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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: JULY 9, 2015 SUIT NO: NICN/LA/376/2013 BETWEEN Mr. Robert Ahor - Claimant AND 1. Charlvon Limited 2. Mr. Charles Amadi - Defendants REPRESENTATION R. Gilbert for the Claimant. F.A. Dalmeida for the Defendants. JUDGMENT On 18/7/13, the Claimant approached this Court via a General Form of Complaint and sought the following reliefs - 1. A declaration that the Claimant is entitled to his outstanding sum of N9,900,000.00 (Nine Million, Nine Hundred Thousand Naira) representing the accrued/outstanding unpaid salaries, wages, feeding allowances, transport allowances, Bail Application/Perfection Expenses. 2. A declaration that the Claimant is entitled to the General Damages of N5,000,000.00 from the Defendants for pain, suffering, logistics, embarrassments, humiliations, trauma ordeals, etc. suffered in the stead of the Defendants for 7 years. 3. An order compelling the Defendants to pay to the Claimant the above Special and General Damages. The parties filed all the requisite processes and frontloaded documents in accordance with the Rules of this Court. On 13/5/14, the Claimant opened his case by testifying as CW1. CW1 adopted his written witness deposition dated 18/7/13 as his evidence in chief and tendered 6 documents as exhibits. The documents were admitted and marked as Exh. RA1 - Exh. RA6. Claimant urged the Court to decide the case in his favour. The case for the Claimant as seen from his pleadings is that he was hired by the Defendants from Ghana to Nigeria and employed by them to work as a Boatswain on Board the Motor Tanker, MT Destiny I, a vessel of the Defendants sometime in December, 2003; that the appointment letter given to him by the Defendants and all his relevant documents including the contract and agreement papers between him and the Defendants, his Ghana International Passport, Seaman Discharge Book, Efficient Deck Hand Certificate, Four Mandatory Certificate, Ghana Citizen ID Card, left on board the vessel at the time of his arrest on 12/3/04 by Navy personnel, could not be traced as before his release on bail, other crewmen were recruited by the Defendants until the vessel was actually sold off by the Defendants; that the salary and allowances agreed upon between me and the Defendants to be paid to him and paid to him by the Defendants was N65,000.00 per month and N1,000.00 per day as Daily Feeding Allowance and that while working on board the said MT Destiny I, loaded with fuel, within the Nigerian territorial waters of Lagos, the vessel was on the 12th March, 2004 arrested together with all its crewmen, including him, the Captain Ayodu Ayo, the 1st Engineer Henty Okoagwa, the 2nd Engineer Emmanuel Ibharaiyi by men of the Nigerian Navy on suspicion of the vessel carrying illegal crude oil. It was also the case for the Claimant that as a result he was detained by the Naval authorities at the Naval Base, Apapa, Lagos from 12th March, 2004, transferred to the Police and detained until 21st October, 2004 when he together with all other crewmen, were arraigned before the Federal High Court on a two Count amended charge dated 28th September, 2004; that he had to go through the pains, ordeals, humiliations, sufferings, embarrassments of detention in Navy cells, Police cells (from 12/3/04 to 21/10/04), of prison life and the rigours of a full trial for 7 years from October, 2004 till the 14th March, 2011 when he was eventually discharged and acquitted of the charges by the Honourable Chief Judge Dan O. Abutu of the Federal High Court, Lagos; that as a result of the above, he suffered damages as stipulated/itemized in his letter to the Defendants dated 30/8/2011; that he is being owed an outstanding sum of N9,600,000.00 representing wages/salaries, feeding, transport and other allowances; that all his efforts to ensure payment of the said outstanding claims, allowances, entitlements and salaries by the Defendants proved abortive for which reason he instructed R. Gilbert Esq. of Counsel to write a Demand Letter dated 20th September, 2011 and that before the said Demand Letter, he had made several and repeated demands on the Defendants through telephone calls and personal visits to pay, but the Defendants refused, failed and or neglected to pay and without any reasons for failure to pay same. Under cross examination, CW1 testified that he is Boatswain with documents to prove same; that he does not have documents at the moment to show that he is a Boatswain; that his documents were lost in the course of his arrest; that he has been a Seaman for 15 years; that he had worked in different vessels; that he lost all his documents during his arrest; that he could obtain copies of the document when lost; that after his discharge on Bail by the Federal High Court he did not work and did not apply to Ghana Maritime Academy for further training because he had no money to retrieve his papers; that he was not given money by Defendant to go and certify his documents in Ghana; that he does know a vessel called “Fairwind Service” and that he was not given any amount by the 2nd Defendant to go and certify my documents in Ghana. CW1 added that he was not the only crew deferred; that he is aware that some of the crew got jobs after being released on bail; that his inability to get job was not due to his negligence but because he did not have papers that would enable him to get job having lost same; that Defendants are the cause of his predicament because the Defendant did not do anything about his lost papers; that his salary was N65,000 a month, N30,000 as feeding allowance; that he is entitled to this salary and allowance while he worked with the Defendant; that the contract with Defendant was in Ghana; that he was employed in Ghana; that the contract papers were with him in the vessel and lost during his arrest; that his salary and allowances were contained in the contract document; that the Defendant was not the Complainant at the Federal High Court; that the Complainant in Exh. RAI was the Federal Republic of Nigeria; that the Defendant had nothing to do with the case; that the Defendant provided him with a Lawyer in Exh. RA1; that he could claim same money paid back from Defendant; that his lawyer called Defendant for settlement they did not attend to him; that he did not go to Defendant personally; that he did not abscond with any money of the Defendant and that he has not gone to Ghana since. On 24/6/14, the Defendants opened their defence and called on Godfrey Anene as their sole defence witness. DW1 adopted his witness statement on oath made on 7/11/13 as his evidence in chief, tendered 2 documents as exhibits and prayed the Court to dismiss the claims of the Claimant. The 2 documents tendered were admitted and marked as Exh. D1 and Exh. D2. The case for the Defendants is that the Claimant was not employed by the 1st Defendant nor has the 2nd Defendant any contractual relationship whatsoever with Claimant; that contrary to the allegations in the Statement of Facts, the crew of the motor vessel M.T. Destiny were provided full legal services; that another company Agbaroh Shipping Company leased the motor vessel M.T. Fulker, and the vessel was charted by one Nwabunor & Co. Ltd for transshipment; that the vessel had proper documentation and necessary approvals obtained by the chatterers; that the vessel was allegedly arrested and upon Judgment all the crew charged were discharged and acquitted; that the Defendants’ Company is not in control of trials of action in neither court nor the one prosecuting the matter, hence it is not liable for malicious prosecution of the Claimant therein; that the Defendants deny the allegations in the Statement of Facts and Witness Statement as Claimant was working in various companies during his bail; that the Defendants deny owing the Claimant the sums of N9,900,000 (Nine Million, Nine Hundred Thousand Naira Only) nor any sums at all and that the matter be dismissed as being gold digging, speculative and an abuse of court processes. Under cross examination, DW2 stated that he has been with 1st Defendant since 2008; that he is not a Marine Engineer, a Nautical Officer or the Admin Manager of the 1st Defendant; that he its representative in the Lagos office; that he was not a staff of 1st Defendant when criminal charge was filed against Claimant and other Crews of M.T. Destiny; that 1st Defendant is the owner of M.T. Destiny I, Pandy Oil was the owner of the oil in M.T. Destiny I at the time it was arrested; that he was told about 14 Crew members were on board of M.T. Destiny I when it was arrested; that Charles Amadi was responsible for legal representation of Claimant and other Crew members of M.T. Destiny when they were arraigned at the Federal High Court; that 2nd Defendant is one of the owners of 1st Defendant and the Executive Director. DW1 added that not all the crew members of M.T.Destiny I were employees of 1st Defendant at the time of arrest; that he joined the 1st Defendant 5 years after the arrest of M.T. Destiny I; that he does know where Claimant and other Crews of M.T. Destiny I were arrested; that 1st Defendant is the sole owner of M.T. Destiny I; that though he heard of Engineer Emmanuel Ibharaji a Marine Engineer, he does not know if he was the Operation Manager of 1st Defendant; that he knew Henry Okwgwa was charged along with Claimant at the Federal High Court; that he was told Claimant was not a staff of 1st Defendant; that Barrister Osighala a lawyer to the 1st Defendant defended Claimant and others at the Federal High Court; that he could not remember the name of the Captain of M.T. Destiny I at the time of arrest; that his evidence in this case is what he was told and what he read in the file; that he does not readily have here document to support his averment in paragraph 13 of his Statement on Oath; that he does have any document to support my averment in paragraph 16 of his statement on oath and that at the time Claimant was in prison custody he had not joined 1st Defendant. At the conclusion of trial, the Court directed learned Counsel on either side to file their final written addresses for adoption in accordance with the Rules of this Court. The final written address of the Defendant was filed on 19/8/14 where learned Counsel set down the following 3 issues for determination - 1. Whether there is privity of control between the Claimant herein and the Defendants herein thereby giving jurisdiction to this Honourable Court to hear the matter. 2. Whether upon the disclosed agency of the 2nd Defendant herein, is a proper party upon the disclosed agency. 3. Whether the Claimant has by proof of evidence shown his entitlements to the claims and reliefs sought. Arguing issue 1, learned Counsel referred to paragraph 3 of the statement of defence, paragraphs1.1, 1.3, 1.5, 1.6 and 1.7 of DW1 and submitted that no response was filed to the pleadings and depositions. Counsel submitted that the Defendants did not employ the Claimant; that the Defendants were not responsible for the Claimant's activities on board the vessel and that there is no nexus between the Claimant and the Defendants relating to employment. It was the position of the Counsel that the Defendants are not the necessary party in this case and that once it is established that there is no proper party before the Court, it is not necessary to examine whether there is a cause of action established, citing NBCI v. Europa Traders (UK) Limited (1990)6 NWLR (Pt. 154) 37. Learned Counsel urged the Court to resolve issue 1 in favour of the Defendants. Respecting issue 2, learned Counsel pointed out that by pleadings and witness statement on oath DW2 is a Director of Agbaro Shipping Company as well as that of the 1st Defendant. Counsel argued further that the Claimant has joined no issue with the 1st Defendant; that the Claimant has not amended any claim or filed a reply to properly join issues by either denying and/or amplifying issues. Counsel submitted further that in the unlikely event of issue 1 being decided against the Defendants, it ought to fail in that the 2nd Defendant is conceded by the Claimant to be a Director in 1st Defendant company. Counsel thus submitted that the effect of a disclosed principal is that the Company is liable for acts of the Directors, citing Onukwusi v. RTCMZC (2011)6 NWLR (Pt. 1243) 341. Counsel urged the Court to so hold. On issue 3 which is whether the Claimant has by proof of evidence shown to be entitled to the reliefs sought, learned Counsel referred to evidence adduced at trial and exhibits tendered. According to learned Counsel, there is nothing on these exhibits showing any work schedule done by the Claimant, no letter of employment and no nexus between the Claimant and the Defendants and that the documents admitted did not bear the letter headed paper of the Defendants. Counsel urged the Court not to give any probative value to them as reception of evidence is quite different from the evaluation of evidence citing Etataja v. Ologbo (2007)6 S.C @ para 10-20. On the claim of =N=500,000.00 as general damages from the Defendants for suffering, logistics, embarrassments, humiliations, trauma ordeal, Counsel submitted that no evidence was led by the Claimant in support of his claims, citing Section 131, Evidence Act, 2011. Learned Counsel urged the Court to so hold. Claimant's final written address, a 23-page document, was filed on 23/12/14. In it learned Counsel set down the following 3 issues for determination - 1. Whether the Defendants were the owners of the vessel M.T. Destiny 1. 2. Whether the Defendants hired and employed the Claimant as a Boatswain crew member of its vessel M.T. Destiny 1. 3. Whether based on the available evidence/facts before the Court, the Claimant is entitled to the damages being claimed. Arguing issue 1, learned Counsel submitted that Claimant's pleadings and supporting evidence show that the Defendants were the owner of the vessel MT Destiny 1; that paragraphs 3, 7,and 11 of statement of facts were not denied by the Defendants and that it was only in the final address of Counsel that the Defendants denied the ownership of the vessel which denial goes to no issue, citing Nwaji v. Coastal Service (2004)10 MJSC 154 at 169. Learned Counsel urged the Court to resolve issue 2 in the affirmative and in favour of the Claimant. According to Counsel, the Defendants did not adduce any evidence to impeach or controvert Claimant's assertion that he was employed by the Defendants and that parties are bound by their pleadings, citing NNPC v. Sele (2004)5 NWLR (Pt. 866) 379; that Defendants also failed to explain what Claimant was doing, if not employed and was working, as boatswain on their vessel, 2.8 nautical miles offshore Lagos. Counsel also cited section 32, Merchant Shipping Act, 2004 as providing that in any legal proceedings a seaman may bring forward evidence to prove the contents of any agreement with the crew or otherwise to support his case without producing or giving notice to produce, the agreement or any copy thereof and that failure to tender letter of appointment in evidence is not necessarily fatal if there is otherwise ample evidence to establish the terms, citing Kaduna Textiles Limited v. Umar (1994)1 NWLR (Pt. 319 143. Counsel urged the Court to resolve this issue in favour of the Claimant. On issue 3, Counsel submitted that the Claimant specially, specifically pleaded and particularised by pleadings the items of damages as reflected in paragraphs 12, 13, 14 and 15 of his statement of facts and that the basis of his computation is Exh. RA1 dated 30/8/11. Citing IBWA Limited v. Imano (2001) FWLR (Pt. 44) 421 Counsel submitted that the uncontroverted and unchallenged evidence of the Claimant must be accepted as sufficient proof of his claim. Counsel urged the Court to resolve issue 3 in favour of the Claimant, enter Judgment in his favour in respect of all the reliefs sought and further award cost assessed at =N=100,000.00. On 19/3/15, the Defendants file a reply to Claimant's final address. It was dated 16/3/15. In it learned Counsel reiterated the fact that there is no privity of contract between the Claimant and the 1st Defendant and that the evidence before the Court is that the Claimant was not employed by the 1st Defendant. Respecting issue of special damages sought, Counsel referring to the pleadings filed, submitted that parties joined issues on same and that there cannot be abandonment where issues have been joined as in the instant case. Finally, learned submitted that the claims remain unproved and ought to be dismissed. I have read and understood all the processes filed by learned Counsel on either side. I listened to, followed the testimonies and watched the demeanor of the witnesses called by parties in this case. In addition to all this, I reviewed all the exhibits tendered and admitted during trial. Having done all this, I find a lone issue as imperative for the just determination of this case as follows - Whether the Claimant has discharged the burden on him to be entitled to grant of the reliefs sought. The tradition of the system of adjudication inherited by this country from the British is such that whoever approaches the Court for reliefs through the judicial process must as of necessity prove that he is entitled to same, see Ike v. Ugboaja (1993)6 NWLR (Pt301) 539 at 541. The proof required is by cogent, credible and admissible evidence. Except where the claims sought are expressly admitted, see Ononaku v. Akubue (2009)15 NWLR (Pt. 1165) 539 at 551 & Iyere v. Bendel Feed & Flour Mills Limited (2008)18 NWLR (Pt. 1119) 300 at 325; the Claimant is under an obligation to advance credible evidence in support of his claims. It is also not open to a party to rely on the weakness of his adversary. In a claim bordering on employment, it is imperative for an employee/claimant to establish a nexus between employment relationship between himself and his alleged employer. I may as well add that such nexus may be established by a letter of employment; an employment contract; a staff Identity Card; Pay slip or some form of communication between one and the other. What are the evidence advanced by the Claimant in proof of his case for the claims sought? The Claimant tendered the following in proof of his case 1. CTC of the Federal High Court Judgment delivered on 14/3/11; 2. Details of claims due to the Claimant dated 30/8/11; 3. Receipts of monies from Defendant from Sept 2014-Jan, 2015; 4. Claimant's Solicitors' letter of demand dated 20/9/11; 5. Defendant's letter dated 17/10/11 and 6. Claimant's Solicitors' letter dated 2/11/11 marked as Exh. RA1-Exh.RA6 respectively. Exh. RA1 is the Judgment of Abutu, CJ in Charge No. FHC/L/169c/2004 in which the 4 Accused persons including the Claimant were discharged and acquitted. I read the 28-page Judgment of Hon. Justice Dan. D. Abutu, CJ of 14/3/11. I found nothing in it establishing an employment contractual relationship between the Claimant and the Defendant. Exh. RA2 is a letter written by the Claimant to the Chairman/Managing Director of the Defendant making claims from the Defendant. Exh. RA3 is a 5-page document pleaded by the Claimant in paragraph 15 of his written statement on oath made on 18/7/13. Exh. RA4, Exh. RA5 and Exh. RA6 are correspondences between Claimant's Solicitors and the 1st Defendant. I thoroughly examined all the exhibits tendered by the Claimant together with all the pleadings filed, I find no nexus whatsoever between parties relating to employment. Unfortunately, the Claimant claimed all through his pleadings that he lost all documents relating to his employment by the Defendants. Learned Counsel to the Claimant on page 16 of his final written address cited S. 32 Merchant Shipping Act, 2004 and quoted the section as providing that - ''In any legal or other proceedings a seaman may bring forward evidence to prove the contents of any agreement with the crew or otherwise to support his case without producing or giving notice to produce the agreement or any copy thereof'' and that failure to tender a letter of appointment in evidence not necessarily fatal if there is otherwise ample evidence to establish the terms, citing Kaduna Textiles Limited v. Umar (1994)1 NWLR (Pt. 319) 143 at 156-157. I examined and read the Merchant Shipping Act, Cap. M11, Laws of the Federation of Nigeria, 2004. It is an Act to provide for merchant shipping and for related matters with 446 sections. There is no provision as quoted by learned Counsel to the Claimant relating to points of law referred to in that Act. It must be that learned Counsel fabricated the provisions for even the section 32 referred to did not provide as quoted by learned Counsel. Now section 32 of the Merchant Shipping Act deals with ''Power to grant new certificate''. That section has 8 sub-sections. None of the 8 subsections corresponds to the provisions as stated by learned Counsel. For whatever it is worth, I deem it necessary to reproduce subsection 2 of the said section 32 this is notwithstanding that it does not in any way support the assertion of the learned Counsel. It provides as follows - (2). In the event of the certificate of registration of a ship registered in Nigeria being lost or destroyed, the Registrar at the port of the registry of the ship shall upon being satisfied of the loss or destruction grant a new certificate of registration in lieu of the original certificate of the registration. In the light of the above, it raises the question as to where learned Counsel got the provision he quoted as section 32 of the Merchant Shipping Act from. The duty of the Bar and its members is to guide and assist the Court towards dispensation of justice. This important duty includes but certainly not limited to presenting the law and the facts as they are before the Court. Where therefore a learned Counsel is to quote a statute, it is ethically and professionally mandatory that he quotes same correctly rather than fabricating same simply to find support for his case. Having so found in this case, it is safe for me to hold and I so do that the Claimant in this case has failed to discharge the burden of establishing an employer/employee relationship between him and the Defendants in this case. For, establishing that fact is the foundation upon which a claim of the nature is built. Not having therefore discharged the evidential burden of proof required of him in this case there is no way this Court will find for the Claimant. In the words of Lord Denning in UAC v. MacFoy (1962) A.C 159, you cannot put something on nothing and expect it to stay. It will collapse. Accordingly, I dismiss the claims of the Claimant same not having been proved by cogent, credible and admissible evidence. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge