Download PDF
IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT ABUJA BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo - President Hon. Justice B. B. Kanyip - Judge Hon. Justice M. B. Dadda - Judge DATE: JULY 17, 2007 SUIT NO. NIC/9/2002 BETWEEN John Ovoh (Suing for himself and as Representative of 679 Junior Staff of Nigerian Dredging and Marine Limited Retrenched 1994) ………..Applicant AND The Nigerian Westminster Dredging and Marine Limited…………… Respondent REPRESENTATION A.A. Fola-Adekoya, for the applicant. A. Thompson, for the respondent. JUDGMENT In this case, the applicant filed a motion on notice pursuant to Rules 15 and 17 of the National Industrial Court Rules Cap. 432 LFN 1990 and under the inherent jurisdiction of the court praying for the following reliefs: 1. An order granting leave to the applicant to bring this application in a representative capacity that is, JOHN OVOH for himself and as representative of the 679 Junior Staff of Nigerian Dredging and Marine Limited retrenched in 1994. 2. An interpretation of the provisions of the terminal benefits accruable to the applicants evidenced in the agreement dated 10th June, 1994, which agreement was entered by the defendant whilst inducing the discharge of the applicants from its services in 1994. 3. An order directing the defendant to comply with the provisions of interpretation within 30 (thirty days) of interpreting the said agreement. 4. And for such further or other orders as the court may deem fit to make in the circumstance. The motion is dated 19th June, 2002; and attached to it is an 18-paragraphed affidavit sworn to by John Ovoh, the applicant in this matter with 5 accompanying exhibits, Exhibits JDL I – JDL 5. While the, matter was pending in court, the applicant filed another process that is, an affidavit dated 10th July, 2002, containing eight paragraphs, sworn to by the applicant (John Ovoh). Attached to this affidavit is Exhibit JDL Al containing the list of the 679 junior staff retrenched by the respondent company. The respondent reacted by filing a counter-affidavit containing 27 paragraphs with Exhibits A and BI - B 16 attached. The applicant later filed a further process titled "Amended More on Notice” pursuant to Rules 15 and 17 of the National Industrial Court Rules and under; the inherent jurisdiction of this Court. This amended motion on notice, dated 6th September, 2002 and filed on the same date, prays the court for the following reliefs – 1. An order granting leave to the applicant to amend the application dated 19th June,2002, in the manner set out herein, that is, by constituting the matter against the Nigerian Westminster Dredging and Marine- Limited, the same being the company that wound-up Nigerian Dredging and Marine Limited. 2. An order granting the applicant [leave] to bring this application in a representative capacity, that is, John Ovoh for himself and as a representative of the 679 junior staff of the Nigerian Dredging and Marine Limited retrenched in 1994. 3. An interpretation of the provisions of the terminal benefits accruable to the applicants evidenced in the agreement dated 30th June, 1994, which Agreement was entered into by the defendant while inducing the discharge of applicants from its service in 1994. 4. An order directing the defendant to comply with the provisions of the interpretation within 30 (thirty) days of interpreting the said agreement. 5. Any further order(s) as this court may deem fit to make in the circumstance. The motion is supported by an affidavit also dated 6th September, 2002 containing 23 paragraphs sworn to by John Ovoh, the applicant, with 5 exhibits, Exhibits 2JDL I - 2JDL 5, attached. The Respondent, reacting to the processes, filed a motion challenging the court's jurisdiction to entertain the matter. In hearing this preliminary objection, reliefs 1 and 2 of the amended motion on notice were canvassed and in this court's ruling of 13th April, 2005, the applicant was granted the said reliefs 1 and 2. Also in that same ruling, this court held that it had the jurisdiction to entertain the matter at hand. What all of this means is that only reliefs 3, 4 and 5 of the amended motion on notice are left for the determination of this court. The applicant subsequently filed a further and better affidavit sworn to by the applicant. This further and better affidavit is dated 13th June, 2005 and was filed on the same date with Exhibits JO1 - J05 attached. In reaction, the respondent filed a 17-paragraphed further and better counter-affidavit; it is dated 23rd September, 2005 and filed on same date with Exhibit A, an agreement of 30th June, 1994 for the payment of 100,000 Naira to junior staff attached. The respondent filed another further and better counter-affidavit; it is dated 10th October, 2005 and filed on same date with Exhibit C, an amended criminal charge, attached. On 14th November, 2005, the applicant filed a 10-paragraphed ‘1st Further and Better Affidavit' dated 14th November, 2005. On 24th November, 2005, the applicant filed another '1st Further and Better Affidavit' containing 16 paragraphs with Exhibits RWI - RW3 attached. In reaction, on 19th October, 2006, the respondent filed a 28-paragraphed further and better counter-affidavit dated 19th October, 2006. This was followed by a 16-paragraphed 2nd further and better counter-affidavit dated 23rd March, 2007 and filed on the same date with Exhibits FOI - F05 attached. Aside from all these processes filed, the respondent called two witnesses who were examined and cross examined during the hearing of this matter. Thereafter, the parties respondend on 7th May, 2007. The case of the applicant is that the respondent declared the applicant and 679 other members of staff redundant without terminal benefits. The respondent then entered into negotiation with the applicant and the 679 other members of staff with a view to settling the issue of retrenchment amicably. The negotiations resulted in the signing of the agreement dated 30th June, 1994. It is the failure of the respondent to implement this agreement that brought the parties to court. To the respondent, however, this agreement of 30th June, 1994 was entered into under duress; and that another agreement, dated 31st August, 1994, was entered into by the parties. The respondent also contended that the claims of the applicants have been duly settled, which presupposes that there is nothing outstanding between the parties. To the applicant's counsel, the respondent is only objecting to prayer 3 of the applicant's amended motion on notice, dated 6th September, 2002 reproduced earlier. The applicant then framed two issues for the determination of this court, namely- 1. Whether the agreement of 30th June, 1994 was entered under duress so as to render it null and void and so unenforceable against the respondent. 2. Whether the agreement of 31st August, - 1994 cancelled the earlier agreement of 30th June, 1994? The applicant's contention on the first issue is that the affidavit evidence deposed to by one Humphry R. Siegel, a Dutch national, on behalf of the respondent to the effect that expatriate staff of the respondent were locked up by junior staff who threatened to set them on fire, should be discountenanced since the deponent could not be cross-examined to ascertain the veracity or otherwise of the said deposition especially given the fact that there were also filed in court other affidavit evidence that countered the respondent's. The applicant then contended that its affidavit evidence showed that both Siegel and Prince Adewole, the second witness that testified in court for the respondent, were not present at the meeting which culminated in the signing of the agreement of 30th June, 1994. The applicant then went on to contend that at best, the oral testimony of Prince Adewole, were conjectures which should not be relied on by this court, relying on section 77 of the Evidence Act Cap. 112 LFN 1990, which stipulate that oral evidence must be direct in all cases. That no such direct evidence was tendered by the respondent to show that the 30th June, 1994 agreement was entered into under duress. On the second issue framed by the applicant, the applicant urged the court to take a closer look at the agreement of 31st August, 1994. That. contrary to the contention of the respondent, this later agreement actually compliments that of 30th June, 1994. That if the respondent is correct in its assertion that the 30th June, 1994 agreement was procured under duress, the 31st August, 1994 agreement ought to have repudiated it given that the opportunity presented itself for such repudiation. On the claim by the respondent that all payments have been made to the applicant and those he represents, the applicant urged the court to discountenanced this since the respondent tendered no evidence to support this claim; that no acknowledgment receipts nor bank tellers were tendered to show that payment was actually made. The applicant concluded by urging the court to uphold its arguments and rule in its favour. In reacting, the respondent adopted the first issue framed by the applicant and added a second issue, namely, whether the applicant's contention that they had not been paid redundancy benefits is tenable in the present circumstances. On the first issue then, the respondent contended that the 30th June, 1994 agreement was procured under duress and so should not be enforced by the court. To the respondent, the affidavit evidence it put forward and the oral testimony of its witnesses all attest to this fact. To buttress it contention, the respondent asserted that some of the applicants were charged before a Chief Magistrate Court for attempted arson which was allegedly committed on 29th June, 1994, the day before the 10th June, 1994 agreement was signed. That this can only show that the said agreement was signed under duress. On the second issue the respondent framed, the respondent contended that the claim of the applicant is on the twin prayers of having the 30th June; 1994 agreement interpreted and an order directing the respondent to comply with the said agreement. In consequence of this, that it will be wrong for this court to look beyond the said document in interpreting the terminal benefits due to the applicants. To the respondent, the applicant's contention that they have not been paid their redundancy benefits is untenable given that in para. 10 of the applicant's affidavit of 13th June, 2005, the applicant himself deposed to the fact that they have already been paid redundancy benefits. The respondent then went on to submit that a cursory look at the agreement of 30th June, 1994 will show that that agreement does not constitute the redundancy benefits due to the applicants as it is expressed as something additional to the redundancy benefits, referring the court to clause (b) of the said agreement. The respondent continued that between the agreement of 30th June, 1994 and that of 31st August, 1994, the latter agreement shows that both agreements are for the same purpose, namely, ex gratia payment. That the 31st August, 1994 agreement makes vivid reference to the incident that occurred on 29th June, 1994. That this 31st August agreement was meant to correct, and so must be taken to supersede, the 30th June agreement. The respondent concluded by urging the court to rule in its favour. The critical issue for determination before this court is whether or not the 30th June, 1994 agreement entered into by the parties is enforceable through the interpretation jurisdiction of this court. All other issues are geared towards answering this critical issue. For instance, if it is found that the 30th June agreement is valid, the next issue is whether it has been overtaken by the 31st August, 1994 agreement as canvassed by the respondent. The respondent acknowledges the existence of these two agreements. Its defence is that 'the 30th June agreement was entered into as a result of duress; and that even if this were not the case, that agreement had been overtaken by the agreement of 31st August. To support its contention of duress, aside from the affidavit evidence put forward, the respondent called two witnesses - Mrs. Feyisayo Odusina, the Legal and Corporate Affairs Manager of the respondent company and Prince Francis Gbadebo Adewole, a private Legal Practitioner representing the respondent in this matter. Mrs. Odusina, who was not present at the scene/time of signing the 30th June agreement, testified from the records available to her in the files that the said agreement was Signed because some expatriate staff were locked up in a container by union officials and junior staff of the company, which container was doused in petrol with threats of being set ablaze. Prince Adewole testified that he was called up to Warri from Lagos because some expatriate staff of Dutch nationality have been put by the union in a metal container (doused with petrol with threats to set it on fire) in the respondent's premises at Warri. That the union leaders refused to let them out of the container unless their demands were met. That this incident aroused diplomatic interest as the Dutch Ambassador even came. That all of the expatriates involved in this incident have since left Nigeria. Prince Adewole testified further that he advised first that the Police should be invited, which was done; although when the Police came, they stayed beyond the fence of the company so as not aggravate the situation. Secondly, that he advised the management of the respondent company to indulge the union leaders with whatever they demand and if need be sign any agreement to that effect in order to avert any unpleasant consequences. This, the respondent did, which led to the signing of the 30th June agreement where the respondent promised to pay the 100,000 Naira in terms as per the 30th June agreement. That this 30th June agreement was signed while the expatriates were still in the container. That thereafter, the Police came into the premises and arrested various members of the union (including the applicant) who were later charged to court. That this criminal charge, after negotiation, was withdrawn by the respondent. Prince Adewole went on to testify that a second agreement was then signed which confirmed the payment of the said 100,000 Naira but with the caveat that the union will not cause further troubles and union members would be reabsorbed if the circumstances permit. To Prince Adewole, the agreed 100,000 Naira was paid to entitled workers (including the applicant) except those who were reabsorbed. The provisions of the 30th June 1994 agreement calling for interpretation are clauses a) and b) which are worded as follows – a) The sum of ONE HUNDRED THOUSAND Naira will be paid to each Junior Staff worker who wishes to leave NDM employment at the present time. b) Redundancy benefits as per the Conditions of Service are to be calculated and paid on top of the payment referred to in (a) above. There is already an admission on the part of the applicant that they have been paid redundancy benefits. As pointed out by the respondent, Mr. John Ovoh himself deposed to this fact in para. 10 of the applicant's affidavit of 13th June, 2005. There is, therefore, no issue as to the question of redundancy benefits in this court. What is in issue is whether there is an obligation to pay the additional sum of One Hundred Thousand Naira, of which it was agreed that a part payment of Five Thousand Naira was earlier made. In order not to pay this amount, the respondent argued that the agreement itself was procured under duress; and that even if it was not procured under duress, that it was overtaken by the 31st August, 1994 agreement. The 31st August, 1994 agreement with its recital is essentially worded as follows – WHEREAS On the 29th day of June, 1994 certain members of the Union during their industrial action took some steps which warranted the Employer to dismiss them. After negotiations with representatives of the Union, the Employer has agreed to convert the dismissal to Redundancy on the Following Terms and Conditions: 1. The Effective date of the Redundancy of the affected workers shall be 29th June, 1994. 2. An Ex-Gratia Settlement Addition shall be paid to the affected workers as follows- 1-4 years = N12, 000.00 5 - 10 years = N 15,000.00 II years and above = N20, 000.00 3. The interim payment of N5, 000.00 (Five Thousand Naira only) already made shall be set-off against what is due under this agreement as may be applicable. 4. It is understood that this Agreement and whatever payment made there under shall not be cited as a precedent in respect of future negotiations. 5. It is understood and agreed that such other benefits as may be due in accordance with the provisions of the existing Agreement and Terms and conditions of Service will be paid. The question is whether this 31st August agreement complements or supersedes the 30th June agreement. Before an answer to this question can be given, we wish to first state that whatever the circumstances that led to the signing of the 10th June, 1994 agreement may be, the subsequent actions of the respondent were geared towards coming to terms with the agreement. The acts of duress complained of by the respondent led to the filing of criminal charges against some union officials and members. This charge was later on withdrawn by the respondent, which technically implies a favorable termination of that proceeding as regards the applicants in this matter. Secondly, the respondent agreed to enter into another agreement with the applicants' union where issues relating to the 30th June, 1994 agreement were recited and approved e.g. the part-payment of Five Thousand Naira. In consequence, the defence of duress by the respondent cannot hold ground. The 10th June, 1994 agreement may have been a product of duress, but the mitigating acts of the respondent clearly indicate that the agreement be treated as one capable of enforcement; if not fully, at least partially and to the extent that the 31st August, 1994 Agreement accommodates it. This much is attested to by Prince Adewole who testified that 'a second agreement was then signed which confirmed the payment of the said 100,000 Naira but with the caveat that the union will not cause further troubles and union members would be reabsorbed if the circumstances permit'. Although Prince Adewole went on to testify that the workers were each paid this 100,000 Naira, no evidence was adduced before the court to prove actual payment and receipt of the said sum. We agree with the respondent that both the 30th June and 31st August Agreements deal with the same issue of ex-gratia payment - the one providing for 100,000 Naira, the other staggering it from 12, 000 - 20, 000 Naira. To this extent, there appears to be a conflict. Are the workers entitled to only one of these two ex-gratia payments or both? Clause 5 of the 31st August is emphatic in saving such other benefits that may accrue to the workers outside the 31st agreement itself. To this extent, whatever entitlements there are under the 30th June agreement are saved. As we indicated, what both the 30th June and 31st August agreements seek to do is to compensate workers who left the service or were deemed to have left the service on 29th June, 1994. The 30th June agreement pegged the compensation at 100,000 Naira, while the 31st August agreement varied it from 12,000- 20, 000 depending on the year of service put. What this 31st August agreement has effectively done is to reduce the ex-gratia payment. A basic norm in industrial relations is that where two or more subsisting instruments confer benefits on an employee in respect of the same issue, the most beneficial instrument should be adopted and applied. The respondent did not annul the 30th June agreement when the 31st August agreement was entered into. And since both agreements seek to make ex-gratia payment, we hereby hold that the applicable instrument is the 30th June agreement. We also hold that the sum payable to each of the applicants is 100,000 Naira less the 5, 000 Naira already paid to them. We held earlier that by admission of the applicants, they have received redundancy payments and so there is no obligation on the part of the respondent in this regard. Judgment is entered accordingly. ……………………….. Hon. Justice B.A. Adejumo President …………………………. …………………………… Hon Justice B.B. Kanyip Hon. Justice M.B Dadda Judge Judge