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Representation: Ojo Opeyemi George with O.O Akinyemi for the Claimants E.A. Agbelusi for the Defendant JUDGMENT The Claimants instituted this action by a complaint filed on the 18th day of February 2015, claiming as follows: 1. The sum of N36,482,893.59 (Thirty-Six Million, Four Hundred and Eighty-Two Thousand, Eight Hundred and Ninety Three Naira, Fifty Nine Kobo) only, being the entitlement of the Claimants as contained in their letters of engagement and in the manual of the Defendant and the balance of six months salaries, arrears of February 2015 salary, and the unremitted pension deducted from the Claimants' salaries by the Defendant. 2. Interest on the said N36,482,893.59 at the prevailing Central Bank of Nigeria interest rate for commercial Banks which presently is 18% per annum from February, 2015 until judgment is delivered. 3. N4,000,000.00 (Four Million Naira) being the professional fees paid to the lawyer for the prosecution of this matter. 4. 10% per annum post judgment interest on the entire judgment sum until the said judgment sum is fully liquidated. The Amended Complaint filed on the 22nd day of October 2015 was supported by a verifying affidavit deposed to by the 1st Claimant and accompanied by the Amended Statement of Claim, list of Witness, Witness Statement on Oath, list of documents and copies of documents to be relied on. The Defendant filed its Statement of Defence on 6th November, 2015 with the list of witness, Defendant's witness statement on oath and Defendant's list of documents and attached the copies of the listed documents to the processes. Parties agreed on the 10th day of November, 2015 when the matter came up for hearing that the matter be argued on record as provided for by Order 19 Rule 9(ii) of the National Industrial Court Rules, 2007 and the case of MUHAMAD vs. BAYERO UNIVERSITY (2014) 42 N.L.L.R 382 at 419, paras B –D. The Court granted parties leave to argue this matter on record and ordered parties to file their final written addresses. The Claimants filed their final written address on 1st December 2015. The Defendant filed its final written address on 4th January 2016. The Claimants filed their Reply on Points of Law on 12th January, 2016. While adopting his Reply on Point of Law, the Claimant’s counsel raised an objection to the final written address of the Defendant for being incompetent on the ground that it offends Rule 10 (l) of the Rules of Professional Conduct for Legal Practitioners 2007 which requires a lawyer acting in that capacity who signs or files a legal document to affix a seal and stamp approved by Nigerian Bar Association. The process of the defendant was not sealed and stamped as required by law. Counsel referred to the case of APC vs. GENERAL BELLO SARKIN YAKI in APPEAL NO. SC/722/15. The Defendant’s counsel replied orally by stating that his Final written address exhibits the receipt for the payment of the seal and urged the court to disregard the objection. The counsel for the Claimant replied that the exhibited receipt is made out to Idowu Adedayo Olukayode and not E.A. Agbelusi who adopted the final written address; he urged the court to uphold the objection and discountenance the defendant’s final written address. It is observed that the Defendant's written address does not have affixed to it, the NBA stamp of any of the 3 counsels whose names appeared under the signature of the counsel who settled the address. However, copies of payment receipt of one Idowu Adebayo Olukayode for the NBA Branch dues for Lagos branch and another titled official receipt from the same NBA Lagos branch were attached to the Defendant's written address, each in the sum of N5000. The date of payment as indicated on the two receipts is 17/2/2015. The Defendant’s written address was filed on 4th of January 2016. First, it has not been shown that it was Idowu Adebayo Olukayode who signed the written address. Under the signature are names of 3 counsels and Mr. Olukayode's name is 2nd. There is no indication that the address was signed by Mr. Olukayode, whose receipt was attached. Secondly, I have also considered the length of time between the payment in the receipt and the date of filing of the defendant's address. No explanation has been given for the failure of counsel to obtain and affix the stamp to the address. Order 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 requires all processes filed by counsel in court to be affixed with the approved NBA stamp and seal. The Claimants counsel's objection to the Defendant's Final Written Address is that it is not competent for failure of counsel to affix the stamp. The decision of the Supreme Court delivered 27th October 2015 in Appeal No: SC/722/15 between ALL PROGRESSIVES CONGRESS vs. GENERAL BELLO SARKIN YAKI was cited in support. But I think this decision of the Supreme Court has settled the effect of a process without the stamp. The rule is now that failure to affix the NBA stamp to any process renders the process irregular and voidable. The process is not incompetent ab initio because, according to their Lordships, “such documents are redeemable and made valid by a simple directive by the judge or the relevant authority at the time of filing the voidable document for erring counsel to affix stamp and seal as provided in rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007”. In this instance however, the defendant's written address has offended the law and at this stage of judgment, the defect cannot be remedied. The Defendant's final written address is not a valid process. It is struck out. I must mention here that this case is to be considered on the basis of the pleadings of the parties and not on the addresses of counsels. In fact, the addresses have little or no effect on the facts except to merely to guide the court. Counsel on both sides had agreed in court, and indeed sought and obtained the leave of Court on the 10th day of November 2015 that the matter be argued on record as provided for by Order 19 Rule 9(ii) of the National Industrial Court Rules, 2007. In the Claimants’ final address, counsel submitted two issues for determination as follows: 1. Whether the claimants have proved their case with preponderance of evidence in view of the pleadings before the court as required by law to entitle the Claimants to their claims in this suit. 2. Whether the document attached by the Defendant titled "Meeting summary" can be regarded as a collective bargaining or collective agreement, and whether it is binding on the parties. Counsel’s argument on issue one was commenced by stating that it is trite law that a Claimant proves his case on the balance of probabilities and preponderance of evidence. See ISHOLA vs. UNION BANK LTD (2005) 2 SC (Pt. 11) 80, ALTIEGBEMILIN vs. RTAG NIG. (2012) 44 WRN 120 at 139-140. He stated that the Claimants' case is based on documentary evidence and documentary evidence is the best evidence that the court can rely on. See the case of OBIAZIKWOR vs. OBIAZIKWOR (2007) 37 WRN 106 at 131. It is the argument of counsel that the only disputed facts in this suit are as follows: i. The duration of time i.e. years spent by the Claimants in the employment of the Defendant before the termination. This will be used in the calculation of gratuity and redundancy entitlement. ii. Whether the Claimants are entitled to ex-gratia. It is the contention of counsel that the Employee Handbook 2013, in chapter 7.1 under terminal benefits at page 27 provides as follows: “Gratuity entitlements are payable to staff who have attained a minimum of three (3) years of uninterrupted service with the firm, on their exit. Employees that have worked with different service providers during their stay with the client company to ensure a smooth transition from one provider to the other within the company. Effective date would be the date a contract was executed with the first labour service provider.” With respect to the 1st Claimant, it is clear that the date a contract was first executed was 10-5-2009 and that date is the effective date in accordance with chapter 7.1 mentioned above. The 2nd Claimant’s first contract was executed on 20-6-2012 and which was transferred to another service provider, Estymol Oil Services Ltd on 31-1-2013 and on 4-9-20l3, the service of the 2nd claimant was transferred to the defendant. Thus, the effective date would be 20-6-2012 or at most 31-1-20l3 in accordance with chapter 7.1 of the Employee Handbook 2013. Counsel submitted that it is the law that once a staff handbook is acknowledged and signed on the date of acknowledgement by the employee as in this case, its terms are binding on the employer and the employee. On this point, counsel reffered to the case of SPECOMILLS TEXTILES, IKEJA vs. NATIONAL UNION OF TEXTILES, GARMENT AND TAILORING WORKERS OF NIGERIA (DJNIC) 334 at 335. Therefore, from the effective date of the 1st Claimant's employment in the Defendant, it is clear that the 1st Claimant spent a total of 6 years in the service of the Defendant including the period transferred to it. The 2nd Claimant from the effective date in the employment of the Defendant including the years spent before the transfer of service to the Defendant spent 3 years in the service of the Defendant. In respect of the 3rd Claimant that the years spent in the employment of the Defendant was 4 and 1/2 years. It is counsel’s submission that the entitlements of the 1st Claimant in respect of gratuity and redundancy entitlement for five and half years is as stated in paragraph 17 (1) (a) &(b) of the statement of claim which are N5,825,452.38 and N5,590,200.00 respectively and the total of the two above is N11,415,652.38. The entitlements of the 2nd Claimant in respect of gratuity and redundancy entitlements for three years is as stated in paragraph 17(2) (a) & (b) which are N2,045,046.62 and N1,911,800.00 respectively and the total of the two above is N3,956,846.62. The entitlement of the 3rd Claimant in respect of gratuity and redundancy entitlement for four (4) years as stated in 17 (3) of the statement of claim are N1,852,086 and N2,036,480,231.94 respectively and the total of the two above is N3,888,566.98. Counsel submitted that the Defendant in its calculation did not put Section 7.1 of the Handbook into consideration. Counsel urged the court to put chapter 7.1 of the Employment Handbook into consideration in the calculation of the gratuity and redundancy entitlements of the Claimants. On the issue of payment of ex-gratia, counsel argued that the Defendant paid the same Ex-gratia to other staffs that were also rendered redundant by the Defendant. The Claimants in paragraph 21 of the statement of claim averred to the fact that the Human Resources Manager of the Defendant told the Claimants when called by the Claimants that the Defendant decided to short change them because of their action to involve a lawyer in the matter. It is counsel’s contention that it is the law that an employee based on principle of fair hearing, shall be entitled to ex-gratia or special benefits after retirement or redundancy if other employees in the same company that suffered the same fate were paid such ex-gratia or special benefit even though his contract of employment does not contain a stipulation to that effect. Counsel referred to the case of MBILITEM vs. UNITY KAPITAL ASSURANCE PLC (unreported) NICN/ABJ/l08/2011 delivered on 28-2-2013 where the court made it clear that it would be discriminatory not to pay such an employee what others were paid. See also the cases of OYEKANMI vs. NEPA (2000) 15 NWLR (Pt. 690) 414 at 445, METAL PRODUCTS SENIOR STAFF ASSOCIATION OF NIGERIA vs. MANAGEMENT OF METAL CONSTRUCTION (WA) LTD (1988) DJNIC 237 at 238. Counsel referred to paragraphs 16 (c) and paragraph 17 of the statement of claim and submitted that the ex-gratia entitlements of the claimants are as follows: a) 1st Claimant = N998,250.00. b) 2nd Claimant = N605,000.00. c) 3rd Claimant = N762,773.02 The total of the three Claimants' ex-gratia = N2,366,023.02. The court was urged by counsel to follow the reasoning in the case of Mbilitem (supra) and grant the claimants ex-gratia as stated above. Again, regarding the point that the basic salaries of the Claimants were tampered with and reduced by 50% by the Defendant for five months (without the consent of the Claimants and contrary to the letter of appointments of the Claimant and Employee Handbook 2013) i.e. from September 2014 to January 2015; counsel submitted that it is the law that parties are bound by the terms of contract or agreement which they freely and voluntarily entered into. No internal memo (such as the attachment "2" of the list of document of the Defendant) can unilaterally vary or reduce the salary or entitlement of an employee. See IKHAMATE vs. BANHANS VENTURE CAPITAL LTD & ANOR unreported judgment in Suit No. NIC/ABJ/79/2012 delivered on 15th November 2012. Counsel urged the court to discountenance the salary cut and grant the Claimants the 50% of their basic salaries which were cut. Similarly, the Claimants pleaded that they were in the employment of the Defendant till February, 2015 when their appointments were terminated by the Defendant. The Claimants also were suspended by the Defendant through Exhibits ‘H’ and ‘I’ respectively on 30-1-2015. Counsel submitted that Employees on suspension whether temporary or indefinite are entitled to their salaries until their employment is terminated. This is owing to the fact that suspension is not a determination of employment. See LONGE vs. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (Pt.1189) 1, AKINTOYE vs. HOTEL BON VOYAGE (2014) 42 N.I.L.R (Pt. 131) 354. It is the argument of counsel that the offer of permanent employment of the Claimants with the employment contract particulars and the Employee Handbook do not make provision for suspension of the Claimants in the circumstances that the Defendant suspended the Claimants. Section 2.9.3 of the Employee Handbook, 2013 the only document that have provisions for suspension provides as follows: "If an employee is found, after preliminary investigation, to have committed a serious offence, he or she may be placed on immediate suspension without pay according to the severity of the offence ... " Counsel submitted that the suspension of the Claimants by the Defendant was not in accordance with the Terms of the contract employments of the claimants and the Employee Handbook, 2013. Thus, such suspension was illegal and of no effect because it was not part of what parties agreed to. Counsel urged the court to declare the suspension as illegal and of no effect in law and same to be set aside. In the event the suspension of the Claimants is set aside by the court, and clause 1 of the Employment contract particulars provide that the Claimants were entitled to a monthly salary to be paid on or before 26th of every month; it follows therefore that the Claimants were in the employment of the Defendant for 17 days in February 2015 i.e. 27th January 2015 to 11th February 2015, a period that is more than half of a month and since clause 1 of the above exhibits stated on or before 26th of every month, the Claimants are entitled to February 2015 full salaries. Also, the 1st Claimant specifically pleaded and demanded for his field allowance for 12 days in February 2015, paragraph 17 (1) ( e) of the statement of claim. It is also the submission of counsel that the Claimants are entitled as follows for the salaries deduction from September, 2015 to January, 2015 at full salaries of February, 2015 as follows: (i) 1st Claimant = N3, 115,209.25. (ii) 2nd Claimant = Nl, 320,327.84. (iii) 3rd Claimant = N1 ,560,984.91. Counsel applied for the striking out of the claims for the unremitted pension because the attached slips listed as No. 3 in the list of documents attached by the Defendant show that the Defendant has remitted the pension claims of the Claimants to the pension managers. He also withdrew claim 3 in the Amended Complaint and Amended Statement of Claim and urged the court to strike out same and award reasonable compensation for costs incurred on the services of counsel. See the cases of IKHAMATE (supra) and REWANE vs. OKOTIE - EBOH (1960) SCNLR 461. Further, counsel urged the court to grant reliefs 2 and 4 of the reliefs of the Claimants, in line with Order 21 Rule 4 of the Rules of this Court which provides that this Court has the power to grant interest of not less than 10% per annum to be paid upon any judgment. He also urged the court to grant the total entitlement of the Claimants as follows: i. (a) 1st Claimant - gratuity and redundancy entitlement are – N11,415,652.38. (b) Ex-gratia - N 998, 250.00. (c) Salaries cut unpaid salaries and allowances - N3,115,209.25. (d) 2 months salaries in lieu of notice – N1,996,500.00. The total of the 1st Claimant is - N17,525,611.00 ii (a) 2nd Claimant - gratuity and redundancy entitlement are - N3,956,846.62. (b) Ex-gratia - N605,000.00. (c) Salaries cut, unpaid salaries and allowances - Nl,320,327.84. (d) 2 months salaries in lieu of notice - N1,210,000.00. The total of the 2nd Claimant is - N7,092,174.46. iii (a) 3rd Claimant - gratuity and redundancy entitlement are - N3,88,566.98. (b) Ex-gratia - N762,773.02. (c) Salaries cut, unpaid salaries and allowances - N1,560,984.91. (d) 2 months salaries in lieu of notice- N1,018,647.58. The total of the 3rd Claimant’s entitlement is - N7,230,972.3. Finally, on issue one, counsel submitted that the Claimants have proved all the material issues expected of them to succeed with their claims and have shown to the court by cogent and compelling facts that they are entitled to all the reliefs sought in their claims and urged the court to resolve issue one in their favour. With respect to issue two, counsel submitted that the document listed as No. 2 in the processes of the Defendant titled "meeting summary" was not binding on the Claimants because the said document at best qualified as an internal memo or collective bargaining which is not binding in law. Counsel referred the court to paragraph 6 in page 3 of the said document which reads as follows: "In conclusion, Mr. Ernest Mpi stressed that OES can pay 35 percent, but he will talk to his superiors, and plead with them to approve 40 percent of monthly gross salary as "stay at home pay" he also stressed that if they don't get 40%, "something" would be added to the 35%. He promised to get back to employees before the close of business today. " Thus, it is evident from the foregoing that no agreement was reached between the Employer and the Employees as the Defendant intended the document to show, so the said document cannot qualify as a collective agreement in law. The document was not signed by the representatives of the Employee. In the event that the court holds that the said document qualifies as a collective agreement, counsel submitted further that a collective agreement is a gentleman agreement which is not binding on the parties except where the said collective agreement has been incorporated by reference into the Employment Agreement or Employee handbook. Counsel referred to the case of TEXACO NIG. PLC vs. KEHINDE (2014) 42 N.I.L.R. (Pt. 132) 480, where the Court of Appeal held at 518 paras C-H as follows: "A collective agreement is at best a gentleman's agreement, an extra-legal document devoid of sanctions. However where such a collective agreement is incorporated by reference to the contract of employment between the parties it become justiciable. Or where a collective agreement is incorporated or embodied into the conditions or contract of service, it will be binding on the parties. " Counsel urged the court to discountenance the said document on the grounds stated above and grant the relief of the Claimants as regard their 50% salary cut for September, 2014 to February, 2015 and resolve this 2nd issue in favour of the Claimant and against the Defendant. At the conclusion of counsel’s submission, he urged the court to grant all the claims of the Claimants as argued in this final written address and the claims in the statement of claims as follows: 1. The claimant are entitled to ex-gratia in accordance with the calculation copied from the Defendant's board, EXH "N" and the facts that other exit employees were paid the ex-gratia by the Defendant. 2. The Claimants are also entitled to the illegal deduction of 50% of their salaries from September, 2014 to February, 2015. 3. The Claimants are entitled to the number of years spent with other service provider and the client (Oando Energy Services) OES in accordance with the provision of Section 7.1 of the employees Handbook; also such years spent were used above to calculate the claimants gratuity and redundancy and we urge your Lordship to grant same as contained in paragraph 4.58 above. 4. The claimants are also entitled to interest both pre-judgment and post judgment interest as canvassed above. The Claimants urged the court to grant all the reliefs of the Claimants as canvassed above except the ones the Claimants applied to withdraw. In the Claimants' Reply on points of law, counsel reiterated his arguments in his final written address. He stressed that the reduction of the Claimants’ salaries apart from being a contravention of the letter of appointments and employee handbook; is a violation of Section 5(1) of the Labour Act, Cap L1 Nigeria, 2004 which provides as follows: "Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or for any payment to the employer by the worker, for or in respect of any fines". Counsel submitted that the Defendant did not place any material before the court to counter the submission of the Claimants that the Defendant did not have power to reduce their salaries as the Defendant have purportedly done in this case, and that the Claimants are entitled to all the deductions made by the Defendant from their salaries and that their full salaries should be used in the calculation of their terminal benefits. In response to the Defendant’s submission in paragraphs 4.l and 4.2 of its address that it is only appointment letter terms and employee Handbook that regulate the relationship between the Claimants and the Defendant; counsel submitted that the Labour Act also regulates the relationship between the Claimants and the Defendant. Again, the Claimants in paragraph 5 of their Amended Statement averred that the Defendant is a company formed, managed and controlled by Oando Energy Services Ltd and the company that employed all the Claimants. The Defendant denied that fact but in its own document titled “Minutes of Meeting” at paragraph 6 of page 2 it is very clear that it is Oando that engaged the Claimants and transferred them after years of employment to the Defendant’s pay list. It is therefore evident that all the Claimants did not leave the service of Oando; Oando transferred their services to the Defendant in accordance with Oando terms; until their employments were terminated in February, 2015. Counsel submitted that the services of the Claimants were unbroken from the day they were offered contracts of employment till February, 2015. It is also the contention of counsel that the Claimants have placed enough materials both oral and documentary evidence before the court to prove that the Claimants i.e. 1st Claimant had been in the employment of the Defendant since May, 2009 and for the 2nd Claimant since June, 2012. Counsel urged the court to discountenance the arguments of the Defendants on the issue one of their final written address regarding the submission of the Defendant’s counsel, that the exit computation of Mr. Ogheneakpobo is inadmissible. Counsel submitted that a document is admissible in law if the said document is pleaded, listed and relevant. It is the law that every fact which is pleaded and which is relevant to the case of either of the parties ought to be admitted in evidence. See A.K FADIALLAH vs. AREWA TEXTILES LTD (1997) 8 NWLR (Pt. 518) 546 at 562. Counsel submitted that the case of HYPPOLITE vs. AGBAREVBA (supra) is not relevant to the extant case and urged the court to discountenance it and grant all the reliefs canvassed by the Claimants in the final written address. Court’s Decision Upon the application of both Counsel in this suit, this court granted leave to the parties on 10th November 2015 to argue their cases on record without calling witnesses pursuant to Order 19 Rule 9(ii) of the National Industrial Court Rules, 2007. Accordingly, the parties did agree to dispense with adducing evidence and are relying on their pleadings and frontloaded documents to establish their case. This court is to determine this case on the strength of the facts as pleaded by the parties and the documents they frontloaded alongside their pleadings. In that case, it is necessary to examine the facts pleaded by the parties. The facts pleaded by the Claimants in the process they titled “Amended Statement of Claim” contain as follows: The Claimants were employed by the Defendant at separate times. The 1st Claimant was employed in May 2009, the 2nd Claimant was employed in June 2012 while the 3rd Claimant was employed in 2011. The Claimants worked as Senior Mechanic, Senior Electrician and Warehouse Man respectively in the Defendant’s rig called “passion Rig”. The 1st Claimant’s annual salary was the sum of N11, 979,000 while the annual salary of the 2nd Claimant was the sum of N6,600,000. The 3rd Claimant’s annual salary was N9,260,432.50. The Claimants pleaded their letters of offer of permanent employment and letters of review of salary and Copies of these letters were also frontloaded with the Complaint. The Claimants pleaded further that the Defendant was formed, managed and controlled by Oando Energy Services Ltd to provide management and technical service to Oando Energy Services Ltd. It is the averments of the Claimants that the Defendant is the company who employed them and with whom they worked till 11-2-2015. That in September 2014, the defendant unilaterally cut down the salaries of the Claimants to between 37.5% and 50% notwithstanding that the Claimants were still carrying out their full work and duties on the Defendant’s Passion Rig. The Defendant did attempt to force the Claimants to sign a letter dated 10/9/2014 with the subject “Loss of contract for Oando Energy Services Passion Rig and salary review for employees assigned to passion Rig” but because of the obnoxious terms of the letter, the Claimants refused to sign. Still, the Defendant went ahead to cut the Claimants salary. The Claimants pleaded their pay slip from August 2014 to January 2015. Following the Claimants refusal to sign the said letter, they were suspended on 30/1/2015 by the Defendant who also sent an e-mail to the Claimants instructing them to submit their identity card latest 2-2-2015. But the Claimants refused to submit their identity cards. The Claimants briefed their solicitor who wrote the letter dated 6-2-2015 to the Defendant to demand for the Claimants’ salaries and entitlements but the response they received from the Defendant was the termination of their employments on 11th February 2015. Their terminal entitlements were also cut down by the Defendant. The 1st Claimant’s entitlement was cut down from N18,071,408.49 to N6,588,450; the 2nd Claimant’s entitlement was cut down from N7,847,294.44 to N1,197,900.00 and the 3rd Claimant’s entitlement was cut down from N9,494,903.32 to N4,074,590.30. It was also averred that it is the policy of the Defendant that in calculation of years of service in the Defendants’ employment, it is considered from when the staff joined the Defendant’s employment and other group of the Defendant. The Claimants pleaded the Defendant’s handbook in this respect and averred that they calculated their entitlements based on the Defendant’s handbook, the calculation the Defendant wrote on the board in June 2014 and the payment made to other senior staff. The Claimants also averred that as per the formula for calculation which the Defendant wrote on the board, the calculation of their entitlements ought to be as follows- i. Gratuity- 8.33% of annual basic salary and leave allowance multiplied by years of service ii. Redundancy entitlement- 1 month consolidated pay multiplied by numbers of years of service. iii. Ex gratia- annual gross over 12 iv. 2 months consolidated pay in lieu of notice- 2 multiplied by annual gross divide by 12. The Claimants went ahead to compute their entitlements using the above formula. The grand total arrived for the 1st Claimant is N19,069,658.49; the 2nd Claimant is N7,847,294.44, for the 3rd Claimant is N9,565,940.66. The Claimants pleaded that on 13th February 2015, they informed the Defendant through e-mail about the wrong calculation of their entitlements. The Defendant replied the e-mail in which among others, told the Claimants to send their calculations which the Claimant did on 15th February 2015. But the Defendants refused to reply the Claimants’ mail. The Claimants also said their counsel charged them N4,000,000 for the prosecution of this suit and they have paid a deposit of N2,500,000 to the counsel. The defendant’s statement of defence contain these facts: By the letters of offer of permanent employment of the Claimants, the Claimants were employed by the Defendant in November, 2010, September, 2013 and June, 2011 respectively. The 1st Claimant’s an annual salary at employment was N7,150,000 but was reviewed, effective from 1st January 2014 to N11,979,000. The 2nd Claimant’s annual salary at employment was N6,600,000 but was increased to N7,260,000 with effect from 1st January, 2014. The 3rd Claimant was employed with an annual salary of N6,050,000.00 which salary was increased to N9,260,432.50 with effect from 1st January, 2014. The Defendant averred that the terms and conditions which regulated the Claimants’ employment with the Defendant are contained in the Claimants’ letters of employment and the Defendant’s Employee’s Handbook (2013). The Defendant went further to explain that when its management observed a downward trend in the oil and gas sector and the adverse effect the situation was having on the company's business, the Defendant first held town-hall meeting with its entire staff on the 24th of July, 2014 to discuss the negative turn of event. The Defendant put it to its employees to suggest ways for survival. A reduction of employees salaries and their work shifts was proposed in that meeting. At another meeting held on the 11th of August, 2014, which meeting was attended by the 2nd and 3rd Claimants, a temporary reduction in staff salaries was deliberated and agreed and the management told the meeting that the suggestion would be considered and any conclusion on it will be communicated to staff. The Defendant pleaded the Minutes of the said meeting. It was based on the deliberations in the meeting that the Defendant decided to place the workers on redundancy for a period of Six Months and reduced staff salaries temporarily to 37.5% or 50% of their monthly gross if they are called to work on the rig. All the affected employees, which included the Claimants, were sent letters of restructuring on the 10th September, 2014. Because the Defendant’s affairs did not improve as at January 2015, it had to temporarily suspend the contract of its employees and informed them through letters dated 29th January 2015. When the 6 months redundancy period lapsed without any improvement in the Defendant’s fortune, the Defendant decided to terminate the employment of its staff including the Claimants. Upon termination of the Claimants’ employment, the Defendant calculated their entitlements based on salaries in lieu of notice, redundancy, gratuity and salary payments. The final entitlements due to the Claimants was the sum of N6,588,450, N5,900,107.98 and N4,074,590.30 respectively as contained in their exit computation schedule. The Defendant was ready to pay these entitlements to the Claimants. The Defendant has made up to date remittances of the Claimants’ pension into their pension account with IBTC Pensions and Leadway Pensure Ltd. From the foregoing facts of the parties, the issue which I think have arisen there from is what the Claimants’ appropriate entitlement as at the time of termination of their employment should be. This issue is even more pronounced in the claims sought by the Claimants, which is simply for the payment of the entitlements due to them at the time of termination of their employments. As no evidence was called in this matter, I will concentrate only on this central issue brought before the court and avoid diverting to extraneous issues. The dispute with regards to the Claimants’ entitlements arose from the letter of termination of the Claimants’ employment. According to the Claimants the Defendant cut down their entitlements in the letters terminating their employment. In paragraphs 13 and17 of the statement of claim, the Claimants averred that the 1st Claimant’s entitlement was supposed to be N18,071,408.49 but was reduced to N6,588,450. The 2nd Claimant’s entitlement was to be N7,847,294.44 but was cut down to N1,197,900.00. The 3rd Claimant’s entitlement was to be N9,494,903.32 but was reduced to N4,074,590.30. But the Defendant’s position is that the Claimants’ terminal entitlements were computed in accordance with the condition of service and the result is that the Claimants’ entitlements are as stated in their letters of termination. The Claimants’ letters of termination of employment is listed number 15 in the Claimants’ list of documents. The letters are all dated 11th February 2015. The Claimants were informed in the letters that their employments were terminated by reason of redundancy and that their entitlements were to be paid in accordance with condition of service. The sums stated in their respective letters are- 1ST CLAIMANT: i. 2 months consolidated base salary in lieu of 2 months notice in the sum of N1,317,690 ii. 1 months consolidated base salary for each completed year of service as redundancy entitelement. The 1st Claimant had 4 years of completed service, he was entitled to 4 months consolidated base salary which amounted to N2,635,380. iii. The sum of N2,635,380 as gratuity having completed 4 years with the Defendant. The 1st claimant’s total terminal entitlements was put at N6,588,450.00 2ND CLAIMANT: i. 2 months consolidated base salary in lieu of 2 months notice in the sum of N798,600 ii. 1 months consolidated base salary for each completed year of service as redundancy entitlement. The 1st Claimant had 1 year of completed service, he was entitled to 1 month consolidated base salary which amounted to N399,300. The 2nd Claimant’s total terminal entitlements was put at N1,197,900. I have observed that gratuity was not included in the 2nd Claimant’s entitlement. 3RD CLAIMANT: i. 2 months consolidated base salary in lieu of 2 months notice in the sum of N1,018,647.58. ii. 1 month’s consolidated base salary for each completed year of service as redundancy entitlement. The 3rd claimant had 3 years of completed service, he was entitled to 3 months consolidated base salary which amounted to N1,527,971.36. iii. The sum of N1,527,971.36 as gratuity having completed 3 years with the defendant. The 3rd claimant’s total terminal entitlements was put at N4,074,590.30. First, let us understand the items which constitute the entitlements or claims of the Claimants in this suit. From relief 1 sought by the Claimant and paragraph 17 of the statement of claim, the heads of the Claimants claim are the following- i. Entitlements arising from their letters of employment and the manual of the defendant. It is observed in this case that the items comprised in the said entitlements are gratuity, salary in lieu of notice, redundancy entitlement and ex-gratia; ii. Balance of six months salaries and arrears of February, 2015 salary; iv. Unremitted pension. The other claims of the Claimants in this suit include claim for interest and refund of sum paid to their counsel as professional fee. In his written address, the Claimants counsel applied to withdraw the Claimants’ claims for unremitted pension and professional fee paid to their counsel. The application is hereby granted. The Claimants claim for unremitted pension in relief 1 and the claim for the professional fee paid to their counsel in relief 3 are hereby struck out. The Claimants pleaded the Defendant’s Employee Handbook in paragraphs 12 and 14 of the statement of claim and relied on it as the basis for the computation of their entitlements and claim in this suit. The Defendant too pleaded the same Handbook in paragraph 25 of the statement of defence and averred that the Claimants’ terminal entitlements were computed in accordance with the said Handbook. Both parties relied on the Handbook which, according to them, contains the conditions of service in the Defendant’s employment. The Claimant frontloaded only pages 27 and 28 of the Handbook. It is the Defendant who frontloaded a comprehensive copy of the Handbook. The Defendant’s Employee’s Handbook (2013) is the condition of service in the Defendant’s employment. The condition of service regulating the Claimants’ contract of service with the Defendant is the bedrock on which the Claimants must found their case. Their claim will fail if it is not supported by the condition of service. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967 where the Court of Appeal held that where there is a written contract of service, the court will not look into any other matter outside the terms as agreed between the parties in determining the respective rights and obligations of the parties. Therefore, what the Claimants are entitled to as entitlements will depend on the terms of the contract contained in the Handbook. I have examined the provisions of the handbook. I will set out only the provisions relevant to the issue at hand. CLAUSE 2.11- TERMINATION: The company will give the employee one month’s notice of termination or pay the employee one month’s consolidated base salary in lieu of notice The employee will receive remuneration up to the effective date of termination. This may include severance payments, accrued leave and payment in lieu of notice The company will pay the employee net of all balances owed by the employee to the company. CLAUSE 2.12- NOTICE OF REDUNDANCY: Where for operational downturn or other circumstances, Management decides to embark on a redundancy exercise, Management shall give at least two months' notice to the affected employees. In situations where it is necessary to reduce the work force, exit decisions will be made at Management's discretion, based on principles of merit, fairness and objectivity as well as consideration of factors including the experience, ability/performance, fitness for work and length of service of each staff. Employees shall be paid redundancy payments/severance packages less any amount owed to the Company. CLAUSE 7.3: To know what is to be paid as redundancy benefits, clause 7.3 provides- • Redundancy benefits shall be paid according to the prevailing company policy at such time. • Employee shall be paid redundancy payment/severance package less any amount owed the company. • The following benefits shall apply- i. 1 months consolidated base salary for each completed year of service ii. Additional compensation of 2 months consolidated base salary in lieu of notice • ex-gratia shall be at the discretion of the company CLAUSE 7.1- RESIGNATION/GRATUITY: Provides- "Gratuity entitlements are payable to staff who have attained a minimum of three (3) years of uninterrupted service with the firm, on their exit. Employees that have worked with different service providers during their stay with the client company will have their files transferred, to ensure a smooth transition from one provider to the other within the company. Effective date would be the date a contract was executed with the first labour service provider I will now proceed to examine each of the remaining items of the Claimants’ claims viz-a-viz the provisions of the Handbook in order to determine what the Claimants are actually entitled to. REDUNDANCY As indicated on the Claimants letters of termination of employment, their employment were terminated for reason of redundancy. The provision of the Handbook on redundancy applies. That is to say, the Claimants are expected to be paid redundancy benefits/severance package to wit: 2 months' notice of redundancy or 2 months consolidated base salary in lieu of notice and 1 month’s consolidated base salary for each completed year of service. The letter of termination is dated 11th February 2015 and it is stated to have taken effect since 31st January 2015. It means the Defendant did not give the required two months notice to the Claimants. The Claimants are therefore entitled to (1) 2 months consolidated base salary in lieu of notice and (2) 1 month’s consolidated base salary for each completed year of service. GRATUITY: By clause 7.1 of the Handbook, staffs who has spent a minimum of three (3) years uninterrupted service with the Defendant is entitled to gratuity. The Claimants’ employment letters are listed in the Claimants list of documents as numbers 2, 6 and 7. These letters show that the Claimants were employed by the Defendant in November 2010; September 2013 and June 2011 respectively. The employment of all them was terminated with effect from 31st January 2015. As at the date of termination of their employment, the Claimants had put in 4, 1 and 3 completed years of service respectively. The Claimants appear to contend a different date of their employment. Their aim, as it appears to me, is for the purpose of computing the amount of gratuity in view if the provision of clause 7.1 of the Handbook which provide that in the case of employees that have worked with different service providers before transfer to the Defendant, the effective date of their employment would be the date of their employment with the first service provider. Such period of service with another service provider is to be taken into consideration when calculating cumulative length of service. In paragraphs 1, 2 and 3 of the statement of claim, they pleaded that the 1st Claimant was employed in May 2009, the 2nd Claimant was employed in June 2012 while the 3rd Claimant was employed in 2011. But the letters with which they said the Defendant employed them did not support that contention. The Claimants also frontloaded employment letters with which they were previously employed by Oando Energy Services and Estymol Oil Services. The Claimants did not plead anywhere that they were previously employed by any other organization other than the Defendant. The Claimants’ case is that they were employed by the Defendant and relied on the employment letters from the Defendant. In facts, the Claimants pleaded particularly in paragraph 5 of the statement of claim that the Defendant is the “company that employed the claimants and the company that the claimants worked for and with till 11-2-2015 in Rivers State.”. There is nothing in the Claimants pleading on which to believe they their employment subsisted before their employment with the Defendant. The employment letters themselves did not contain that the Claimants’ services were transferred to the Defendant. It only contain that the Claimants will be seconded to work in Oando Energy Services. The arguments of the Claimants’ counsel that the Claimants date of employment with Oando Energy Services and Estymol Oil Services should be taken into account in calculating cumulative length of service does not hold water. This is because the Claimants did not link their employment with the Defendant to any such previous employment. As it is, the Claimants completed years of service with the Defendant remain 4, 1 and 3 years respectively. While the 1st Claimant and 3rd Claimant qualify for gratuity, the 2nd Claimant does not. I so hold. EX GRATIA The condition of service is clear on the payment of Ex-gratia. It is provided in clause 7.3 that ex-gratia is at the discretion of the Defendant. It means that ex-gratia is not an entitlement of the Claimants but a payment which the Defendant can decide, voluntarily and discretionary, to make to its staff. The Defendant did not include this payment in the entitlements of the Claimants in their letters of termination. I also find in some of the documents frontloaded by the Claimant that the Claimants were informed that the Defendant did not approve payment of ex-gratia to the Claimant. Since the Defendant has decided not to pay the Claimants ex-gratia, the Claimants are not entitled to it. BALANCE OF SEPTEMBER 2014 TO JANUARY 2015 SALARY CUT The Claimants claims include what they said is their balance of 6 months salaries and Arrears of salary for February, 2015. In their pleadings, the Claimants alleged that in September 2014, the Defendant unilaterally cut down the salaries of the Claimants to between 37.5% and 50% and in paragraph 17 of the statement of claim, the Claimants include the said balances of their salaries which accrued between September 2014 to January 2015 and the 12 days work done in February 2015 to the computation of the total sum they each claim in this suit. The Defendant’s explanation for the reduction of staff salaries is that there was a downward trend in the oil and gas sector and it had an adverse effect on the company's business. Meetings were held with its employees where a temporary reduction in staff salaries was deliberated and agreed. It was the result of these meetings that the defendant decided to place the workers on redundancy for a period of six Months and reduced staff salaries temporarily to 37.5% or 50% of their monthly gross if they are called to work on the rig. The Claimants and all other affected employees were given letters of restructuring on the 10th September, 2014. When the 6 months redundancy/temporary reduction of salary lapsed without any improvement of the Defendant’s business, it decided to terminate the employment of its staff, the Claimants inclusive. Prior to the reduction of the Claimants’ salaries, the Claimants annual salaries, as reviewed in April 2014, were N11,979,000; N7,260,000; and N9,260,432.50 for the 1st, 2nd and 3rd Claimants respectively. The Claimants’ letters of salary review were frontloaded. See numbers 3 and 8 in the Claimants list of documents. The annual sums was spread and paid to the Claimants monthly. It is now clear from the case of the parties that between September 2014 and January 2015, the Defendant only paid the Claimants 50% of their monthly salaries. It is the other 50% of the salaries for the months in question that the Claimants now want this court to order the Defendant to pay to them. Although the Claimants alleged that the Defendant unilaterally took the decision to cut down salaries, after thoroughly going over the facts, I do not believe that was the position. There are facts to show that the Defendant came to that decision to reduce salaries upon consultation with the workers. The Claimants, although said they refused to sign the letter dated 10th September 2014 because of the obnoxious terms therein, they have however frontloaded it. It means they were served and they read its content before refusing to sign. The letter informed the Claimants of the following- i. There was a loss of contract for Oando Energy Services Passion Rig, ii. There was a town-hall meeting held between the defendant, its employees and service providers, iii. For a period of 6 months from 1st September 2014, there will be a change to salary structure for all employees on the Passion Rig, iv. For the 6 months period, the salary was reviewed as follows- a. Any employee asked to stay at home between 1st September 2014 and 28th February 2015, he will be paid 37.5% of his monthly salary b. Any employee asked to report to work on the Rig between 1st September 2014 and 28th February 2015, he will be paid 50% of his monthly salary The Defendant frontloaded the minutes of the meeting held on 11th August 2014. The participants in that meeting include the 2nd and 3rd Claimants. The minutes of meeting reveal that the issues of reduction of monthly salaries and percentage of salary to be paid for staying at home were extensively deliberated between the Defendant’s representative and the workers present in the meeting. The 10th paragraph of page 2 of the minutes reports thus: “At the end of their deliberations, the spokesmen for passion crew members (Mr. Lucky Uliyemi and Mr. Idemudia Enereba) explained that they have agreed to accept the stay at home pay if only they will be paid 40% of their monthly gross salary or they would opt to be paid off on redundancy…” From the content of the letter of 10th September 2014 and the minutes of the meeting held on 11th August 2014, it is clear that the reduction in salary was not a unilateral decision of the Defendant. The employees were consulted and they agreed to a reduction of salaries. The condition given by the employees was that if it is not 40%, they will rather exit the employment and be paid off on redundancy. Now, when the Claimants were given the letter of 10th September 2014 to inform them that their salaries have been reduced to either 37.5% for stay at home or 50% for working in the Rig, the Claimants had the option of either accepting the reduction or refusing same and opt to be paid off on redundancy. The Claimants’ case that they refused to sign the 2nd page of the letters might mean they refused the reduction of their salaries but they did not aver anywhere that they resigned from the employment at time or asked to be paid off on redundancy. The fact that the Claimants are asking for balance for the 6 months implies that they have been collecting the percentage payment since September 2014. Merely refusing to sign the said letter is not sufficient to establish that the Claimants refused the reduction. Their case would have been stronger if they were able to show that they also refused the percentage payments. While it is trite that payment of agreed salary is a condition of employment, I must mention that the amount to be paid as salary or the review, upward or downwards, of salary is the responsibility of the employer. Clause 4 of the Handbook gives the Defendant the responsibility to fix payments or salaries to be paid to its employees. It is provided in clause 4.3 that the range and grades of salaries may be reviewed and revised from time to time at management’s discretion. As the Claimants appear to be aware that the Defendant declared redundancy in September 2014 and it discussed the reduction of salary with the employees. The Claimants are aware of the Defendants’ circumstances at the time and accepted the percentage payments until the termination of their employments. The Claimants chose to accept the percentage payments instead refusing it and demanding to be paid off for redundancy. Since they agreed to accept the percentage payments, they cannot be heard now to claim for the balance. Section 5 (1) of Labour Act cited by the Claimants counsel is inapplicable to the circumstance of this case. What the section prohibits is deduction from employees salary by way of fine. That was not what happened in this case. What the Defendant did to the Claimants’ salary is a reduction/review and not a deduction. From all I have said so far, it is my firm view that the reduction or review of the salary of the Defendant’s employee for a 6 months redundancy period, pursuant to the Defendant’s discretionary prerogative under the condition of service and the agreement of its staff, is proper. The Claimants too, having accepted the percentage payments for the 6 months without complaining, are foreclosed from demanding for the balance. I cannot grant their claim for the balance of their salaries for the period September 2014 to February 2015 for the above reasons. The defendant’s case, and as seen on the letter dated 10th September 2014, the reduction of the Claimants’ salary was only temporary for the 6 months duration of the redundancy. There is nothing to show that the reduction was extended beyond the stipulated 6 months. The Claimants’ normal salary was expected to resume after the 6 months redundancy period. From the forgoing, and having examined the claims of the Claimant in line with the condition of service, I find that the Claimants are entitled to the following only: 1ST CLAIMANT- i. Two months consolidated base salary in lieu of redundancy notice, ii. One month’s consolidated base salary for each completed years (4 years) of service, and iii. Gratuity 2ND CLAIMANT – i. Two months consolidated base salary in lieu of redundancy notice, and ii. One month’s consolidated base salary for each completed year (1 year) of service. 3RD CLAIMANT- i. Two months consolidated base salary in lieu of redundancy notice, ii. One month’s consolidated base salary for each completed year (3 years) of service, and iii. Gratuity. I have observed that the parties are not also agreed on the salary scale with which to calculate the above entitlements of the Claimants. While the Claimants have based their calculation on their annual salary as reviewed in April 2014, the Defendants have used the percentage redundancy reduction of September 2014. I must mention it here again that the September 2014 percentage reduction was to apply for 6 months only from September 2014 to February 2015. The percentage payment was, itself, based on the Claimants existing gross annual salary. That is to say the Claimants’ annual salary, as reviewed in April 2014, was not dispensed with in September 2014. The Claimants’ salaries were only reduced for 6 months. Now the condition of service provides that the above entitlements of the Claimants are to be based on annual salary. The annual salary remains as reviewed in April 2014. At the time the Claimants’ employment was terminated, the redundancy reduction of their salaries automatically lapsed. Their entitlements ought to be calculated using their annual gross salary existing before the reduction. In conclusion of this judgment, the computation by the Claimants of their entitlements in relief 1 and paragraph 17 of their amended statement of claim is not tenable in view of my findings in this judgment. Some of the claims have even been withdrawn by the Claimants. As it is, the reliefs sought by the Claimants cannot be granted. That does not mean the defendant is let off the hook. The Claimants must be paid their entitlements which I find them to be entitled to in this judgment, in the correct and proper computation. I therefore direct the Defendant to immediately recompute the appropriate entitlements of the Claimants under the items which they are found to be entitled in this judgment and pay it to them. This must be done within 30 days from today. The cumulative sum due to the Claimants will be attracting 10% annual interest if it is not paid to them within the specified period. For the avoidance of doubt, the defendant is hereby ordered to compute and pay the Claimants their entitlements as follows: 1ST CLAIMANT- i. Two months consolidated base salary in lieu of redundancy notice, ii. One month’s consolidated base salary for each completed years (4 years) of service, and iii. Gratuity 2ND CLAIMANT – i. Two months consolidated base salary in lieu of redundancy notice, and ii. One month’s consolidated base salary for each completed year (1 year) of service. 3RD CLAIMANT- i. Two months consolidated base salary in lieu of redundancy notice, ii. One month’s consolidated base salary for each completed year (3 years) of service, and iii. Gratuity. The above entitlements shall be calculated using the Claimant’s annual gross salary existing before the redundancy reduction. That is, the computation shall be based on the Claimant’s salary as reviewed in April 2014, and NOT on the redundancy reduction of their salaries. This shall be done within 30 days from the date of this judgment being the 14th day of March 2016, failure of which the cumulative sums shall attract interest at 10% per annum until they are fully paid. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge