Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE:FEBRUARY 19, 2015 SUIT NO: NICN/LA/413/2013 BETWEEN Sunday Onyegbu - Claimant AND APM Terminals Apapa Limited - Defendant REPRESENTATION Gabriel Ojumah for the Claimant. G. Uduafi for the Defendant. JUDGMENT The General Form of Complaint in this case was filed on 2/8/13. The endorsement on it is as follows- ''WHERE AS: The plaintiff's claim is for a total sum of =N=7,100,000 (Seven Million One Hundred Thousand Naira only) to wit: i. A declaration that the Claimant is entitled to his gratuity/benefit in the sum of=N=2,100,000 (Two Million One Hundred Thousand Naira Only) have not with the defendant for a period of over 7 years. ii. A declaration that the defendant shall pay the sum of =N=3,500,000 (Three Million Five Hundred Thousand Naira Only) being the amount he is entitled to as compensation for the injury incurred sequel to the terms contained in issue 5.0 'compensation, benefit and allowances' particularly injury (page 36) of the APM TERMINALS APAPA LIMITED EMPLOYEE HANDWORK. iii. The sum of =N=1,500,000 (One Million Five Hundred Thousand Naira Only) being the cost of legal fees and expenses incurred for prosecuting this case.'' The Compliant was accompanied by statement of claim, Claimant's list of witness, Claimant/witness statement on oath, list and copies of documents to be relied on at trial. The Defendant entered an appearance in this case on 14/2/14, filed its statement of defence on 18/2/14 accompanying same with all requisite processes. The hearing of this case commenced on 30/1/14 when the Claimant testified as CW1. Witness adopted his written witness deposition dated 2/8/13 and tendered 4 documents as exhibits. The documents were admitted and marked as Exh. C1 - Exh. C4. The Claimant averred that he was employed on 1st September, 2006 as a Plant driver/operator by the Defendant; that in 2008, while working for the Defendant he had a critical health problem that made him to be hospitalized for some period; that after his recovery from the illness and was discharged from the hospital, his medical doctor advised him not to continue with his work of plant driving, as the stress accruing from the driving of plant is what necessitated his current ill-health; that as such he was advised not to drive plant again; that upon his resumption to work after he was discharged from the hospital, he explained the report of his Medical Doctor to the Defendant’s Company's Management and he was given another duty/assignment that is to be driving truck loading from the ship to the terminal which they felt was less stressful. The Claimant also averred that after his health issues in 2008 and his resumption, he has been unable to fully regain his health back; that in 2012 while working for the defendant he was struck by another health problem, whereby he collapsed and was taken to he hospital with the defendant’s medical ambulance; that he underwent series of test and was referred to a specialist hospital in Victoria island, Lagos; that the Doctor advised him not to resume work until he has fully recovered ; that since his hospitalisation , the Defendant has been paying his salary only this basic salary, but however in May 2013 stopped payment; that he thereafter approached the Management to know the reasons and was then his service were no longer required as his Medical Doctor had confided in them that he would not have the ability to work based on his current state of employment; that the defendant offered to pay him N2,100,000 as a retirement benefit for the whole 7 years he worked for them without any other compensation or benefit; that the Defendant refused to follow the proper way of terminating his employment; that he was not given notice whatsoever to that effect, rather the Defendant stopped paying his salary and was only told verbally that his services would no longer be needed; that he sustained his present ill health as a result of the nature of the work which he was doing for the defendant. It was also the case for the Claimant that he has suffered a lot of untold hardships as a result of his ill-health and the manners in which the defendant terminated his employment. Under cross examination on 13/3/14, witness testified that before he joined the Defendant he worked with Nigerian Ports Authority for 14 years as Plant Operator and Commet Shipping Agency also as Plant Operator for 5 years; that he could not remember how many queries he was issued while working with the Defendant; that Defendant was paying for his hospital bills while receiving treatment; that he was not given any medical report on the need for him to stop driving plant and that he did not put in any request to stop driving Plant. Witness testified further that he was last paid in May 2013; that he could not remember how much he collected; that he stopped going to work because he was on hospital admission and that upon discharge he stopped going to work on the Doctor's advice. Witness stated that he did not receive any letter from the Defendant declaring his position redundant; that after discharge from the hospital he requested the Defendant to pay his final entitlements and the Defendant told him he would be paid =N=941,000.00 which he rejected because it was less than what was in the Staff Handbook. Witness asked the Court to enter judgment in his favour. On 22/5/14, the Defendant opened its defence. Defendant called Emeka Ogbaje as its DW1. DW1 adopted his witness deposition dated 18/2/14 as his evidence in chief and tendered 11 documents as exhibits. The documents were admitted as exhibits and marked as Exh. EO1 - Exh. EO11. The Defendant’s case is that the Claimant was an employee of the Defendant having been employed on the 26th September 2006 and confirmed on 1st March, 2007 as a Plant Operator; that the employment of the Claimant lasted till the 30th of May 2013 when the Claimant’s employment was brought to an end by a letter informing him that his position as Truck Driver has been declared redundant; that the Claimant was assured that his redundancy benefits would be paid by the Defendant’s Finance Department. The Defendant also avers that the Claimant however never approached the Finance Department nor bothered to inquire about the payment of his computed benefits, rather he filed this suit. Under cross examination on 30/6/14, witness testified that Claimant went through medical test as required by his letter of offer and was found to be medically fit during the medical test; that he did not know if Claimant's health issues commenced after he started work with the Defendant and that Claimant was given 3 warning letters within 6 months. Witness stated further that Exh. EO8 is still in force and that though reviewed the substance of same is still in force and that Claimant refused to sign Exh. EO3. Defendant also called one Dr. Kehinde Wenike-Briggs as its DW2. DW2 introduced herself as a Medical Practitioner and adopted her written witness deposition dated 26/6/14 as her evidence. Under cross examination, DW2 stated that she is a Pediatrician and treats children; that Claimant visited her Hospital a couple of times and complained of orthopeadic ailments and was managed by an expert; that the type of Claimant's ailments come with age; that Claimant should be about 50 years though not very sure; that she was not directly Claimant's Doctor; that she was the Medical Director of the Hospital and that she could not competently say much about Claimant's ailment. Upon completion of trial, learned Counsel were directed to file their final written addresses in accordance with the Rules of this Court. The final written address by the Defendant was dated 18/7/14 and filed on 6/8/14. In it, learned Counsel set down 3 main issues for determination. They are as follows - 1. Whether the Claimant is entitled to the declarations to be entitled to =N=2,100,000 (Two Million One Hundred Thousand naira) as gratuity/benefit or declaration for =N=3,500,000 (Three Million Five Hundred Thousand for compensation for injury under the Defendant's handbook. 2. Whether the Defendant has not complied with the relevant laws regarding redundancy. 3. Whether the Claimant is entitled to cost of legal fees of =N=1,500,000 (One Million Five Hundred Thousand Naira). With respect to issue 1, learned Counsel submitted that the law is trite in civil cases that the onus is always on the party who asserts to prove his case on credible and cogent evidence and that the Court does not make a declaration of right either on admission or in default of defence. Counsel cited First Bank of Nigeria Plc v. Odaudu Uwada (2003)2 NWLR (Pt. 805) 485 at 501-502 and Wilfred Igbinovia v. University of Benin Teaching Hospital (2000)8 NWLR (Pt. 667) 53 at 68. Counsel pointed out that there are two main components of declaratory reliefs sought by the Claimant, the first being gratuity and benefits while the second is for compensation for injury. According to learned Counsel, the letter of employment dated 26/9/06 - Exh. EO1, contains no provision for any payment of gratuity or any benefit, rather that there is evidence before the Court that Claimant's pension was paid regularly. Arguing further, Counsel pointed out that even Exh. EO9 - Employee/Staff Handbook makes no provision in relation to payment of gratuity in the event of termination. Counsel therefore submitted that there is no proof by the Claimant that he is entitled to any gratuity and that the Court cannot grant the declaration sought, citing Onaghinon & Anor. v. Ikegbulam (2013)35 NLLR 415 at 469-470. He urged the Court to so hold. Regarding the claim for declaration for entitlement to the sum of =N=3,500,000.00 as compensation for injury sequel to the terms contained in paragraph 5.0 of the Staff handbook, learned Counsel submitted that being a claim for declaration, the Claimant must also lead credible evidence to be entitled to same. Learned Counsel cited Igbinovia v. University of Benin Teaching Hospital (Supra).Quoting paragraph 5.2.2 of the Staff Handbook, Counsel submitted that to be entitled to compensation, Claimant must have either died while in active service or must have sustained permanent disability or injury and must have been certified as such by the official medical retainer of the Defendant. Counsel submitted that Claimant has not met any of those conditions. He referred to the evidence of DW2 and citing Section 68, Evidence Act, 2011 and ELF (Nig.) Limited v. Sillo & Anor. (1994)6 NWLR (Pt. 350) 258 at 272 and urged the Court to accept the expert opinion of that witness as a medical practitioner who testified to the effect that the illness of the Claimant was not terminal, that it comes with age and that it can happen to anybody whether or not driving truck. Learned Counsel therefore urged the Court to hold that in so far as the ailment is not a terminal one that renders the Claimant unfit to work he is not entitled to the compensation in the Handbook. Issue 2 is whether the Defendant has not complied with the relevant laws regarding redundancy. Arguing this issue, learned Counsel stated that it is undisputed that the reason for the stoppage of the Claimant's employment was redundancy. He conceded that no claim was made for payment of redundancy benefits but submitted that it is important to examine whether the Defendant has complied with the relevant laws relating to same. Counsel cited section 20, Labour Act, Cap. L1, Laws of the Federation of Nigeria, 2004 and paragraph 4.8 of the Staff Handbook relating to redundancy, stated that Claimant belonged to Maritime Union of Nigeria and concluded that Exh. EO8 was the Memorandum of Agreement reached between the Defendant and the Union and that that exhibit provides a guide for the computation of redundancy benefits. Learned Counsel submitted that the Defendant had calculated the entitlement of the Claimant on the basis of Exh. EO8 with an additional ex gratia of =N=1,000,000.00 which the Claimant rejected. Counsel urged the Court to so hold. On issue 3 which is whether the Claimant is entitled to cost of legal fees of =N=1,500,000.00, Counsel submitted that the law is trite that to succeed in any claim, the party so claiming must lead cogent and credible evidence in order to be entitled to its grant. Citing Intercontinental Bank Limited v. Brifina (2012) LPELR-9717 (SC) and Divine Ideas Limited v. Umoru (2007)All FWLR (Pt. 380) 1468 at 1509 submitted that cost of action or Solicitor's fees are in the realm of special damages which must be specifically pleaded and strictly proved. In the instant case, Counsel pointed out, no single evidence was led be it documentary or oral in proof of the constituents of this claim or how it was incurred. Learned Counsel submitted finally citing Ihekwoaba v. ACB Limited (1998)10 NWLR (Pt. 571) 590 at 690-611, that in any event Solicitors' fees as a head of damages is one unknown to the Nigerian law. Counsel thus urged the Court to dismiss the claims of the Claimant for being baseless and without merit. Claimant filed his final written address on 12/9/14. It was also dated 12/9/14. In it, learned Counsel for the Claimant set down a lone issue for the determination of the Court as follows - Whether or not the Defendant is liable to the claims of the Claimant. Arguing this lone issue, learned Counsel pointed out that by the Claimant's letter of employment dated 26/9/06, he must pass the Defendant's medical screening during the period of probation. Counsel submitted that Claimant passed the screening which translated to mean that Claimant was free from any form of illness or health related issue as at the time he was employed by the Defendant. Therefore, according to learned Counsel, it was the nature of the job assigned to him by the Defendant that caused the Claimant's ill-health which eventually resulted in his being incapacitated for which by paragraph 5.2.3(c) of Exh. EO9 the Defendant is under an obligation pay as stated. Counsel urged the Court to so hold. Arguing further, learned Counsel noted that one point of divergence between the parties is in the issue of redundancy which the Defendant claimed it complied with the provisions of its employee Handbook and its agreement with the Union which the Claimant belonged. Counsel referred to paragraph 4.8 in which it was stated that the Management of the Defendant would endeavor to give enough notice in accordance with section 20 (a)-(c) of the Labour Act, noted that the letter of redundancy was dated 30/5/13 and that Claimant was last paid in May 2013. Learned Counsel therefore submitted that there is no evidence before the Court that the Defendant complied with both section 20 of the Labour Act and paragraph 4.8 of Defendant's Staff Handbook. Counsel urged the Court to so hold. Regarding the evidence of DW2, learned Counsel submitted that though DW2 was a Medical Practitioner, she specialised in children and children related diseases and not concerned with adult and adult related diseases and treatment. Besides, learned Counsel submitted that under cross examination, DW2 stated that she was the Medical Director of the said specialist Hospital, and that she was not the one who attended to the Claimant. Counsel urged the Court to find in favour of the Claimant and grant his prayers. I have read all the processes filed by learned Counsel on either side. I followed with attention and understanding the testimonies of witnesses called and also reviewed all the exhibits tendered and admitted in this case. Having done all these, I have come to narrow the issue for the just determination of this case down to one as follows - Whether the Claimant has proved his case to be entitled to the reliefs or any of the reliefs sought. The nature of our British bequeathed adjudicatory system of dispute resolution is that a party seeking a favourable findings of the Court must plead facts relevant to his case. However averments in pleadings are neither sufficient nor are they proof of same. Those averments must be proved by credible and admissible evidence to warrant grant of the reliefs sought. It is open for a party to approach the Court for a grant of any relief. Concrete, credible and admissible evidence however form the foundation upon which any trial Court will rely in making a finding in favour of a party. See Access Bank Plc v. Trilo Nig. Limited & Ors (2013) LPELR 22945; Olusanya v. Osineye/Osineye (2013) LPELR 20641 SC. The first relief sought by the Claimant is for a declaration that he is entitled to his gratuity/benefit in the sum of =N=1,100,000.00 for working for the Defendant for 7 years. The Claimant averred to this fact in paragraph 15 of his statement of facts dated 2/8/13. This averment does not however translate to proof of same. Rather concrete and cogent evidence is required in proof. In proof of his case in general, Claimant tendered 4 documents and same admitted as exhibits. They are Claimant's I.D Card - Exh. C1, Claimant's December Pay Slip - Exh. C2; Medical Report dated 19/3/13 - Exh. C3 and pages 35 & 36 of the Defendant's Employee's Handbook - Exh. C4.. The first 3 exhibits are not in any way helpful in proof of this claim of the Claimant. I examine Exh. C4 carefully. I find nothing in same to support the Claimant's claim for gratuity/benefit. There is no provision in that exhibit relating employee's gratuity or benefit in whatever guise or manner. Besides, the Claimant has not satisfied the Court as to the basis of coming to the sum for which a declaration is sought. This head of claim of the Claimant is not proved by the Claimant to be entitled to a grant of same. It is therefore refused and dismissed accordingly. The second claim of the Claimant is for ''A declaration that the defendant shall pay the sum of =N=3,500,000 (Three Million Five Hundred Thousand Naira Only) being the amount he is entitled to as compensation for the injury incurred sequel to the terms contained in issue 5.0 'compensation, benefit and allowances' particularly injury (page 36) of the APM TERMINALS APAPA LIMITED EMPLOYEE HANDWORK''. Exh. EO9 is the Defendant's employee's Handbook. Claimant claims entitlement to the said sum pursuant to paragraph 5.2.3(c) of Exh.EO9. That paragraph states thus - ''Permanent disability/Injury: where as a result of carrying out his/her lawful duties with the Company, an employee is injured and sustains permanent disability and medically certified by official medical retainer as such, he/she will also be entitled to a compensation of not less than seventy five percent of benefit accruable in the case of death, in addition to off-setting all medical expenses up to the time of severance from the services of the Company''. Learned Counsel to the Defendant had argued that Claimant could not take benefit under this stated provision on the ground that Claimant had not been declared as having permanent disability by a medical retainer of the Defendant and that Claimant was only declared 'unfit to return to work. Learned Counsel for the Defendant has urged the Court to rely on what he called the un-contradicted evidence of DW2. Now, what is the evidence of that witness? DW2 told the Court that she had been a Medical Practitioner for 29 years; that she was the Medical Director of Iduna Specialist Hospital/Clinic - a medical facility retained by the Defendant and that she could not competently say much about the ailment of the Claimant. Now Exh. C3 was a medical report issued by Dr. Kehinde Wenike-Briggs, the DW2 in respect of the Claimant. The concluding part of that report is very instructive to this case. It states thus - ''His symptoms could be aggravated by his present job. The Orthopeadic Surgeon's opinion is that Mr. Onyegwu is unfit to return to work''. I believe the evidence of DW2 that Claimant's symptoms could be aggravated by his present job. I also believe her evidence that Claimant was unfit to return to work as reflected in Exh. C3. Learned Counsel to the Defendant had submitted on page 10 of his final written address that - ''... in so far as the ailment is not a terminal one that renders the Claimant unfit to work, the Claimant is not therefore entitled to the compensation in the hand book''. This submission certainly does not find support in the evidence of DW2. It is also not supported by Exh.C3. Besides, within the provision of paragraph 5.2.3(c) of Exh. C4, there is no requirement that ailment must be a terminal one. The injury sustained by the Claimant in the course of working for the Defendant rendered him unfit to return to work on the basis of the evidence of DW2. I have no doubt in holding that any injury or disability that renders a hitherto fit person unfit to return to work is a permanent disability. I have evidence before that the Claimant went through thorough medical checks before he started working for the Defendant. This exercise was at the instance of and insistence by the Defendant. The said medical checks were carried out by the medical facilities retained by the Defendant. It was one of the conditions precedent that the Claimant must fulfill in order to become a staff of the Defendant. The result of the medical checks attested to the fitness of the Claimant to commence work with the Defendant. If the result of the medical checks had been negative, the Defendant would not have taken the Claimant on. Now that the Claimant had utilised his energy and strength in a state of medical fitness to serve the Defendant, I dare say that it will be unconscionable for the Defendant to deny the latter his legitimate entitlements having been declared ''unfit to return to work'' by the Medical Retainer of the Defendant. I find and have no hesitation in holding that Claimant's unfitness to return to work brings him within the provision of paragraph 5.2.3(c) of Exh. C4 (same as Exh. EO9). I here declare that Defendant shall pay to the Claimant the sum of =N=3,500,000.00 being compensation for the injury sustained by the Claimant while working for the Defendant sequel to the terms contained in issue 5.0 of Exh. C4. The third claim of the Claimant is for the sum of =N=1,500,000.00 being the cost of legal fees and expenses incurred for prosecuting this case. I note that there was no single averment in the 18-paragraph statement of facts of the Claimant relating to this head of claim. Throughout the trial, Claimant did not make any reference to this head of claim. No single evidence was tendered. Not even a Receipt of payments made to his Solicitors. A party is only entitled to a grant of relief for which he has adduced cogent and credible evidence. There being no proof of this head of claim same is refused and dismissed accordingly. See Access Bank Plc v. Trilo Nigeria Company Limited (2013) LPELR-22945. Finally and for the avoidance of doubt, the first and the third heads of claims of the Claimant are refused and dismissed accordingly Claimant not having proved same. Claim 2 of the Claimant succeeds. Defendant is here ordered to pay to the Claimant the sum of =N=3,500,000.00 as compensation for injury sustained by the Claimant while working for the Defendant and sequel to the terms contained in issue 5.0 of Exh. C4. Cost of this proceeding is assessed at =N=50,000.00. The sum due under this Judgment shall be paid with interest at the rate of 10% per annum from May 2013 until final liquidation. The entire sums of money due and payable under and by virtue of this Judgment shall be paid within 14 days from today. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge