Download PDF
JUDGMENT 1. The claimant commenced this suit by a writ of summons dated and filed on 9th September 2011 alongside his statement of facts, list of witness, witness statement on oath and list of documents. The reliefs sought by the claimant against the defendant are: (a) The sum of N162,876,439.00k (One Hundred and Sixty-Two Million, Eight Hundred and Seventy-Six Thousand, Four Hundred and Thirty-Nine Naira) being the amount equaling his outstanding retirement benefits, salaries and entitlements as at July 2006. (b) Interest on the said sum of N162,876,439.00 (One Hundred and Sixty-Two Million, Eight Hundred and Seventy-Six Thousand, Four Hundred and Thirty-Nine Naira) only, at the rate of 21% per annum from July 2006 until judgment is given and at 10% per annum until final liquidation of the judgment sum. (c) The sum of N5,000,000.00 (Five Million Naira only) being the cost of this suit. 2. In response, the defendant filed a memorandum of appearance alongside its statement of defence and other accompanying processes. The statement of defence was amended, to which the claimant filed a reply to the amended statement of defence dated 12th November 2013. At the trial, the claimant testified for himself as CW and tendered Exhibits C1 to C25. For the defendant, Mr Malachy Ndubuzor, the defendant’s Corporate Services Manager, testified as DW1 and tendered Exhibits D1 to D5. (The defendant’s application to call an additional witness failed.) At the close of trial parties, starting with the defendant, were asked to file their respective written addresses. The defendant did not so file. Aside from this, an order as to cost was not obeyed by the defendant. All of this forced the claimant to file his final written address first. The defendant remained in disobedience of the order of the Court as to cost and so was barred from taking any further part in the proceedings in accordance with Order 38 Rule 4 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017). This meant that the defendant could not even adopt its final written address even after filing same. Since the claimant filed first, the claimant’s final written address was filed on 17th July 2018, while the defendant’s was filed on 24th September 2018. The claimant’s reply on points of law was filed on 4th October 2018. Despite that the defendant could not adopt its final written address given its disobedience of this Court’s order as to cost, the submissions of the defendant in its final written address are reflected in this judgment. THE CASE OF THE CLAIMANT 3. It is the case of the claimant that he was employed by the defendant on 7th June 1977 and by 1983 had risen to the position of Chief Accountant in the defendant’s company. Due to some set-backs suffered by the defendant, the claimant was made Chairman of the Interim Management Committee of the defendant on 30th January 2004 to oversee the day to day running of the company in order to revive its dwindling fortunes; a position the claimant held until 2005 when the Committee was dissolved following the election of new directors. Subsequently, a labour crisis engulfed the defendant following the latter’s inability to pay its workers’ salaries for which the claimant was a target owing to the sensitive position he held as the defendant’s Chief Accountant. At the height of hostilities, the claimant was asked to stay off work by the defendant’s Managing Director, Mr Felix Matthys, pending the resolution of the crisis. Despite repeated letters from the claimant expressing his willingness to resume work, the defendant failed, neglected and refused to respond to the claimant. On 20th January 2011, the claimant effectively retired from the defendant. Following the refusal of the defendant to pay the accrued outstanding salaries, allowances and retirement benefits to the claimant, the instant suit was initiated. THE CASE OF THE DEFENDANT 4. The case of the defendant is that the claimant resigned his appointment with the defendant in 2001 after working for 24 years. The defendant then wrote to the claimant vide a letter dated 26th November 2002 reconfirming its acceptance of his retirement as well as informing him that it would no longer be necessary for him to continue coming to the office. The defendant accepted his retirement in good faith and issued cheques for his Final Terminal Benefits according. The defendant stated that after his retirement, the claimant kept reporting at its office, this time around not as staff of the defendant, but as a retiree trying to maintain a cordial relationship with the defendant with a view to securing an appointment as external Tax Consultant for the defendant, but regrettably, this could not be achieved before the defendant was plunged into boardroom crisis in July 2002. At the peak of this crisis, the claimant pleaded with the Management of the defendant that he should be allowed to continue using its office for some personal work, and was accordingly allowed. Sometime in 2004, while the claimant was still using the defendant’s offices, the Chairman of the Board of Directors, Brigadier E. E. Ikwue, due to the Management crisis that had continued to engulf the operations of the company, set up an Interim Management Committee to run the affairs of the defendant and the claimant who was visibly on site at the time was appointed Head of the Interim Management Committee. However, the Committee was dissolved in 2005 after the board was reconstituted at the instance of the Securities and Exchange Commission (SEC) at an Extra-ordinary General Meeting held on 6th April 2005 in Abuja, FCT. After the dissolution of the interim management committee which the claimant headed, he was required by the board to render account of his stewardship, which he failed to do till date. The claimant, however, continued to operate in an informal capacity without any portfolio ascribed to him officially by the Board of Directors. In July 2006, there was an industrial unrest in the company, as the staff and workers embarked on an indefinite strike demanding for the immediate removal of the claimant as the arrow head of the complaint against nonpayment of salaries, etc. When it became obvious that the claimant’s activities and conduct were becoming highly and inimical and injurious to the wellbeing of both staff and workers in general and the defendant in particular having failed to render account of his stewardship as the Chairman of the Interim Management Committee, the claimant was compelled to leave the premises of the company. 5. The defendant denies that the claimant is entitled to the sum of N162,876,439.00 as it will be logically impossible for the total terminal benefit of 24 years of service in the sum of N13,940,195,30 (Thirteen Million, Nine Hundred and Forty Thousand, One Hundred and Ninety-Five Naira, Thirty Kobo) to be due and payable as calculated by the claimant when indeed he had been paid his entitlements upon his retirement in 2001 and the appointment as Interim Management Committee Chairman was at best “ad hoc” for which allowances were claimed and deducted by the claimant himself at random. The defendant accordingly asked the Court to strike out the entirety of the claimant’s allegations against it as same are false and made out by the claimant in a bid to resort to use the machinery of the law to his benefit against the defendant. THE SUBMISSIONS OF THE CLAIMANT 6. The claimant started off with what he termed preliminary issues of law. To the claimant, there is the issue of the admissibility of Exhibit C23. That in proof of its case, the claimant had tendered the defendant’s letter dated 17th July 2006. When the said document was put to DW1, he objected to the authenticity of the document on two grounds namely: a manual alteration was made changing the word “ANNUALLY” to “MONTHLY”; and the date on the document was handwritten by the claimant. That when this Court asked DW1 how he knew that it was handwritten by the claimant, he said he worked for long with the claimant to know his handwriting. To the claimant, it is obvious that the defendant has made an allegation of forgery against him and it becomes imperative that such allegation be proved accordingly. The relevant question thus is whether the defendant has proved the allegation of forgery. The claimant answered in the negative. That while it is not in doubt that an undated document has no evidential value as held in Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025, DW1 had contended that although C23 is dated, same was forged as manual imputations were made on the document and the date was handwritten as against being typed. That this is a grave allegation and should be treated as one since forgery has been held as an act of fraudulently making a false document or altering a real document to be used as genuine as held in Osondu v. FRN [2002] 12 NWLR (Pt. 682) 483. That he who asserts must prove, citing section 136(1) of the Evidence Act 2011. That it is trite that this Court is not bound to accept an evidence of fraud or forgery when the defendant did not plead it, citing Adenle v. Olude [2002] 18 NWLR (Pt. 799) 413 at 428 and Jules v. Ajani [1980] 12 NSCC 222. 7. The claimant went on that contrary to the rules of pleadings, a cursory look at the “Defendant’s Amended Statement of Claim” filed on 21st May 2013 shows that the issue of forgery, which came up for the first time during cross-examination of DW1, was never raised by the defendant at any point during pleadings. When it came up during cross-examination, DW1 made a sweeping statement that the document was forged by the claimant who inscribed the word “MANUALLY” and date on the document were handwritten. His proof of the allegation was that having worked with the claimant for long, he knew the claimant’s handwriting. In respect of this particular alleged forgery, the claimant submitted that this Court is not bound to accept the viva voce of DW1, a non-expert witness, on the authorship/authenticity of C23. The testimony of DW1 based on an alleged familiarity with the claimant does not satisfy the requirement of calling a handwriting expert, learned in signature analysis, to conduct an examination into the vexed issue and present a report to the Court for possible adoption by the Court. Again, that no particulars of the alleged forgery were pleaded by the defendant to give room for timeous investigation. The issue of the alleged forgery was raised for the first time during cross-examination, when the claimant had closed his case and no opportunity to respond to the allegation accordingly. That it is trite that “evidence on a matter not pleaded cannot be received even if extracted in cross-examination”, relying on Slee Transport v. Oluwasegun [1971] 8 NSCC 470 at 476-477 and Nwabuba v. Enemuo [1988] 2 NWLR (Pt. 78) 81; [1988] 19 NSCC (Pt.1) 930 at 940. Furthermore, that if the defendant was desirous of having the Court make a finding in its favour on the authenticity of Exhibit C23, it ought to have specifically raised same in its pleadings and called an expert witness, learned in forensic and signature analysis to lead evidence on the vexed issue, referring to section 93 of the Evidence Act 2011. The claimant then prayed the Court to discountenance the objections raised by DW1 as to the admissibility of C23 and attach the requisite probative value and weight to it. 8. The claimant proceeded to submit three issues for the determination of the Court, namely: (1) Whether the claimant has adduced sufficient facts to prove that his employment with the defendant extended beyond 2001 and was determined in 2011. (2) Whether the NJIC Agreement is applicable to the claimant in calculation of his entitlements. (3) Whether the claimant is entitled to the reliefs sought as per his statement of facts being the total of all his entitlement, salaries and terminal benefits, having worked for the defendant for 34 years. 9. For issue (1), the claimant submitted that a major contention in the instant case is determining the year in which the employment relationship between the claimant and defendant came to an end. That while the claimant submits that he was in the defendant’s employment from 1977 to 2011, a period spanning over 34 years, the defendant asserts that the claimant only worked for 24 years, between 1977 to 2001. In proof of his claim that he remained an employee of the defendant as Chief Accountant after 2001 and the defendant held him out as its Chief Accountant even up to 2006, the claimant referred to Exhibits C3, C3A, C4, C7, C8, C9, C10, C11, C12, C13, C14, C15, C16, C17, C18, C19, C19A, C20, C21, C22, C23, C24 and C25. That the evidence of the claimant was neither controverted during cross-examination nor were the exhibits tendered in support of his claims impeached by the defendant. To the claimant, he remained firm and consistent during cross-examination as to the following facts: he never resigned in 2001 or 2002; he continued to operate in his official capacity as Chief Accountant of the defendant till July 2006; he never abandoned his duty post but was prevented from entering the defendant’s premises by workers of the defendant who were protesting against unpaid salaries; due to the sensitive position he occupied as the defendant’s Chief Accountant, he was a soft target for attack by the protesting workers; he was orally asked to stay away from the defendant’s premises by the then Managing Director/CEO, Mr. Felix Matthys, until resolution of the vexed issues; and despite writing letters expressing his willingness to return to his duty post, the defendant refused to recall him, causing him to forward his letter of resignation on 20th January 2011. 10. The claimant then asked: having held the claimant out to third parties as its Chief Accountant between 2004-2006, can the defendant at this point insist that the claimant resigned in 2002? In answer, the claimant referred to section 169 of the Evidence Act 2011, which provides: “When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing”. Also referred to is Okonkwo v. Kpajie [1992] NWLR (Pt. 226) 633. That from the exhibits before the Court, particularly Exhibits C8, C14, C15, C16, C19, C19A, C20, C21, C22, C23 and C25, it is clear that the defendant made countless representation to the claimant and third parties alike to the effect that the claimant was still in the employment of the defendant between 2002-2006. 11. The claimant went on that in stating the circumstances that led to his staying away from the premises of the defendant, he pleaded facts that following the violent protest undertaken by workers of the defendant over unpaid salaries, he was a soft target of attack by virtue of the sensitive position he held as Chief Accountant of the defendant. Consequently, he was orally directed by the defendant’s Managing Director, Mr. Felix Matthys, to stay away from the premises pending the resolution of the life threatening issues arising from the non-payment of salaries to workers. That this evidence, which remains uncontroverted by the defendant, was reaffirmed by the claimant during cross-examination. To the claimant, it is trite that a case is proved by either oral evidence or documentary/real evidence or a combination of all. That it is equally not the quantum of evidence/witnesses advanced by a party that determines the likelihood of success by that party but the quality of the evidence that matters, referring to Onwuka v. Ediala [1989] 1 NWLR (Pt. 96) 182 at 187 and Nigerian Army v. Major Jacob Iye1a [2008] 18 NWLR (Pt. 1118) 115. That although the defendant reserves the right to choose its witness, it must be noted that cases have been lost given the quality of the witness called by an employer. That the courts, particularly this Court, have always cautioned on the strategic choice of an employer’s witness. Hence, where an employer in exercising its freewill in the conduct of its case calls the wrong witness to contradict the evidence of the employee, such employer is bound to swim or sink with its choice, referring to Mr Charles Ughe1e v. Access Bank Plc unreported Suit No. NICN/LA/287/2014, the judgment of which was delivered on 10th February 2017. That the testimony of the claimant is that he was orally asked to stay away from work by the defendant’s Managing Director on 18th July 2006. In further proof of his claims, the claimant tendered Exhibit C7. The meeting where this oral directive was given to the claimant was between the claimant and the MD only. There is no evidence of equal stature and quality as that of the claimant from the defendant. The claimant then submitted that only the outgoing or incoming Managing Director of the defendant can orally testify and deny the claims of the claimant before the denial argument of the defendant can hold sway. Based on the foregoing, the claimant prayed the Court to find, hold and order that the evidence of CW has more probative weight than that of the defendant. 12. To the claimant, having established that he was neither suspended nor dismissed from the defendant’s employment but was orally asked to stay away from work on 18th July 2006 pending the resolution of the workers’ protest, he was still in the employment of the defendant till 28th January 2011. That in tendering Exhibit C3, he retired from the defendant after series of correspondence expressing his willingness to resume work with the defendant were not responded to. Hence, he voluntarily retired in his capacity as Chief Accountant and requested for payment of his outstanding salaries, emoluments and retirement benefits immediately. On the other hand, that the defendant in maintaining that the claimant resigned in 2001 tendered Exhibit D4. Paragraph 3 of Exhibit D4 reads thus: “Providing funds are available as currently calculated, we shall pay your retirement benefit as agreed of N14,169,374.35 before 26th April 2002 and, to allow completion of annual financial accounts, you will formally retire from your employment and vacate your office on 26th April 2002”. To the claimant, it is trite that where a contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not formed or binding unless and until those terms and conditions are complied with and fulfilled, citing Tsokwa Marketing Co. Ltd v. B.O.N Ltd [2002] 11 NWLR (Pt. 777) 163 and BPS Construction & Engineering Co. Limited v. FCDA [2017] LPELR-42516(SC). That from the above, it is clear that a contract can only be said to have crystallized if and when the specific terms and conditions attached to such a contract has either materialized, been undertaken or executed. That in the instant case as is gleaned from Exhibit D4, a contract binding the claimant to retire from his employment and vacate his office on 26th April 2002 would have crystallized if the following terms were fulfilled by the defendant as follows: payment of retirement benefit as agreed of N14,169,374.35; and the payment must have been effected before 26th April 2002. That there is no evidence before the Court that the defendant paid the agreed sum of N14,169,374.35 to the claimant before 26th April 2002. In fact, that DW1 during cross-examination admitted as follows: “the claimant accepted the calculation of his severance benefit but we have not paid him. At the time he was leaving, there was no money in the company to pay him”. Based on the foregoing admission made by the defendant through its sole witness, Mr. Malachy Ndubuzor, the claimant submitted that the contract envisaged by the claimant and defendant through Exhibit D4 did not crystallize as the conditions precedent contained in Exhibit D4 were not fulfilled by the defendant before 26th April 2002 or even till date. Based on the foregoing, that the Court should find, hold and order that following the non-fulfillment of the conditions precedent contained in Exhibit D4, the agreement that the claimant would retire from his employment and vacate his office on 26th April 2002 did not crystallize into a binding and enforceable contract. 13. The claimant continued that notwithstanding the above, the defendant seeks to impress it on this Court that Exhibit D2, that is the letter dated 28th August 2001, translates to a letter of resignation. The opening paragraph reads thus: “I have hitherto served the company for 24 years and a few months. Regrettably, however, I have not been able to secure a building I can retire to when I leave service”. That it is clear from this that the literal interpretation of the opening paragraph is clear, unambiguous and unequivocal; and the claimant was still in the service of the defendant and only sought payment of his full entitlement to that date “to enable me put up a befitting building for myself and my family”. The claimant then submitted that Exhibit D2 does not translate into a letter of resignation as the defendant is wont to portray in furtherance to its mischief. 14. The claimant urged the Court to note that the defendant incorporated Exhibit D2 into Exhibit D4. That the obvious implication to be drawn from such incorporation is that the defendant wanted Exhibit D2 to be bound by the effects and outcome of Exhibit D4. To the claimant, he demonstrated earlier that Exhibit D4 did not materialize into a binding and enforceable contract between himself and defendant; as such, Exhibit D2 should be discountenanced by the Court as suffering the same fate as Exhibit D4 and having no probative value at all. The claimant then prayed the Court to resolve issue (1) in his favour, and find, hold and order that the employment relationship between the claimant and defendant subsisted till 2011 when he retired from the defendant using Exhibit C3. 15. Issue (2) is whether the National Joint Industrial Council (NJIC) Agreement is applicable to the claimant in the computation of his entitlements. To the claimant, the NJIC agreement is one that covers the terms and conditions of service for all senior employees in the building and civil engineering industry in Nigeria of which he is one. That parties are ad idem that the NJIC qualifies as a collective agreement clearly defined in section 47(1) of the Trade Disputes Act Cap 432 LFN 1990. That while for a collective agreement to be enforceable, the employer must have adopted same either expressly or by implication otherwise the employer would not be bound by the agreement, this general rule admits of exceptions, citing The Rector, Kwara State Polytechnic v. Ola Adefila [2007] 15 NWLR (Pt. 1056) 42 at 91, where the Court of Appeal, relying on Ridehalgh [1931] 1 Ch. 301 at 303 and Ukaegbu v. Ugoji [1991] 6 NWLR (Pt. 196) 127 at 143, held that if parties follow a certain course of action plainly because of the existence of a collective agreement, such as commencing to pay wages at new rates, that provision of the collective agreement will be considered as incorporated in the contract of employment; a decision that is in line with estoppel, the rule of evidence, which precludes a person from denying what he has either expressly or by implication admitted. Also referred to is Batisen v. John Holt & Co. [1973] 8 CCHCJ/61, which held that where parties had worked upon the basis of a collective agreement, the court would not deny a worker of a remedy necessary to enforce it; and National Coal Board v. Galley [1958] 1 All ER 91; [1958] 1 WLR 16. That from this, it is clear that a collective agreement can be incorporated into the terms and conditions of an employee by the conduct of employer, citing Anthony Oguejiofor v. Siemens Limited [2008] 2 NWLR (Pt. 1071) 283, Akauve Moses Osoh & ors v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1, African Continental Bank Plc v. Benedict Nbisike [1995] 8 NWLR (Pt. 416) 725 and Union Bank of Nigeria Ltd. v. Edet [1993] 4 NWLR (Pt. 287) 288. 16. That in the instant case, the defendant in proving its modus operandi for calculating the retirement benefits of its workers tendered Exhibit D3 (Final Account dated 17th October 2001) which would have operated as the claimant’s final retirement package assuming the conditions precedent contained in Exhibit D4 had been fulfilled. Unfortunately, that during cross-examination, DW1 through whom Exhibit D3 was tendered was asked: “Look at Exhibit D3. How was the housing allowance calculated?” He answered as follows: “I don’t know. I don’t work in the Accounts Department”. That seeing that the defendant has expressed its helplessness in explaining how it arrived at Exhibit D3, the claimant proceeded to demonstrate to the Court that the defendant adopted the NJIC Agreement of 2001 tendered as Exhibit C6 in computing the claimant’s entitlement on account as at 17th October 2001: Claimant’s entitlement on account as at 17th October 2001 (All salaries and allowances as at the time of calculation) N (a) Basic Pay 114,592.00 (b) Housing Allowance 68,755.00 (60% x N114,592 - Article 28, NJIC 2001) (c) Transport Allowance 6,250.00 Total emolument 189,597.00 (d) Retirement benefit calculated at (3 months x N189,597 x 24.5): 13,935,379.50 Being a Management Staff, the defendant calculated the claimant’s retirement benefits using 3 months pay for each year of service. (e) Long service award 229,184.00 (Article 31, NJIC 2001 i.e. 2 Months basic salary x N114,592) (f) 4 weeks outstanding leave pay 114,592.00 (One month basic salary) (g) Current year leave pay and allowance 183,347.20 One month basic salary (leave pay) + Leave Allowance calculated at N114,592 x 12 x 10/100 x 6/12 (h) Balance on account 293,500.00 (Amount Owed) Entitlement on account 14,169,375.05 17. To the claimant, in calculating the above, the following can be deduced: • The Housing Allowance was calculated in accordance with Article 28 of the 2001 NJIC Agreement being 60% of the Basic Salary to arrive at N68,755.00 (Sixty-Eight Thousand, Seven Hundred and Fifty-Five Naira). • Long Service Award: The defendant granted the claimant the long service award in accordance with Article 31, 2001 NJIC Agreement. • Leave Allowance: The claimant’s leave allowance was calculated using 10% as stipulated in Article 12 of the 2001 NJIC Agreement. • Retirement Benefits: By Article 23 of the 2001 NJIC Agreement, retirement benefit is calculated on the basis of Total Emolument, defined as including Basic Salary, Rent Subsidy and Transport Allowance. • IPR/7: refers to Individual Pay Records for the 7th month. That it is clear from the above that the defendant adopted the 2001 NJIC Agreement substantially in computing the claimant’s Final Entitlement on Account. Having led the claimant to believe in the inclusion of the 2001 NJIC Agreement in computing the claimant’s Final Entitlement on Account, the claimant submitted that as a rule of equity the defendant cannot approbate and reprobate in respect of its representation as contained in its evidence before the Court, particularly Exhibit D3. Hence, the defendant who has by its acts, omissions, representations, intentionally caused or permitted the computation of the claimant’s Final Entitlement on Account in accordance with the 2001 NJIC Agreement should not be allowed to deny the truth of its representations as contained in Exhibit D3. Consequently, that the defendant must swim and sink with its documents, particularly Exhibit D3. The claimant prayed the Court to resolve the instant issue in favour of him; find, hold and order that the NJIC Agreement is applicable to his employment accordingly. 18. Issue (3) is whether the claimant is entitled to the reliefs sought as per his statement of facts being the total of all his entitlement, salaries and terminal benefits, having worked for the defendant for 34 years. To the claimant, having proved that the defendant adopted the 2001 NJIC Agreement, it is pertinent to consider whether the claimant is entitled to the sum of N162,876,439.00 (One Hundred and Sixty-Two Million, Eight Hundred and Seventy-Six Thousand, Four Hundred and Thirty-Nine Naira) only. Citing cases such as Nwankwo v. Kay-Kay Construction Limited [2014] LPELR-24336, Awuse v. Odili [2005] 16 NWLR (Pt. 952) 416 at 506, Adamu v. The State [1991] 6 SC 17, Ayorinde v. Sogunro [2012] 4-5 SC 150 and Ukeje v. Ukeje [2014] 11NWLR (Pt. 1418) 384 at 406 on evaluation of evidence, the claimant submitted that because he had full mastery of the facts leading to this suit and testified for himself on such facts, and DW1 on the other hand, under cross-examination, admitted that he is neither the current Managing Director, Chief Accountant nor Personnel Manager of the defendant, as such, was neither involved in the employment relationship between the claimant and the defendant nor associated with the activities giving rise to the suit, DW1 could not give evidence to match the testimony of the claimant. On this score, the claimant submitted that the testimony of DW which, does not match that of the claimant, is bound to fail. That the defendant is bound to rise and fall on the strength of its case as presented by its witness, citing Mr Charles Ughele v. Access Bank Plc (supra) and Pastor (Mrs) Abimbola Patricia Yakubu v. FRCN & anor unreported Suit No. NICN/LA/673/2013, the judgment of which was delivered on 24th November 2016. Hence, that since DW1 has not debunked the facts as stated by the claimant; as such, this Court should disbelieve the testimony of DW1, ascribe no probative weight to his evidence and accept the testimony of the claimant. That based on the foregoing, this Court having had the advantage of hearing and seeing the demeanour of witnesses has the discretion of believing the testimony of a witness as against that of another witness, urging the Court to believe the testimony of the claimant and disbelieve that of the defendant, citing Maiyaki v. State [2008] All FWLR (Pt. 419) 500 at 503-504 and Nnorodim v. Ezeani [2001] 5 NWLR (Pt. 706) 203. 19. To the claimant, in arriving at the sum of N162, 876,439.00, he considered the date of his retirement in 2011 as in Exhibit C3, his latest salary review as in Exhibit C8, the NJIC Agreement 2001 as in Exhibit C6 and the NJIC 2005 as in Exhibit C24. Having stated the above, the claimant in seeking the reliefs before this Court computed his entitlement as contained in Exhibit C4, Annexure A using the following parameters: Retirement Benefit (as contained in Note 1) Long Service Award (as contained in Note 2) Arrears of Salary (as contained in Notes 3 - 9) Outstanding Leave Pay and Allowance (as contained in Notes 10 - 13) Outstanding Overseas Leave Entitlement (as contained in Notes 14 -17) 20. The claimant then submitted thus: • In computing retirement benefit and arriving at N116,438,750, the claimant calculated his retirement benefits from June 1977 to 18th July 2006 using Article 23 of the NJIC Agreement 2005 which prescribes that the benefits be calculated on the basis of total emolument defined as Basic Salary, Rent Subsidy and Transport Allowance using 21/4 (two and one quarter months pay for each year of service) having worked for the defendant for over 21 years. • In computing long service award and arriving at N15,966,000.00, the claimant calculated his long service award using Article 31 of the 2005 NJIC Agreement which prescribes 9 months pay on Total Emolument (i.e. Basic Salary, Transport Allowance and Rent Subsidy plus Plaque). • Owing to the non-payment of salaries regularly, payment of salaries and allowances were done in bits and pieces. Hence, in respect of arrears of salary, the claimant’s Arrears of Salary being N40,056,302.00 less N16,000,000.00 was calculated and itemized in Notes 3, 4, 5, 6, 7, 8 and 9 of Annexure A dated 24th January 2011. • Regarding outstanding leave pay and allowance, the claimant’s leave entitlement for the year 2002 was recomputed using the 2001 NJIC Agreement to arrive at N371,494.00 which is one and the same figure computed by the defendant as per his June 2002 pay slip tendered and marked as Exhibit C19A. For outstanding leave pay and allowance for the years 2003 - 2004 as contained in Notes 10 and 11 of Annexure A, it was computed in accordance to Article 12 of the 2001 NJIC Agreement while the leave entitlement for the years 2005 to 2006 as contained in Notes 12 and 13 of Annexure A was computed in accordance to Article 12 of the 2005 NJIC Agreement. • In relation to outstanding overseas leave entitlement owed to the claimant as contained in Notes 14, 15, 16 and 17, it was computed using the Naira equivalent being N140 to $1. 21. On the enforceability of the offshore component, the claimant argued that by Exhibit C8 (letter of review of salary dated 14th July 2005), the defendant reviewed the claimant’s salary package to include among other things an offshore component of $5,000 (Five Thousand US dollars per month). To the claimant, his simple claim before this Court is for payment of outstanding salaries and allowances owed the claimant for services rendered under a contract of employment; as such, it does not qualify as an ex-facie illegal contract. What is more? That there is no pleading as to illegality from the defendant or statutory provisions or evidence before this Court to sway the mind of the Court to the existence of any illegality in the contract of employment, relying on West Construction Company Limited v. Santos Batalha [2006] 9 NWLR (Pt. 986) 595. Furthermore, that since the defendant benefitted from the services of the claimant as its Chief Accountant, it does not lie in the mouth of the defendant to fall back on the hollow defence or claim of illegality. More so, the defendant neither controverted nor challenged the totality of Exhibits C8 and is deemed to have admitted their contents, citing CBN v. Okojie [2015] LPELR-24740(SC) and Ejide v. Ogunyemi [1990] 3 NWLR (Pt. 141) 758. The claimant then urged the Court to find, hold and order that the contract of employment, particularly, the review of the claimant’s salary to include offshore component as stated in C8 is a legal, binding and enforceable contract. The claimant concluded by urging the Court to resolve all the issues in his favour grant the reliefs he claims as per the statement of facts. THE SUBMISSIONS OF THE DEFENDANT 22. The defendant adopted the three issues submitted by the claimant for determination. On issue (1) i.e. whether the claimant has sufficient facts to prove that his employment with the defendant extended beyond 2001 and was determined in 2011, the defendant maintained that the claimant resigned his appointment with the company on 17th October 2001, relying on Exhibit D3 being the final accounts on retirement set out by the claimant and signed by him. That in the said document and as calculated by the claimant, he set out at lines 5 and 6 thus: (a) Total emolument N189,597 x 3 x 24.5 (b) This amounted to N189,597 x 3 x 24.5 That these calculations are further confirmed in the claimant’s prior letter of 28th August 2001 (Exhibit D2). To the defendant, Exhibit D2 of the claimant was accepted and buttressed by the letter dated 19th April 2002 (Exhibit D4) of Mr Guy Edwards, who was acting Managing Director. The defendant continued that by its directive as set out in a letter dated 26th November 2002 signed by Mr Bode Emmanuel, Director of the defendant (Exhibit D5), the claimant was to stay away from the company. That the entitlements were not settled as the company was embroiled in internal crisis with Directors and management staff resigning from the services of the company. That in spite of the non-payment of these sums, the claimant as earlier set out in the statement of defence continued to present himself to the company with a view to obtaining service as a tax consultant and to facilitate his outstanding terminal benefits. That due to the presence of the claimant as the most senior staff on the premises he was by a circular dated 30th January 2004 i.e. Exhibit D1 appointed to chair an interim management committee of the company as Chief Accountant and to see to the management of the fragmented company. 23. That due to the re-organization of the company under the supervision of the Securities and Exchanges Commission a new board was put in place. The claimant was asked to render account of his stewardship of the Interim Management Committee from inception to date vide a letter dated 15th May 2005. The claimant never complied with this directive till today. Having regard to the above facts, the defendant reiterated that the claimant’s employment came to an end by voluntary retirement in 2002, citing Prof T. M. Yusuf v. Edo State University & ors [2001] 8 SCM 189 as to an employee’s right to voluntarily retire. The defendant reiterated that the claimant was indeed appointed as Chairman of an interim management committee due to the fact that there was no senior management staff to fit into that position. He was not reengaged as a full staff and his entitlement were paid on an “ad-hoc” basis from time to time particularly as he controlled the accounts and was a signatory to same. That the claimant remained away from the company from 18th July 2006. The situation of the defendant company has remained unresolved till today. 24. The defendant went on that the claimant’s financial claims are made up by the claimant for his own benefit. There was no board approval shown for those claims and so should be discountenanced by the Court. The said claims are as follow: Exhibit C7 Letter dated 20th November 2006 claiming the sum of N5,831,000.00 (Five Million, Eight Hundred and Thirty-One Thousand Naira). Exhibit C11 Letter dated 4th September 2007 from the claimant’s Solicitors for the sum of N21,015,000.00 (Twenty-One Million, Fifteen Thousand Naira). Exhibit C10 Claimant’s letter dated 7th April 2009 for the sum of N50,027,000 (Fifty Million, Twenty-Seven Thousand Naira). Exhibit C9 Claimant’s letter dated 30th October 2009 for the sum of N62,681,000 (Six Two Million, Six Hundred and Eighty-One Thousand Naira). Exhibit C12 Claimant’s letter dated 18th May 2010 for the sum of N69,567,000.00 (Sixty-Nine Million, Five Hundred and Sixty-Seven Thousand Naira). Exhibit C13 Claimant’s letter dated 1st December 2010 for the sum of N76,063,000 (Seven-Six Million, Sixty-Three Thousand Naira). To the defendant, these claims are false and exaggerated, same being discrepant and exaggerated without any basis and no Board approval as there was no board in place to approve them; as such, the defendant did not acknowledge them. The defendant urged the Court to disregard these exhibits, referring to Fatunbi v. Olanloye [2004] 12 NWLR (Pt. 887) 299 at 247 and Okezie Vctor Ikpeazu v. Alex Otti & ors [2016] 7 SCM 69 at 79, which respectively discountenanced exaggerated, flamboyant or recklessness evidence as well as evidence with discrepancies or conflicting evidence. The defendant then urged the Court to upheld its submission on issue (1). 25. Issue (2) is whether the NJIC agreement is applicable to the claimant in the computation of his entitlement. To the defendant, this Court should refuse in its entirety to be “hoodwinked” into accepting that the defendant at any time was “ad-idem” with the claimant or with the idea being canvassed on his behalf that the defendant adopted the NJIC agreement as being the basis for the claimant’s terms of employment or for the calculation of his entitlements. That the NJIC agreement qualifies indeed as a collective agreement by trade unions to guide their terms of employment; but there is nowhere in the claimant’s terms of employment where the NJIC document was adopted as part of his employment terms by the defendant. Indeed, that a careful look at the salient terms of the agreement i.e. NJIC agreement of 30th October 2001 as exhibited and tendered by the claimant as Exhibit C6 are as follows: Article 1 recognition The Employers’ Association recognizes the Senior Staff Association as representing Senior Employees except Executives on all matters affecting salaries, hours of work, leave and all other maters which may be agreed upon from time to time. In Article 2(a) The terms of this Agreement shall apply to Senior Staff as defined in Section 3(4) of the Trade Unions (Amendment) Act 1978 and or employees who have been designated as Senior Staff by their employer in the Construction Industry in Nigeria, excluding employees defined as “Worker” in Senior 90 of the Labour Act 1974. Article 5 Hours of work All Senior Staff employees shall work 40 hour week, 8-hour day 5-day week, Details of working hours shall be as expressed in the individual contract of service. Article 6 Night shift allowance Where it becomes necessary for a Senior Staff to go on a night shift, Night Shift Allowance should be paid at the rate of 121/2% of basic salary for the period concerned. Article 9 method of payment of salary (a) Salaries are to be paid to staff in accordance with the Senior Staff salary schedule which is prepared by Management. (b) Review of salary structure shall be subject to Government regulations. 26. To the defendant, all of these paragraphs of the NJIC agreement refer to staff that are clearly below the cadre of management staff into which the claimant falls. That the claimant cannot in one breath be the Chief Accountant of the company, signatory to the company’s accounts and the one who oversaw the management of the company and then turn around to down grade himself to “night shift worker” and all the other terms and conditions attached to the lower cadre of workers whose services are governed by the NJIC agreement. On the issue of a collective agreement as enshrined in the NJIC agreement, the defendant relied on Osoh & ors v. Unity Bank Plc [2013] 1 SCM 124 at 129 which distinguished a collective agreement from a contract. The defendant denied the self-serving computations of the claimant’s entitlements as set out in Exhibit D3. That the claimant picked out the claim for HOUSING ALLOWANCE and stated that it conforms with the NJIC agreement. That there is no figure placed on the retirement benefit in Exhibit D3. That it is unfortunate that the claimant seeks to rely on article 23 of the NJIC agreement which is not in any manner whatsoever reflected in the document earlier referred to. That as earlier stated, the claimant has failed and/or refused for his own benefit to tender his letter of appointment or any written proof of adoption of the NJIC agreement in his letters or compilation of payment at all. 27. To the defendant, The Rector Kwara State Polytechnic v. Ola Adefila [2007] 15 NWLR (Pt. 1056) 42 at 91 relied on by the claimant is most unhelpful to him for the following reasons: the claimant never tendered his letter of employment; and the compilation of his final remuneration (Exhibit C3) as prepared and signed by him never showed the adoption of the NJIC document or any adoption of its terms by the Board of the defendant company. 28. That the claimant tried to bring in the provisions of the Trade Disputes Act (TDA). Citing Dr Taiwo Oloruntoba-Oju & ors v. Professor P. A. Dopamu & ors [2009] 4 SCM 108 at 113, which defined trade dispute, the defendant urged the Court to discountenance any claim or reliance on the provisions of the NJIC agreement or the TDA in favour of the claimant. 29. Issue (3) is whether the claimant is entitled to the reliefs sought being the total of all his entitlement, salaries and terminal benefits having worked for the defendant for 34 years. Here the defendant responded thus: (1) In addition to the submission made out on behalf of the defendant and the fact that the 2001 NJIC agreement is not tenable as far as the claimant, a Chief Accountant and Management Staff is concerned, where the evidence placed before the Court is at variance with the provisions of the law, no matter how couched, the law does not avail the claimant. The claimant has tried to import the provisions of the NJIC agreement of 2001 as well as the same document of 2005 without distinguishing for the benefit of the Court the distinction in each of them. There is no evidence of adoption of the NJIC agreements by the defendant “substantially” as alleged or at all. (2) This is because the claimant’s entitlements are set out in the compilation made by him at Exhibit D3 as well as the letter of Mr Guy Edwards, the acting Managing Director of the defendant company, at Exhibit D4 in which the figure of N14,169,374.35 (Fourteen Million, One Hundred and Sixty-Nine Thousand, Three Hundred and Seventy-Four Naira and Thirty-Five Kobo) “as agreed” is the substance of the claimant’s claim as at the close of the claimant’s employment in 2002. These letters and the figures were not controverted. (3) There is nowhere in the compilation of the claimant’s financial entitlements in Exhibits D3 and D4 that there is an iota of foreign exchange components due to the claimant as a local Nigerian Staff. 30. That in West Construction Co. Ltd v. Santos Batalha [2006] 9 NWLR 9Pt. 986) at 596 cited by the claimant, the matter concerned the claim of a Portuguese national. That the respondent in that case had pleaded illegality of the contract. However, that the pleadings filed on behalf of the defendant herein have not set out any defence of illegality of contract. That the documents we have referred to which set out the claimant’s financial entitlement speak for themselves and do not admit to the alteration or terms proposed on behalf of the claimant, citing Part III section 25 of the Evidence Act. In considering the claimant’s case on the purported foreign exchange components, the defendant referred to Exhibits C16 and C17 addressed to the Canadian High Commission. That in the last paragraph of the Exhibit C16, the Director of the defendant stated thus: “A favourable consideration of his son’s request will be highly appreciated”. That this statement lends credence to the defendant’s statement that the foreign exchange component in the two letters were made out at the claimant’s instance to help him with his son’s application for a Canadian Visa and to show that the claimant is financially capable of settling his son’s fees, if he is admitted to study abroad. That the claimant now turned around to use the above letters to support his claims for foreign exchange components of his salaries when none was in his terms of employment, which were not tendered and which was not part of his claim for entitlement as set out by him and confirmed as already shown. That the failure of the claimant to set out the contract of employment and the terms of service, other than documents set out by the defendants (Exhibits D3 and D4), leave the Court with no other option but to accept these written and uncontroverted written documents. That the Court must, therefore, accept that all those composition of inflated payments and foreign exchange allowance must fail, citing Western Nigeria Development Company v. Abu [1966] 4 NSCC 172 at 196. 31. The defendant raised the issue of jurisdiction of the Court in hearing this case. That in the course of this address and in considering its position that the claimant resigned his appointment with effect from 2002, when the defendant asked him to stop work until his entitlements were met, the claimant was allowed to work in an “ad-hoc” manner and in calculating the date of his resignation in 2002 till when the claimant wrote his self-serving letter of 2011 and proceeded to Court, this was a period of 9 years. That the claim in the matter has by this time become statute-barred. That the claimant may say that there was an acknowledgement of his letter of resignation. That this was a cursory acknowledgment of his letter of resignation without any admission of indebtedness in line with the claims set out by the claimants in 2011; the statute bar is, therefore, conclusive, citing Linus Ihesiaba v. Young Shall Grow Motors Ltd [2016] LPELR-42257 RATIO 2 and Lamulatu Shasi & anor v. Madam Shadia Smith [2009] 12 SCM (Pt. 2) at 149. To the defendant, the Court may wish to invite parties to address it on the issue limitation as a bar to the Court’s jurisdiction, citing Chief Adekunle Agbakin Oro & ors v. Joseph Akanbi Falade & ors [1995] 5 NWLR (Pt. 385) at 389. Finally on the point of jurisdiction, the defendant referred to Nasir v. Civil Service Comm. & ors [2010] 2 SCM 105 at 123, which held thus: In this regard, it is now firmly settled that issue of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental: It is a point of law and therefore, a Rule of court, cannot dictate when and how, such point of law, can be raised. Being fundamental and a threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this court. In conclusion, the defendant urged the Court to dismiss the case of the claimant. THE CLAIMANT’S REPLY ON POINTS OF LAW 32. In his reply on points of law, the claimant raised a preliminary issue i.e. the validity of the defendant’s final address. To the claimant, the Courts have over time reiterated the position of the law in relation to the validity of court processes filed without proper identification of the counsel who signed the said court process, citing GTB v. Innoson Nigeria Limited [2017] LPELR-42368(SC), where the Supreme Court in putting paid to the contentious issue of the validity of court processes which do not identify the particular legal practitioner who signed same had this to say: In both instances it is not clear, ex facie, whether any legal practitioner signed or settled the written addresses. The processes had on them at the signature column a signature, each that cannot be ascribed to any of the four persons, including the names of Prof J. N. M. Madugha, FCILS, FCM; Dr. N. J. Maduike-Ekwe, Ph.D; E. C Ofime, Esq., LLB and C. Dimazoro-Okeke (Mrs.), LLM, who apparently are Legal Practitioners...The decision of this Court in SLB Construction Ltd v. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name. The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out. That in the instant case, a cursory look at the signature page of the defendant’s final address shows that the following names were listed underneath the signature: Chief Mary M. Bassey, Louis N. Mbanefo, Esq, Esther O. Akinrinde-Rabo (Mrs), Martins U. Igwe Esq. That the name of the legal practitioner who signed the final address cannot be identified. The claimant then submitted that a court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. That based on the decision of the Supreme Court in GTB v. Innoson Nigeria Limited (supra), the disputed court process (the defendant’s final address dated) is incompetent and should be discountenanced accordingly, relying further on Umeanozie v. FBN Plc [2016] LPELR-41038, SLB Consortium Ltd v. NNPC [2011] 9 NWLR (Pt. 1252) 317, FBN Plc v. Maiwada [2012] LPELR-9713(SC) and Ministry of Works & Transport, Adamawa State v. Yakubu [2013] 6 NWLR (Pt. 1351) 481. The claimant then urged the Court to strike out the defendant’s final written address as being incompetent. 33. The claimant then proceeded to address what e termed points of law. First is the effective date of a notice of resignation of appointment. That the defendant labored extensively to infer that the claimant’s retirement took effect in 2002, relying Yesufu v. Gov. of Edo State [2001] 13 NWLR (Pt. 731) 517. Again, that the defendant sought to impress that the claimant’s claims are exaggerated and relied on Fatunbi v. Olanloye [2004] 12 NWLR (Pt. 887) 299 at 247 and Okezie Victor Ikpeazu v. Alex Otti [2016] 7 SCM at 69. To the claimant, in Yesufu, the appellant’s employment had statutory flavor as he was appointed as the Pro-Chancellor and Chairman of the Governing Council of the Edo State University, Ekpoma (now Ambrose Alli University). Owing to political pressures on the 1st respondent, the Governor of the State, the latter sought to dissolve and reconstitute the Governing Council of the University but was reluctant to do so whilst the appellant held forte as Pro-Chancellor. Hence, the appellant was advised by the Governor to resign before the dissolution of the Governing Council. The appellant tendered his resignation letter to the Governor who dissolved the Council the same day he received the appellant’s resignation letter. Shortly after, the appellant initiated an action challenging the powers of the Governor to dissolve and/or reconstitute the Governing Council. The respondents filed a preliminary objection challenging the locus standi of the appellant to institute the action having resigned his appointment before the dissolution and reconstitution of a new Governing Council.That in determining this all important issue of locus standi, the Supreme Court reproduced the letter of resignation in page 525 and had this to say in page 532: Coming back to the question if the locus standi of the appellant, the answer lies in the interpretation to be given to the letter the appellant wrote to the Governor on 2nd July 1992…Having regard to the contents of appellant’s letter of 2nd July 1992, particularly the portion of it italicized by me in this judgment, the appellant, by that letter, effectively resigned his appointment as Pro-Chancellor and Chairman of Council of Edo State University. To the claimant, the authority of Yesufu cited by the defendant has no bearing howsoever with the live issues before this Court. That in the instant case, the only letter of retirement before this Court is Exhibit C3 dated 20th January 2011. The claimant then reiterated its argument as to the true import of Exhibit D2. 34. The claimant went on that in Fatunbi, the suit was instituted by the appellant who contested that the 1st respondent being of the Oshin Family did not belong to the ruling house in Igbogila. Hence, he approached the Court to declare the 1st respondent’s candidature null and void. The Court held that owing to the evidence before the Court, particularly the oral testimony of the appellant’s witnesses at the trial court, the Oshin Family was the only Ruling House from which Baale of Igbogila could emanate. Hence, the Court held that the stance of the appellant stating the opposite despite being confronted with undisputed evidence “is so exaggerated that it enters into the realm of flamboyancy or recklessness and petulance or appears as an affront to reason and intelligence and no credibility ought to be accorded to it”. That in the instant case, the claim of the claimant is for recovery of money owed him by the defendant arising from the employment relationship. That this claim is predicated on the documents which are all before this Court for consideration, citing CDC (Nig.) Ltd v. SCOA (Nig) Ltd [2007] 6 NWLR (Pt. 1030) 366, which held that documentary evidence, being permanent in form, is more reliable than oral evidence and it is used as a hanger to test the credibility of oral evidence; and Bunge v. Gov. Rivers State [2006] 12 NWLR (Pt. 995) 629 and Awote v. Owodunni (No.2) [1987] 2 NWLR (Pt. 5) 366. The claimant the sprayed the Court to discountenance the submissions of the defendant in its entirety. 35. On the effect of not tendering the claimant’s letter of employment, the defendant had suggested that the claimant’s reliefs ought to be dismissed for failure “...to tender his letter of appointment or any written proof of adoption of the NJIC agreement in his letters or compilation of payment at all”. To the claimant, although the general position of law is clear as stated in Morohunfola v. Kwara State College of Technology [1990] 4 NWLR (Pt. 145) 506, exceptions abound, referring to NIIA v. Ayanfalu [2007] 2 NWLR (Pt. 1018) 246, which held that where the fact of the existence of the contract is admitted and the conditions of service was put in evidence, that relieves the duty of tendering the letter of employment. That the instant case admits of this exception. That although the claimant did not tender his letter of employment before this Court, the state of pleadings as settled shows evidently that parties are ad-idem that there was in existence a contract of employment, relying on Mrs Rose Efuribe v. Dr G. M Ugbam [2010] LPELR-4079; and referring to the introductory paragraphs of the parties’ pleadings (paragraphs 1 to 3 of the statement of facts; and paragraph 1 of the amended statement of defence, which admitted paragraphs 1 to 4 of the statement of facts). That what is admitted needs no further proof, relying on Oruwari v. Osler [2012] LPELR-19764(SC), Attorney-General of Anambra State v. Onuselogu Enterprises Ltd [1987] 4 NWLR (Pt. 66) 547, Titiloye v. Oladipo [1991] 7 NWLR (Pt. 205) 519, Ugochukwu v. CCB Ltd [1996] 6 NWLR (Pt. 456) 524 and Buhari v. Obasanjo [2005] NWLR (Pt. 258) 1604. That the defendant not having traversed/denied the claimant’s pleadings on the issue of the existence of an employment relationship between parties but admitted as seen in paragraph 1 of its amended statement of defence is deemed to have admitted same as the correct state of affairs, citing Oghona v. Eke [1998] 10 NWLR (Pt. 568) 73 and Okobia v. Ajanya [1998] 6 NWLR (Pt. 559) 358. The claimant then prayed the Court to find, hold and order that the non-tendering of the claimant’s letter of employment does not operate to deny the existence of an employment relationship between the parties. 36. On the effect of unchallenged/uncontroverted documentary evidence before the Court, the defendant had prayed the Court to discountenance the reliefs sought by the claimant on grounds that the amount is a composition of foreign exchange allowances. To the claimant, it is trite that any evidence on facts outside pleadings must be jettisoned as they go to no issue, citing George v. Dominion Flour Mills Limited [1963] 1 SCNLR 117, NIPC Ltd v. The Thompson Organisation [1969] 1 All NLR 138 and Nsirim v Nsirim [1990] 3 NWLR (Pt. 138) 285 at 299. That in proof of his case, the claimant tendered documentary evidence (particularly Exhibits C8, C16, C23) in support of the reliefs sought before this Court, which were neither challenged nor controverted by the defendant during trial. That when the evidence of the claimant is unchallenged, he is entitled to judgment, citing Rivers State Housing & Property Development Authority v. Owakah [2010] LPELR-4899 and Ndulue v. Ojiakor [2013] 8 NWLR (Pt. 1356) 2311 SC. That it, therefore, follows that the defendant, not having challenged the documentary evidence of the claimant either in its pleadings or during trial, cannot seek to introduce facts which are alien to the case before the Court. On this score, that the claimant, based on the uncontroverted evidence (oral and documentary), has satisfied the requirements of section 134 of the Evidence Act and is entitled to the reliefs sought. 37. On whether address of counsel can replace/alter evidence before the Court, the claimant submitted that the address of a counsel should be based strictly on facts canvassed by both parties before the Court but same does not amount to evidence, citing Agu v. Madunemele [2016] LPELR-40176. That the address of counsel is no more than a handmaid in adjudication and cannot take the place of the hard facts required to constitute credible evidence. No amount of brilliance in a final address can make up for lack of evidence to prove and establish or to disprove and demolish points in issue, citing Iroegbu v. MV Calabar Carrier [2008] 5 NWLR (Pt. 1079) 147 at 167, Michika LG v. National Population Commission [1998] 11 NWLR (Pt. 573) 201 and Tapshang v. Lekret [2000] 13 NWLR (Pt. 684) 381. The claimant then condemned the defendant’s counsel’s attempt to give evidence through its final address, praying the Court to discountenance the new facts and issues raised by the defendant’s counsel and grant the reliefs sought by the claimant. 38. The defendant had raised the issue of jurisdiction with particular reference to Statute of Limitation. To the claimant, although the defendant failed to refer this Court to relevant statutory provisions in proof of its claim, it is quite imperative to set the records straight. Accordingly, that the estimation of the defendant that the claimant’s rights to seek redress has since been extinguished is obviously stemming from the defendant’s stale calculation that the employment relationship between parties ended in 2002. The claimant’s position is that the employment relationship between the parties continued even after 2002 following the failure/inability of the defendant to fulfill the conditions precedent contained in Exhibit D4, citing Tsokwa Marketing Co. Ltd v. BON Ltd [2002] 11 NWLR (Pt. 777) 163 and BPS Construction & Engineering Co. Limited v. FCDA [2017] LPELR-42516(SC). 39. The claimant went on that cause of action is the entire set of circumstances giving rise to an enforceable claim. It is, therefore, the fact or combination of facts which gives the plaintiff his cause of complaint and the consequent damage, citing Ibrahim v. Osim [1988] 3 NWLR (Pt. 82) 257 and Capital Ban Corp Ltd v. Shelter Savings & Loans Ltd [2007] All FWLR (Pt. 352) 1695 SC at 1706. That it is trite that time begins to run when the cause of action arises, citing Fadere v. AG Oyo State [1982] 4 SC 11 at 24-25, Araka v. Ejoagiru [2000] 15 NWLR (Pt. 692) 684 and Alhassan Duzu v. Yunusa [2010] 10 NWLR (Pt.1201) 80 at 124. The claimant then submitted that the cause of action arose in 2011 when he realized that the defendant was no longer desirous of recalling him to his duty post. That this is more evident as the first correspondence the defendant ever communicated to the claimant was in 2011 through its letter dated 31st January 2011 (Exhibit C5), urging the Court to so hold. 40. That assuming but not conceding that this Court finds and holds that the cause of action arose in 2006 when the claimant was asked to stay away from the defendant company, the claimant’s suit is not caught by the six (6) year limitation clause having instituted his suit in 2011. 41. On the withdrawal of suit from the High Court of Lagos State to this Court, the claimant submitted that he has been diligent in prosecuting his claims timeously as the Court records will even show that the claimant is always in Court. That prior to the Third Alteration of the 1999 Constitution, the claimant had approached the High Court of Lagos State, Igbosere, for a determination of his rights in relation to same issues and facts in the instant case. The case was known and identified as Suit No. LD/298/2011 and was pending before Hon. Justice D. T. Okwuobi (Mrs). However, upon the alteration of the Constitution and the inclusion of the this Court as a superior court of record, the jurisdiction of the High Court of Lagos State to adjudicate over the instant case became extinguished, necessitating the suit to be filed before the National Industrial Court. Initially, the suit was assigned to Hon. Justice Agbadu-Fishim. Trial was on going before the Court but following the transfer of His Lordship, outside the Lagos Division of this Court, the matter had to commence de novo before the present Judge. The claimant relied on Sifax (Nig.) Ltd v. Migfo (Nig) Ltd [2015] LPELR-24655, affirmed by the Supreme Court in Appeal No. SC/417/2015 on 16th February 2018; and submitted that upholding the defendant’s position that the instant suit is statute-barred will create an alarming situation where pending cases caught by the effluxion of time and objection to their determination on merit on lapse of time would meet undeserved grief. That it also has the capacity of setting a dangerous precedent of stampeding the Court to operate and grapple with time which may lead to sacrificing justice on the altar of neck-breaking speed. The clamant thus prayed the Court to discountenance the submissions of the defendant, find and hold that the reliefs sought by the claimant survive the six year limitation restriction. The claimant concluded urged the Court to discountenance the defendant’s submissions and all authorities relied on as they are inapplicable to the instant case, distinguishable and grossly misconceived. COURT’S DECISION 42. After due consideration of all the processes and submissions of the parties, I start off with the claimant’s call, relying on GTB v. Innoson Nigeria Limited [2017] LPELR-42368(SC), that the defendant’s final written address be struck out as incompetent on the ground that of the names of listed legal practitioners written on it, none was indicated as the signatory. There are four names listed at the conclusion of the defendant’s final written address i.e. Chief Mary Bassey; Louis N. Mbanefo, Esq; Esther O. Akinrinde-Rabo (Mrs); and Martins U. Igwe, Esq. There is a signature on top of these names; but there is no tick against a name to show or indicate the person of these four persons who signed the final written address. To this extent, the instant case approximates to GTB v. Innoson Nigeria Limited. However, a closer look at the defendant’s final written address in the instant case will show that the practicing seal/stamp on the written address is that of Esther Opeyemi Akinrinde, who from the records appeared as support counsel initially as Miss E. Akinrinde and later as Mrs E. O. Akinrinde-Rabo. See the record of proceedings of this Court of 16th May 2018, 25th September 2018 and 31st October 2018. Of all the four names listed on the defendant’s final written address, the signature on it bears resemblance to Esther Opeyemi Akinrinde, the name on the practicing seal. It is thus not difficult to come to the conclusion that she signed the final written address. I so find and hold. 43. This aside, a similar issue came up before this Court in Olumide Seye Otusote v. National Union of Hotels and Personal Services Workers unreported Suit No. NICN/LA/126/2014, the judgment of which was delivered on 9th October 2018. This is what this Court held at paragraphs 40 and 41: 40. The second ground of the defendant’s objection is that the stamp and seal on the claimant’s final written address has a name different from the signatory of the address. I took a look at the claimant’s final written address on record. It is dated 14th June 2018. Two names, Dr Olubukola Olugasa and Olawunmi Odunibosi (Mrs), are indicated on it; and it is signed. But there is no indication whatsoever as to who between the two signed the address. As for the stamp and seal, the name on it is Olugasa O. Adeyemi. This name certainly does not correspond with any of the two names (except for the word “Olugasa”) on the address. The defendant accordingly has a valid point here. Counsel who adopted the claimant’s final written address, however, pointed out to the Court on the day of adoption that Dr Olubukola Olugasa and Olugasa O. Adeyemi are one and the same person. Though it is common knowledge, and so judicial notice may be taken, of name abbreviation in Nigeria, I have difficulty agreeing with the claimant’s counsel here. The letter “O” used as abbreviation in the name “Olugasa O. Adeyemi” can mean anything; and I do not know where “Adeyemi” came from or how it coincides as belonging to Dr Olubukola Olugasa, the counsel on record. And as a last point, the norm is that when writing out names, surnames come, or are written, last. So which one is counsel’s surname: “Olugasa” or “Adeyemi”? 41. All of this even aside, the problem is that there is no rule of law that says an address must be signed; even if there is one, no penalty is laid down where it is not so signed. To start with, while addresses are important, the courts having noted this fact, there is no duty on counsel to file any written address; indeed, written addresses can be dispensed with. See Bosma & ors v. Akinole & ors [2013] LPELR-20285(CA) and Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA). As for the requirement of stamping and sealing all court processes including written addresses, the rule is that the defaulting counsel must be given the opportunity to rectify the anomaly. There isn’t anything left in the trial of this case other than judgment to warrant the delay in terms of an adjournment to enable counsel rectify the issue of stamping and sealing. This being so, and given section 12 of the National Industrial Court Act (NIC) 2006, which enjoins that this Court can be informal, I do not think that any injustice would be done simply by overlooking just this once the anomaly associated by the claimant’s stamping and sealing of his final written address. I do not accordingly agree with the defendant that the claimant’s final written address should be struck out… 44. I adopt this reasoning. For emphasis, however, I need to add to it. Unlike originating processes where under the Rules they are required to be signed by either counsel or the litigant (see, for instance, Order 3 Rule 10(c)(i) of the National Industrial Court (Civil Procedure) Rules 2017), there is no such requirement under the whole of Order 45 dealing with filing of written addresses under the Rules of this Court. Secondly, final written addresses of today took the place of oral addresses in the days of yore. Thinking aloud: would an oral address require any signature or oath before it was used as such? After a very careful reading of GTB v. Innoson Nigeria Limited, I do not think that the Supreme Court intended its statement as to signing of written addresses to be taken as ratio since the appellant/applicant in that case succeeded nonetheless on the application it had before the Supreme Court. And lest I forget, as this Court held in Mr Saheed Saula v. Atiku Security Company Limited unreported Suit No. NICN/LA/258/2013, the judgment of which was delivered on 30th October 2018: I note that a litigant is not under compulsion to file any written address (Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA)); and that the written address is designed to assist the Court and so in some circumstances it may be a matter of formality - it may not diminish or add strength or weakness in a party’s case. See Bosma & ors v. Akinole & ors [2013] LPELR-20285(CA) and Ndu v. The State [1990] 7 NWLR (Pt. 164) 550 SC. Where the facts are straight forward and in the main not in dispute, the trial judge would be free to dispense with the final address given that cases are normally not decided on addresses but on credible evidence; and no amount of brilliance in a final speech can make up for lack of evidence to prove and establish or else disprove and demolish points in issue. See Niger Const. Ltd. v. Okugbene [1987] 2 NSCC 1258. In the instant case, therefore, I find and hold that the defendant’s final written address is not incompetent. 45. The defendant raised the issue of jurisdiction, arguing that this case is statute-barred. The argument of the defendant is that given their position that the claimant resigned his appointment with effect from 2002, and they allowed the claimant to work on an ad hoc basis, the period to 2011 when the claimant wrote his self-serving letter of 2011 is 9 years. This to the defendant makes this case statute-barred. I need not waste time on this warped reasoning. The defendant itself stated that it allowed the claimant to work in an ad hoc manner after 2002. The claimant’s relief (a) is for “N162,876,439.00k…being the amount equaling his outstanding retirement benefits, salaries and entitlements as at July 2006”. This suit was filed on 9th September 2011. The period thus is less than 6 years. Section 8 of the Lagos State Limitation Law Cap L67, Laws of Lagos State, 2003 Vol. 5 lays down 6 years as the limitation period. The claimant’s case is accordingly not statute-barred. I so find and hold. 46. Exhibit C23 is purportedly a letter from “F. W. Mathys, lic.rer.pol” (Ag. MD/CEO of the defendant) to the Head (Consumer Banking). Wema Bank wherein the defendant pledged to Wema Bank the “domiciliation of monthly payment and allowances of Mr Joseph O. Adegun of our institution”. This statement is then followed by a table where for the phrase “ANNUAL SALARY”, the word “ANNUAL” is cancelled with pen and the word “MONTHLY” is handwritten as replacement. There is a mark/signature by the alteration. DW1 during cross-examination was shown Exhibit C23 and he testified thus: I do not agree that Exhibit C23 is a document from Ag. MD/CEO. It is not on our letter headed paper and it does not conform with how the defendant writes its letters. It is a computer generated letter headed paper. Exhibit D5 just shown to me in comparison to Exhibit C23 is markedly different. The dating in Exhibit C23 is in handwriting. We do not date in handwriting. Our letters do not have physical stamp. At best we use seal depending on the office we are writing to. Exhibit C23 has an alteration in handwriting. The handwriting on Exhibit C23 is Mr Adegun’s. I know Mr Adegun’s handwriting. I worked with him for a very long time. In his final written address, therefore, the claimant raised the issue of admissibility of Exhibit C23 arguing that by the testimony of DW1, it is obvious that the defendant has made an allegation of forgery against the claimant and it becomes imperative that such allegation be proved accordingly, which unfortunately the defendant did not so prove. I took a closer look at Exhibit C23 and compared it with other exhibits before the Court. I agree that the physical stamp (of the defendant) on Exhibit C23 after the name of the signatory is not so done as far as Exhibits D1, D4, D5, C21 and C22 are concerned. The date on Exhibit C23 is handwritten, but this is not the case regarding Exhibits D1, D4, D5, C21 and C22. The letters “lic.rer.pol” after the name of F. W. Mathys in Exhibit C23 are not reflected after his name in Exhibit C22. Exhibits C22 and C23 are supposedly signed by F. W. Mathys. Lastly, DW1’s testimony: “The handwriting on Exhibit C23 is Mr Adegun’s. I know Mr Adegun’s handwriting. I worked with him for a very long time”, is unchallenged. The argument of the claimant that the evidence of DW1 here relates to issues of fraud that were not pleaded is irrelevant since it was the claimant who had asked DW1 questions on Exhibit C23, invariably to have DW1 confirm the authenticity and evidential/probative value of the contents of Exhibit C23. That it backfired is not for the claimant to now resort to rules of pleadings. I agree with DW1 that Exhibit C23 has properties that make it suspect. The claimant may be the beneficiary of Exhibit C23, but it was not addressed to him nor is he the maker. Now that the authenticity of Exhibit C23 has been raised given its rejection by DW1 (the witness of the purported maker of the exhibit) under cross-examination, I cannot ascribe any evidential value to Exhibit C23. It will accordingly be discountenanced for purposes of this judgment. I so find and hold. 47. I now proceed to the merit of the claimant’s case. By relief (a), the claimant is praying for “the sum of N162,876,439.00k…being the amount equaling his outstanding retirement benefits, salaries and entitlements as at July 2006”. Paragraph 17 of the statement of facts (and as supported by paragraph 19 of the statement on oath of the claimant of 25th September 2013) also indicates that the said N162,876,439.00 is the outstanding terminal benefits, salaries and entitlements of the claimant till 2006. Meanwhile, in Exhibit C3 dated 20th January 2011, the letter of the claimant headed “Notice of Resignation and Retirement From the Services of G-Cappa Plc”, the claimant complained that the defendant refused to pay his “outstanding salaries and allowances since July 2006 despite [his] not having been disengaged from the services of the company”. Exhibit C4 at the last but one paragraph of the second page also states that the N162,876,439.00 is “his outstanding terminal benefits, salaries and entitlements as at 2006”. In paragraph 7.7 of his written address, the claimant submitted that in arriving at the sum of N162, 876,439.00, he considered the date of his retirement in 2011 as in Exhibit C3, his latest salary review as in Exhibit C8, the NJIC Agreement 2001 as in Exhibit C6 and the NJIC Agreement 2005 as in Exhibit C24. The claimant had in paragraph 5.3(a), (b) and (f) of his written address respectively indicated that his evidence is that he never resigned in 2001 or 2002; he continued to operate in his official capacity as Chief Accountant of the defendant till 2006; and despite writing letters expressing his willingness to return to his duty post, the defendant refused to recall him, causing him to forward his letter of resignation on 20th January 2011. Exhibit C3 and paragraphs 7.7 and 5.3(f) in this sense are diametrically opposed to relief (a) as supported by paragraph 17 of the statement of facts and paragraph 19 of the deposition of 25th September 2013. The issue here is: by relief (a), the claimant is claiming for “…N162,876,439.00k…being the amount equaling his outstanding retirement benefits, salaries and entitlements as at July 2006”; how come then that the claimant would in paragraph 7.7 of his written address state that this same sum is calculated based on a consideration of the date of his retirement in 2011? In other words, how can the claimant in his reliefs be claiming for a sum as at 2006, and later change the date to be 2011? The law is that a claim is circumscribed by the reliefs claimed; and the duty of the claimant is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47. Since a claim is circumscribed by the reliefs claimed, it cannot be the case of the claimant that he is entitled to anything beyond 2006 as far as relief (a), his main relief, is concerned. The talk of claiming up to 2011 when he retired does not accordingly arise since relief (a) delimits his claim to only 2006. I so find and hold. 48. The claimant’s case is a claim for liquidated sums of money i.e. special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), Anyaegbunam v. Osaka [1993] 5 NWLR (Pt. 294) 449, Obayagbona v. Obazee [1972] 5 SC 247 and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) must be specifically pleaded, claimed and proved specially by concrete evidence. But before getting to the point of proof, the claimant must show an entitlement to the claims. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. Two issues arise here. First, the claimant claims to 2006, but the defendant argues that this cannot be given that the claimant had retired in 2002. Second, the claimant in the main hinges his claim on the National Joint Industrial Council (NJIC) Agreement on Terms and Conditions of Service for All Senior Employees in the Building and Civil Engineering Industry in Nigeria of 2001 and 2005. 49. To take the first issue, it has to be resolved whether the claimant was in the employment of the defendant up 2006 to warrant his claim for “outstanding retirement benefits, salaries and entitlements as at July 2006”. The claimant did not tender his letter of employment and the defendant made an issue of it, albeit wrongly since the majority decision of the Supreme Court in Okoebor v. Police Council & ors [2003] 12 NWLR (Pt. 834) 444 has dispensed with the strict requirement of tendering the contract of employment once other pieces of evidence are before the Court showing the fact of employment. In the instant case, the fact of employment is not in doubt. Exhibits D2 (letter from the claimant requesting his “full entitlement to date”), D3 (the claimant’s final account on retirement as computed by the defendant), D4 (the defendant’s proposals for early payment of the claimant’s entitlements) and D5 (a “thank you” letter from the defendant to the claimant informing the claimant that it will no longer be necessary for him to come to the office), all tendered by the defendant are pointers to the fact of employment. In fact, the parties are not in doubt as to the fact of employment, the only question in issue is when the said employment ended. When the claimant’s employment came to an end can only be determined upon the construction of the relevant exhibits before the Court. 50. The claimant had written Exhibit D2 (same as Exhibit C18) dated 28th August 2001 to the defendant. It states thus: I have hitherto served the company for 24 years and a few months. Regrettably, however, I have not been able to secure a building I can retire to when I leave service. I am therefore requesting for my full entitlement to date calculated on management staff basis of 3 months total pay for every year worked to enable me put up a befitting building for myself and family. Looking forward to your kind approval… 51. The defendant interpreted this as a desire by the claimant to retire and so calculated the claimant’s entitlement as per Exhibit D3 dated 17th October 2001. On 19th April 2002, the defendant issued Exhibit D4 of same date, which the defendant argues was its acceptance of the claimant’s Exhibit D2 i.e. acceptance of the claimant’s resignation. Exhibit D4 states thus: We refer to your letter dated 28th August, 2001 regarding payment of your entitlements to allow you to retire from your employment with G. Cappa Plc. We confirm below our proposals for our early payment of your entitlements: Financial Providing funds are available as currently calculated, we shall pay your retirement benefit as agreed of N14,169,374.35 (Fourteen Million, One Hundred and Sixty-Nine Thousand, Three Hundred and Seventy-Four Naira and Thirty-Five Kobo) before 26th April, 2002 and to allow completion of annual financial accounts, you will formally retire from your employment and vacate your office on 26th April 2002. Tax Consultancy Agreement - We confirm that we are prepared to sign the Tax Consultancy Agreement, as previously discussed and proposed, initially for the year 2002/2003 commencing 1st April 2002. We shall pay an annual retainership fee of N500,000.00 (Five Hundred Thousand Naira) payable in quarterly installments in advance of N125,000.00 (One Hundred and Twenty-Five Thousand Naira). Employment benefits We shall continue to pay wages for your existing staff comprising driver, day guard and night guard for three years after your retirement. We shall transfer ownership of your company vehicle to you. At the end of your employment we shall cease to be responsible for payment of any other benefits which you currently enjoy including school fees, vehicle running costs, fuel, housing, services etc. We appreciate your co-operation and understanding during these times of financial restraint and thank you for your contribution to the growth of the company. We further wish you a well-deserved and enjoyable retirement. 51. The defendant followed its Exhibit D4 with Exhibit D5, a letter dated 26th November 2002 signed by Mr Bode Emmanuel, Director of the defendant, and addressed to the claimant who was asked to stay away from the company. Exhibit D5 states as follows: Further to your letter of resignation and our acceptance thereof, I write to thank you for the assistance you have continued to give the company. This is very much appreciated. However, due to the ongoing reorganization of G. Cappa Plc, it will no longer be necessary for you to come to the office. We will advise you within the next six weeks when your Terminal Benefits will be paid. Once again, we thank you for your past assistance. 52. What can we glean from all of this? The claimant wrote to request for his terminal benefit. What he meant was that his terminal benefits should be given to him upfront. He did not mean it to be that he has retired. But the critical question is: is it normal that an employee can ask for his terminal benefits upfront while still in employment? The answer is in the negative. The normal thing to do is to ask for a staff loan and stake it against the terminal benefits. The claimant did not do this. So the claimant did the unusual, asking for terminal benefits upfront. The defendant read this to be an intention to retire. Should the defendant be faulted for reading this meaning into the claimant’s Exhibit D2? The answer is in the negative. Worst still, even when in Exhibits D4 and D5 the defendant respectively talked of “We further wish you a well-deserved and enjoyable retirement” and “Further to your letter of resignation and our acceptance thereof”, effectively referring to the claimant as having retired, there is nothing to show that the claimant wrote to the defendant objecting to the defendant’s thinking that he retired. The argument of the claimant is that even if the defendant’s assumption as to the claimant’s retirement was right, by same Exhibits D4 and D5, the said retirement was contingent on the defendant meeting the terms stated in the said exhibits. I do not think this reasoning of the claimant is tenable. It does not take away the fact of retirement. That the retirement benefits were not paid as due did not mean that the retirement is not effective. 53. Exhibit D4 talks of the defendant agreeing to a tax consultancy agreement with the claimant for the year 2002/2003. This is suggestive of the claimant having retired for the claimant could not be entering into a tax consultancy agreement with the defendant if he was still in the employ of the defendant. Exhibit D1 (same as Exhibit C14) dated 30th January 2004 is a circular appointing the claimant into the defendant’s Interim Management Committee and making him the Chairman of the Committee for the month of February 2004. Exhibit C15 dated 26th February 2004 is similarly worded only that it appointed the claimant as Chairman of the Interim Management Committee until further notice. Exhibit C8 dated 14th July 2005 reviewed the salary of the claimant as Chairman of the Interim Management Committee of the defendant. In all of this, while the claimant remained as Chairman of the defendant’s Interim Management Committee, the defendant retained a different person as Managing Director/CEO. Exhibit C16 (same as Exhibit C22) dated 24th January 2005 is a letter written by the defendant to the Consular Officer of the Canadian Deputy High Commission. In it, the defendant described the claimant as Chairman of its Interim Management Committee indicating thereby his compensation package. Exhibit C17 (same as Exhibit C21) dated 18th January 2005 confirms to the Canadian High Commission that the claimant as Chairman of its Interim Committee has an annual remuneration of over N4 Million. 54. The argument of the defendant is that after the resignation of the claimant, the defendant engaged the claimant on an ad hoc basis. I agree with this submission since Exhibit D4 talks of a tax consultancy agreement, and Exhibits D1/C14 and C15 merely appointed the claimant into the Interim Management Committee of the defendant. This being so, I agree with the defendant that as at 2006, the year the claimant bases his claims on, the claimant was not in the employment of the defendant and so it cannot be that he retired either that year or the later year of 2011 as the claimant submits. Exhibits C9, C10, C11, C12 and C13 are letters of demand, variously dated from 2007 to December 2010, from the claimant to the defendant asking for the payment of outstanding salary from 1st July 2006 to the date of the letter. As the years progressed, the outstanding salary demanded increased in sum according to the year. These pieces of evidence do not suggest to me that the claimant was a full time employee of the defendant as to warrant making the claims he makes in this case. It is thus my finding and holding that the defendant treated the claimant’s Exhibit D2/C18 as one of resignation and so as per Exhibit D3 calculated his final account on retirement. This means that the claimant retired from the service of the defendant as at 17th October 2001, the date of Exhibit D3. Accordingly, the argument of the claimant that following the non-fulfillment of the conditions precedent contained in Exhibit D4, the agreement that the claimant would retire from his employment and vacate his office on 26th April 2002 did not crystallize into a binding and enforceable contract, is accordingly untenable lacking in merit. I so hold. Exhibits D4 and D5 treated the claimant as having retired. 55. Even when the claimant erroneously thought his resignation was in 2011, Exhibit C5 dated 31st January 2011 is the letter from the Ag. MD of the defendant to the claimant acknowledging the receipt of the letter of purported resignation dated 20th January 2011. But in it, the defendant indicated that the claimant did not specify the office he was resigning from; and he asked the claimant to enclose a copy of his letter of employment so that the defendant can respond appropriately. The claimant did not do this. The Ag. MD, however, noted that he was informed that the claimant had retired from the office of Chief Accountant and his entitlements were paid. The claimant accordingly is not entitled to the reliefs he claims in this suit. I so find and hold. 56. The second issue, having to base his claims on the NJIC agreements of 2001 and 2005, reinforces the conclusion that the claimant is not entitled to the reliefs he claims. To the extent that the claimant retired in 2001, there is no claim for which the NJIC agreements can be resorted to. Even if there is a claim for which the agreements can be used, the question is whether the claimant can claim the benefit of the said agreements. Exhibit C6/C24 is the National Joint Industrial Council (NJIC) Agreement on Terms and Conditions of Service for All Senior Employees in the Building and Civil Engineering Industry in Nigeria dated 29th November 2005, which the parties agreed is a collective agreement. By article 1 of Exhibit C6/C24, the Employers’ Association recognizes the Senior Staff Association as representing senior employees except Executives, on all matters affecting salaries, hours of work, leave and all other matters which may be agreed upon from time to time. By article 2(A) of Exhibit C6/C24, the terms of the agreement shall apply to senior staff as defined by section 3(4) of the Trade Unions Amendment Act 1978 and/or employees who have been designated as seiner staff by their employers in the Construction Industry in Nigeria, excluding employees defined as “worker” in section 90 of the Labour Act 1974. In computing retirement benefit, long service award, and the leave entitlement for the years 2005 to 2006, the claimant relied on the 2005 NJIC Agreement. For outstanding leave pay and allowance for the year 2002 and for outstanding leave pay and allowance for the years 2003 to 2004, the claimant relied on the 2001 NJIC Agreement. Under cross-examination, the claimant testified that he “calculated my entitlement based on the NJIC document, which is a collective agreement between staff and the defendant”. 57. The claimant was a management staff; and in that capacity was not a senior staff for purposes of taking the benefit of the NJIC agreements. The yardstick for senior staff taking the benefit of a collective agreement has been established by this Court in a number cases since the Third Alteration to the 1999 Constitution, the most recent of which is Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. In paragraphs 55 to 57, this Court held thus: 55. …This Court has in several cases shown what a senior staff…must prove in order to benefit from a collective agreement. It is that he must plead and prove by concrete evidence membership of the trade union in issue; and that the admission of an employer to that effect is not even enough. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. UBN Plc [2015] 62 NLLR (Pt. 217) 259, Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016, Mr C. E. Okeke & 3 ors v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/09/2010, the judgment of which was delivered on 26th October 2016 and Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017. Incidentally, these case law authorities did away with similar arguments raised by the defendant in the instant case as to a collective agreement being binding in honour only or that it was not incorporated into a contract of employment or that there is no privity between the parties, etc. I need not repeat those points here. 56. A look at the statement of facts and the reply to the statement of defence will show that there is no pleading whatsoever that the deceased was a member of PENGASSAN when he was in the employment of the defendant… 57. …The oral testimony of CW2 is not sufficient proof of the fact of trade union membership of the deceased [where] entitlements are claimed. Like this Court pointed out in the earlier cases I cited, what is required is concrete documentary proof of the membership of the trade union in issue. Even when the employer relies on a collective agreement to confer a benefit on the employee, that act without more cannot confer on an employee membership of the trade union that entered into the collective agreement with the employer. See Mrs Benedicta Uzoamaka Marchie v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/48/2014, the judgment of which was delivered on 30th March 2017, which further held that an employer cannot confer membership of a trade union on an employee… 58. In the instant case, the claimant as a management staff could not have been a senior staff capable of taking the benefit of the NJIC agreements. There is nothing before the Court showing that the claimant pleaded and proved by concrete evidence that he was a member of the Construction and Civil Engineering Senior Staff Association as to claim the benefit of the NJIC agreements he relied on for his claims. I so find and hold. 59. On the whole, the instant suit must fail for lack of proof of entitlement to the reliefs claimed. It is accordingly dismissed. 60. There is no proof before the Court that the defendant paid the cost of N150,000 awarded against it on 25th September 2018. For that failure, and the incessant default, the said cost is hereby doubled to N300,000 only payable by the defendant to the claimant within 30 days of this judgment. 61. Judgement is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD