MR Debo O. Enilolobo V. Nigerian Petroleum Development Company (NPDC) & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice Adamu Hobon of the Federal High Court, Benin City delivered on 29th June, 2010. The facts leading to this appeal are as follows:

The Plaintiff now Appellant in this appeal was employed as Graduate Trainee (Geophysics) by the 2nd Defendant via a letter of employment dated 27/5/2002. He was posted to the 1st Defendant a subsidiary of the 2nd Defendant after his appointment. He was subsequently transferred by the 1st Defendant to the Nigerian Agip Exploration Limited (hereafter called NAE) on 22/5/2004 to work as a Secondee pursuant to a Secondment Agreement which the 1st Defendant had with NAE. The Plaintiff later disengaged from the service of the Defendants on 7/9/2007 and was paid the sum of N3, 111,495.51 as his terminal benefit.

However, the Plaintiff claimed that the Secondment allowance (being the sum of US $465, 000) to which he was entitled as a Secondee under the 1st Defendants Secondment Agreement with the NAE, was excluded from his terminal benefit and was never paid by the 1st Defendant despite repeated demands for same.

Hence the Plaintiff, pursuant to Or. 3 r 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009, instituted an action by an Originating Summons dated 25/7/2009 against the Defendants and submitted the following questions for determination by the court:

1. Whether the Plaintiff is entitled to be paid Secondment allowance taking into cognisance the terms of the Secondment agreement i.e. EXHIBIT C with Nigerian Agip Exploration Limited, the company to which the plaintiff was seconded by the Defendants?
2. Whether the Defendants are not in clear breach of the terms of the said Secondment agreement i.e. EXHIBIT C dated the 20th Day of May 2008, but made effective from 5th day of April 2004 as well as the Provisions of the Defendants CORPORATE POLICY & PROCEDURE GUIDE made pursuant to Section 10 of the NNPC ACT, LFN 2004 when they refused/failed to pay the Plaintiff his Secondment allowance upon the completion of his tenure with the Nigerian Agip Exploration Limited?
3. Whether the Defendants were right to have excluded the secondment allowance from the computation of the plaintiff’s retirement benefits and other entitlements due to him upon his disengagement from the service of the Defendants?
4. Whether the Defendants were right to have willfully withheld the said allowance even after several demands by internal memo by the team leader dated the 3rd day of March 2006 i.e. Exhibit G and a reminding memo from the Manager to the Human Resources dated 6th day of October 2007 respectively recommending payment?
5. Whether the Defendants are justified both in law and in Equity by continuing to keep the sum of $2, 048, 000.00 (Two Million and Forty Eight Thousand US dollars) in their account without making necessary disbursement to all the Secondees including the Plaintiff who are the ultimate beneficiaries having regard to the Provisions of Clauses 6.8 and 13.1 of Exhibit C, Section 45.3 & 45.3.1 of the Defendants Personnel Policy and Procedune as well as Paragraphs 5.0 and 6.0 of Exhibit H, i.e., the Interim Reports of the Committee on NPDC Secondee Remuneration (CNSR)- Ascertainment and payment?
6. Whether the Defendants are not liable in law and in Equity to pay Damages to the Plaintiff for their failure to pay the said allowance even after Nigeria Agip Exploration Limited has paid same into the 2nd Defendants 1st bank of Nigeria Abuja Main Branch office since the 29th day of July 2008 with a debit Note, reference number 1202/20080729 as well as for keeping same illegally in the said account with number 1412900045702 from the 28th day of July, 2008?

The Plaintiff then prayed the court for the following reliefs:

1. A DECLARATION that the Defendants continued refusal to pay the plaintiff the sum of $465, 000.00 (Four Hundred and Sixty five Thousand US Dollars) being his Secondment allowance Pursuant to the terms of Exhibits C-K after disengagement is wrong, illegal, null & void.
2. AN ORDER of this Honourable Court mandating or otherwise compelling the Defendants to pay all outstanding amounts relating to the Secondment allowance to Mr. Debo Enilolobo, the Plaintiff in this matter.
3. A DECLARATION that the Defendants by their conduct, particularly, their willful refusal to pay the said sum to the Plaintiff has occasioned a great loss of income to the Plaintiff knowing fully well that the Nigerian Agip Exploration Limited has paid the said sum into the 2nd Defendants 1st Bank of Nigeria Abuja Main Branch account since 28th day of July, 2008.
4. A DECLARATION that the said refusal to pay the Plaintiff constitute an infraction and total violation of the Nigerian National Petroleum Corporation Act, the Corporate Policy and Procedure Guide made pursuant to Section 10 of the 1st Schedule to the Act as well as the terms of the Secondment Agreement dated the 20th Day of May 2008 but made effective from the 5th day of May 2004 by virtue of Clause 13.1 of the said Agreement.
5. AN ORDER of Injunction restraining the Defendants whether by themselves or through their subsidiaries, agents, assigns, privies, personal representatives or any other person acting through them or pursuant to their instructions, directives/authority/power or under their consent from withdrawing from the said sum of $2, 048, 000.00 (Two Million and Forty Eight Thousand US dollars) paid into the 1st Defendant’s Account with 1st bank with No 1412900045702 at the Abuja Main Branch or further transacting on the said account pending the hearing and determination of this suit.
6. The sum of N5, 000, 000.00 (Five Million Naira) as General Damages against the Defendants jointly and severally for their wrongful Act as well as a breach of Contract / trust by illegally withholding the sum of $2, 048, 000.00 (Two Million and forty Eight Thousand US dollars) paid by the Nigerian Agip Exploration Limited in their account without disbursing same to all the beneficiaries including the Plaintiff.
7. The Sum of $465, 000.00 (Four Hundred and Sixty five Thousand US Dollars) as Special Damages against the Defendants being the amount the Plaintiff is entitled to be paid by virtue of the terms of the Secondment Agreement i.e. Exhibit C, Section 45.3, 45.3.1 of the Defendants Personnel Policy & Procedure Guide, as well as the content of the interim report of the Committee set up by the Defendants.

Both parties led evidence by way of affidavit and counter affidavit with copious exhibits in proof of their case. The Defendants during the trial contended that there was nothing in the Secondment agreement which entitles the Plaintiff to payment of any Secondment allowance. At the end of trial, the learned trial judge in a considered judgment answered questions 1 and 2 in the negative, determined questions 3, 4, 5 and 6 in the affirmative and dismissed the Plaintiffs case. Dissatisfied with the judgment, the Plaintiff has brought this appeal against the 1st and 2nd Defendants as 1st and 2nd Respondents respectively in this appeal by a notice of appeal filed on 2/8/2010.

The Appellant in the Appellant’s Brief settled by Mr. A.M Kotoye raised the following issues for determination by this court:

1. Whether or not the Lower Court properly evaluated the evidence before it in arriving at its decision that the Defendants/Respondents had no ‘clear cut policy’ on entitlements payable to their Joint Venture projects in their Conditions of Service, consequent upon which the suit herein was dismissed. (Grounds 1 & 2 of the Notice of Appeal).
2. Whether or not the failure of the Lower Court in first considering and resolving the complaint of the Plaintiff/Appellant in respect of certain paragraphs of the Defendants /Respondents Counter affidavit as violating provisions of Sections 86 and 87 of the Evidence Act, before relying on same to arrive at its decision, such failure has worked injustice on the Plaintiff/Appellant. (Ground 3 of the Notice of Appeal)

The Respondents in their Respondents’ Brief settled by Mr. P.O Osemwenkha Esq. also raised 2 issues for determination as follows:

1. Whether the lower Court properly evaluated the evidence before it in arriving at its finding that there was no clear cut policy on the payment of ‘secondment allowance’ claimed by the Appellant. (Grounds 1 & 2)
2. Whether the failure to specifically pronounce on the complaint made by the Appellant against certain paragraphs of the Respondents counter-affidavit in opposition to his Originating Summons occasioned any miscarriage of justice (Ground 3)

The issues formulated are the same. However the 1st issue which is the gravamen of this appeal as formulated by the appellant seems to be at large since the specific issue in contention is the non-payment of secondment allowance. I will therefore adopt the more precise issues as couched by the Respondents’ counsel

ISSUE ONE

Whether the lower Court properly evaluated the evidence before it in arriving at its finding that there was no clear cut policy on the payment of ‘secondment allowance’ claimed by the Appellant’ (Grounds 1 & 2)

On this issue, the Appellant’s counsel, MR. A.M KOTOYE contended that there is in existence a policy of the Respondents which requires them to pay the Appellant his secondment allowance for working with NAE. This policy, counsel submitted, is deducible from Exhibit N (the Corporate Procedure and Policy Guide, CPPG of the latter) and Exhibit C (the Secondment Agreement dated 20th May 2008) and is also evidenced by the act of the Respondents in other situations in respect of other Secondees.

Appellant’s counsel contended that the contract of service between the Appellant and the 2nd Respondent is governed by Exhibit A (Letter of Employment) and Exhibit N, hence for the purpose of this appeal, Exhibit A has to be read together with Exhibit N and the 1st Respondent is bound by both exhibits. Counsel submitted that the Appellant having been seconded by the 1st Respondent to NAE under Exhibit C in the performance of the Joint Venture contract between both entities, Exhibit C is also applicable to him. Counsel submitted that under the provision of Exhibits A, C and N, the Appellant worked with the NAE for 775 days at a rate of $600 per day. However, upon his disengagement on 7/7/2007, the Respondents omitted to compute and pay him the secondment allowance/entitlement in the severance pay. Counsel submitted that in the light of the foregoing, the trial court’s finding that only “Exhibit A governs the conditions of service between the Plaintiff and the 2nd Defendant” is wrong.