Pengassan v Mrs Oil Nigeria Plc & 4 Ors.

• Judge: Hon. Justice J. D. Peters
• Judgment Date: 06 May 2020
• Respondent: Mrs Oil Nigeria Plc & 4 Ors.
• Appellant: Pengassan
• Docket Number: NICN/LA/595/2012
• Counsel: 44. Exh. CO1 is the Share Purchase Agreement by which the 4th Defendant sold its indirect stake in the 1st Defendant (then known as Chevron Oil Nigeria Plc) to the 3rd Defendant. By Exh. C02, both parties agreed to cooperate with one another with a view to assisting Chevron Nigeria in securing a settlement with the relevant Unions and employee representatives of the workforce of Chevron Nigeria of the then current strike. Part of the agreement by the parties under that exhibit is as follows -
• Court: National Industrial Court (Nigeria)

Introduction & Claims
1. The Claimant commenced the action against the Defendants by a General form of Complaint and other accompanying processes filed on the 22/11/12. It subsequently filed an amended Statement of Facts dated 14/11/14 but filed on the 18/11/14 in which it sought the following reliefs -

1. An Interpretation of the Separation Package Agreement dated the 7/10/08; the Share Purchase Agreement reputedly dated the 20/3/09, with its relevant amendments and the Collective Agreement made on the 1/4/09 to determine which of the Defendants is obliged by virtue of the said Agreements, to pay the sum amounting to or represented by the 12.5% shortfall in the agreed separation payout of the members of the Claimant.
2. A Declaration that the members of the Claimant in the employment of the 1st Defendant as at the 23/3/09 are entitled to receive the sums constituting the 12.5% increment schedule of Remuneration Increase made thereunder between the Claimant and the 1st Defendant (Chevron Oil Nigeria Plc as it was then known).
3. An Order directing the Defendants or any of them found to be so obligated, to forthwith pay to the members of the Claimant in the employment of the 1st Defendant as at 23/3/09 the sums amounting to or represented by the 12.5% short-paid to them upon the implementation of the Separation Package Agreement, Share Purchase Agreement and the Collective Agreement for 2009-2010 respectively.

2. The 1st-3rd Defendants filed their statement of defence along with all requisite processes on 9/1/13. On 27/2/13, Claimant filed a Reply to the Statement of Defence of the 1st-3rd Defendants. 4th Defendant filed its amended statement of defence dated 23/6/17 and filed on 29/6/17. 5th Defendant on the other hand filed its statement of defence on 5/3/14.

Case of the Claimant
3. The Claimant opened its case on 16/07/14 and called one Mr. Clement Ukachukwu Ofoegbu who testified as CW1 as its sole witness. Witness adopted his deposition dated 22/11/12 as his evidence in Chief and tendered 22 documents which were admitted in evidence and marked Exh C1- Exh C22.

4. The case of the Claimant as revealed by its Statement of fact and witness’ Evidence in Chief is that, the Claimant is a Registered Trade Union under the Trade Union Act, CAP T 14, LFN, 2004 formed for the purpose of catering for and protecting the interest and welfare of all Senior Staff, who are its members in companies and Organizations operating in Petroleum and Natural Gas Industry in Nigeria. The crux of this matter is that sometimes in 2007, there was negotiation by the 4th Defendant for its divestment from its downstream operations in Nigeria, which operations were constituted in its subsidiary known as Chevron Oil Nigeria Plc; that Claimant’s members with other Stakeholders and the Management of Chevron Oil Nigeria Plc did also negotiate a separation package agreement for the benefit of its employees, including the Claimant’s Members; that by the Separation Package Agreement dated 7/10/08 i.e. Exh. C 1 1-5, the terms of separation payout to employees was worked out and agreed upon between the parties for implementation upon the divestment of the 4th Defendant from Chevron Oil Nig Plc and that the commencement of the Separation Package Agreement was made contingent upon the consummation of the Sale and a Share Purchase Agreement made thereon; that there was also an agreement between the Claimant and the Management of Chevron Oil Nig Plc and other stakeholders to the Separation Package Agreement that the terms thereof would be governed by the Collective Bargain Agreement applicable in the year of consummation of the sale of the company i.e. 2009; that the said Collective Bargain Agreement though concluded on 01/04/2009 was to take effect from January, 2009 to December 2010 and it was agreed in this Collective Agreement that the Claimant’s members would receive an increment of 12.5% in the Total Annual emolument over and above what was paid under the 2007-2008 Collective Agreement; that the negotiation constituting the Collective Agreement had commenced with the former management of Chevron Oil Nig Plc in 2008 with the understanding that the outcome would form the basis for the Separation Package pay out and also employee remuneration for 2009-2010.

4. It was the case of the Claimant that on 23/03/09, the Managing Director of Chevron Oil Nigeria Plc in person of Mr. Reuben Half livid called a Town Hall Meeting with its employees including the Claimant's members and the Management Team from the 2nd and 3rd Defendants headed by one Alhaji Sayyu Idris Dantata were equally present wherein Mr. Half livid informed everyone at the meeting that the 3rd Defendant had fulfilled all the terms of the Share Purchase Agreement and that he has been instructed by the 3rd Defendant to introduce the Management team constituted by the 2nd & 3rd Defendants as the new owners of the Company and the Management would fully implement the terms of the Separation Package Agreement; that the name of the Company was subsequently changed to MRS Oil Nig Plc i.e. 1st Defendant on 02/12/2009; that in May, 2009, the 1st Defendant commenced the implementation and pay out of Exh C1 of the amount due to employees upon this payout; that it was observed by the Claimant's members that there was a short fall in the payment of the Separation Package payout which was occasioned by the non-implementation of the increment in employees remunerations collective agreement for 2009-2010 concluded between the Claimant and the 1st Defendant on 01/04/09; that upon a complaint lodged by the Claimant on behalf of its members as to their entitlement to the payment of the 12.5% short-fall, the 1st -3rd Defendants on one hand and 4th Defendant and the 5th Defendant have been shifting the obligation to pay same on one another; that the sum due to the Claimant’s members is =N=779.595.580.00 (5,296,165.63 dollars) which is the 12.5% shortfall in the Separation Package payout and that it is unfair labour practice on the part of the Defendants to deny the Claimant's members their duly agreed entitlements under the Separation Package Agreement.

5. Under Cross Examination, CW1 stated that the 12.5% claimed by the Claimant represents the short fall in the payment of the Separation Package and of their terminal benefits; that it is the benefit due to the employees of the 1st Defendant as at 23/03/09; that the Separation Package was negotiated for all union members of the 1st Defendant and that it is not true that non unionised members were also entitled to the separation package; that this action is instituted for the Claimant's members only; that the list of members of the Claimant is attached to the amended statement of facts; that the members were forcefully disengaged by the 1st Defendant; that as at the date of this action, members of the Union were no longer employees of the 1st Defendant; that as Branch Chairman of the Claimant at 1st Defendant he has the authority to represent these members; that the salary before the negotiation of the Separation Package was contained in the Collective Bargaining Agreement of 2007-31st December 2008 though not before the Court and that the Separation Package Agreement was negotiated before the Collective Bargain Agreement of 2009-2010; that the Management of the 1st Defendant, PENGASSAN and NUPENG negotiated the Separation Package Agreement; that the CBA 2009/2010 was completed on 1st April, 2010; that he does not have the minutes of the meeting of 1/4/09; that there was an Agreement to pay 12.5% at the time of negotiating and that the 12.5% increase in payout was part of the negotiated agreement; that the 2nd & 3rd Defendants were involved in the negotiation for the Separation Package Agreement and Collective Agreement of 2009/2010 and that One Musa Yahaya represented the 2nd & 3rd Defendants at the Negotiation.

6. According to the testimony of the witness, the settlement sum which was about 42,000,000 Dollars was paid to the Claimant's members who are beneficiaries; that the amount was paid into a Bank account which was handled by Board of Trustees; that members of the BOT were Management, representatives of the beneficiaries and representatives of the Union; that he is aware of the Share Purchase Agreements between the Defendants but that the Claimant was not party to it; that the Union did not go on strike to stop the Share Purchase Agreement and that separation package was the entitlement of the employees.

7. While being cross examined by the learned Counsel to 4th & 5th Defendants, CW1 testified that he knew the 1st Defendant as a public company which has always been a going concern; that it has its own Board of Directors; that Shareholders of 1st Defendant might change from time to time but 1st Defendant would continue to exist; that he knows a company called Chevron Nigeria Holdings Ltd but that he is not aware that it is now called MRS Africa Holdings Ltd; that the 2nd & 3rd Defendants hold 60% shares of the 1st Defendant; that he is aware that the 4th Defendant sold 100% of its shares in Chevron Nig Holdings Ltd to the 3rd Defendant and that the shares of the 4th Defendant was in Chevron Oil Nigeria Plc. Witness added that he had personal knowledge of the facts deposed to in his statement on oath; that his testimony is that the 4th Defendant held 60% of the shares of the 1st Defendant and sold same to 2nd & 3rd Defendants; that he did not know how those shares were sold; that he knew there was a Share Purchase Agreement; that he saw a copy of it filed in Court; that payment of Separation Package was not recorded in the Separation Package Agreement; that as at 17/3/09, the Union had opened negotiation on salary increase for 2009-2010 Collective Bargain Agreement; that wage reopener in Exh. C3 refers to the Collective Bargain Agreement that started 2009 - 31st December 2010; that there was a discussion for increase in wages under 2009/2010 CBA at the meeting...