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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: SEPTEMBER 22, 2015 SUIT NO: NICN/LA/498/2012 BETWEEN Mr. Jeplin Norense Ogiamien - Claimant AND Gulf Manning Services Nigeria Limited - Defendant REPRESENTATION Peter Olomola for the Claimant. G. Okoh for the Defendant. JUDGMENT This case was instituted by a General Form of Complaint on 27/9/12. By his Amended General Form of Complaint and Amended Statement of Facts amended on the 13th day of February 2013 pursuant to the Order of the Honourable Justice O.A. Obaseki-Osaghae made same day, the Claimant claims against the Defendant as follows - 1. A declaration that the Claimant is entitled to his monthly salary of USD 1235 until his contract of employment is properly determined by any of the parties. 2. A declaration that the Claimant is entitled to compensation for the injury he suffered as a result of and in the course of his employment with the Defendant. 3. An order compelling the Defendant to pay to the Claimant his monthly salary of USD 1235 from April 2012 until the contract of employment is properly determined by any of the parties. 4. An order compelling the Defendant to pay to the Claimant the sum USD 89,100.00 being the agreed compensation under the Maritime Workers’ Union of Nigeria ITF Approved CBAs for the injury suffered by the Claimant as a result of and in the course of his employment with the Defendant. 5. The sum of N1 million cost of this action. 6. Interest on the respective sums in No. 3 and 4 above at the rate of 21% per annum from 30th April 2012 to the date of judgment in this suit and thereafter at 10% per annum from the date of judgment until final liquidation. By its Amended Statement of Defence dated 11th March, 2013, the Defendant denied any liability to the Claimant and the Claimant subsequently on 27th March 2013 filed a Reply to the Amended Statement of Defence. The hearing of this case started on 3/12/13 when the Claimant testified as CW1, adopted his written witness deposition dated 1/2/13 as well as his additional witness deposition dated 27/3/13 as his evidence in chief. Witness tendered 17 documents as exhibits. The documents were admitted as exhibits and marked as Exh. JNO1-Exh. JNO17. It is the case of the Claimant that he is an employee of the Defendant having been employed by it on 23/3/05; that at all times material to his case, the Defendant normally posted him to work aboard ships owned by the Nigeria LNG Limited; that he continues to be in the employment of the Defendant till date and served as Oiler aboard ships owned by Nigeria LNG Limited and crewed by the Defendant; that the work plan given to him by the Defendant is to work on board their ships for five months at a time and go on leave for 50 days before being called on board again; that before his appointment, he was subjected to series of rigorous medical tests to ascertain his fitness for the job and a medical certificate of fitness was issued to him; that the first medical certificate (ENG 1) was issued by the Chief Medical Officer of the Nigeria Natural Liquefied Gas (NNLG) Hospital in Bonny Island, Rivers State, Dr. A.O. Alakija on 9/12/04; that according to the certificate, which expired on 8/12/2006, no defect was found in him; that pursuant to another series of rigorous tests at the expiration of the first medical certificate, a second medical certificate (ENG 1) Exhibit JNO3b was issued to him by the Chief Medical Officer of Nigeria Natural Liquefied Gas (NNLG) Hospital, Bonny Island, Rivers State, Dr. John Fiberesima on 15/9/06 and that at the expiration of the second medical certificate, he was again subjected to series of rigorous medical tests pursuant to which a third medical certificate (ENG 1) Exhibit JNO 3c was issued to him by the Chief Medical Officer of NOBSAMS CLINIC Port-Harcourt, Rivers State. Claimant further averred that at the expiration of the third medical certificate, he was as usual subjected to the now routine but rigorous medical tests at NOBSAMS CLINIC Port Harcourt, Rivers State; that on the instruction of the Defendant, he was not given a copy of the fourth medical certificate (ENG 1) issued by Dr. S.N. Amaechi JP; that a fifth ENG 1 issued at Shell Hospital, Lagos Island, Lagos State, by Dr. F.E. Eigbe on 1/3/10 after the usual rigorous medical tests and which was to expire by 28/8/2012 found no defect in him; that before the expiration of the fifth ENG 1 certificate, he was summoned and subjected to another round of medical tests at the NNLG Hospital, Bonny Island in August 2011 and during the course of the examinations, it was discovered that he has hearing problems; that because of this, he was not issued any medical certificate and was later examined by a specialist who informed him that his ear has been damaged obviously by the excessive noise he was exposed to aboard ships; that the Specialist wrote a detailed report on his hearing problems and sent the report to the Defendant; that the Specialist recommended that he would have to obtain hearing aids and the recommendation forwarded to the Defendant which ignored it for over two months; that after obtaining the hearing aid, he was subjected to another round of medical tests at the NNLG Hospital and on 15/11/2011, he was issued a partially fitted certificate for one year and that he was told to report to the hospital after six months. Claimant stated further that not quite long after the medical tests, in February 2012, he was called upon to board a ship, which he did and on getting on board the ship, he informed his Head of Department the problem he was still having with his ear; that to his surprise, he discovered that the hearing aid purchased for him by the Defendant, instead of reducing noise, was attracting and even increasing the noise level to his ears thus causing more severe damages to his ears; that the Ship Management Team was immediately informed and he was moved to another Department to save his ear from total damage and that the Ship Management Team scheduled him to see a doctor on arriving Bonny Island. According to the Claimant, it was on the way to Bonny Island that he received the sad news of his father’s demise. He was relieved on compassionate grounds to enable him bury his father; that before the end of the compassionate leave, he called the Defendant to inform him of his readiness to go back to work but he was told he could not go back to work and that when he asked for the reasons for the decision, he was told that the Ship Management Team's report indicated that he is partially deaf and therefore unfit to work on board; that despite the fact that his ears were damaged while in the Defendant’s employment and as a result of the non-conducive working environment, the excessive and unbearable noise level the Defendant subjected him to, the Defendant in April 2012 stopped his salary without any justification and that the Defendant stopped his salary after causing permanent damage to his hearing. Hence this suit. Under cross examination, CW1 testified that the employment contract he signed was dated 30/3/05; that he was employed as an Oiler on board a ship; that before then he had worked on board other vessels such as Commando Terrace, M.T. Sony Hawk, Ship & Shaw that he is still a staff of the Defendant; that he could not remember the last time he joined any vessel of the Defendant; that before the employment in 2005 he went through some training; that he was trained on Survival at Sea, Fire Fighting, Elementary 1st Aid and personal social responsibility; that about 2 or 3 weeks after his employment the Defendant sent him on board a ship named LNG Sokoto; that the last vessel he worked on is LNG Abuja sometime in 2012 or 2011 and that he is prepared to go back to work if the Defendant will provide the needed facilities. One Dr. Bamigboye Babatunde was called as CW2. Witness adopted his written deposition dated 18/10/13 as his evidence in chief and tendered 2 documents as exhibits. The documents were admitted as exhibits and marked as Exh. C1 & Exh. C2. Under cross examination CW2 stated that he had been an ENT Surgeon for 7 years; that he is presently a Senior Consultant Special Grade II at LUTH; that he met Claimant for the first time in July 2012; that no member of the family of Claimant is his patient; that noise induced loss of hearing is progressive and that it is also gradual. The Defendant opened its case on 16/3/15. Defendant called one Asame Bassey as its lone witness. DW1 adopted his witness statement on oath dated 11/8/14 as his evidence in chief and urged the Court to dismiss the case of the Claimant. The case for the Defendant as could be seen from the pleadings filed is that the Claimant was not its employee; that it recruited the Claimant for Nigeria LNG Limited; that though the Nigeria LNG Limited was initially made a party to this suit, the Claimant however discontinued against it and that the Defendant is not liable to the Claimant at all. Under cross examination, DW1 testified that he was aware that Claimant was subjected to medical checks before he was employed by the Defendant; that the Claimant was employed having been found to be medically fit; that he is not aware that the Claimant needs hearing aids to work as he was doing since 2005; that he is not aware that the Defendant bought hearing aids for the Claimant; that he is aware that the Defendant registered Claimant with IBTC Pension Managers for purpose of pension remission; that he is not a Medical Doctor; that the Claimant is just a friend and that he was not there at the birth of the Claimant. At the close of trial, learned Counsel on either side were ordered to file their final written addresses for adoption in accordance with the Rules of Court. In the final written address filed by the Defendant dated and filed 31/3/15, learned Counsel set down a lone issue for determination as follows - ''Whether the Claimant has proved his case as to be entitled to the judgment of this Honourable Court in his favour''. In arguing this lone issue, learned Counsel addressed each of the claims of the Claimant. On Claim 1which is for 'A declaration that the Claimant is entitled to his monthly salary of USD 1235 until his contract of employment is properly determined by any of the parties''. Counsel denied liability arguing that the Claimant was actually employed by the Defendant for the Defendant's principal who owned the ship and that he was not called to join since 2012. Counsel submitted that by the Claimant's pleadings, testimony on oath and Defendant's averments, the employer/employee relationship between the parties had come to an end in or around 2011/2012 and more precisely in April 2012 when he stopped receiving salary from the Defendant and while relying on Shell Petroleum Development Company of Nigeria Limited v. Joseph Ifeta (2001)11 NWLR (Pt. 724) 473 at 490 submitted that where a contract of employment is terminated by inadequate or without notice or notice not complying with the terms of the contract, the contract is nevertheless terminated. Learned Counsel urged the Court to dismiss this head of claim. Claim 2 is for 'A declaration that the Claimant is entitled to compensation for the injury he suffered as a result of and in the course of his employment with the Defendant'. On this Counsel submitted that the alleged loss of hearing occurred while the Claimant was working on the ship of the Defendant's principal; that by his testimonies under cross examination, the Claimant had exposed himself to the hazards of working in at least four vessels before being employed for the Defendant's principal; that by the evidence of CW2 under cross examination the noise induced loss of hearing 'is progressive and it is also gradual' and that the Claimant failed to prove that the alleged noise-induced loss of hearing actually occurred as a result of and in the course of his employment on board the Defendant's principals' vessels as alleged or at all. Counsel urged the Court to so find and to so hold. On Claim 3 which is for 'An order compelling the Defendant to pay to the Claimant his monthly salary of USD 1235 from April 2012 until the contract of employment is properly determined by any of the parties', learned Counsel reiterated and adopted his submission respecting Claim 1. Learned Counsel submitted that the 4 copies of Shell Ship Management Limited - Performing Appraisal Rating showed that Shell Ship Management Limited appraised the Claimant and passed the Appraisal Form to the Defendant to prepare and pay the Claimant's salary; that the process accords with agency relationship which is the contention of the Defendant; that the Claimant earlier on rightly sued Nigeria LNG Limited and subsequently discontinued the suit against it and that the Claimant was not employed by the Defendant but rather by Nigeria LNG Limited. Counsel pointed out that the claim of the Claimant under this head is not for work done but for salary after he had stopped working; that nowhere in the Collective Agreement relied upon by the Claimant is it stated that the Claimant is entitled to such payment of salary and that in any event the said agreement lapsed on 31/12/11 after which none of the parties can place reliance on it as guiding their relation, if any. Counsel urged the Court to hold that the Claimant has failed to prove that he is entitled to this head of claim. Claim 4 is for 'An order compelling the Defendant to pay to the Claimant the sum USD 89,100.00 being the agreed compensation under the Maritime Workers’ Union of Nigeria ITF Approved CBAs for the injury suffered by the Claimant as a result of and in the course of his employment with the Defendant'. On this issue, learned Counsel submitted that the Claimant relied heavily on the medical report issued by and the oral testimony of Dr. Bamigboye relating to the injury allegedly suffered; that the injury could have been set in motion and/or occurred before 2005 when the Claimant commenced employment as Oiler with the Defendant. Counsel submitted that the Claimant must succeed or fail on the preponderance and strength of evidence adduced by him and not on the weakness of the case of the defence, citing Alhaji Otaru & Sons Limited v. Idris (1999)6 NWLR (Pt. 606) 330. It is the submission of Counsel that the Claimant could not make claim on the basis of the Collective Bargaining Agreement because that agreement commenced over 5 years after the Claimant was employed and lapsed on 31/12/11 about 4 months before the Claimant stopped work according to him in April 2012. Referring to Article 24.2 of the Collective Bargaining Agreement, learned Counsel submitted that the disability to be compensated for is disability ''as a result of accident'' and that the Claimant did not state or aver anywhere that he was involved in an accident that gave rise to the alleged loss of hearing. Counsel submitted that parties are bound by the terms of contract contained in an agreement they entered into without any subtraction or addition, citing Afrotech v. MIA & Sons Limited (2000)12 SC (Pt. 11) 1 at 15 and that the Court will not allow to be read into a contract terms that are not in it and on which there is no agreement, citing Baba v. Nigeria Civil Aviation Training Centre (1991)5 NWLR (Pt. 192) 388. Learned Counsel urged the Court to find and hold that the alleged loss of hearing suffered by the Claimant did not occur as a result of accident to found compensation under the relevant Collective Bargaining Agreement. On the claim for =N=1,000,000.00 as cost of this action, Counsel submitted that there is no single deposition in the Amended Statement of Facts in support of this claim. Citing Calabar Central Co-Operative Thrift & Credit Society Limited v. Bassey Ebong Ekpo (2008)6 NWLR (Pt. 1083) 362 at 392 Counsel submitted that parties are bound by their pleadings in any matter and that facts not pleaded go to o issue. Learned Counsel thus urged the Court to dismiss this claim same not having been pleaded or proved. The final claim of the Claimant is for 'Interest on the respective sums in No. 3 and 4 above at the rate of 21% per annum from 30th April 2012 to the date of judgment in this suit and thereafter at 10% per annum from the date of judgment until final liquidation'. Learned Counsel argued that interest of the nature sought by the Claimant is not awarded as a matter of course; that interest is not recoverable or payable at Common Law in the absence of some circumstances, citing Garba v. Sheba Int. (Nig.) Limited (2000)1 NWLR (Pt. 748) 372 at 396-397 and that interest must be specifically pleaded and specially proved, citing Texaco Overseas Nigeria Unlimited v. Pedmar Nigeria Limited (2002)13 NWLR (Pt. 785) 526. Counsel urged the Court to dismiss in their entirety all the claims of the Claimant. The Claimant filed his 42-page final written address on 7/5/15. In it, learned Counsel set down 3 main issues for determination as follows - 1. Whether or not the Claimant is an employee of the Defendant. 2. Whether or not the Claimant suffered the damage to his ears as a result of and in the course of his employment with the Defendant. 3. Whether or not the Claimant has proved his case against the Defendant and is therefore entitled to his claims against the Defendant. On issue 1, learned Counsel submitted that in a labour related matter as the instant case, the contract of employment is the pivot or bedrock upon which the employee must base his case, citing as authorities UBN Limited v. Edet (1993)4 NWLR (Pt. 287) 288 at 300 & Nwaubani v. Golden Guinea Breweries Plc (1995)6 NWLR (Pt. 400) 184 at 211. Counsel referred to Exh. JNO1 as the contract of employment and submitted that by that document it is beyond doubt that the parties in this case entered into an employment contract. Learned Counsel further submitted that Defendant's argument that it employed the Claimant for a principal could not hold water; that by several letters written by the Defendant and signed by Patient Jumbo, Solomon Egbe, Martins Nnorom and Suresh Ahluwalia that is Exh. JNO4, the Claimant was described as the staff of the Defendant. Counsel argued further that although by Exh. JNO1, the employment contract ''shall be for 12 months after which it will continue indefinitely subject to termination by either party of not less than 3 months' notice given in writing to expire at the end of initial period of 12 months or any time thereafter'' neither party has proved that the contract entered into on 23/3/05 was terminated and that the contract is to continue indefinitely subject to a notice in writing of not less than three months. Learned Counsel urged the Court to resolve this issue in favour of the Claimant. On issue 2, learned Counsel submitted that by virtue of the contract of employment with the Claimant, Defendant owed the Claimant a reasonable duty of care by providing him with adequate equipment to shield his ears from noise emanating from the vessels the Defendant operated and which led to the injuries Claimant suffered to his ears and that the damage to the Claimant's ears occurred as a result of and in the course of his employment with the Defendant by a prolonged exposure to the noise from the ships the Claimant worked on. According to learned Counsel, before the Claimant commenced his employment with the Defendant he did not have any medical condition relating to his hearing. Counsel cited S. 2, Labour Act, Laws of the Federation of Nigeria, 2004 which mandates that every recruited worker shall be medically examined at the expense of the employer; that in compliance with this statutory requirement, the Defendant regularly carried out medical examinations of the Claimant referring to Exh. JNO3. Learned Counsel submitted that the medical reports tendered and admitted were not in any way controverted; that Defendant did not controvert the fact that the Claimant was exposed to excessive noise aboard ships; that that being the case, the necessary implication and conclusion is that the damage to the ear of the Claimant occurred as a result of and in the course of his employment with the Defendant and that the Claimant is entitled to compensation agreed by the parties referring to Appendix 2 page 17 of Exh. JON1. Counsel urged the Court to so hold. Issue 3 is whether or not the Claimant has proved his case against the Defendant and is entitled to his claims against the Defendant. Learned Counsel restated the known principle of law that the general burden of proof is usually on the Claimant who would lose the case if no evidence is adduced though there are times when the burden will be on the Defendant to prove a particular fact. In relation to proof of employment with the Defendant, learned Counsel submitted that the case of the Claimant is that he was employed by the Defendant after passing series of medical tests, referring to Exh. JNO1; that though the Defendant claimed it employed the Claimant for its principal, there is no evidence before the Court to prove such claim and citing Kabiru Musa Rangaza v. Micro Plastic Co. Limited (2013) LPELR-20303 (CA) submitted that it is settled law that documentary evidence is the best form of evidence in proof of a case and that oral evidence is inadmissible to vary or contradict the contents of a document. Counsel urged the Court to hold that the exhibited documentary evidence prove that the Claimant was employed by the Defendant. Relating to proof of personal injury, learned Counsel submitted that before the Claimant was employed, he was subjected to series of medical tests at the instance of the Defendant and that all the tests results showed that there was nothing wrong with the Claimant before he was employed; that subsequent medical tests (Exh. BBA1 & Exh. BBA2) indicated damage to the Claimant's hearing was as a result of exposure to excessive noise. Counsel urged the Court to so find and hold. Counsel submitted further that the onus is on the Claimant to prove that the personal injury he suffered was caused by accident. Counsel, citing Fenton v. Thorley & Co (1903)AC 448 quoted the Court stating that ''the word 'accident' is to be construed in the popular sense of the word as denoting 'an unlooked-for mishap or an untoward event which is not expected or designed'. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them''. Counsel submitted that it is obvious that the loss of hearing by the Claimant was caused by accident according to the above case; that by the pleadings filed and Exh. BBA1 & Exh. BBA2 Claimant's disability resulted from accident and urged the Court to so hold. Counsel added that the injury sustained by the Claimant occurred in the course of his employment; that the medical reports tendered and admitted pointed to the fact that the Claimant suffered damage to his ears due to exposure to excessive noise and that the Claimant has discharged the burden of proving that the injury occurred in the course of his employment with the Defendant. On the entitlement of the Claimant to compensation, learned Counsel quoted Sections 7 & 10 of Workmen Compensation Act and submitted that by these provisions, the Claimant having suffered a hearing impairment at workplace with the Defendant is entitled to compensation. As regards the quantum of compensation, learned Counsel referred to Appendix 2 of Exh. JNO1 and stated that the Claimant as an Oiler is classed under the 'Ratings' category and is entitled to Eighty Nine Thousand One Hundred United States Dollars. Counsel urged the Court to so hold. On arrears of salaries, learned Counsel referred to Article 18 of Exh.JNO1 dealing with the procedure for termination. According to Counsel, there is no evidence before the Court to suggest that termination, if any, was in accordance with the terms of Exh. JNO1. Counsel submitted that in the absence of form of termination, the contract of employment between the parties still subsists till date and that the Claimant is entitled to arrears of salary until the contract is terminated in accordance with Article 18 of the contract document. Counsel urged the Court to so hold and enter Judgment in favour of the Claimant respecting all his claims. On 18/5/15, the Defendant filed a 2-page reply on points of law in which learned Counsel canvassed two main issues. The first is that the Employee's Compensation Act, 2010 does not in any way apply to this case and that the Act made adequate provisions as to how it shall be implemented, referring to Part IV of the Act. Secondly, learned Counsel submitted that for the Claimant to succeed in his claim for USD89,100 he must not only prove negligence, that is, breach of duty by the employer, but must also show that such negligence caused or materially contributed to his injury, citing Mcghee v. National Coal Board (1972)13 KIR 249 and Manwaring v. Bellington (1952)2 TLR 689. Counsel submitted that the Claimant neither alleged nor proved negligence on the part of the Defendant. Counsel thus urged the Court to hold that the Claimant has failed to prove his case to be entitled to Judgment of Court. This Judgment was initially slated for delivery on 17/9/15. However due to official engagement which involves all Honourable Justices of this Court on 17th and 18th September, 2015, Hearing Notices were issued for parties and learned Counsel to attend the Court today for this Judgment. I have read all the processes filed by learned Counsel on either side of this case. I reviewed the exhibits tendered and admitted, listened to and watched the demeanor of the witnesses called at trial. I also listened with understanding to the oral submissions of learned Counsel for both parties. Having done all this, I have come to narrow the issue for the just determination of this case down to the following - 1. Whether or not the Claimant was employed by the Defendant. 2. Whether the Claimant has proved his claims or any of them to be entitled to a grant by the Court. The issue of whether or not the Claimant was employed by the Defendant has been canvassed by learned Counsel for the Defendant with some strength and force in this case. Learned Counsel to the Claimant has also reacted with equal measure. I may just mention that perhaps much energy ought not have been dissipated on this point going by the facts and the available documentary evidence. The ascertainment of whether or not an employee is a staff of and employed by the other is fundamental for the purpose of determining employment rights accruable from one to the other. Such a determination is also crucial with respect to determining whether there exist post employment rights such as end service benefits, pension benefits and so on. A simple letter of employment suffices as a proof of employer/employee relationship. In the absence of that, a contract of employment, where one exists suffices. In the instant case, Exh. JNO1 is Employment Contract between the parties. That document did not indicate that the Defendant was acting in employing the Claimant on behalf of any other party or principal. It seems to me that without much ado, it can hardly be contested or seriously argued that the Claimant was not employed by the Defendant. As if Exh. JNO1 was not enough, Exh. JNO2 is the staff identity card issued by the Defendant to the Claimant as well as Exh. JNO4 attesting to the fact that the Claimant was a staff of the Defendant. I thus find and hold that from the available documentary evidence before the Court the Claimant was employed by the Defendant. Has the Claimant proved his case to be entitled to his claims? This is the crux of the second issue slated for determination. The first claim by the Claimant is for a declaration that the Claimant is entitled to his monthly salary of USD1235 until his contract of employment is properly determined by any of the parties. On page 2 of Exh. JNO1 is a column headed Special Conditions. It states thus ''The first 12 weeks is probationary, then this contract shall be for 12 months after which it will continue indefinitely subject to termination by either party on not less than three months notice given in writing to expire at the end of initial period of 12 months or any time thereafter''. Article 18 of Exh. JNO1 specifically deals with termination of employment. Under Article 18(2) of same, the Company (Defendant) may terminate the employment of a seafarer (a). by giving one month's written notice to the seafarer; (b). on the misconduct or incompetence of the seafarer in accordance with Article 21; (c). upon the total loss of the ship, or when the ship has been laid up for a continuous period of at least one month or upon the sale of the ship. To be entitled to the declaration sought, it is incumbent on the Claimant to prove same. The law has always been that he who asserts must prove and that a Claimant is expected to win on the strength of his case rather than on the weakness of the case of his adversary, see Elims v. Omo Bare (1982) 12 S.C & Nwokidu & 3 Ors. v. Okanu & Anor. (2010)1 S.C (Pt. 1) 136. Now in paragraph 18 of his amended deposition, the Claimant deposed that at the expiration of compassionate leave granted him to bury his father while he was ready to resume work he was told by the Defendant not to as he was medically unfit to work on board. Again, in paragraph 20 of the same deposition, the Claimant stated, inter alia, that ''the Defendant in April 2012 stopped my salary without any justification''. Under cross examination on 3/12/13, Claimant testified that the last vessel he worked on was LNG Abuja sometime in 2012 or 2011 and that he was prepared to go back to work if the Defendant would provide the needed facilities. A very clear scenario one could gather from the facts is that the Claimant, had stopped to work on any of the vessel of the Defendant as far back as April 2012 and has since that time not rendered any services to the Defendant. That being the case, it raises a fundamental question as to the basis upon which the declaration sought could be made? Payment of salary is an obligation which an employer owes to his employee as consideration for services rendered by the employee. There is no evidence before me to the effect that the Claimant remains in active service of the Defendant till date. There is also no evidence before the Court to attest to the fact that the Claimant made himself available to render services to the Defendant and was denied same by the Defendant. The law is trite and it accords with commonsense that the Court will not order payment of salaries for services not rendered, see Co-Operative Bank Nigeria Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 & Olatunbosun v. NISER, Council (1988)3 NWLR (Pt. 80) 50. To do so will amount to foisting a willing employee on an unwilling employer, see Adebayo Joseph v. Kwara State Polytechnic (2013) LPELR-21398. Thus the declaration sought that the Claimant is entitled to his monthly salary of USD 1235 until his contract of employment is properly determined by any of the parties is refused and dismissed accordingly. I note the various steps which ought to be taken for the purpose of bringing the contract existing between the parties to an end. It may be that the employment relationship between the parties has not been properly determined as envisaged the existing contract. It may also be that the employment of the Claimant was wrongfully terminated for non-compliance with the procedure stated in the contract document. However the remedy available to the Claimant does not lie in an order of Court for the declaration sought, see Olatunbosun v. NISER, Council (1988) LPELR-2574 (SC), NEPA v. Aderemi (2007)3 NWLR (Pt. 1021) 315 at 336 & Jombo v. PEFMB (2005)14 NWLR (Pt. 945) 443. The second relief sought is for a declaration that the Claimant is entitled to compensation for the injury he suffered as a result of and in the course of his employment with the Defendant. In order to succeed in this head of claim, the Claimant is under an obligation to prove to the Court that the injury he suffered was as a result of and in the course of his employment with the Defendant. There is evidence before me to the effect that the Claimant had, before joining the Defendant, worked on some other vessels. There is however no such evidence to the effect that he had his medical challenge leading to this suit before joining the services of the Defendant. Exh. JNO3(a) showed that the Claimant was medically certified fit before joining the services of the Defendant. Indeed, there is also evidence that such medical certification of fitness is a condition precedent to working with the Defendant. Exh. JNO(b), Exh. JNO(c), Exh. JNO(d) and Exh. JNO(e) are results of the subsequent medical examinations to which the Claimant was subjected in the course of his employment with the Defendant and which confirmed that the Claimant was fit as a seafarer. All this further tally with the testimony of the DW1 who stated under oath that the Claimant was employed having been found to be medically fit. It only accords with reason that if the Claimant did not join the services of the Defendant with his current medical challenge, then he must have incurred same in the course of his employment with the Defendant. Exh. C1- medical report issued by Dr. Bamigboye attested to this. After indicating that the Claimant admitted to exposure to loud and continuous sound at work, the Doctor's impression was that ''The pure tone audiometric findings above showed the characteristic configuration of Noise induced Hearing loss worse on the left and consistent with parameters evaluated''. The injury sustained having been found to have arisen in the course of his employment with the Defendant, the Claimant is entitled to be compensated in terms of the contract of employment between the parties. I find and hold that the Claimant is entitled to the declaration sought. It is thus declared that the Claimant is entitled to compensation for the injury he suffered as a result of and in the course of his employment with the Defendant. I should mention, albeit, in the passing, that the argument by the learned Counsel for the Defendant that the injury of the Claimant did not occur as a result of accident is not only mundane but purely academic. The third relief is for an order compelling the Defendant to pay to the Claimant his monthly salary of USD 1235 from April 2012 until the contract of employment is properly determined by any of the parties. The success of this relief is predicated on the fate of the first relief as sought relating to declaration. This relief and the first one are tied together by the same umbilical cord. Therefore, having refused and dismissed a claim for declaration that the Claimant is entitled to his monthly salary of USD 1235 until his contract of employment is properly determined by any of the parties, an order compelling the Defendant to pay to the Claimant his monthly salary of USD 1235 from April 2012 until the contract of employment is properly determined by any of the parties is refused and dismissed in like manner. The rationale for this is rather obvious. There is no evidence to the effect that the Claimant worked with the Defendant for the period for which he sought to be paid. To therefore compel the Defendant to pay as sought by the Claimant will tantamount to the Claimant being compensated for indolence. This Court will not be an instrument to achieving such an end. See Olatubosun v. NISER (Supra) Cooperative Bank Nigeria Limited v. Nwankwo (Supra). The fourth claim sought is for an order compelling the Defendant to pay to the Claimant the sum USD 89,100.00 being the agreed compensation under the Maritime Workers’ Union of Nigeria ITF Approved CBA for the injury suffered by the Claimant as a result of and in the course of his employment with the Defendant. I have found and held in this Judgment that the Claimant sustained his injury in the course of his employment with the Defendant. This Court has also held that the Claimant is entitled to compensation from the Defendant for the injury so sustained. The issue for determination is the quantum of compensation due to the Claimant. In this respect, the Claimant has claimed $89,100. It is mandatory for the Claimant to prove his entitlement to the amount claimed. It is not sufficient to merely claim by averments. Credible, cogent and admissible evidence must be led in proof of same, see Health Care Products Nigeria Limited v. Bazza (2004)3 NWLR (Pt. 861) 582, 605-606. Learned Counsel to the Claimant placed reliance on Appendix 2 of Exh. JNO1. On page 39 of his final written address, learned Counsel had submitted thus ''The Contract of Employment which is binding on the Defendant stipulates the quantum of compensation the Claimant would be entitled to according to Appendix 2 of the Contract of Employment i.e Exhibit JNO1. As an oiler, the Claimant is classed under 'Ratings' category. That being said, it means that the Claimant is therefore entitled to $89,100.00 (Eighty Nine Thousand, One Hundred United States Dollars)''. It is settled law that documentary evidence is the best form of evidence in proof of a case. See Bongo v. Governor of Adamawa State (2013)2 NWLR (Pt. 1339) 403. Now, what is the content of Appendix 2 of Exh. JNO1? Appendix 2 is on page 18 of Exh. JNO1. I reproduce the content of same here in its entirety for ease of understanding - ''APPENDIX 2 Compensation Payments Crew's Effects Maximum compensation for loss of effects as provided in Article 17 of this Agreement shall be US$3,000. For the purpose of this clause Crew's effects does not include cash in excess of US$1000. Medical, Dental or Social-Seafarers Family There may be additional contributions to meet medical, dental or social needs of seafarers and their families including crew communications, subject to local negotiations between the relevant JNG members and ITF affiliates. Disability In the event a seafarer suffers permanent disability in accordance with the provisions of Article 25 of this Agreement, the scale of compensation provided for under Article 24.3 shall, unless more favourable benefits are negotiated, be: Degree of Disability Rate of Compensation % Ratings Junior Officers Senior Officers(4) 100 75,000 100,000 125,000 75 56,250 75,000 93,750 60 45,000 60,000 75,000 50 37,500 50,000 62,500 40 30,000 40,000 50,000 30 22,500 30,000 37,500 20 15,000 20,000 25,000 10 7,500 10,000 12,500 Note: ''Senior Officers'' for the purpose of this cause means Master, Chief Officer, Chief Engineer and 2nd Engineer. Loss of Life-Death in Service Death in service benefits as provided in Article 25 of this Agreement shall, unless more favourable benefits are negotiated, be: To the nominated beneficiary $75,000 To each dependant child (maximum 4 under the age of 18) $15,000''. It is the law that parties are bound by their agreement voluntarily entered into and where the content of a document is clear and unambiguous, neither will parole evidence be permitted to alter same nor will the Court go outside of same in deciding the matter in controversy between the parties, see Akubuiro v. Mobil Oil Plc (2012)14 NWLR (Pt. 1319) 42. I perused the content of Appendix 2 to Exh. JNO1 as reproduced above. It has long been established and accepted in adjudication that documentary evidence is the best form of evidence, see Rangaza v. Mien Plastic Co. Limited (2013) LPELR-20303(CA). Unfortunately, I find no nexus between the amount claimed and the content of that exhibit. Indeed, the figure claimed as compensation is in no way mentioned in the reproduced portion of the exhibit. Aside from this, the Claimant offered no explanation or adduced any other evidence safe the appendix in relation to how he came about the amount claimed. In much the same vein, the Amended Statement of Facts and Claimant's deposition on oath as well as his evidence in chief did not provide any clue on the evolution or emergence of $89,100.00 as amount agreed on as compensation. This head of claim of the Claimant is not proved. See Ariolu v. Ariolu (2011) NWLR (Pt. 1258) 296. Same is therefore refused and dismissed accordingly. However, should that be the end of the story and the case of the Claimant? Will the interest of justice be met and served by such a holding? The apex Court of the land has held in plethora of cases that the era of technical justice has long been consigned to history and overtaken by quest for substantial justice. This Court has found that the Claimant was employed by the Defendant; that the Claimant was medically certified as fit for the job for which he was employed at the time of his employment; that the injury resulting in the disability of the Claimant was sustained by him while in the employment of the Defendant and in the discharge of his duties and that the Claimant is entitled to compensation. The principle has been long established and accepted that ubis jus, ubis remedium - that is where there is a wrong there is a remedy. This Court has found a wrong committed in the instant case. That wrong is the injury suffered by the Claimant in the course of his employment with the Defendant. Justice certainly demands that that wrong be remedied failure to do which amounts to injustice. Under section 19 of the National Industrial Court Act, 2006, this Court is allowed to, in all cases and where necessary, make any appropriate order, including an award of compensation or damages in any circumstance contemplated by the Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. In Kenneth Ighosewe v. Delta Steel Company Limited (2007) LPELR-8577(CA), the Court of Appeal per Ibiyeye, JCA stated the law as follows - ''It is trite that once the extent of disability has been established as in the instant case, the loss of ordinary facilities or enjoyment of life can be presumed so as to enable a fair compensation to be made. Such compensation or damages for pain and suffering could be generous depending on the extent of injury and the pain and suffering that accompanied it. Damages for personal injuries being general, it is the prerogative of the trial Court to award them even though they are not quantified in money by a litigant, such a litigant is entitled to reasonable general damages''. I take cognizance of all the medical reports of the injury sustained by the Claimant as well as the testimony of CW2. I place the degree of disability of the Claimant being a Rating at 75% and award him compensation for his injury which he sustained in the course of his employment with the Defendant in the sum of Fifty Six Thousand Two Hundred and Fifty United States Dollars ($56,250.00) only as stated on page 18 of Exh. JNO1. I refrain from commenting much on the attitude of the Defendant in this case which I view as leaving much to be desired. Suffices for me to simply add that the Defendant would do well to pay serious and sincere attention to the welfare and state of health of its employees. Certainly, the role of labour in the fortune of an establishment can hardly be overstressed. If therefore as in the instant case, the Claimant contributed his quota to the fortune of the Defendant it is unconscionable for him to be abandoned at a time he needed the support of the Defendant especially relating to his state of health. The fifth claim is for the sum of One Million Naira as cost of this action. How did the Claimant come about this figure? I note that this case was filed in 2012 and that the Claimant retained the services of a Counsel. It may be that the case is being handled pro bono but I see evidence of payment of Court fees. I also not that there appearances in this Court and in this case about sixteen times. Order 24 Rule 1, National Industrial Court Rules, 2007 allows the Court to award cost and pursuant to same, I award the sum of Two Hundred Thousand Naira (=N=200,000.00) only as cost payable by the Defendant to the Claimant. Finally, the Claimant also claimed interest on the respective sums in No. 3 and 4 above at the rate of 21% per annum from 30th April 2012 to the date of judgment in this suit and thereafter at 10% per annum from the date of judgment until final liquidation. Without much ado and pursuant to Order 21 Rule 4, National Industrial Court, 2007, interest at the rate of 10% is awarded as payable on the amount awarded as compensation under this Judgment from April 2012 until final liquidation. Finally and for the avoidance of doubt, I hold as follows - 1. A declaration that the Claimant is entitled to his monthly salary of USD1235 until his contract of employment is properly determined by any of the parties is refused and dismissed. 2. It is here declared that the Claimant is entitled to compensation for the injury he suffered as a result of and in the course of his employment with the Defendant. 3. An order compelling the Defendant to pay to the Claimant his monthly salary of USD1235 from April 2012 until the contract of employment is properly determined by any of the parties is refused and dismissed. 4. The Defendant is here compelled and directed to pay to the Claimant compensation in the sum of Fifty Six Thousand Two Hundred and Fifty United States Dollars ($56,250.00) only as stated on page 18 of Exh. JNO1 for the injury suffered by the Claimant as a result of and in the course of his employment with the Defendant. 5. The sum of Two Hundred Thousand Naira (=N=200,000.00) only is awarded as cost of this action payable by the Defendant to the Claimant. 6. Interest at the rate of 10% is awarded as payable on the Judgment due under this Judgment from the date of delivery until final liquidation. All sums due and payable under and by virtue of this Judgment shall be paid within 14 days from the date of this Judgment. Judgment is entered accordingly. ___________________ Hon. Justice J. D. Peters Presiding Judge