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Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice 0. A. Obaseld-Osaghae - Judge Hon. Justice J, T, Agbaclu-Fishim - Judge DATE: December 14, 2010 SUIT No. NIC/18/2007 BETWEEN Hotel and Personal Service Senior Staff Association - Claimant/Respondent AND The Tourist Company of Nigeria Plc - 1st Respondent/Applicant National Union of Hotels and Personal Services Workers - 2nd Respondent REPRESENTATION Mrs. N. P. Umeokechukwu, for the claimant/respondent. Mr. O. Odjoh for the Ist respondent/applicant. Counsel for the 2nd respondent not in Court. RULING The substantive matter in this case was adjourned for judgment which was to be delivered on October 15, 2009, after final addresses were adopted on the 2n of July 2009. However, on October 13, 2309, the 1st respondent brought a motion to arrest the said judgment. Parties then agreed to file written addresses regarding the motion to arrest the judgment of this court. The said motion which was brought pursuant to Order 15 of the National Industrial Court Rules 2007 is seeking for an order dismissing the originating summons of the claimant. The motion is supported by an 8-paragraphed affidavit deposed to by Aherhe Akpojaro, counsel in the law firm of Messrs G. M". IBRU & Co. who incidentally is the counsel handling the matter. Attached to the said affidavit is Exhibit AA1 which is a schedule indicating the identity of all the claimant's union members whose service were terminated by mutual agreement between the claimant and the 1st respondent, and signed receipts of payment of benefits as full and final settlement for all their claims against the applicant. Also a "further affidavit in support of the motion to dismiss" dated and filed on January 6, 2010, was deposed by Okiemute Odjoh also counsel in the law firm of Messrs G. M. IBRU & Co., the law firm directly handling the matter. Attached to the further affidavit are Exhibits AA2 and AA3, which according to the applicant are a bunch of documents which are the actual copies of the letters of acceptance of the termination of the appointment of all the members of the claimants/respondents at the Federal Palace Hotel, and copies of terminal benefit agreements wherein all the claimants/respondents signed receipt of certain payments as full and final settlement of all their entitlements and claims against the 1st respondent/applicant. In its written address dated the 25th February 2010 and filed on the same day, the 1st respondent/applicant alluded to a non-existent further and better affidavit purportedly deposed to by Mr. Okiemute Odjoh a legal practitioner with the applicant's counsel wherein Exhibits AA2B, AA3B, AA4B and AA5B were said to be attached. Ai: the court's sitting of 5th May 2010, the court's attention was, however, drawn to the reference by the 1st respondent/applicant to a non-existent further and better affidavit said to have been filed but which was never filed. The court reserved its opinion on the issue till the final determination of the motion. In that regard, we wish to presently express our displeasure at that conduct of counsel, which conduct was actually a ploy to deliberately mislead this court thus yielding to a miscarriage of justice. This is unprofessional and very unbecoming of counsel. We note with dismay the deplorable pattern of unprofessior.al practice emanating (coincidentally?) from counsel in the law firm of Messrs G. M. IBRD &, Co. who appear in matters before this court. We have already expressed strong reservations against the deplorable conduct of counsel from the said law firm in Lagos Sheraton Hotel and Tower v. HPSSSA unreported Suit No. NIC/LA/21 A/2010 delivered today December 14, 2010 by this court. We just do not want to think that that Law Firm is deliberately trying to trample on tie integrity of this court. That said, the sole issue for determination as raised by the 1st respondent/applicant is whether the members of the claimant said to have signed the receipt of payment in full and final settlement of their benefit:- may still maintain this action. The 1st respondent/applicant submitted that it has deposed to the fact of the handing over and the receiving of letters terminating the employment of the members of the 1st respondent, which facts are yet. unchallenged by the claimant in its counter-affidavit, referring us to Owners M/V Gongola Hope v. SC Nig. Ltd [2007] 16 N WLR (Pt. 1056) 189 at 215 - 2 ] 6 where the court held as follows — Where the evidence of plaintiff is unchallenged and uncontroverted, and particularly, where the opposite party or side, had the opportunity to do so, it is always open to the trial court seized of the matter to accept and act on such unchallenged and uncontroverted evidence before it. The 1st respondent/applicant has further deposed that the said members of the claimant have collected certain payments which they signed to be their full and final entitlement against the 1st respondent. Further that the documents which bear the endorsement that the payments were received as their full and final entitlement (Exhibit AA3B) against the 1st respondent were made after this suit commenced, and with the knowledge of the signatories, during the pendency of this suit. To the applicant, it cannot be argued to any merit that a person would be making a claim in court and yet not know it. That to so claim will amount to robbing this suit of its integrity in the first place as the suit is maintained in a representative capacity. To the applicant, the claimant never denied that these documents were signed but simply argues in its affidavit that the issue of the termination of their appointment is a matter in another suit before this court. That the law is settled that the fact that a matter is in another suit does not by itself oblige the court to disqualify itself from considering the issues properly put before it, even when they are similar to those which are pending in another. That in the midst of the claimant's apparent lack of defence to its application, the law is further settled that where a document is signed (which has not been denied in this case) the content of such document must be deemed sacrosanct between the parties, except in cases of the allegation of fraud, duress etc. referring to section 132(1) of the Evidence Act which provides as follows:- When any...contract...has been reduced to the form of a document or a series of documents, no evidence may be given...of the terms of such contract....except the document itself...nor may the content of any such document be contradicted, altered, added to or varied by oral evidence: provided that...fraud, intimidation, illegality, want of due execution...may be proved. This court was also referred to Larmie v. DPMS Ltd [2003] 18 NWLR (Pt. 958) 438 at 442 and Yaske v. Umar [2003] 13 NWLR (Pt. 838) 465 at 471." The Applicant; further submitted that in the instant case, the claimant has not claimed any of the vitiating elements enumerated in section 132 of the Evidence Act or attempted to prove them by any evidence, and thus must not be allowed to escape the burden of defending this application simply by re erring to another suit which has no judgment nor is superior to this suit in any way. That to refine this application on account of the pendency of that suit alone would amount to subordinating the proceedings of this suit to the other suit, and thus denying our application on the basis of facts which are extraneous to this suit. The applicant continued that having entered the agreement contained in Exhibit AA3B the claimant's members have forfeited any rights to further benefits except those enumerated and received by virtue of Exhibit AA3B, referring to Australian Nigerian Lace Manufacturing Company ltd v. National Union of Textile, Garment and Tailoring Workers of Nigeria. [2007] 7 NLLR (Pt. 17) 7 at 47 when this court held as follows- As the 9 workers who, on being issued with letters of termination on 27lh August, 1979, accepted the letters and received their terminal benefits vide Exhibits Al - A9, the court ruled that they had, by their action, discharged the appellants from further liability to payment of wages under their contract of service with effect from that date. The applicant also referred to Agoma v. Guinness Nig Ltd [1995] 2 NWLR (Pt. 380) 672 where the Supreme Court held that:- When an employee accepts or collects his entitlements which include salary in lieu of notice of termination of his appointment, he cannot be heard to complain later that his contract of employment was not validly and properly determined. The employee can no longer maintain an action after collecting her benefits. The applicant submitted further that until that contract as contained in Exhibit AA.3B is set aside or the rights accruing therein are suspended by court order, the said contract must continue to bind the parties irrespective of any matter in court. That accordingly, since, in the main suit the matter of the settlement according to Exhibit AA3B does not form the cause of action, it follows that except upon our current application, this court cannot consider the terms of the said Exhibit AA3B and thus if the court enters judgment in favour of the claimant herein, such judgment will be nugatory or merely intellectual as the claimant will by virtue of their undertaking in Exhibit AA3B which have not been set aside, still lack the capacity to enforce the judgment. The applicant then submitted that this court must hold that having entered the agreements contained in Exhibit AA3B during the pendency of this suit, the claimant has effectively compromised their claim in this suit, and should accordingly be dismissed with substantial cost. In opposition to the motion, the claimant/respondent filed an 11-paragraphed counter-affidavit deposed to by Felix Unuabona, counsel in the law firm of Messrs Niyi Akinmola & Co., the claimant's counsel. Attached to the counter-affidavit is Exhibit A which debunked the claims and issues raised by the applicant/respondent in its motion. Tine said Exhibit A inter alia denied any agreement between the claimant and the 1st respondent to mutually determine the relationship and went ahead to assert that the respective appointments of members of the claimant were illegally terminated. Exhibit A also shows several letters from the claimant's counsel to the 1st respondent rejecting the said sack of members of the claimant while this matter was pending in this court, and evidence of Suit No. NlC/LA/24/2009 filed in this court to challenge the said termination. The claimant/respondent in its written address dated 5lh May, 2010 and filed on the same date in opposition to the motion raised two issues for determination — (1) whether this application is not designed to arrest the judgment of this court. (2) Whether this court can rely on Exhibits AA1, AA2 and AA3 to strike out or dismiss this suit. Before addressing these issues, the claimant/respondent debunked the veracity of the applicant/1st respondent's counsel's depositions in paragraphs 5 and 6 of the affidavit in support that Exhibit AA1 is a schedule indicating the members of the claimant who have terminated their contract with the applicant and signed receipt of payment of benefits as full and final settlement of all their claims against the applicant. That the said Exhibit AA1 attached to the said motion did not in any way show what the counsel to the 1st respondent would want this court to believe as quoted above, because there is no evidence of termination, no signature of receipt of any payment. Also there is no evidence of payment of benefits as full and final settlement of all their claims against the applicant. In any event, Exhibit AA1 bears no relevance to what counsel said therein. Furthermore the claimant/respondent stated that, in paragraph 4 of the said affidavit, the deposition therein is that "the contract which forms the basis of the claimant's reliefs has been terminated by mutual agreement between the claimant and the 1st respondent". There is no such document showing any mutual agreement and that all the exhibits attached to the said motion have no slightest evidence to show any mutual agreement between the parties and so the said exhibits have no relevance to this suit. The claimant then urged this court to discountenance paragraphs 4. 5, 6 and 7 of the affidavit of 13lb October, 2009 because Exhibit AA1 did not bear any relevance to the suit. Also that contrary to the assertion of the 1st respondent/applicant in its submission, the said Exhibit AA2 is a letter of termination emanating from the applicant terminating the appointment of the claimant's members and not acceptance of termination by the claimant's members as the applicant would want this court to believe. The claimant/respondent then proceeded to argue the first issue it raised i.e. whether this application is not designed to arrest the judgment of this court. The claimant/respondent submitted that this matter had earlier been adjourned for judgment. That the totality of this application is an attempt to arrest the judgment in this suit even if it is not so headed. That the said motion is brought under Order 15 of the NIC Rules 2007, but that the applicant did not refer to any rule of court that gave it the right to arrest a judgment of court. That in a number of decisions the Supreme Court has held that arrest of judgment in any guise is unknown to our law and rules of court. That no motion can stop the court from delivering its judgment, referring to Dr. Alphomus Ojo v. INEC [2008] 42 WRN 39 at 51 - 52 lines ~15 - 20, Newswatch Communicanons Ltd v. Alhaji Aliyu Ibrahim Attah [2006] 12 NWER (Pt. 993) 144. The claimant/respondent then urged the court to refuse this application and strike it out with substantial cost. On the second issue, that is, whether this court can rely on Exhibits AA1, AA2 and AA3 to strike' out or dismiss this suit, the claimant/respondent restated its argument that the depositions in paragraphs 4. 5, 6 and 7 of the affidavit in support is contrary and contradictory to what is in Exhibit AAL referring to section 132(1) of the evidence Act. That both Exhibits are unreliable and should be discountenanced. Further that Exhibit AA2 is a collection of termination letters which the claimant is already in court to challenge. That the applicant did not deny their averment in the counter-affidavit; and so it is not proper for the applicant to urge the court to use a document 'n dispute to determine the life of another suit. To the claimant, supposing this court uses this docament to dismiss this suit and at the conclusion of the other suit, the same document is set aside, there could not be a return to status quo, and the claimant/respondent would ha.ve been irreparably prejudiced. The claimant/respondent then submitted that the balance of probability is in favour of striking out this motion. Continuing, the claimant/respondent submitted that it is completely wrong for the applicant to premise its case on Exhibit AA3. This is because the said Exhibit AA3 is not a mutual agreement that terminates this suit as the applicant would want this court to believe; rather Exhibit AA3 is just evidence of receipt of terminal benefit. That there is no where it is stated in it that the substantive matter in this suit is compromised or referred to at all. To the claimant where an agreement is mutual, it must not be vague, nebulous ambiguous and un-ascertainable, but must state clearly the rights created or abandoned as it affects the subject matter of this suit, referring the court to Star Paper mill Ltd & anor v. Bashini Adetunji & ors [2009] 6 - 7 SC (Pt. 111) 86 at 78 para. 35 to page 78 para. 5 (wrong citation). Also that there is nothing in the said Exhibit AA3 that refers to the interpretation of the collective agreement as regards service charge which is the subject matter of this suit, and cannot be read, into Exhibit AA3 which is only talking about terminal benefits. The claimant, therefore, submitted that it cannot be used to compromise this suit and urged this court to strike it out. The claimant continued that the words used in Exhibit AA3 is terminal benefit while this suit is about interpretation of condition of service and the payment of short fail of sums already accrued to the claimant's members while they were still staff, and this is different from terminal benefit, referring to Da Kabirikim & anor v. Hon. Justice Luke Emefor & ors [2009] 7 SC 48 at 63 para 5 and 89 paras 5 - 20 The claimant submitted that Exhibit A attached to their counter-affidavit to this motion speaks it all. The said Exhibits AA2 and AA3 are already a subject of litigation even before they were made and so it is incapable of compromising this suit. That since the 1st respondent/applicant did not deny its existence, it is deemed admitted. The claimant therefore urged this court to dismiss this motion with cost. After a careful consideration of the submissions of both parties, it is clear that the intention of the 1st respondent/applicant in bringing this application is to arrest the judgment of this court. On the whole, and following our earlier reservations regarding the reference to a non-existent process, we must remark and reiterate that the general conduct of counsel to the 1st respondent/applicant in the prosecution of the instant motion, to say the least, left a good deal to be desired. Apart from deliberate acts to mislead this court, counsel took joy in making sure that the merits of the substantive matter was not determined as quickly as the justice of the case would require. It is sad that the judgment sought to be arrested was actually billed to be delivered over one year ago; and to think that courts are enjoined to dispose of cases expeditiously. This is not only unfortunate; it is utterly despicable and nauseating. This court will henceforth not tolerate this. The 1st respondent/applicant raised one issue for determination i.e. whether where, according to counsel, the members of the claimant have signed receipt of payment in full and final settlement of their bene.uts, they may still maintain this action. A look at the reliefs being sought by the claimant in their originating summons reveals that the claimant is challenging the unilateral alteration of the condition of service of its members contrary to the provisions in the collective agreement especially as it affects the reduction in the payment of service charge to the claimant's members and want this court to interpret same. We agree with the submission of the claimant/respondent that there is nothing in Exhibit AA3 that refers to the interpretation of the collective agreement as regards service charge which is the subject mallet of this suit. We, therefore, hold that it cannot be said to compromise this suit. We view this application, seeking to arrest this judgment as an abuse of court process. On the whole, this application fails and is hereby dismissed. The judgment of this court in the substantive matter and which is sought to be arrested by the 1st respondent/applicant shall now be read. Cost is awarded against the 1st respondent/applicant in the sum of N50,000 payable to the claimant. Ruling is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge