Million Naira).
  4. The claimants are entitled to the sum of N1, 065, 000,000.00 (One Billion, Sixty Five Million Naira) being ex gratia payment as required under the collective agreement.
  5. The Claimants are entitled to one-month salary in lieu of notice, 6 weeks’ gross pay, 4 months prorated, 4 months leave allowance and three months’ end of year bonus which is put at N135, 029,080.61 (One Hundred and Thirty Five Million, Twenty Nine Thousand, Eighty Naira and Sixty One Kobo).
  1. While the 2nd Defendant placed reliance on the Statement of Defence filed on the 14th of February, 2023 and the Further Defence filed on the 21st of November, 2023, the Claimants filed a Reply to the Statement of Defence on the 24th of February, 2023. The 1st Defendant did not file any process in the suit.

 

  1. Trial in this suit started on the 15th of April, 2024, when the Claimants opened their case by calling the 1st Claimant Mike Oru who gave evidence in chief as CW1 by identifying and adopting his statement on oath filed on the 28th January, 2022, and the further deposition filed on the 28th of February, 2023. The following documents were tendered by the claimants and admitted by the Court:

 

  1. The letter of the Government of Bayelsa State to the Chairman of K. S. Endeavor Rig Workers dated 19th June, 2013 ---- exhibit CW1A.
  2. The letter of the Bayelsa State Government to Mr. Reuben Ariwei dated 26th September, 2012--- exhibit CW1B.
  3. The document titled, “Re: Unfair Labour Practice and Refusal to Pay End of Contract Benefit: Invitation for a meeting” dated 9th June, 2012------- exhibit CW1C.
  4. The letter of the Federal Ministry of Labour and Productivity dated 22nd August, 2012---- exhibit CW1D.
  5. The letter of the Federal Ministry of Labour and Productivity dated 27th August, 2012 ---- exhibit CW1E.
  6. The solicitor’s letter of Punuka Attorneys dated 27th September, 2012 ---- exhibit CW1F.
  7. The letter of the Bayelsa State Government, Ministry of Mineral Resources dated 13th November, 2014------ exhibit CW1G.
  8. The letter of the Federal Ministry of Justice dated 25th February, 2019 ----- exhibit CW1H.
  9. The CTC of the Labour Law Review Publication on the Federal Ministry of Labour Guidelines on Contract Staffing and Outsourcing in the Oil and Gas Sector ------ exhibit CW1J.

The witness (CW1) was cross-examined by the 2nd Defendant’s Counsel U. N. Ngwobia on the 15th of April, 2024 before he was discharged after being re-examined by the Claimants’ counsel.

 

  1. The Claimants’ 2nd witness (CW2) David Oritseje Onofomi who testified on the 9th of May, 2024 identified and adopted his witness statement on oath which was filed on the 28th of January, 2022 before tendering the following documents which were admitted by the Court:
    1. The Offer of Employment in the name of Tuoyo Daibo dated 12th November, 2010 ----------- exhibit CW2A (under protest).
    2. The Collective Bargaining Agreement (CBA) -------- exhibit CW2B (under protest).
    3. The document tiled “Name of FODE Personnel on Board of KS Endeavour during the incident” ----- exhibit CW2C (under protest).
    4. The document titled “Name of FODE Personnel on Board of KS Endeavour during the incident Personal Property Lost, Ex-gratia and repartitiation (sic) Entitlements ------ exhibit CW2D (under protest).
    5. The “Redundancy Benefits” ------ exhibit CW2E (under protest).

The witness (CW2) was cross-examined by the Learned Senior Counsel for the 2nd Defendant C. Ajuyah, SAN on the 10th of June, 2024. Since the 1st defendant failed to appear to cross-examine the witness, CW2 was discharged on the 17th of October, 2024.

 

  1. Since the 1st defendant failed to appear to defend the suit, the court foreclosed the 1st defendant on the 18th of November, 2024. The 2nd defendant then opened her defence on the same 18th November, 2024 by calling her sole witness Happy Apai who identified and adopted his statement on oath that was filed on the 14th of February, 2023, and the Further Deposition he filed on the 21st of November, 2023. The 2nd defendant then tendered these documents which were admitted by the Court:
    1. The letter addressed to the Director, Citizens’ Rights Department of the Federal Ministry of Justice dated 6th May, 2019---------- exhibit DW1A.
    2. The letter addressed to the General Secretary, Nigeria Union of Petroleum and Natural Gas Workers dated 22nd May, 2012 ------ exhibit DW1B.

The witness (DW) was cross-examined by the Claimants’ Counsel A. H. Arubisou on the 16th of December, 2024 during which one document which is the letter of Confirmation of Employment in the name of Samuel Nnamdi Onwukaike dated 8th March, 2011 was tendered and admitted under protest as exhibit DW1C. The witness was discharged without any re-examination. The 2nd Defendant closed her case on the 23rd of January, 2025.

 

  1. With the close of evidence in the suit, the parties were directed to file their final written addresses. The 2nd Defendant’s Final Written Address was filed on the 12th of February, 2025. The Claimants filed their Final Written Address on the 4th of March, 2025, while the 2nd Defendant filed a Reply on Points of Law on the 13th of May, 2025.

These processes were adopted by both Counsel on the 4th of June, 2025, with A. H. Arubisou appearing with O. D. Zitimiyola for the Claimants, while Charles Ajuyah, SAN appeared with U. N. Ngwobia and J. O. Ighariemu for the 2nd Defendant. There was no representation for the 1st Defendant who never appeared in the suit throughout the proceedings.

 

THE CASE OF THE CLAIMANTS:

  1. The Claimants pleaded and testified that they belong to host communities in Bayelsa, Delta and Ondo States and were recruited by the 2nd defendant for the 1st defendant sometime in October, 2010, and deployed to a rig known as K. S. Endeavour at Funuwa Field in the Southern Ijaw Local Government Area of Bayelsa State.

 

  1. According to the claimants, they signed a Collective Bargaining Agreement (CBA) with the 1st defendant on the 28th of November, 2011 which was acknowledged by the 2nd defendant as the guarantor of the 1st defendant and the claimants’ recruiter. That on the 16th of January, 2012 there was an explosion on board K. S. Endeavour rig which was occasioned by the 2nd defendant’s refusal to heed the claimants’ warnings concerning an observed gas leakage. The Claimants lost their belongings to the explosion before being evacuated to Funuwa Flow Station and later to Apoi Flow Station before being taken to Warri and kept at Excel Hotel where they were addressed by the officials of the 2nd defendant.

 

  1. That when the 1st defendant failed to make any commitment to the claimants, their union wrote to the 1st defendant on the 30th of January, 2012 but the 1st defendant responded that their appointments expired on the 17th of December, 2012 pursuant to the Collective Bargaining Agreement, and agreed to pay them 2 months’ salary which they rejected vide the union’s letter of 22nd March, 2012. They then demanded for the following from the 1st defendant:
    1. N1,500,000.00 (One Million, Five Hundred Thousand Naira) for repatriation.
    2. One and half month gross salary per year of service per staff.
    3. N8,000,000.00 (Eight Million Naira) as ex gratia per staff.
    4. N200,000.00 (Two Hundred Thousand Naira) for lost personal belongings as a result of the explosion.
    5. One Month gross salary per year of service in lieu of notice per staff.
    6. Continued payment of salaries until the dispute is resolved.

 

  1. The claimants pleaded further that as a result of their complaints and protest to the office of the 2nd defendant in May 2012, the 1st defendant paid them 3 months’ salary which did not meet their expectations thereby prompting them to write to the Ministry of Labour on the 11th of June, 2012 through their union. The Ministry held a meeting with the parties on the 14th of August, 2012 where the 1st defendant offered to pay the sum of N10, 000,000.00 (Ten Million Naira) to all the claimants which they rejected. The parties met again on the 5th of September, 2012 when the 1st defendant upped the offer to the sum of N15,000,000.00 (Fifteen Million Naira) to all the 99 staff which was again rejected by the claimants. The 1st defendant’s counsel then wrote to the Minister of Labour that the claimants are not the employees of the 1st defendant, hence they could only be paid 3 months’ salary on compassionate ground for their losses due to the explosion.

 

  1. That despite the series of correspondences, meetings and interventions by different bodies and agencies such as the Police, Ministry of Labour, the Bayelsa State Government through the ministry of Energy and the Special Adviser for Oil and Gas and Environment, including the JTF which held four (4) meetings with the parties, the defendants failed to pay them their entitlements which made them to engage the services of a labour consultant Crowther F. Okiakpe   who also wrote to the defendants and also the Honourable Attorney General of the Federation and Minister of Justice. The Office of the Attorney General of the Federation wrote to the 1st defendant’s Counsel who responded that the claimants are not employees of the 1st defendant but that of Gus Consulting Ltd, and that the claimants had been paid in line with the Collective Bargaining Agreement. At the meeting with officials of the Federal Ministry of Justice on the 23rd of October, 2019, the 1st defendant admitted offering the sums of N10,000,000.00 and N15,000,000.00 as severance package to the claimants, and also that there was no proper severance of the claimants owing to the explosion on the rig. That since the rig was completely burnt the issue of ex-gratia stated in the Collective Bargaining Agreement should not be discussed because the 1st defendant suffered great loss.

 

2ND DEFENDANT’S CASE:

 

  1. The 2nd Defendant avers that it did not recruit the claimants for the 1st defendant as alleged by them because it does not recruit workers for its contractors. That the 2nd defendant as part of its deliberate policy to promote local content and enhance the economic wellbeing of the members of its host communities usually notifies its host communities of job opportunities including job opportunities in the 2nd defendant’s contractor companies. When the 2nd defendant awarded a drilling contract to the 1st defendant, the 2nd defendant notified its host communities of job opportunities in the 1st defendant, and the host communities then nominated individuals that were interviewed and subsequently employed by the 1st defendant. The role of the 2nd defendant was limited to ensuring that indigenes of its host communities were considered in the 1st defendant’s hiring process, and did not influence or direct the process. That the 2nd defendant neither employed the claimants nor transferred them to the 1st defendant as they were exclusively employed by the 1st defendant who deployed them to work on the K. S. Endeavor Rig.

 

  1. The 2nd defendant further avers that, it neither acknowledged any Collective Bargaining Agreement between the claimants and the 1st defendant nor acted as a guarantor to the 1st defendant, and also did not assure the claimants that the 1st defendant would keep the 1st defendant’s obligations under the Collective Bargaining Agreement. The 2nd defendant took all reasonable steps, adhered to proper drilling processes and safety procedures, and followed applicable Nigerian regulations, and also acted in accordance with established industry practice in order to prevent the occurrence of the fire on the K. S. Endeavor rig. That following the incident at the rig, the 2nd defendant provided logistical support for the safety and security of the persons who were working on the rig at the time of the incident.

 

  1. According to the 2nd defendant, while it is true that there was a protest at its office in May 2012, the said protest was however unwarranted because there is no employment relationship between the claimants and the 2nd defendant. The 2nd defendant did not assure the claimants that they would be redeployed when a new rig was brought to replace KS Endeavor as the 2nd defendant did not employ the claimants. That the 2nd defendant suffered great losses as a result of the incident, and the claimants are not entitled to the reliefs being sought in the suit.

 

2ND DEFENDANT’S SUBMISSIONS:

 

  1. The learned Senior Counsel for the 2nd Defendant submitted these two (2) Issues for the determination of the Court:

 

  1. Whether the Claimants proved that there exists a contract of employment between Claimants and 2nd Defendant?

 

  1. Whether the Claimants proved their claim to declaratory and monetary relief set in the Amended Statement of material facts against 2nd Defendant?

 

  1. The learned Senior Counsel to the 2nd defendant first raised objections to the admissibility of exhibits CW2A, CW2C, CW2D and CW2E on the grounds that the witness statement on oath of the witness made no reference to the documents, hence the documents were merely dumped on the Court without evidential foundation with respect to their admissibility. That exhibits CW2C, CW2D and CW2E have no probative value because they were neither signed nor dated, thereby amounting to documentary hearsay. See Omega Bank Nigeria Plc V. O.B.C. Ltd (2005) 8 NWLR (Part 928) 547 at 581 para. D, where it was held that an unsigned document has no probative value. See also the case of Oluwaranti V. Sonola and Anor (2022) LPELR-57839(CA) at 24 para. C, where it was held that an undated document has no probative value. The Court was urged to discountenance the documents.

 

  1. It is apposite to note that before arguing the two Issues identified for determination, the Learned Senior Counsel for the 2nd Defendant raised a preliminary point of law with respect to the jurisdiction of this Honourable Court to determine the suit against the 2nd Defendant. The point of law is whether on a perusal of the Statement of Facts, this Honourable Court lacks the competence to entertain this suit as constituted by 99 Claimants making joint/collective claims over an alleged breach of employment.

 

  1. It was submitted on the preliminary point of law that a court is competent and clothed with jurisdiction to hear and entertain a suit when:
  1. It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for any reason;
  2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
  3. The case comes before a Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See Madukolu V. Nkemdilim (1962) 2 SCNLR 341 and S.L.B. Consortium Ltd V. NNPC (2011) 9 NWLR (Part 1252) 329-330 paras. H-A.

 

  1. That the suit as presently constituted was not initiated by due process of law and upon fulfillment of condition precedent thereby depriving the Court of the jurisdiction to entertain the suit. It is a defect in competence and fatal to the case which will render the proceedings a nullity no matter how well conducted and decided. The defect is extrinsic to the adjudication, referring to the case of Sken Consult Nigeria Ltd V. Ukey (1981) SC 6.

 

  1. That while the suit was filed by the 99 Claimants purporting to sue through their lawful Attorney, Crowther F. Okiakpe, the Claimants were however employed separately with each of them having his own letter of employment. That the claimants were not employed jointly, referring to paragraph 2 of the witness statement on oath and paragraph 5 of the further deposition of CW1. That the 99 Claimants therefore lack the capacity to jointly institute the suit claiming lump sums because persons employed separately do not have collective rights to sue the employer, referring to the cases of C.C.B. Nigeria Plc V. Rose (1994) 4 NWLR (Part 544) 27 at 50 para. B and Bossa V. Julius Berger Plc (2005) 15 NWLR (Part 948) 409 at 429-430 paras. H-D.

 

  1. It was further posited that, the Collective Bargaining Agreement (exhibit CW2B) being relied upon by the Claimants do not avail them because, an employer/employee relationship is governed by the contract of employment and not a CBA except the terms in the CBA are expressly  incorporated into the contract of employment. That the terms of the contract in exhibit CW2A do not adopt or incorporate by reference the CBA exhibit CW2B, particularly that clause 14 of exhibit CW2A states that there are no collective agreements in force. See U.B.N. Plc V. Soares (2012) 11 NWLR (Part 1312) 550 at 568 paras A-B. That the CBA (exhibit CW2B) was between the 1st Defendant and the Claimants’ union (the Nigerian Union of Petroleum & Natural Gas Workers) but the union is not made a party to the suit. That proper parties are therefore not before the Court, hence the Court has no jurisdiction over the matter. See MTN Communications Ltd V. Abia State Government (2016) 1 NWLR (Part 1494) 475 at 496 para. H. and Order 13 Rule 1 of the Rules of this Honourable Court 2017. The Court was urged to uphold the objection of the 2nd Defendant, decline jurisdiction in the matter and strike out the suit.

 

  1. With respect to Issue one (1), it was submitted that, since the 2nd defendant joined issues with the claimants denying that it employed or recruited them as employees for the 1st defendant, the burden of proof is on the claimants who assert to prove the allegation with admissible evidence. Learned Senior Counsel reproduced paragraphs 1, 3 and 4 of the Statement of Facts and paragraphs 1(a), 2(i), 3, 4, 5 and 6 of the 2nd Defendant’s Statement of Defence and also referred to the cases of Olukunlade V. Samuel (2011) 7 NWLR (Part 1276) 312 paras. D-F and Imana Robinson (1979) ANLR 1 at 9.

 

  1. It was further posited that, while the courts deprecate the attitude of litigant who approbates and reprobates or is not consistent in the presentation of his case, the claimants who alleged that the 2nd defendant is their employer stated in another breathe at paragraphs 1, 3 and 28(2) of the Statement of Facts and paragraphs 3 and 4 of the Reply to the Statement of Defence that the 2nd defendant is their recruiter. Learned Senior Counsel reproduced some of the answers elicited from CW1 during his cross-examination and submitted that CW1 failed to prove that the 2nd defendant is their employer or recruiter as there is no evidence of employment contract between the 2nd defendant and the claimants. That since the claimants’ pleadings did not refer to any Memorandum of Understanding between the 2nd defendant and the host communities, the reference to Memorandum of Understanding by CW1 in his evidence is not supported by the pleading and therefore goes to no issue, referring to the case of NDIC V. Rabo Farms Ltd (2018) 15 NWLR (Part 1643) 482 at 504, paras B-C. That the failure of the claimants to produce the said Memorandum of Understanding between the 2nd defendant and the host communities means that they are either not telling the Court the truth or that if the document is made available, it will be against them. The Court is therefore urged to invoke the presumption of withholding evidence pursuant to section 167(d) of the Evidence Act, 2011. See Buhari V. Obasanjo (2005) 13 NWLR (Part 941) 198 paragraphs G-H.

 

  1. That since the only letter of employment tendered by the claimants is exhibit CW2A belonging to the 12th claimant indicating that the letter was not issued by the 2nd defendant but GUS Consulting, the claimants have failed to establish that the 2nd defendant was a party to the contract of employment of any of the claimants. See B. A. Morounfola V. Kwara State College of Technology (1990) 4 NWLR (Part 145) 506 at 518 paras B-D, Kimdey V. Military Governor Gongola (1988) 2 NWLR (Pt. 77) 445 and Bello V. Gov. Gombe State (2016) 8 NWLR (Pt. 1514) 219.

 

  1. That it is only after the party asserting a material fact in his pleading has proved the fact that the onus shifts to the defendant and not the other way round. See Saraki V. Anayegun (1992) 4 NWLR (Part 237) 527 at 547 paras D-F and Mr. Aniete Amos Udo V. Oilfield Specialist Ltd (unreported) Suit No. NICN/PHC/74/2021 delivered on 29th November, 2023.

 

  1. With respect to Issue two (2), the Learned Senior Counsel for the 2nd Defendant reproduced the reliefs in this suit and argued that, while there are 99 Claimants in this suit, only two testified on the claims which are personal to them, and also that it has not been shown that there is an employment contract between the claimants and the 2nd defendant.

 

  1. On the claim for 12 months’ salary arrears in the sum of N468, 306, 859.20, it was submitted that the claimants did not state in their pleadings that they are being owed 12 months arrears of salary or how they became entitled to 12 months’ salary from the 2nd defendant. That since this claim is for special damages, it has to be strictly pleaded with particulars and proved, referring to the case of Alhassan V. A.B.U. Zaria (2011) 11 NWLR (Part 1259) 417 at 468, paras D-G. That the claimants failed to plead and prove with clarity the particulars of the arrears of salary as it relates to what each claimant is entitled to as monthly salary, and how the amount was computed and arrived at. The Court was urged to dismiss this head of claim.

 

  1. On the claim relating to loss of property in the sum of N49, 500,000 (Forty Nine Million, Five Hundred Thousand Naira) as a result of the fire incident, it was posited that the claimants failed to substantiate the claim by stating what properties each of them lost and the values of the items allegedly lost. That loss of properties presupposes specific items of loss which must be specifically pleaded and strictly proved. That exhibits CW2C and CW2D merely assigned the sum of N500,000 to each of the Claimants without setting out the alleged properties lost by each of them and the values of the properties allegedly lost. They also failed to plead the items allegedly lost by them, hence exhibits CW2C and CW2D are self-serving documents without utilitarian value as they are not signed. The Court was urged to dismiss this head of claim. See Nwanji V. Coastal Services Nigeria Limited (2004) 11 NWLR (Part 885) 552 at 567 paras C-H.

 

  1. On the claim for the sum of N99,000,000.00 as repatriation payment, it was argued that it is the contract of service or letter of employment that governs or regulates the relationship between an employer and the employee, and also sets out the obligations or liabilities of the parties to the contract. That the 2nd defendant is not the employer of the claimants, and also that the claim for repatriation is not found in exhibit CW2A as forming part of the terms of the employment. To therefore base the claim on exhibits CW2C and CW2D which are not signed has rendered the claim baseless. The Court was urged to dismiss this head of claim. See United Bank of Nigeria Plc V. Emmanuel Aderewaju Soares (2012) 11 NWLR (Part 1312) 550 at 568, paras. A-B, State V. Saidu (2019) 10 NWLR (Pt. 1680) 308, Bodai V. Muhammed (2023) 18 NWLR (Pt. 1915) 63 and Aliyu V. Namadi (2023) 8 NWLR (Pt. 1885) 161.

 

  1. With respect to the claim for the sum of N1, 065, 000, 000.00 being ex-gratia payment as required under the Collective Agreement, it was submitted that, the 2nd defendant is not a party to the CBA exhibit CW2B and cannot be bound by same. That only parties to an agreement are bound by the terms of the agreement, referring to the case of Isheno V. Julius Berger Nigeria Plc (2008) 6 NWLR (Part 1084) 582 at 609 para. H. That there is nothing in exhibit CW2B to show that the claimants are entitled to any ex-gratia payment, and exhibit CW2C merely allocated various sums to each of the claimants as their ex-gratia entitlements. That exhibit CW2C is an unsigned document and of doubtful origin because the maker is not known. The Court was urged to dismiss this head of claim.

 

  1. On the claim for the sum of N135, 029, 080.61 being one month salary in lieu of notice, 6 weeks gross pay, 4 months prorated, 4 months leave allowance and 3 months end of year bonus, it was submitted that, the claimants failed to establish that they are entitled to this head of claim. That a claim for income/earning or terminal benefit is a claim in special damages which will require full particulars in the pleading as to the rate of earnings or its computation and such other facts as may be necessary to enable the court to calculate as best and accurately as it can, the actual amount due to each claimant. See Black Wood Hodge Nigeria Plc V. Omuma Construction Company (2002) 15 NWLR (Part 782) 523 at 540 para. H. That the claimants failed to plead and prove how they arrived at the lump sum claimed, and exhibit CW2E which is unsigned did not show any basis on how the amount was arrived at. That CW1 admitted under cross-examination that the claimants did not earn the same salary, and no evidence was given as to the salary of each of the claimants. The Court was urged not to place any reliance on exhibit CW2E because it is not signed, referring to the case of Garuba V. K. I. C. Ltd (2005) 5 NWLR (Part 917) 160 at 178, paras C-D.

 

  1. With respect to the declaratory reliefs, it was posited that the court does not exercise discretion to grant declaratory reliefs in the absence of evidence. The claimants are not entitled to any of the declaratory reliefs in the suit, referring to the cases of Ayoola V. Yahaya (2005) 5 NWLR (Pt. 923) 138-139, paras G-C and Akanni V. Odejide (2004) 9 NWLR (Pt. 879) 610 paras. F-H. The Court was urged to resolve Issue two (2) in favour of the 2nd defendant, and dismiss the suit with cost.

 

  1. It is apposite to note that the Learned Senior Counsel for the 2nd defendant filed a Motion on Notice on the 14th of March, 2025, praying for an order of this Honourable Court striking out the Claimants/Respondents Final Written Address filed on the 4th of March, 2025. The application which is brought pursuant to Order 5 Rule 2, Order 45 Rules 2(2) and 3(2) of the Rules of this Honourable Court 2017, section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and under the inherent jurisdiction of the Honourable Court is predicated on the following grounds:
  1. On 21st January, 2025, this Honourable Court directed all parties to file their respective final written addresses.
  2. The 2nd Defendant/Applicant filed its Final Written Address on 12th February, 2025 in compliance with the Rules of this Honourable Court.
  3. The Claimants/Respondents eventually filed their Final Written Address on 4th March 2025.
  4. By the Order 45 Rule 2(2) of the National Industrial Court (Civil Procedure) Rules 2017, a written address shall not be more than thirty-five (35) pages.
  5. The Claimants/Respondents Final Written Address which was filed on 4th March, 2025 contains forty-eight (48) pages.
  6. The Claimants/Respondents Final Written Address is incompetent and liable to be struck out by this Honourable Court.

 

  1. In support of the application is an affidavit of 7 paragraphs deposed to by Clement Effiong, a Litigation Officer in the Law Firm of Aluko & Oyebode, together with a written address wherein this lone Issue is identified for the Court’s determination: Whether the Claimants’/Respondents’ Final Written Address filed on 4 March 2025, is filed in breach of O. 45 r. 2 of the Rules of this Honourable Court and liable to be struck out by this Honourable Court?

 

  1. It was submitted that since the provision of Order 45 Rule 2(2) of the Rules of this Honourable Court 2017 that a written address shall not be more than thirty-five (35) pages set out in paragraphs and numbered serially is plain, unambiguous and clear, same should be given its plain meaning and enforced because the use of the word “shall” does not give any room for discretion. See Aiyewumi and Ors V. Owoniyi and Ors (2021) LPELR-54565(CA).

 

  1. That rules of court are meant to be observed and followed and not made for fun, referring to the cases of Asika and Ors V. Atuanya (2013) LPELR-SC150/2008 at pages 23-24, paras C-A, GMO Nworah & Sons Co. Ltd V. Akputa (2010) All FWLR (Pt. 524) SC 86 at 109 paras F-G, Arabella V. NAIC (2008) 8 MJSC 145 at 159 paras F-G and Miss Ezeanah V. Alhaji Mamoud (2004) 7 NWLR (Pt. 873) SC 468 at 502.

 

  1. The Court was urged to grant the application and strike out the Claimants’ Final Written Address for being incompetent pursuant to Order 45 Rule 3(2) of the Rules of this Honourable Court, 2017.

 

  1. In opposition to the application of the 2nd defendant, the Claimants/Respondents filed a 6 paragraphed Counter-Affidavit deposed to by Jennifer Onoriode together with a written address on the 17th of March, 2025.

 

  1. It was submitted that the 2nd defendant only picked and chose rule 2 of Order 45 without taking into consideration the other rules contrary to the legal position that a party should not pick or choose an aspect of a provision without looking at the entire provisions holistically. See Aminu Suleman V. Tukur Adamu (2016) 3 CAR 102 and NJC V. Agumagu and Ors (2015) 4 CAR 353.

 

  1. That rule 2 (b)-(g) does not envisage the reproduction of questions and answers of the witnesses or the quotations from relevant case law authorities as forming part of the required 35 pages, and the court should give literal interpretation to the clear words of the provisions in the interest of justice, referring to the case of Merill Guaranty Savings & Loan Ltd V. WBS Ltd (2012) 3-4 MJSC 1 and Ogbolosingha V. B.S.I.E.C. (2015) NWLR (Pt. 1455) 311 at 352-353 paras H-A.

 

  1. It was further argued that, by the provisions of Order 45 Rule 3(2) of the Rules of Court, the failure to limit the final written address to 35 pages does not render the address incompetent because the use of the word ‘may’ gives room for discretion on the part of the Court, referring to the cases of Abacha V. Fawehinmi (2000) AFWLR (Pt. 4) 614 and Adeniyi V. Akinyele (2010) AFWLR (Pt. 503) 1257. That exceeding the specified number of pages has not misled the 2nd defendant, and the Court can expunge from the claimants’ address the aspects relating to the reproduction of evidence during cross-examination and the quotations from case law authorities to bring same within the threshold of 35 pages as provided in the Rules of Court. That striking out the entirety of the claimants’ final written address will be unfair to the claimants and will breach their right to fair hearing. The Court was urged to treat the failure as an irregularity. See Adava V. State (2006) AFWLR (311) 1790, UBA Plc V. Mode (Nig) Ltd (2001) FWLR (Pt. 40) 1681, Bello V. Yakubu (2008) AFWLR (Pt. 429) 488, Usikoro V. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 180 and Magit U.A.M. (2006) 4 WRN 134.

 

  1. It was further submitted that, the final written address of the 2nd defendant is 12 font and not 14 font and is also not double spaced as required by rule 2 and is therefore incompetent. That he who comes to equity must come with clean hands, relying on the case of Adejumo V. Anantegbe (1989) 3 NWLR (Pt. 110) 417 at 422-423. The Court was urged to refuse the application and not allow the rule of court to be used as a tool to perpetuate injustice. See Stella Oduah V. Dupen Obaze (2015) 9 CAR 151.

 

  1. It is pertinent to note that the learned Senior Counsel for the 2nd defendant filed a Reply on Points of Law on the 4th of April, 2025.

 

  1. It was replied that the provisions of Order 45 Rule 2 (b)-(g) are clear and unambiguous and should therefore be given their ordinary and literal meaning. That the claimants cannot expand or limit the interpretation of the provisions to accommodate questions and answers of witnesses or the quotations of relevant laws in a written address. See Mobil Oil Nig Plc V. IAL 36 Inc (2000) 6 NWLR (Pt. 659) 146 at 168 paras E-F.

 

  1. That the contention of the 2nd defendant that compliance with Order 45 Rule 2 of the Rules of this Honourable Court is mandatory is fortified by the interpretation given to similar provision in the Court of Appeal Rules which limits the number of pages of a brief of argument, citing the case of Ecobank Nig. Plc V. Kunle (2019) 10 NWLR (Pt. 1679) 90 at 104 paras C-D.  That since the claimants did not raise any objection to any irregularity in the final written address of the 2nd defendant but responded to it, they have waived their right to any irregularity in the said final written address of the 2nd defendant. The Court was urged to strike out the claimants’ final written address.

 

  1. I have considered the arguments of both the learned Senior Counsel for the 2nd defendant and the learned Counsel for the Claimants, and seen that the sole grouse of the 2nd defendant is that the court should discountenance and strike out the claimants’ final written address for being incompetent having exceeded 35 pages as required by the provisions of Order 45 Rule 2 of the Rules of this Honourable Court, 2017.

 

  1. Order 45 Rules 1, 2 and 3 of the Rules of this Honourable Court 2017 provide for the filing of written addresses as follows:

 

“1. This Order shall apply to all applications and Final Addresses.

2.(1) A Written Address shall be type-written with 14 font size of legible and readable font type or character (not cursive or italicized) with double spacing format and printed with black ink on white opaque A4 size paper of good quality.

(2) A Written Address shall not be more than thirty-five (35) pages, set out in paragraphs and numbered serially. It shall contain:

(a) the claim on which the address is based;

(b) a brief summary statement of the facts with reference to the exhibit tendered at the trial;

(c) the issues arising from the evidence;

(d) a succinct statement of argument on each issue incorporating the authorities referred to together with full citation of the authorities;

(e) a list of statutes or laws to be relied upon;

(f) relevant facts and facts relevant to the facts in issue;

(g) not contain extraneous matters.

Provided that where a Written Address contains extraneous matters, the Court may discountenance the portion of the final address containing the extraneous matters.

3(1) All Written Addresses shall be concluded with a numbered summary of the points raised and the party’s prayer. A list of all authorities referred to shall be submitted with the Written Address. Where any unreported judgment is relied upon, the Certified True Copy shall be submitted along with the Written Address.

(2) Failure to comply with rules 2 and 3(1) of this Order may render the written Address incompetent.”

 

  1. I have seen the very succinct and apt submissions of the Learned SAN for the 2nd defendant that Rules of Court are not meant for fun but to be obeyed by the parties/litigants. See Mr. Lawrence Ozu and Anor V. Mr. Simon Abidi (2013) LPELR-22871(CA) at page 11 paragraph A, where it was reiterated that since Rules of Court are made to regulate practice and procedure in law courts, they are not made for fun, but must be complied with. In the case of Sakamori Constr. (Nig) Ltd V. L.S.W.C. (2022) 5 NWLR (Pt. 1823) 339, the Apex Court held at page 393 paras G-H that, Rules of Court must be obeyed and where there is non-compliance it must be explained, otherwise no indulgence of the court would be granted.

 

  1. I have seen that while Order 2 Rule 2 of the Rules of Court reproduced above limits a written address to 35 pages, the final written address of the claimants filed on the 4th of March, 2025 contains about 48 pages which is beyond the required number of pages. Having perused the said address, I have seen that about 11 pages contain reproduction of the questions and answers of the witnesses during cross-examination which are extraneous matters not envisaged under Order 45 Rule 2(2)(a) – (g) of the Rules of Court. These portions of the address can be and are hereby discountenanced pursuant to the proviso to Order 45 Rule 2(2) of the Rules of this Honourable Court, 2017.

 

  1. Having discountenanced the extraneous portions of the claimants’ written address, I do not think that it will serve the interest of justice to strike out the said written address because that will infringe on the claimants’ constitutional right to fair hearing. I say this because, the 2nd defendant raised two very germane points of law and argued them it her final written address. These points of law relate to the competence of the suit and the jurisdiction of the court to entertain the suit, as well as objection to the admissibility of exhibits CW2A, CW2C, CW2D and CW2E which necessitated the claimants to respond to the objections on the court’s jurisdiction and the exhibits.

 

  1. Since Order 45 Rule 3(2) gives room for discretion in treating the failure to comply with rules 2 and 3(1), I shall treat the non-compliance as an irregularity pursuant to Order 5 Rule 1 of the Rules of this Honourable Court 2017. Since it is a mere defect that does not affect the jurisdiction of the Court to entertain the suit, this Court shall not allow mere technicalities to overshadow the need to do substantial justice to the parties. See the case of Ugochukwu Nwaizu V. Toronto Hospital Ltd and Anor (2016) 15 NWLR (Part 1534) 165 at 174, at paragraphs G – H, where the Court of Appeal held as follows on the distinction between an incompetent brief and a defective brief:

“An incompetent appellant brief is one where defect touches on the jurisdiction or power of the court, to entertain the brief, while a defective brief is one that is in breach of the rules of the appellate court on brief writing, the brief is merely bad, faulty or inelegant. Therefore, a defective brief as against an incompetent brief is properly before the court but has a feature or features repugnant to qualities of a good and effective brief.”

 

  1. I conclusion, let me make the point that the Learned SAN for the 2nd defendant who has urged the Court to discountenance the final written address of the claimants for failure to comply with the Provisions of the Rules of Court is also in clear violation of the same Rules he is accusing the claimants of violating. While Order 45 Rule 2(1) requires that a written address must be type-written with 14 font size of legible and readable font type or character with double spacing format, the final written address of the 2nd defendant is 12 font and is not double spaced. Since both final written addresses are in clear violation of the same provisions of Order 45 of the Rules of this Honourable Court 2017, it will be unfair and unjust to discountenance that of the claimants and countenance the one filed by the 2nd defendant.

 

  1. In the circumstance, the Application of the 2nd defendant filed on the 14th of March, 2025 urging this Honourable Court to strike out the claimants’ final written address is hereby refused. The application fails and is accordingly dismissed. This Court shall place reliance on the claimants’ final written address save the portions relating to the questions and answers of witnesses during cross-examination which have been discountenanced and expunged.

 

CLAIMANTS’ SUBMISSIONS:

 

  1. The claimants’ Counsel identified the following four (4) Issues for the Court’s determination:

 

  1.  Looking at the evidence before this Honourable Court, whether it is correct to say the 2nd defendant recruited or employed the claimants and handed them over to the 1st defendant and the claimants are employees of the 1st defendant?

 

  1. If the 1st defendant is the employer of the claimant, is the 1st defendant not bound by the terms of the Collective Bargained Agreement?(sic)

 

  1. If the 2nd defendant did initially recruit or employed the claimants, handed them over to the 1st defendant, and co-signed the confirmation letter and collective agreement whether by so doing and the prevailing law at the material time, the 2nd defendant is not an implied guarantor of the 1st defendant and should be liable pay the claimants their entitlement if the 1st do not meet its obligation to the claimants? 

 

  1. Whether the 2nd defendant having failed to ensure that the claimants were paid their entitlement by the 1st defendant as required by law before paying the 1st defendant, the 2nd defendant is liable to pay the claimants their entitlement?

 

  1. It was submitted on Issue one (1) that, since it is the 2nd defendant who has the expertise and knowledge of oil drilling that notified the host communities of the vacancies and nominated and interviewed the applicants before handing the claimants to the 1st defendant who equally interviewed them in the presence of the 2nd defendant’s representative Keith Daniel, the 2nd defendant was fully involved in the recruitment or employment of the claimants. That since the 2nd defendant never denied that Keith Daniel is its staff, and also did not debunk same during cross-examination, same is deemed to have been admitted and is therefore proved on the balance of Probability. See Ezekiel Okoli V. Morecab Finance Ltd (2007) AFWLR (369) 1164(SC), Macaulay V. Merchant Bank Ltd (1990) NWLR (Pt. 114) 283, Salawal Motor House Ltd V. Lawal (2000) FWLR (Pt. 3) 517 at 529 paras A-B, Welle V. Bogunjoko (2007) 6 NWLR (Pt. 1029) 125 at 140-141 paras. H-A, Sakati V. Buka (2015) AFWLR (Pt. 800) 1182 at 1208 para C and Adenle V. Olude (2002) 18 NWLR (Pt. 799) 413. That the defence of the 2nd defendant is evasive and does not answer the case of the claimants, relying on the cases of Pascutto V. Adecentro (Nig) Ltd (1997) 11 NWLR (Pt. 529) 467, Mogaji V. Odofin (1978) 4 SC 91, Anyegwu V. Onuche (2013) AFWLR (Pt. 681) 1622 at 1632 paras C-H.

 

  1. It was further posited that since it is the 1st defendant that paid their salaries, was the end user of their services and had the right to tell them the job to do and enforce discipline, the claimants are the employees of the 1st defendant, referring to the case of Opuo V. NNPC (2002) AFWLR (Pt. 84) 11 at 25 para F. That since the claimants have established that they were employed by the 1st defendant, the Court should resolve Issue one (1) in favour of the Claimants. See Undulue V. Ojiakor (2013) AFWLR (Pt. 673) 1804 at 1824, paras B-D.

 

  1. With respect to Issue two (2), the learned Counsel to the Claimants referred to articles 4.1 – 4.4 of the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector and argued that by the provision of section 18 of the Interpretation Act, the Regulation is a law and binding on all the parties which cannot be waived by any agreement of the parties, referring to the case of UBA Plc V. Egwu (2016) 12 NWLR (Pt. 1526) 346 at 353 para B. That since the Guidelines uses the word ‘shall’ same is mandatory and must be obeyed by both employers and employees. See F.U.T.A. V. A.S.U.U. (2013) AFWLR (Pt. 707) 678 at 701 paras C-D and Okeowo V. A. G. Ogun State (2002) FWLR (Pt. 93) 1889 F-H.

 

  1. That the Regulation has a constitutional force and must be complied with because it was made pursuant to section 88 of the Labour Act, section 5 and 148(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) with respect to the powers of the Minister of Labour to act on behalf of the President, referring to the case of Phoenix Motor Ltd V. N.P.F.M.B. (1992) 1 NWLR (Pt. 272) 730. The Court was urged to take judicial notice of the Guidelines which is a bye-law pursuant to section 122 of the Evidence Act and hold that the Collective Bargaining Agreement is binding on the parties, relying on the case of Kerewi V. Abraham (2010) 1 NWLR (Pt. 1176) 443 at 458 paras. C-D. The Court was urged to resolve Issue two (2) in favour of the Claimants and hold that the 1st defendant is bound by the terms of the Collective Bargaining Agreement.

 

  1. With respect to Issue three (3), it was submitted that since the 2nd defendant initially recruited the claimants, handed them over to the 1st defendant and co-signed both the confirmation letter and the Collective Bargaining Agreement, the 2nd defendant is an implied guarantor of the 1st defendant and is therefore liable to pay the claimants their entitlements since the 1st defendant has failed to meet its obligations to the claimants. That the 2nd defendant should have confirmed from the employees if they had been paid by the 1st defendant before paying the 1st defendant for the contract. See Nwankwo V. E.D.C.S.U.A. (2007) NWLR (Pt. 1027) 415 at 410 paras A-B, Part IV 4.2. of the Guidelines on Contract Staffing and Outsourcing in the Oil and Gas Sector, 2011 and the Article “Federal Ministry of Labour Guidelines on Contract Staffing and Outsourcing in the Oil and Gas Sector” by Bimbo Atilola published in the Labour Law Review (NJLIR) Vol. 8 No. 4, 2024 page 16.

 

  1. With respect to Issue four (4), it was posited that the provisions of the Guidelines on Contract Staffing and Outsourcing in the Oil and Gas Sector 2011 place an obligation on the 2nd defendant to ensure that the claimants had been paid by the 1st defendant before paying the 1st defendant for the services rendered by the 1st defendant. That since the 2nd defendant failed to confirm from the claimants if they had been paid their entitlements and then deduct from source before paying off the 1st defendant, the 2nd defendant is liable for the payment. See Ndili V. Akinsumadu (2000) FWLR (Pt. 5) 750 at 800 paras B-D, where it was held that where a statute directs that certain procedure should be followed, such a procedure and no other must be followed. The Court was urged to resolve the Issue in favour of the Claimants.

 

  1. It is apposite to note that at paragraphs 4.01 to 4.31 of the claimants’ final written address, the claimants’ Counsel responded to the issues raised in the final written address of the 2nd defendant including the objections to exhibits CW2A, CW2B, CW2D and CW2E.

 

  1. On the contention of the 2nd defendant that the claimants’ witnesses did not link the exhibits to the suit, and that there is no foundation linking the documents to the suit, it was replied that since the claimants pleaded facts relating to their employments and the explosion onboard the K. S. Endeavour, the documents were properly admitted. See Dosumu V. Dada (2003) FWLR (Pt. 151) 1944 page 1958 paras. C-E and Order 30 Rule (1) and (2) of the Rules of this Honourable Court. On the contention of the 2nd defendant that exhibits CW2A, CW2C, CW2D and CW2E are not signed and that the makers are not known, it was replied that the documents were pleaded and have been admitted by the 2nd defendant in its pleadings, and are therefore admissible. See Ashakacem Plc V. Asharatul Mubashurun Investment Ltd (2019) LPELR-(SC) and Blackwood Hodge Nig Ltd V. Omuna Constr Co. (2002) 12 NWLR (Pt. 782) 523 at 541-542 paras. H-A. That since the calculations are based on the monthly salaries of each of the staff and their other entitlements as contained in the CBA, they were properly made, referring to the cases of Owena Bank V. Olatunji (2002) 13 NWLR (Pt. 781) at 367 paras H-A and Intel Nig Ltd V. Bassey (2013) AFWLR (Pt. 675) 376 at 387 paras D-E.

 

  1. On the 2nd defendant’s challenge of the jurisdiction of this Honourable Court on the ground that since the 99 claimants have separate contracts of employment, they cannot sue the defendants jointly, it was replied that, the jurisdiction of this Honourable Court is determined by section 254(C) of the 1999 Constitution (as amended) relying on the case of Coca Cola (Nig) Ltd V. Akinsanya (2013) 18 NWLR (Pt. 1386) 255 at 366. See also section 14 of the National Industrial Court Act 2006.

 

  1. That since the claimants have similar claims against the defendants, the suit was properly commenced by the claimants jointly, relying on the cases of Ogbolu V. Zenith Bank (unreported) Suit No: NICN/LA/26/2013, Runyi Kanu and Ors V. Attorney General of Cross Rivers State (2013) 32 NLLR (Pt. 91) 63, Unity Bank V. Olatunji (2015) 5 NWLR (Pt. 1452) 203 at 229-230 paras F-A, Order 13 Rule 11(1)&(2) of the Rules of this Honourable Court, 2017, and section 12 of the National Industrial Court Act 2006. The Court was urged not to allow common law rules to hinder the need to do substantial justice, referring to the case of UTC (Nig) Ltd V. Pamotei (1989) 2 NWLR (Pt. 103) 244.

 

  1. On the contention of the 2nd defendant that the CBA is not enforceable because the claimants are not parties to the CBA, it was replied that, by Article 4.1 of the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector 2011, the argument that the CBA is unenforceable does not apply to employment contracts in the oil and gas sector.

 

  1. With respect to the 2nd defendant’s first Issue, it was submitted that the case of the claimants is not that they are employees of the 2nd defendant, but rather that by the conduct of the 2nd defendant in the contract between the claimants and the 1st defendant, the 2nd defendant should have ensured that the claimants were paid their entitlements before paying the 1st defendant for the services rendered to the 2nd defendant by the 1st defendant because the 2nd defendant stands as a guarantor in the circumstances of the contract. Reference was made to Article 4.2 of the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector 2011 and Skye Bank Nig Plc V. Seph Inv. Ltd (2017) 13 NWLR (Pt. 1581) at 96 paras D-E.

 

  1. On the 2nd defendant’s second Issue, it was posited that the claimants have established their case and are entitled to the reliefs sought. That the evidence of the 2nd defendant’s witness is contradictory and should be discountenanced relying on the cases of Owena Bank V. Olatunji (2002) 13 NWLR (Pt. 781) at 340 paras C-E and Gana V. S.D.P. (2020) AFWLR (Pt. 1066) 318 SC. That since the 2nd defendant placed reliance on a supposed globally recognized international memorandum of understanding without producing same in evidence, the provisions of the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector 2011 should prevail over the oral evidence of the 2nd defendant, relying on the case of Akinboni V. Akinboni (2002) 5 NWLR (Pt. 761) 564 at 580, paras. D-F.

 

  1. On the contention of the 2nd defendant that exhibit CW2B is not pleaded, it was submitted that the claimants pleaded facts relating to the document which was supported by the evidence of CW2. That the document was properly admitted, relying on the case of Usman V. Garke (1999) 1 NWLR (Pt. 587) 466.

 

  1. With respect to the contention of the 2nd defendant that the claimants did not state the cost of each property lost as a result of the explosion and have therefore failed to prove their claims for special damages, learned counsel reproduced some of the answers elicited from CW2 during his cross-examination, and posited that by exhibit CW2D the claimants have shown that they actually lost their property owing to the explosion. That the 1st defendant did not give the claimants the opportunity to sit down and itemize the items they lost. That the sum of N500,000.00 placed on each property is a meagre amount considering the high cost of televisions, computers etc, and the claim for ex-gratia is calculated based on the minimum in the industry so that no one can query the basis of the claim. That the claims are within the stipulated range despite the fact that the value of the Country’s currency has dropped drastically, and the Court should do substantial justice in the matter referring to the cases of Owena Bank V. Olatunji (2002) 13 NWLR (Pt. 781) 367 and Anyegwu V. Onuche (2013) AFWLR (Pt. 681) 1622 at 1628 paras E-F. That the claimants are entitled to their claims before the Court.

 

2ND DEFENDANT’S REPLY ON POINTS OF LAW:

 

  1. It is pertinent to note that the 2nd Defendant filed a Reply on Points of Law on the 13th day of May, 2025.

 

  1. With respect to the submissions of the claimants at paragraphs 3.03 – 3.18 of their Final Written Address that they were recruited or employed by the 2nd defendant before being handed over to the 1st defendant, it was replied that, the claimants who have the burden of proof failed to prove that the 2nd defendant interviewed, employed and subsequently handed them over to the 1st defendant. See Veepee Industries Ltd V. Cocoa Industries Ltd (2008) 13 NWLR (Pt. 1105) 486 at 519 – 520, paras H-B. That since the claimants admitted in paragraph 6 of the Reply to the Statement of Defence that the staff that attended the interview came from the 1st defendant, such admitted fact can be relied upon by the 2nd defendant to disprove the allegation, referring to the cases of Unity Bank Plc V. Denclag Ltd (2012) 18 NWLR (Pt. 1332) 293 at 337 para G and Alaribe V. Okwuonu (2016) 1 NWLR (Pt. 1492) 41 at 62-63 paras H-A.

 

  1. On the claimants’ submissions at paragraphs 3.19 – 3.23 of the claimants’ final written address that the provisions of the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector 2011 are applicable to the case because the principal company is mandated to ensure that any money owed to a contract staff by the contractor is paid by the principal company, it was replied that the claimants are not contract staff but full employees of the 1st defendant, and that they relied on exhibit CW2A as evidence of their employment letters. That Part IV of the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector 2011 applies to contract staff and not fulltime employees like the claimants. That the 2nd defendant has no obligation to confirm from the claimants if the 1st defendant has paid their salaries or other entitlements, and as employees of the 1st defendant, their salaries and other entitlements are as contained in their letters of employment and not the Guidelines on Labour Administration Issues in Contract/Outsourcing in the Oil and Gas Sector 2011. See Ovivie V. Delta Steel Company Ltd (2023) 14 NWLR (Pt. 1904) 203 at 226, paras F-G.

 

  1. On the submissions of the claimants at paragraphs 3.24 – 3.28 of the claimants’ final written address that the 2nd defendant is a guarantor of the 1st defendant having co-signed the CBA and the letter of confirmation, it was replied that, the 2nd defendant is not a signatory or party to the CBA (exhibit CW2B) between the claimants’ union and the 1st defendant. The Court was urged to look at its records and discountenance the claimants’ contention, referring to the case of Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144 at 231 paras F-G. That the sole purpose of signing as a witness to a document is for corroboration in case of a dispute, relying on the case of Arije V. Arije (2011) 13 NWLR (Pt. 1264) 265 at 284 para H. That the mere fact of witnessing a document does not necessarily make the witness signatory of the document a guarantor to a party because a guarantee is a written undertaking made by one person to another to be responsible if a 3rd party fails to perform an obligation. See Chami V. UBA Plc (2010) 6 NWLR (Pt. 1191) 474 at 501 para F.

 

  1. With respect to the claimants’ submissions at paragraphs 4.01 – 4.31 of their final written address relating to the admissibility of exhibits CW2A, CW2C, CW2D and CW2E that the claimants did not need to plead evidence but facts supporting the documents, it was replied that, it is the duty of the claimants to relate the documents tendered to specific areas of their case, referring to the case of Ucha V. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 360 paras F-G.

 

  1. On the claimants’ contention that this court has jurisdiction and competence to entertain the joint/collective claims of the claimants by virtue of section 254(C) of the 1999 Constitution, Order 13 Rule 11(1)(2) of the Rules of this Court 2017 and section 14 of the National Industrial Court Act, 2006, it was replied that, even though the claimants may have a common employer, they however do not have a common interest because each of the claimants has his own letter of employment which is personal to him. The court was urged to dismiss the suit.

COURT’S DECISION:

 

  1.  I have pored over the pleadings, the entirety of the evidence led by the parties and the written submissions and authorities cited by the parties in their addresses filed in this suit. Having considered all the processes filed by the parties, I have seen that the suit can be conveniently determined on the basis of these two (2) Issues, namely: 

 

  1. Whether the claimants proved that there exists a contract of employment between the claimants and the 2nd Defendant. (Drawn from the 2nd Defendant’s Issue one, and the claimants’ Issues a, c and d).

 

  1. Whether the claimants have proved their case to be entitled to the reliefs sought.

 

  1. Before resolving the two (2) Issues identified by the Court for determination, it is apposite to first resolve the preliminary point of law raised by the 2nd Defendant which challenges the competence of the suit and the jurisdiction of this Honourable Court to entertain the suit. The rationale for this is that jurisdiction being a threshold issue must be determined first before considering the merit of the suit, as any proceeding conducted in the absence of the requisite jurisdiction amounts to an exercise in futility. See J. A. Adekoye & Ors. V. Nigerian Security Printing and Minting Company Ltd & Ors. (2009) LPELR-106(SC), Mrs. Chime Ogbeyialu Ayodele V. Mr. Sule Isaac Ayodele (2020) LPELR-51180(CA) and Shell Nigeria Exploration and Production Company Nigeria Limited & 3 Others V. Federal Inland Revenue Services & 1 Other (2021) 17 NWLR (Part 1806) 545 at 575-575 paragraphs G-D, where the apex Court held thus on the significance of the issue of jurisdiction to trial proceeding: “The issue of jurisdiction, being radical in nature, is at the very foundation of adjudication. It can be raised at any stage of the proceedings at the trial court or even in the Supreme Court for the first time without leave. All an appellant needs to do is to raise the issue of jurisdiction in his brief so as to give the respondent an opportunity to respond. The reason is because a trial conducted without jurisdiction is a waste of time; the whole proceedings no matter how well conducted and decided would ultimately be nullified and discarded. In the instant case, the issue sought to be raised as fresh issue being one of jurisdiction, it could not be defeated by the rules of the Supreme Court. It had to be considered irrespective of the delay in filing the appeal. [Opobiyi v. Muniru (2011) 18 NWLR (Pt. 1278) 387; NNPC v. Orhiowusele (2013) 13 NWLR (Pt. 1371) 211 referred to.”

  

  1. The gripe of the learned Senior Counsel to the 2nd Defendant is that, since the 99 claimants were employed separately with each of them having distinct contract of employment, they cannot sue the defendants jointly or collectively, relying mainly on the cases of C.C.B. Nigeria Plc V. Rose (supra) and Bossa V. Julius Berger Plc (supra).

 

  1. In resolving this preliminary point of law, I have carefully gone through the averments in the Amended Statement of Facts filed on the 30th of May, 2023, and it is glaring that even though the Claimants were employed at different times with distinct contracts of employment personal to each of them, they were however disengaged the same time due to the fire incident on board the rig K. S. Endeavour on the 16th of January, 2012 which led to their alleged loss of properties and their subsequent evacuation from the rig.

 

  1. While it would seem that even though the Claimants were engaged at different times with individual contracts of employment personal to each one of them, the singular act of the fire incident which affected all of them and which led to the disengagement of their services obviously spurred the cause of action in this suit thereby giving the Claimants a single cause of action entitling them to bring a joint suit under Order 13 Rule 1 of the Rules of this Court 2017. For the purpose of clarity, the said provision of Order 13 Rule 1 states as follows: “All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.”

 

  1. It is also pertinent to note that this provision of the Rules of this Court reproduced above is in pari materia with the provision of Order 9 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009, which came up for determination before the Court of Appeal in the case of National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & 400 Ors. (2016) 17 N. W. L. R. (Pt. 1541) 314 at 335 paras. C – D, where the appellate court held that where there are no diverse interests of the plaintiffs in a subject matter of a suit, but a common interest, it is more convenient, advantageous, cost effective and prudent to have the issue determined in a single representative action than for each of the plaintiffs to embark on filing his own action to seek for his own relief. In that suit, the 1st Plaintiff (Emmanuel Sunday Omotusi) deposed in the affidavit in support of the Originating summons that he had the consent of the other 400 plaintiffs in the suit to depose to the affidavit.

 

  1. Having therefore perused the witness statements on oath of both CW1 and CW2 filed on the 28th of January, 2022, I am of the considered view that since both witnesses stated clearly at paragraph 1 of their depositions that they have the authority of the other claimants to depose to the statements, the suit was properly commenced jointly by the claimants. This is to avoid multiplicity of suits by the Claimants in respect of the single cause of action. See the case of Durbar Hotel Plc V. Mr. Abella Ityough and Others (2017) 7 NWLR (Part 1564) 256. The preliminary point of law is therefore resolved against the 2nd Defendant, and the Court hereby assumes jurisdiction on the matter.

 

  1. Having determined the preliminary point of law relating to the competence of the suit and the jurisdiction of this Honourable Court to determine the suit, the coast is clear to now consider and resolve the two Issues crafted for determination in this suit.

 

  1. Issue one (1) relates to whether the claimants proved that there exists a contract of employment between the claimants and the 2nd Defendant.

 

  1. The crux of this Issue as argued by the learned Senior Counsel to the 2nd defendant is that since the 2nd defendant did not employ the claimants and is not a party to the contract between the claimants and the 1st Defendant, the suit does not disclose any reasonable cause of action against the 2nd Defendant.

 

  1. It is obvious from the claimants’ pleadings and evidence on record that the claimants are in agreement with the 2nd defendant that they were employed by the 1st defendant and not the 2nd defendant. The contention of the claimants is however that since it was the 2nd defendant that notified their communities of the availability of vacancies and co-signed both the confirmation letter and the Collective Bargaining Agreement (CBA), the 2nd defendant is an implied guarantor of the 1st defendant, and should have therefore confirmed whether the claimants had been paid their entitlements before paying the 1st defendant for the services or contract executed by the 1st defendant, relying on the provisions of Article 4.2 of the Labour Guidelines on Contract Staffing and Outsourcing in the Oil and Gas Sector.

 

  1. I have considered the letter of confirmation of employment for the 86th claimant (Mr. Samuel Nnamdi Onwukaike) (exhibit DW1C) and the Offer of Employment for the 12th Claimant (Mr. Tuoyo Daibo) (exhibit CW2A) and seen that both of them were employed by a firm known as GUS Consulting Ltd on behalf of its client Field Offshore Design Engineering Ltd (the 1st defendant in this suit). Even though the 2nd defendant’s representative witnessed the execution of exhibit DW1C, the agreement is clearly between the employee and GUS Consulting Limited acting for the 1st defendant. The claimants described themselves in exhibits CW2C and CW2D as ‘FODE Personnel on board KS Endeavour’ thereby indicating clearly who their employer was. It is also obvious from the Collective Bargaining Agreement (exhibit CW2B) that the parties to the CBA are the 1st defendant/GUS Consulting Limited and the Nigeria Union of Petroleum and Natural Gas Workers of Nigeria (NUPENG). The 2nd defendant is clearly not a party to both the CBA and the employment relationship between the claimants and the 1st Defendant/GUS Consulting Limited, and cannot be bound by an agreement it is not a party to. Just as a person who is not a party to an agreement cannot enforce it even if the agreement was made for his benefit, a person who is not a party to an agreement can also not be made to shoulder the obligations contained in the agreement. Put in another way, just as a person who is not privy to a contract cannot sue to enforce same, a person who is not privy to a contract cannot be sued to be made liable under the contract. In the case of Akinwunmi O. Alade V. Alic (Nigeria) Limited and Anor (2010) 19 NWLR (Part 1226) 111 at 127 paragraphs E-F, the Apex Court put it succinctly that, “It is trite law that a person who is not a party to a contract cannot be held liable.” See also the cases of Hon. Eseme Sunday Eyiboh V. Dahiru Sheikh Mujaddadi and Ors (2022) 7 NWLR (Part 1830) 381 and Ilesa Local Planning Authority V. Reverend Sunday Olayide (1994) 5 NWLR (Part 342) 91 at 102 – 104, where the Court of Appeal held that an action which is brought by a party to a contract against a person who is not privy to the contract is incompetent for want of privity even if the contract is made for his benefit.

 

  1. The claimants are also placing reliance on the provision of Article 4.2 of the Federal Ministry of Labour Guidelines on Contract Staffing and Outsourcing in the Oil and Gas Sector in contending that the 2nd defendant is an implied guarantor of the 1st defendant and should have confirmed whether the claimants had been paid their entitlements before paying the 1st defendant for the contract. I do not know how this contention will help the case of the claimants against the 2nd defendant since the said Guidelines is not produced and tendered before the Court to enable the Court interpret and apply same to the case. What the claimants tendered as exhibit CW1J is an article published in the Labour Law Review NJLIR Vol. 8 No. 4, 2014 by Bimbo Atilola, the Managing Partner of Hybrid Solicitors and the Editor-in-Chief of the Labour Law Review. The claimants have the sole responsibility to produce before the Court the Guidelines but they have failed to do so; the Court cannot speculate in the circumstance.

 

  1. The claimants are also pleading triangular employment in this suit, and therefore urging the Court to hold the 1st and 2nd defendants jointly and severally liable for the breach of the terms of the employment contracts. Let me make the point that from the state of the pleadings and the evidence on record, if there is a triangular employment then it is between the claimants, the 1st defendant and GUS Consulting Limited that issued the employment letters to them (exhibits CW2A and DW1C) and also signed the Collective Bargaining Agreement (exhibit CW2B). It is therefore inconceivable that despite these avalanche of evidence, the claimants did not make GUS Consulting Ltd a party to the suit and has decided to join the 2nd defendant who played no role in their employment apart from notifying the host communities of the availability of vacancies in the bid to encourage or promote local content and to improve the economic/financial well-being of the members of the host communities. Apart from the ipse dixit of the claimants’ witnesses that the 2nd defendant interviewed and recruited them before handing them over to the 1st defendant, there is nothing before the Court to show that they were employed by the 2nd defendant on behalf of the 1st defendant. Their contention and evidence all fly in the face of documentary evidence exhibits CW2A, CW2B and DW1C. They purport to place reliance on a Memorandum of Understanding between the 2nd defendant and the host communities but failed to produce same before the Court.

 

  1. It is apposite to at this juncture make the crucial point that for a suit to be maintained and sustained against a party, there must be disclosed reasonable cause of action against such a party the substance of which is a set of facts that can be proved to entitle a plaintiff to some reliefs for the injury caused. It is the wrong committed by the Defendant which has caused an injury to the Claimant for which he is entitled to sue for redress. It is the law that a plaintiff who brings a Defendant to court must show in his Pleadings not just the wrongful acts of the Defendant but also the consequential damages suffered as a result of the said wrongful acts. See the case of Mrs. Ebun Olayinka Loye and Anor V. Newlife Microfinance Bank Limited (2022) LPELR-57868(CA) the Court of Appeal per Affen, JCA stated thus at pages 33-34 paras A-C, “In determining whether a reasonable cause of action is disclosed, the Court needs only to look at and examine the averments in the statement of claim: Ajayi v. Military Administrator, Ondo State (1997) 5 NWLR (Pt. 503) 237, 7up Bottling Co. Ltd v. Abiola (2001) 29 WRN 98 at 116 and Otubu v. Omotayo (1995) 6 NWLR (Pt. 400) 247. The statement of claim must set out the legal right of the plaintiff and the obligation of the defendant. It must then go on to set out facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks: Dr. Irene Thomas v. The Most Reverend Timothy Olufosoye supra Egbe v. Adefarasin supra and Rinco Construction Co. Ltd v. Veepee Industries Limited (2005) 9 MJSC 197 at 204. It is sufficient for a Court to hold that a cause of action is reasonable once the processes filed disclose some questions fit to be decided by a Judge notwithstanding that the case is weak or not likely to succeed. The perceived weakness of the case and/or even the fact that the case is not likely to succeed are not sufficient reasons to stop the claimant from coming before the Court to determine the infraction of his rights and obligations arising from the transactions alleged in the statement of claim. The proper course for the defendant to take is to wait and take advantage of the weakness, if any, of the claimant’s case when the action goes to trial: Ibrahim v. Osim supra at 1198, A-G Federation v. AG Abia State (2001) 40 WRN 1 at 52 and Mobil Producing Nigeria Unlimited v. LASEPA (2003) 1 MJSC 112 at 132.” See also the Apex Court decision in the case of Chief Dennis Afor Ogar and Ors V. Chief J. I. Igbe and Ors (2019) 9 NWLR (Part 1678) 534.

 

  1. Having held that the claimants’ case does not disclose any reasonable cause of action against the 2nd Defendant, Issue one (1) is resolved in favour of the 2nd Defendant, and it is the decision of this Court that having failed to prove that there is a contract of employment between the claimants and the 2nd defendant, this suit as presently constituted has not disclosed any reasonable cause of action against the 2nd Defendant. Having joined issues with the Claimants and called evidence in the suit, the appropriate order to make is one dismissing the suit in favour of the 2nd defendant only. The suit is hereby dismissed in favour of the 2nd defendant only. Having dismissed the suit in favour of the 2nd defendant only, I shall now proceed to consider Issue two (2) relating to the merit of the suit against the 1st defendant only. Issue two (2) is whether the claimants have proved their case to be entitled to the reliefs sought.

 

  1. With respect to Issue two (2), let me state straightaway that, since the claimants are not challenging the termination of their employments but asking for the payment of various amounts of money as salary arrears, loss of personal properties, repatriation allowances, ex-gratia and payments in lieu of notice, it is glaring that the claims in this suit are in the nature of special damages which the law places the burden on the claimants to prove same by specially pleading and strictly establishing the claims with cogent and verifiable evidence. See sections 131, 132, 133 and 134 of the Evidence Act and the case of Suffolk Petroleum Services Limited V. Adnan Mansoor Nigeria Limited and Anor (2019) 2 NWLR (Part 1655) 1 at 30 – 31 paras. F – B, where the Court of Appeal held as follows with regard to the proof of special damages:

 

“It is trite law that special damages must be proved strictly. In Messrs Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR PAGE 241, the Supreme Court held that it is axiomatic that special damages must be strictly proved, and unlike general damages where, if the plaintiff established in principle his legal entitlement to them, a trial Judge must make his assessment of the quantum of such general damages and on appeal, such general damages will only be altered if they were shown to be either unjustly too high or manifestly too low or awarded on a wrong principle. So far as special damages are concerned, a trial Judge cannot make his own individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded.

 

As reiterated in the Governor of Mid-Western Province & Ors. V. Eluka & Ors SC.181/67 (unreported), in determining compensation, a Judge must take the assessment on the evidence before him and not make guesses based on matters upon which he has not received specific evidence. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a damage as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates. It would be improper for a trial Judge to award special damages on inconclusive facts given from memory which have not been documented anywhere and the trial Judge cannot make his own individual assessment but, must act strictly on the evidence before him which he accepts as establishing the award to be awarded. The court is not entitled to do any arithmetical calculations for the parties. In my view, there was total absence of how the sum claimed by the appellant was arrived at. Accordingly this aspect of the issues is hereby resolved against the appellant.” See also the cases of Hon. Nze Herbert Osuji and Anor V. Anthony Isiocha (1989) 3 NWLR (Part 111) 623, Gonzee Nigeria Ltd V. Nigerian Educational Research and Development Council & Ors (2005) LPELR-1332(SC), Federal Capital Development Authority & Anor V. MTN Nigeria Communication Limited & Anor (2016) LPELR-41248(CA) and MTN Nig. Comms. Ltd. V. A.C.F.S. Ltd (2016) 1 NWLR (Pt. 1493) 339.

 

  1. One other pertinent point to note is that, the 1st Defendant (Field Offshore Design Eng. Ltd) neither filed any process in the suit nor appeared before the Court to defend the suit despite the numerous Hearing Notices served on the 1st Defendant. In other words, the claims of the claimants against the 1st defendant are unchallenged. In the circumstance of this suit where the defendant failed to partake in the proceeding and offered no evidence in his defence, the Court is permitted to accept and act on the evidence of the claimants except where such evidence is implausible. The rationale for this is that, the defendant is deemed to have admitted or accepted the case of the claimants, and there is nothing to place on the other side of the proverbial imaginary scale of justice as against the evidence of the claimants. The Court is therefore entitled to act on such unchallenged evidence except where same is manifestly unbelievable. It is therefore the view of this Court that since the evidence of the Claimants is unchallenged, the defendant (Field Offshore Design Eng. Ltd) has admitted the claimants’ evidence, and this Court shall proceed to give its decision based on the evidence adduced by the Claimants in this suit. See the case of Broadline Enterprises Ltd V. Monterey Maritime Corporation (Owners of M.V. Cape Monterey) and Anor (1995) 9 NWLR (Part 417) 1 at 44 para. A, where the Apex Court held that, “where evidence given by a party to any proceedings was not challenged or contradicted by the opposite party who had the opportunity to do so, it is always open to the court seised of the case to act upon the unchallenged or uncontradicted evidence before it.” See also the case of O.A.N. Overseas Agency Nigeria Ltd V. Bronwen Energy Trading Limited and Others (2022) LPELR-57306(SC), where the Apex Court per Peter-Odili, JSC held as follows at pages 30 - 31 paras F- E of the report: “This averment was never either controverted by the Appellant nor denied. It was clearly also deemed as admitted in law. Further on this point, it is a firmly settled principle of law that facts admitted need no further proof and same is deemed established. See NAS Ltd V. UBA Plc (2005) 14 NWLR (Pt. 945) 421 @ 435 A-B, where the Supreme Court, per Akintan JSC, held as follows: “The position of the law is that facts admitted require no further proof.” This Court in the case of Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 held that where there is unchallenged and uncontroverted evidence, the Court has a duty to act on it. Interestingly, this same material piece of uncontroverted evidence was picked from the witness statement of the 1st Respondent’s witness and restated by the Appellant in paragraph 4.25 of the Appellant’s Brief. This evidence was uncontroverted and still unchallenged under cross-examination. Failure to cross-examine on a matter is acceptance of the fact. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 @ 605. No further proof is required.” See also the cases of Chief Taofik Ebelamu and Others V. Alh Muhammed Yaya Alayande and Another (2023) LPELR-59662(CA) and Martchem Industries Nigeria Limited V. M. F. Kent West Africa Ltd (2005) LPELR-1842(SC), where it was also held that where evidence is unchallenged the Court has the duty to act on same.

 

  1. It is obvious from exhibits CW1A, CW1B, CW1C, CW1D, CW1E, CW1F, CW1G and   CW1H that the claimants made series of efforts to recover their entitlements, and it was when all these efforts became fruitless that they filed the instant suit in Court. The Defendant had paid them three (3) months’ salary out of the arrears of salary they are being owed, and also offered to pay them Ten Million Naira as severance package to all of the 99 claimants which was later increased to Fifteen Million Naira but they rejected.

 

  1. I have carefully considered the reliefs in the suit and seen that relief one (1) of the orders sought by the claimants is for the sum of N468, 306,859.20 being 12 months’ salary arrears being owed to the claimants. This head of claim is particularized in exhibit CW2C bearing the monthly salary of each of the claimants and the amount being owed to each of them by the 1st defendant. Since the claim is not challenged, I find merit in this relief and same is hereby granted only to the extent that it is the 1st defendant that is liable since the suit has been dismissed in favour of the 2nd defendant.

 

  1. Relief two (2) of the orders sought by the claimant is for the sum of Forty Nine Million, Five Hundred Thousand Naira for the loss of the claimants’ property occasioned by the fire incident on board the rig K. S. Endeavour. The claimants are basing this relief on exhibit CW2D where they have allocated the sum of N500,000.00 to each claimant as the cost of the personal items lost by each of them. While I agree with the claimants that they might have lost their personal belongings to the fire incident, I however do not believe that they lost the same type of items of the same financial values. It could not have been plausible that all the 99 claimants on board the rig had the same personal items of the same values of N500,000.00. In any case, these items lost by each of the claimants are not listed anywhere in the pleadings. The claim is not worthy of belief and is hereby refused. In law, it is not in all cases where a claimant succeeds in his case simply because the suit in not challenged or contradicted by the defendant. Put in another way, it is not in all cases that an unchallenged evidence is accepted and swallowed hook, line and sinker. The unchallenged evidence to be relied upon by the Court must be credible and plausible. See Lufthansa German Airlines V. Robert Odiese (2006) 7 NWLR (Part 978) 34 at 81-82 paras F-A and Green Fingers Agro-Industrial Enterprises Limited V. Musa Yusufu (2003) 12 NWLR (Part 835) 488. Relief two (2) is therefore refused.

 

  1. Relief 3 (three) of the orders sought from the Court is for repatriation allowances to the claimants back to their respective states of Bayelsa, Ondo and Delta from the oil Rig at Funuwa Field. The 99 claimants have assigned the sum of One Million Naira to each of them totaling Ninety Nine Million Naira as repatriation payment as can be gleaned from exhibit CW2D. The claimants have not informed the Court how they arrived at the sum of One Million Naira each as repatriation allowance. While the only two employment letters exhibits CW2A and DW1C are silent on the payment of repatriation allowance, exhibit CW2B however merely provides at article 35(d) that repatriation shall be discussed at the point of exit. There is nothing before the Court that a discussion was held with the union and parties agreed on the sum of One Million Naira to each of the Claimants as repatriation allowance. There is also no evidence of previous payment of the said amount as repatriation allowance by the 1st Defendant. This relief is also refused.
  2. Relief four (4) of the orders sought from the Court is for the sum of One Billion, Sixty Five Million Naira as ex-gratia payment to the claimants under the CBA exhibit CW2B. Again, from exhibit CW2D the claimants have allocated the sums of Fifteen Million Naira and Ten Million Naira respectively to the 99 claimants totaling One Billion, Sixty Five Million Naira as ex-gratia. While exhibits CW2A and DW1C are silent on the payment of ex-gratia to the claimants, exhibit CW2B (the CBA) provides at article 35(d) that ex-gratia shall be discussed at the point of exit just like repatriation payment. How the claimants arrived at the amounts claimed as ex-gratia cannot be found anywhere in their pleadings and evidence before the Court.

 

  1. It is apposite to make the point that, the claims for ex-gratia are in the main gratuitous claims, thereby placing a higher burden on the claimants to prove their entitlement to them. While the Judicial Law Dictionary (2nd Edition) by B. P. Ishaku at page 148 defines ‘ex gratia’ as, “Out of grace, favor or indulgence, gratuitous. A term applied as a favor”, the Black’s Law Dictionary (10th Edition) at page 694 on the other hand defines ex gratia as “by favor. Made as a favor or gift, and not because of any legal duty; not legally necessary”, and ‘ex gratia payment’ as “A payment not legally required; esp., an insurance payment not required to be made under an insurance policy.” In the case of Peugeot Automobile Nigeria Limited V. Saliu Oje and 3 Others (1997) 11 NWLR (Part 530) 625 at 635 – 636, paragraphs H – E, the Court of Appeal stated thus on claims for ex-gratia:

 

“What is an ex-gratia? Exhibit 2 has not assigned any definition to the term. The term is Latin. It connotes something given out of grace, favour, indulgence or gratuitous. Henry Campbell Black, author of Black’s Law Dictionary defines it as a “term applied to anything accorded as a favour; as distinguished from that which may be demanded ex debito, a matter of right.” So it follows that ex-gratia payment being claimed by the respondents, is a payment by one who recognises no legal obligation to pay.

 

The way payment for ex-gratia is couched in Exhibit 2, as reproduced above, appears to be binding on the appellant and therefore mandatory. On a closer examination however, it is clear that for the payment of such ex-gratia, two conditions must be satisfied:

  1. That it is only payable at end of the year and 
  2. It’s payment is dependent on the extent to which the production target and other company results have been achieved.

Where any or both conditions above is lacking, the company (appellant) cannot effect payment of any ex-gratia to any employee. However, in his process of reasoning the learned trial Judge who adjudged the respondents entitled to the ex-gratia payment, as the respondents worked in 1986 from January to 3rd November, 1986 (a period of over 10 months) appellant ought to pay the ex-gratia to the respondents “as whatever target was met in production for the year 1986, was met with the sweat of the plaintiffs.” Fine! That might be so. But is that not speculative? Is that not an indication towards moral consideration? I think the age-long principle of the law, that law and morality are almost always poles apart is still very much alive. The truth in this case is that payment of ex-gratia is tied to the end of the year which, in normal calculation, is the 31st day of December of each year. So, unless where the company decides to pay ex-gratia to some employees at a time different from “end of the year”, an employee whose employment ceases before “end of the year” is not in anyway entitled to the company’s payment of ex-gratia. The respondents were declared redundant on the 3rd day of November, 1986. They were not therefore entitled to the payment of ex-gratia for the year 1986 by the appellant. That is the true position.” See also the cases of Union Beverages Ltd V. M. A. Owolabi (1988) 1 NWLR (Part 68) 128 and The Registered Trustees of Union Bank Pensioners Association V. Union Bank of Nigeria Plc and 2 Others (2015) 56 NLLR (Part 190) 78 at 99 – 101, paragraphs H – G. There is no evidence of custom before the Court to show that the defendant previously paid the sums being claimed to ex-employees as exgratia, and the relief is also refused for want of proof.

 

  1. Relief five (5) of the orders sought from the Court is for the sum of One Hundred and Thirty Five Million, Twenty Nine Thousand, Eighty Naira, Sixty One Kobo as one month salary in lieu of notice, 6 weeks’ gross pay, 4 months prorated, 4 months leave allowance and 3 months end of year bonus. This relief is computed and captured by the claimants in exhibit CW2E, and also provided for in exhibits CW2A and CW2B. Since this leg of claim is not challenged and same is probable, I find merit in it and same is hereby granted.

 

  1. In the final result, Issue 2 (two) is therefore resolved in favour of the Claimants, and the case of the Claimants succeeds in part. The Court hereby makes the following orders against the 1st defendant (Field Offshore Design Eng. Ltd.):

 

  1. The 1st defendant is ordered to pay to the claimants their 12 months’ salaries being owed to them to the tune of N468, 306, 859.20 (Four Hundred and Sixty-Eight Million, Three Hundred and Six Thousand, Eight Hundred and Fifty Nine Naira, Twenty Kobo).

 

  1. The 1st defendant is ordered to pay the Claimants their one-month salary in lieu of notice, 6 weeks’ gross pay, 4 months prorated, 4 months leave allowance and three months’ end of year bonus which is put at N135, 029,080.61 (One Hundred and Thirty Five Million, Twenty Nine Thousand, Eighty Naira and Sixty One Kobo).

 

  1. The 1st Defendant is hereby ordered to comply with the terms of this judgment within one month from the date of delivery, failing which same shall attract interest at 10% per annum until same is fully liquidated. Judgment is entered accordingly. No order as to costs.

 

 

Hon. Justice P. I. Hamman

Presiding Judge

 

REPRESENTATION:

 

A.H. Arubisou with O. D. Zitimiyola for the Claimants.

Charles Ajuyah, SAN with U. N. Ngwobia and J. O. Ighariemu for the 2nd Defendant.

No representation for the 1st Defendant.