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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Kemi Balogun SAN, with Miss Adeola Adebisi, Miss Amina Yusuf and Jonathan Akinsanya, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">G. Onwubuya, with Joseph Nwadike, for the 1<sup>st</sup> and 2<sup>nd</sup> defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">W. J. Roberts, for the 3<sup>rd</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">No legal representation for the 4<sup>th</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On 2<sup>nd</sup> February 2016, the claimant took up against the defendants an originating summons pursuant to Order 3 Rules 6 and 9 of the National Industrial Court (NIC) Rules 2007, Order 2 of the NIC Practice Direction 2012 and under the inherent jurisdiction of the Court. By the originating summons, the claimant is praying for the determination of the following questions –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo3"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not the claimant is under any obligation to review upward the pension of its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants despite the magnanimity of the claimant in computing and paying the monthly pension of the ex-staff on most liberal and enhanced indices over and above that contemplated by the Pension Act, 1990.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo3"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether by the demand of the 1<sup>st</sup> and 2<sup>nd</sup> defendants on behalf of their members who are ex-staff of the claimant, the claimant is under a legal obligation to accede to an upward review of their pension otherwise whether such is at the discretion the claimant which discretion the claimant is unable to exercise favourably in view of the not too fair financial condition of the claimant and as a result same is misconceived, baseless and overreaching having not been so specifically provided by any law, rules or agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">And if the answers to the above questions are in the affirmative, then the claimant seeks the following reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo4"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the claimant is not obliged to review upward the pension of the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants who are ex staff of the claimant having been paying the monthly pension of the ex-staff on most liberal and enhanced indices over and above that contemplated by the Pension Act, 1990 and has been magnanimous with an upward review of the monthly pension <i>suo moto</i> in years 2008 and 2011.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo4"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the demand by the 1<sup>st</sup> and 2<sup>nd</sup> defendants for an upward review of the pension of their members who are ex staff of the claimant is misconceived, baseless and overreaching as the claimant is not under any legal obligation to review same having not been so specifically provided for by any law, rules or agreement.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo4"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of perpetual restraining the 1<sup>st</sup> and 2<sup>nd</sup> defendants from demanding an upward review of the pension or any other benefit on behalf of its members who are ex staff of the claimant same being misconceived, baseless and overreaching having not been so specifically provided for by any law, rules or agreement.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo4"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of perpetual injunction restraining the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> defendants, their members, agents, officers, servants, privies, affiliates, representatives or any other person(s) howsoever described from sealing, interfering with, obstructing, disrupting or frustrating the activities of the claimant either by picketing, padlocking, sealing or blocking the claimant’s premises nationwide or through any other means in respect of the pension or any other benefit payable to the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants who are ex staff of the claimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo4"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->And for such further or other reliefs as this Honourable Court may deem fit to make in the circumstances.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In support of the originating summons is an affidavit of 29 paragraphs deposed to by Olamide Shofolu, Team Lead, Compensation and Benefits Officer, Human Capital Management and Development Department in the employ of the claimant (with accompanying exhibits) and a written address.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In opposition, the 1<sup>st</sup> and 2<sup>nd</sup> defendants filed a counter-affidavit of 25 paragraphs sworn to by Chief Charles Omeili, a retired pensionable staff of the claimant and a member of the 2<sup>nd</sup> defendant’s association (with accompanying exhibits) and a written address, to which the claimant filed a reply affidavit (with one exhibit) and a reply written address.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 3<sup>rd</sup> and 4<sup>th</sup> defendants did not file any process in reaction to the originating summons.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">When the claimant filed the originating summons, it had also filed a motion on notice praying for two interlocutory injunctions restraining the defendants from <i>inter alia</i> picketing the premises of the claimant nationwide. At the Court’s sitting of 1<sup>st</sup> March 2016, parties intimated to the Court the necessity of the substantive suit being heard and disposed of timeously and the motion on notice for interlocutory orders simply abiding with the outcome of the substantive suit. The parties were accordingly asked to complete the joining of issues and filing of the necessary processes for the disposition of the substantive suit, which they did.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANT’S CASE<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the computation for the payment of pension to its ex-staff who are members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants is fashioned after the Pension Act 1990 but above the indices contemplated by the said Act including allowances. That the monthly pension payment by the claimant to the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants is calculated and paid on a percentage of each retiree’s highest pensionable emoluments (basic salary) earned by each retiree at the last substantive grade before retirement, in addition to a percentage of the transport, lunch and housing allowances, the payment of annual medical allowance and 13<sup>th</sup> month which is the total of a month pension of each retiree. That the claimant has never defaulted in the payment of the monthly pension to its retirees who are members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants. That the claimant has been very magnanimous to ex-staff (“retirees”) of the claimant who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants with the payment of monthly pension; and also at a heavy cost, the claimant <i>suo moto</i> reviewed upward the retirees’ pension in 2008 and 2011 when the salaries of the claimant’s staff were increased.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that the 1<sup>st</sup> and 2<sup>nd</sup> defendants have threatened severally to disrupt the activities of the claimant if the claimant did not review upward the pension of their members, who are ex-staff of the claimant, one of which threat was conveyed to the claimant by a letter dated 16<sup>th</sup> October, 2015. That pursuant to the receipt of the 2<sup>nd</sup> defendant’s letter dated 16<sup>th</sup> October 2015 and subsequent meetings and correspondence between the claimant and the 1<sup>st </sup>and 2<sup>nd</sup> defendants, the claimant and the 1<sup>st </sup>and 2<sup>nd</sup> defendants signed a communiqué on 16<sup>th</sup> November 2015 under the auspices of the Federal Ministry of Labour. That by the said communiqué, the claimant was to communicate back to the 1<sup>st </sup>and 2<sup>nd</sup> defendants the claimant’s management decision on the requested upward review of the pension payable to the ex-staff of the claimant who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants. That afterwards, the Management of the claimant in its meeting held late January 2016 decided not to review upward the pension of the claimant’s ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants with cogent reasons and same was conveyed to the representatives of the 1<sup>st</sup> and 2<sup>nd</sup> defendants at a meeting held on 2<sup>nd</sup> February 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that at the meeting facilitated by the Federal Ministry of Labour and Productivity between the representatives of the claimant and the 1<sup>st</sup> and 2<sup>nd</sup> defendants held on the 16<sup>th</sup> November 2015 culminating in the communiqué referred to earlier and meetings held on 16<sup>th</sup> November 2015 and 2<sup>nd</sup> February 2016 respectively, the 1<sup>st</sup> and 2<sup>nd</sup> defendants vehemently threatened to disrupt the business activities of the claimant if the claimant fails to meet their demand through picketing and any other means with the support of the 3<sup>rd</sup> and 4<sup>th</sup> defendants. The claimant accordingly filed this action seeking the reliefs already outlined.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE 1<sup>ST</sup> AND 2<sup>ND</sup> DEFENDANTS’ CASE<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> and 2<sup>nd</sup> defendants, and going by their counter-affidavit, the pensioners involved in this case are those who retired before 2004 i.e. before the coming into effect of the Pension Reform Act 2004. That the claimant has been in the habit of grossly underpaying pensioners not minding that there are more than enough funds in the pension fund account including the investment in stocks and money market. That the 2<sup>nd</sup> defendant had brought to the notice of the claimant the disparity in pension payments between its members and those of other banks, but which the claimant did not attend to. The 2<sup>nd</sup> defendant accordingly sued the claimant at the Investment and Security Tribunal (IST), which tribunal on 25<sup>th</sup> October 2010 made certain orders including orders for the claimant to explain to the 2<sup>nd</sup> defendant the reasons for the decline in the percentage shareholding of its pension fund from 10% to 5% in 2006, and for the claimant to account to the 2<sup>nd</sup> defendant on how much of the pension fund was transferred to IBTC Pension Managers Ltd and when it was transferred. That the claimant failed to comply with orders of the IST and so contempt proceedings before the IST were taken up against the claimant. However, that at the promulgation of the Third Alteration to the 1999 Constitution, the IST declined further jurisdiction over the matter, which decision of the IST is currently being appealed against at the Court of Appeal.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants went on that on 2<sup>nd</sup> February 2011, the claimant wrote to their counsel informing him that their shareholding in the bank is 5% and not 10% and that in July 2008, the claimant transferred N16,038 billion to IBTC Pension managers out of the 2<sup>nd</sup> defendant’s pension fund account, from where the pension of members of the 2<sup>nd</sup> defendant is paid. That the claimant proposed a meeting over this, which counsel to the 1<sup>st</sup> and 2<sup>nd</sup> defendants agreed to attend with the pensioners. That the claimant refused this.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> and 2<sup>nd</sup> defendants, there is a pension fund account with the claimant which is distinct from the bank’s monies. That it is from this pension fund account that the claimant invested in their shares, in the money market and it is from the fund that N16 billion odd was transferred to IBTC Pension Managers. Accordingly, that the pensions of the 2<sup>nd</sup> defendant are not charged to the bank’s funds but to the 2<sup>nd</sup> defendant’s pension fund account. Also that the pension fund and profits accruing from their investments is for the pensioners and not the bank as the claimant is claiming.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants continued that the increment they are demanding from the bank is to be paid from their pension fund account; and that the claimant has not shown that the fund cannot sustain the increment they are demanding. That till today, the claimant has failed to disclose the balance in the pension fund account as ordered by IST, which fund the claimant is tampering with as if it is the bank’s fund.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants then averred that like the claimant, they also have legal right under the Trade Unions Act (TUA) to proceed on strike or picket the claimant’s bank in case of a trade dispute given that lock-out or picketing is not an unlawful act but an act available to the 1<sup>st</sup> and 2<sup>nd</sup> defendants when they are marginalized by the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE SUBMISSIONS OF THE CLAIMANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimant submitted the following issues for determination of the Court –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo5"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not the claimant is under any obligation to review upward the pension of its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants despite the magnanimity of the claimant in computing and paying the monthly pension of the ex-staff on most liberal and enhanced indices over and above that contemplated by the Pension Act 1990.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo5"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether by the demand by the 1<sup>st</sup> and 2<sup>nd</sup> defendants on behalf of their members who are ex-staff of the claimant, the claimant is under a legal obligation to accede to an upward review of their pension otherwise whether such is at the discretion of the claimant which discretion the claimant is unable to exercise favourably in view of the not too fair financial condition of the claimant and as a result same is misconceived, baseless and overreaching having not been so specifically provided by any law, rules or agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1, the claimant submitted that in the instant case, the claimant’s ex staff who are members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants all retired from the employ of the claimant before the year 2004. That the only law in force guiding the payment of pension at the time of the retirement of the ex-staff of the claimant that are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants is the Pension Act 1990 and the Act was applicable to only employees in the public service save for the magnanimity of the claimant, the members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants who are ex-staff of the claimant are not entitled to pension payment and, therefore, cannot enforce an upward review of same against the claimant. That despite the non-inclusion for payment of pension for non-public servants in the Pension Act, the claimant still computes and pays pension fashioned after the Pension Act 1990 but above the indices contemplated by the said Act including allowances to its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants. That the said Pension Act 1990 only covers employees in the public service of the Federation given that it provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">An Act to consolidate all enactments dealing with Pensions, War Pensions and disability benefits and gratuities for civilian employees in the <i>public service of the Federation</i> (emphasis is the claimant’s).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that section 22 of the Pension Act 1990, which the pension payable to the members of the 1<sup>st </sup> and 2<sup>nd</sup> defendants is fashioned after, clearly states as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Pensioners are entitled to pension which shall not exceed 70 per cent of the highest pensionable emoluments earned by each member at any time during the course of his/her service which does not include any allowance.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also, that section 24 further defines pensionable emoluments as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Pensionable emoluments means the salary earned by each member at any time during the course of his/her service which does not include any allowance.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the monthly pension payment by the claimant to members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants is calculated on a percentage of each retiree’s highest pensionable emoluments (basic salary) earned by each retiree at the last substantive grade before retirement, in addition to a percentage of the transport, lunch and housing allowances, the payment of annual medical allowance and 13<sup>th</sup> month which is the total of a month pension of each retiree. It is, therefore, the submission of the claimant that it has been magnanimous in its monthly payment of pension to its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants as their pensions are computed and paid by the claimant on most liberal and enhanced indices over and above that contemplated by the Pension Act 1990 by including payment of pension on a percentage of allowances in addition to the percentage paid on the basic salary and also by payment of annual medical allowance and 13<sup>th</sup> month.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that it has never defaulted in the payment of the monthly pension to its retirees who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants. That it has been very magnanimous to its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants with the payment of monthly pension; and at a heavy cost, the claimant also reviewed upward their pension <i>suo moto</i> in 2008 and 2011 when the salaries of the claimant’s staff was increased. That no rules, agreement, laws or even the provisions of Pension Act provide for a review of the pension of a retiree after retirement and the upward review done by the claimant in 2008 and 2011 was done and, therefore, the claimant cannot be compelled to review the pension of the members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants who are ex-staff of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is accordingly the claimant’s submission that in view of the provisions of the Pension Act 1990, which the claimant fashioned its payment of pension after, the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants who are ex-staff of the claimant are not entitled to an upward review of their pension. Furthermore, that the claimant is not under any legal obligation to review upward the pension of the ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants same having not been specifically provided for by any rules, laws or agreement. The claimant then urged the Court to find the hold that the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants who are ex-staff of the claimant are not entitled to an upward review of their pension; urging also that the Court resolves issue 1 in favour of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue 2, the claimant contended that the 1<sup>st</sup> and 2<sup>nd</sup> defendants have at several meetings and through various correspondences to the claimant demanded for an upward review of the pension of its members who are ex-staff of the claimant, referring to Exhibits B and C. That the demand for the upward review is not predicated upon any agreement, rules or any enactment and the 1<sup>st</sup> and 2<sup>nd</sup> defendants are constantly threatening to disrupt the business activities of the claimant through picketing and any other means if their demand is not acceded to. That the upward review of the pension by the claimant <i>suo moto</i> in 2008 and 2011 when the salaries of the claimant’s staff was increased was done as the claimant is not under any obligation to make any review to the pension of its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that its monthly pension payment to the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants is calculated on a percentage of each retiree’s highest pensionable emoluments (basic salary) earned by each retiree at the last substantive grade before retirement, in addition to a percentage of the transport, lunch and housing allowances, the payment of annual medical allowance and 13<sup>th</sup> month which is the total of a month pension of each retiree. To the claimant, it has been very magnanimous to members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants with the payment of monthly pension, and at a heavy cost to the claimant. That the demand by the 1<sup>st</sup> and 2<sup>nd</sup> defendants on behalf their members who are ex-staff of the claimant for an upward review of their pension is overreaching, illegal, null and void having not been so specifically provided by any law or rules. The claimant accordingly urged the Court to resolve issue 2 in its favour and hold that the demand by the 1<sup>st</sup> and 2<sup>nd</sup> defendants on behalf their members who are ex-staff of the claimant for an upward review of their pension is overreaching, illegal, null and void having not been so specifically provided by any law, rules or agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimant urged the Court to grant the reliefs it seeks.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE SUBMISSIONS OF THE 1<sup>ST</sup> AND 2<sup>ND</sup> DEFENDANTS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants submitted the following issues for determination –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo6"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether from the affidavit evidence before this Honourable Court, the claimant is entitled to their claims as contained in the originating summons.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo6"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the request by the 1<sup>st</sup> and 2<sup>nd</sup> defendants for an upward review of their members’ pension in line with the current inflation trend and the prevailing economic situation in the country should be at the mercy of the claimant or a duty based on what their pension fund account can sustain.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo6"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether by the provisions of sections 23(1) and 43(1) of the Trade Unions Act, this Honourable Court has the powers to entertain the claims as contained in the originating summons against the 1<sup>st</sup> and 2<sup>nd</sup> defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants argued issues a) and b) together. To the 1<sup>st</sup> and 2<sup>nd</sup> defendants, the claimant in paragraph 4 of their written address submitted that the applicants are not bound to pay pension to their retired staff as they are not covered by the Pension Act 1990. That this submission is most malicious as it amounts to saying that after working for the claimant for thirty years or more, one is not entitled to pension because it is not provided for in the Pension Act, referring to Exhibit ‘A’ which is the letter of confirmation of the deponent’s appointment which automatically made him and all other confirmed staff of the claimant members of the Standard Bank Pension Fund, and the applicant herein is the successor of Standard Bank Ltd.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the issue of whether there is a pension scheme for the 2<sup>nd</sup> defendant is as of right and not at the whims and caprices of the claimant. That Exhibit ‘A’ specifically refers to Standard Bank of Nigeria Pension fund, which shows that there is a fund specially meant for pensioners as against pensioners retired after 2004 who are protected by the 2004 and 2014 Pension Acts. That the above view is also supported by paragraph 11 of the counter-affidavit where the claimant confirmed transferring the sum of N16 million odd from the First Bank pension fund account to IBTC Pension Fund Managers. That the claimant’s former employees’ right to pension is, therefore, part of their contract of employment and not by the 1990 Pension Act as alleged by the claimant which contract the claimant is duly bound to implement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the claimant also in paragraph 23 of their affidavit in support alleged that over 10,000 of their staff and over 12 million of their customers who transact business with them every day would be affected by any action of the 2<sup>nd</sup> defendant. That how they arrived at these bogus numbers is still in doubt, but the claimant completely ignored the plight of members of the 2<sup>nd</sup> defendant who die daily due to the refusal of the claimant to attend to their humble request, referring to paragraph 21 of the counter-affidavit. Their plight, to the 1<sup>st</sup> and 2<sup>nd</sup> defendants, is more serious than that of the staff and customers as it involves issue of life and death.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the claimant relied seriously on the 2<sup>nd</sup> defendant’s letter of 16<sup>th</sup> October 2015 as the threat to disrupt their services. The letter is Exhibit ‘A’ to the summons. The 1<sup>st</sup> and 2<sup>nd</sup> defendants then commended Exhibit ‘A’ so that the Court can appreciate the stand of the union and their sincerity in the well being of both parties. That the letter highlighted the sufferings of their members not minding that the claimant invested their funds through the 1<sup>st</sup> defendant as the custodians of their pension fund. That the letter also stated that instead of the bank attending to their pleas, they resorted in promoting a splinter group to destabilize them. That the 2<sup>nd</sup> defendant in its letter did not say that they will disrupt their services but that they would ensure that justice is done to their members.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants then submitted that the issue of pension for retired staff of the claimant is as of right and not at the whims and caprices of the claimant and the issue of the payment and/or upward review cannot be at their mercy but a duty which they are bound to perform as they are not doing their employees any favour but only fulfilling their contract with their former staff when their employment was confirmed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Issue c) is whether by the provisions of sections 23(1) and 43(1) of the Trade Unions Act (TUA), this Court has the powers to entertain the claims as contained in the originating summons against the 1<sup>st</sup> and 2<sup>nd</sup> defendants. To the 1<sup>st</sup> and 2<sup>nd</sup> defendants, section 23(1) of TUA provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">An action against a trade union (whether of workers or employers) in respect of any tortuous act alleged to have been committed by or on behalf of the trade union in contemplation of or in furtherance of a trade dispute shall not be entertained by any court in Nigeria.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants quoted section 43(1) of TUA as providing as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort or anyone more of the following grounds only, that is to say –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:1.0in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo7"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->that it induces some other person to break a contract of employment, or<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo7"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or his labour as he wishes; or<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo7"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->that it consists in his threatening that a contract of employment (whether one of which he is a party or not) will be broken; or<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo7"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->that it consist in his threatening that he will induce some other person to break a contract of employment to which that, other person is a party<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="margin-left:1.0in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo7"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->nothing in subsection (1) of this section shall prevent an act done in contemplation or furtherance of a trade dispute from being actionable in tort on any being ground not mentioned in that subsection.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants then submitted that there is no doubt that the 1<sup>st</sup> defendant is a registered trade union and that the 2<sup>nd</sup> defendant is their affiliate. That there is also no doubt that the claims in the originating summons are tortuous acts which section 23(1) of the TUA ousts the jurisdiction of this Court. Accordingly, that this Court has no power to consider the claimant’s application and same should, therefore, be dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> and 2<sup>nd</sup> defendants concluded by urging the Court to dismiss the originating summons with substantial costs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANT’S REPLY SUBMISSIONS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the 1<sup>st</sup> and 2<sup>nd</sup> defendants formulated three new issues for determination in their written address in support of their counter-affidavit dated 8<sup>th</sup> March 2016 which are significantly different from the issues for determination raised by the claimant in its originating summons. That in view of the foregoing, the preliminary point to be determined in the circumstance is whether the 1<sup>st</sup> and 2<sup>nd</sup> defendants are entitled to raise fresh issues for determination outside the ones raised by the claimant in the originating summons. However, that for the abundance of caution, the claimant shall proceed to address the issues as formulated by the 1<sup>st</sup> and 2<sup>nd</sup> defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant, however, started off with the preliminary issue it raised i.e. whether the 1<sup>st</sup> and 2<sup>nd</sup> defendants are entitled to raise fresh issues for determination outside the ones raised by the claimant in the originating summons. That the law is clear that a claimant(s) and/or defendants are not at liberty to formulate fresh issues for determination or questions outside that which has been formulated by the claimant in an action commenced by way of originating summons. That there are only two options available by which fresh issues or question may be raised to wit: by filing a new/fresh originating summons or by filing an amended originating summons. That it is in fact only the claimant that has the privilege to raise such fresh issues or questions. That there is no other appropriate way to raise fresh issues, not by counter-affidavit, not by reply on points of law or any other such court process. That the effect of this position of law is that the Court lacks the requisite jurisdiction to entertain or answer such fresh/new issues that have been formulated by the 1<sup>st</sup> and 2<sup>nd</sup> defendants’ counter-affidavit to the originating summons. That any movement away from the settled position of law stated above renders any such fresh questions or issues for determination baseless, goes to no issue and should be ignored by the Court, referring to <i>Alhaji Musa Alubankudi v. AG, Federation</i> [2002] 19 NWLR (Pt. 796) 338 CA at 357, where Chukwuma-Eneh, JCA (as he then was) posited thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">When the specific questions for determination in an originating summons have been answered by the court and so become exhausted or settled, any fresh question must be raised by a fresh originating summons. It is however open to the plaintiff to raise, by amendment, such further questions that are appropriate to the type of reliefs he seeks. This is because the court would lack competence to hear and determine a matter raised completely outside the questions posed for determination in the originating summons.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in the instant case, the 1<sup>st</sup> and 2<sup>nd</sup> defendants have raised fresh/new issues/questions for the determination of this Court which they are not permitted to do, urging the Court to find and hold in favour of the claimant and dismiss the fresh issues raised by them. However, that assuming without conceding that the 1<sup>st</sup> and 2<sup>nd</sup> defendants can raise fresh issues for determination outside the ones raised by the claimant in the originating summons, the claimant then proceeded to respond to said fresh issues so raised.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issues a) and b) of the 1<sup>st</sup> and 2<sup>nd</sup> defendants, the claimant submitted that the core of the argument of the 1<sup>st</sup> and 2<sup>nd</sup> defendants is that their members are entitled to the payment of pension from their Pension fund account and that the claimant invested the funds through the 1<sup>st</sup> defendant as custodian of the Pension fund. That the submission of the 1<sup>st</sup> and 2<sup>nd</sup> defendants on this issue is highly misconceived. That it is not in doubt that the claimant has always paid the monthly pension of its staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants as and when due and the said pension is paid based on the computation fashioned after the Pension Act 1990 but above the indices contemplated by the Act, referring to Exhibit RA. That it is also not in doubt that the claimant has never defaulted in the payment of the monthly pension to its retirees who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then submitted that the pension scheme is not a profit sharing scheme and the same is subject to periodic audit by the National Pension Commission and any investment with the pension funds rise and fall in line with market realities. That where there is a shortfall in respect of the pension fund which occurs from time to time as a result of the downward trend in the Nigerian economy, the claimant is always required to pay the deficit by funding the pension fund account. That there is no contract or agreement whatsoever that the pension of the claimant’s retirees who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants should at any time be reviewed upward.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that the 1<sup>st</sup> and 2<sup>nd</sup> defendants have also argued that the members of the 2<sup>nd</sup> defendant die daily due to the refusal of the claimant to attend to their request for an increment in their pension. That this assertion by the 1<sup>st</sup> and 2<sup>nd</sup> defendants is indeed fallacious and misleading as the claimant has been diligent in the payment of the pension due to the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants which comprises of a percentage of each retiree’s highest pensionable emolument (basic salary) earned by each retiree at the last substantive grade before retirement. In addition, that a percentage of the transport, lunch, and housing allowance, and also annual medical allowance and 13<sup>th</sup> month is paid which is highly magnanimous on the part of the claimant. Furthermore, that the claimant has ensured that members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants are not short changed in their pension payments, the same paid to them as and when due. That the claimant is not under any obligation or duty to review the said pension upward as there is no agreement or contract to that effect. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the current inflation trend and the prevailing economic situation in the country does not place a duty or an obligation on the claimant to review the pension of the members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants upward. Also, that the claimant informed the 1<sup>st</sup> and 2<sup>nd</sup> defendants of its decision not to review upward the pension with cogent reasons which include the downturn in the global and in particular Nigerian economy to which the claimant is not insulated. In any event, that this Court cannot be called upon to sit on appeal over the decision of the Investment and Securities Tribunal which the 1<sup>st</sup> and 2<sup>nd</sup> defendants are inviting the Court to do by virtue of paragraphs 7, 8, 9 and 10 of their counter-affidavit; urging the Court to discountenance the said paragraphs. Furthermore, that paragraphs 22, 23 and 24 contravene the position of the law in section 115(1) of the Evidence Act and so same should be expunged; and paragraph 24 in addition contravenes section 115(1)(4) of Evidence Act and should, therefore, be totally expunged. The claimant then urged the Court to discountenance the submissions of counsel to the 1<sup>st</sup> and 2<sup>nd</sup> defendants and resolve the instant issues and issues as formulated in the originating summons in favour of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue c) of the 1<sup>st</sup> and 2<sup>nd</sup> defendants, the claimant urged the Court to discountenance the submissions of the 1<sup>st</sup> and 2<sup>nd</sup> defendants’ counsel in their regard. To the claimant, the contention that the intended act of the 1<sup>st</sup> and 2<sup>nd</sup> defendants to picket the claimant’s premises is not actionable in tort does not suffice as the provisions of sections 24(1) and 44(1) of the Trade Unions Act are unambiguous. Section 44(1) clearly spells out the acts done in furtherance of trade dispute which shall not be actionable in tort. That the intended act of the 1<sup>st</sup> and 2<sup>nd</sup> defendants to which the claimant seeks to perpetually restrain by the fourth relief sought is not covered by the exceptions stated in section 44(1) of the Trade Unions Act. Furthermore, that section 44(2) of the Trade Union Act clearly provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Nothing in subsection (1) of this section shall prevent an act done in contemplation or furtherance of a trade dispute from being actionable in tort on any ground not mentioned in that subsection.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Section 48 of the Trade Disputes Act then defines trade dispute to mean: “any dispute between employees and workers or workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions or work of any person <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the submission of the claimant then that the contention of the 1<sup>st</sup> and 2<sup>nd</sup> defendants is based on the existence or otherwise of a dispute as to the upward review of the pension of its members who are ex-staff of the claimant. That in essence if the Court holds in favour of the claimant, a trade dispute will no longer be said to be in existence in the instant case. The claimant concluded by urging the Court to discountenance the arguments of counsel to the 1<sup>st</sup> and 2<sup>nd</sup> defendant and grant the reliefs sought against the 1<sup>st</sup> and 2<sup>nd</sup> defendants in the instant suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. When counsel to both parties orally adopted their written addresses, counsel to the 1<sup>st</sup> and 2<sup>nd</sup> defendants had urged that paragraphs 4.7 – 4.19 of the claimant’s reply on points of law be discountenanced as the issues addressed there were issues of facts. Counsel to the 1<sup>st</sup> and 2<sup>nd</sup> defendants also urged that the matter before the Court is not one that should have been commenced by way of originating summons but by complaint with pleadings filed. The learned senior counsel to the claimant did not concede that if this Court makes a finding that this case ought to have commenced by way of complaint, not originating summons, then parties should be recalled and pleadings ordered. To him, the facts before the Court are sufficient for a definitive decision of this Court. On the issue of paragraphs 4.7 – 4.19 of the reply on points of law being a discussion of issues of facts, learned senior counsel replied that what they filed was a reply affidavit as opposed to a written address on points of law. That the defendants raised new issues to which they have the constitutional right to react despite the manner in which the NIC Rules 2007, as amended in 2012, are couched. That the issues raised by the 1<sup>st</sup> and 2<sup>nd</sup> defendants in their written address are outside of the issues raised in the originating summons, referring to <i>Alubankudi v. AG, Federation</i> [2002] 19 NWLR (Pt. 796) 338 at 345. Learned senior counsel then submitted that their originating summons is accordingly unchallenged and so judgment should be entered in their favour. At the close of adoption of written addresses, counsel to the 1<sup>st</sup> and 2<sup>nd</sup> defendants wrote to the Court vide a letter dated 20<sup>th</sup> June 2016 sent case law authorities on their submission that pleadings be ordered as the issues involved cannot be resolved on affidavit evidence as the questions stated for determination were not simple questions of construction or interpretation of a statute or document. The cases are: <i>Gozie Agbakoba v. INEC & 2 ors</i> [2008] 18 NWLR (Pt. 1119) 489 at 499, <i>Lady Ayodele Alakija & anor</i> [1978] 9 and 10 SC 59 (incomplete citation – name of second party not given) and <i>Alhaji Musa Alubankudi v. AG, Federation</i> [2002] 17 NWLR (Pt. 796) 338 at 357.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I need to first clear a misconception on the part of the 1<sup>st</sup> and 2<sup>nd</sup> defendants as to what the case of the claimant actually is. To the 1<sup>st</sup> and 2<sup>nd</sup> defendants, the claimant in paragraph 4 of their written address submitted that the applicants are not bound to pay pension to their retired staff as they are not covered by the Pension Act 1990. They then concluded that the claimant’s former employees’ right to pension is part of their contract of employment and not by the 1990 Pension Act as alleged by the claimant which contract the claimant is duly bound to implement. To start with, the claimant said none of this. Attributing to a party what that party did not say is bad enough practice and advocacy. The case of the claimant is that it has no obligation to <i>review upward</i> the pensions of its ex-staff who are members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants, “<i>review upward</i>” being the key; as distinct from no obligation to pay pension at all, which is what the 1<sup>st</sup> and 2<sup>nd</sup> defendants presently impute. The claimant did not say that it is not bound to pay pension to their retired staff as the 1<sup>st</sup> and 2<sup>nd</sup> defendants put it. The issue of the Pension Act 1990 came in only in terms of the argument of the claimant that it went beyond <i>even</i> the requirement of the Pension Act 1990, a law that applies to only public officers, in calculating the pensions of its retired staff. The claimant did not say that the pension rights of its retired staff are derivable from the Pension Act 1990 as the 1<sup>st</sup> and 2<sup>nd</sup> defendants also put it. This means that all the submissions of the 1<sup>st</sup> and 2<sup>nd</sup> defendants hinged on this misconception go to no issue and so are discountenanced for purposes of this judgment. Counsel may thus be well advised to understand the case before him/her before reacting.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant argued that the 1<sup>st</sup> and 2<sup>nd</sup> defendants in their counter-affidavit raised issues way out of what the claimant brought to court and that this is wrong. I agree with the claimant that a defendant has no leverage to raise issues outside of those raised in the originating summons. See <i>NJC v. Hon. Justice Jubril Babajide Aladejana</i> [2014] LPELR-24134(CA), which held that in an originating summons proceedings, the issues to be addressed are those raised in the originating summons; and it does not lie in the mouth of a respondent to formulate his own issues for determination as issues in a case are circumscribed by the claims before the Court as constituted in the prayers – and all arguments and findings not related to the prayers are amiss. The case went on to hold that the respondent in such a case has the option of counterclaiming (referring to <i>Aghu v. Cross River State</i> [2009] 3 NWLR (Pt. 1129) 475 at 507); and I may add, filing a fresh action of its own. In the instant case, issues about IST and its orders, issues as to rendering account of invested pension funds, the comparison between the pensions of ex-staff of the claimant and those of Union Bank, etc are all outside of the issues raised in the originating summons. Accordingly, they cannot be considered in this suit; I so find and hold. The 1<sup>st</sup> and 2<sup>nd</sup> defendants of course have the option of filing their own suit over the issues they raised in a Court of competent jurisdiction.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Additionally, I equally agree with the claimant that paragraphs 22, 23 and 24 of the counter-affidavit of the 1<sup>st</sup> and 2<sup>nd</sup> defendants are legal arguments and conclusions and so offend section 115 of the Evidence Act 2011; as such they go to no issue (<i>Saidu H. Ahmed & ors v. CBN</i> [2013] LPELR-207449(SC)) and are hereby struck out. Paragraph 24 of the counter-affidavit of the 1<sup>st</sup> and 2<sup>nd</sup> defendants (now struck out) is the only provision where the 1<sup>st</sup> and 2<sup>nd</sup> defendants argued that the claimant cannot maintain an action in tort against them. Even in their written address, the 1<sup>st</sup> and 2<sup>nd</sup> defendants did not make this point; instead they cited sections 23(1) and 43(1) of the Trade Unions Act (TUA) as merely ousting the jurisdiction of this Court. It is in respect of paragraph 24 of the counter-affidavit that the claimant reacted in its reply address. Since paragraph 24 of the counter-affidavit has now been struck out, it means that the reaction of the claimant in that regard is superfluous and so is discountenanced.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I indicated that the 1<sup>st</sup> and 2<sup>nd</sup> defendants relied on sections 23(1) and 43(1) of the TUA, arguing that they oust the jurisdiction of this Court. In reproducing the sections, the 1<sup>st</sup> and 2<sup>nd</sup> defendants talked of “tortuous acts”, when the correct phrase should be “tortious acts”. Section 23(1) in ousting the jurisdiction of this Court is hinged on any tortious act alleged to have been done in contemplation or furtherance of a trade dispute. This means that in prohibiting actions in tort against trade unions, there is a pre-condition i.e. that the tortious act was done in contemplation or furtherance of a trade dispute. This Court will have to decide that the pre-condition has been met before any talk of jurisdiction being ousted can arise. This effectively means that what section 23(1) actually provides for, as its title/marginal note indicated, is the prohibition of actions in tort, not the ousting of the jurisdiction of this Court for the very act of having to decide whether the conditions for the prohibition of the actions in tort have been met means that the Court has to first assume jurisdiction. This Court accordingly has the jurisdiction to look into the instant case contrary to the submission of the 1<sup>st</sup> and 2<sup>nd</sup> defendants; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">These points made and issues resolved, in looking at the merit of the claimant’s case I may have to start with some sort of education, one that seeks to explain the nature of the jurisdiction of this Court; for I think that was lost on especially the senior learned counsel for the claimant when this suit was filed, a suit commenced by way of an originating summons. The jurisdiction of this Court is in two strands: original and appellate. The appellate jurisdiction of the Court is commonly activated by the referral instrument of the Minister of Labour especially when there is an objection to an award of the Industrial Arbitration Panel (IAP). Incidentally, this is not the case regarding the present suit. In its original jurisdiction, however, this Court takes the following matters: individual labour/employment disputes of employees since these cannot go through the processes of Part I of the Trade Disputes Act (TDA) Cap. T8 LFN 2004; the interpretation of awards of IAP, awards of this Court, collective agreements, any memorandum of understanding for the settlement of a trade dispute and trade union constitutions; disputes as to whether any person can or cannot embark on any industrial action or lock-out; and matters dully brought vide originating summons so long as they relate to construction of instruments and have facts that are certain and not contentious, and which only requires the matter to be proved by affidavit evidence.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant chose to come by way of originating summons on a matter that was at first related to the threat of industrial action by the defendants hence the affidavit of extreme urgency, the motion <i>ex parte</i> and the motion on notice, all filed along with the originating summons on 2<sup>nd</sup> February 2016. It is the threat of an industrial action that activated the original jurisdiction of this Court as per section 7(1)(b) of the NIC Act 2006 as well as section 254C(1)(c) of the 1999 Constitution, as amended. However, the two issues posed by the claimant in its final written address for the determination of this Court bear little relationship to the threat of industrial action that first brought the claimant to this Court. Secondly, an originating summons presupposes that what the Court is called upon to decide is hinged on the interpretation of an instrument i.e. either a law or document. This is not the case with the two issues the claimant framed for determination. What do we have before us? The claimant wants this Court to determine whether the claimant is under an obligation to review upward pensions of ex-staff; and also whether the claimant is under an obligation to oblige the request for an upward review of pensions of ex-staff. The exhibits frontloaded as attachments to the claimant’s affidavits have not been put for construction by the claimant. And in all of this, the claimant did not address the issue of threat to industrial action that led to filing this case in the first place. I accordingly have to ask: where are the documents/law sought to be constructed as to justify bringing this action by way of originating summons?<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Lest we forget, the claimant itself had urged this Court to “hold that the demand by the 1<sup>st</sup> and 2<sup>nd</sup> Defendants on behalf their members who are ex-staff of the Claimant for an upward review of their Pension is overreaching, illegal, null and void having not been so specifically provided by any Law, Rules or Agreement”. This means that there are no “Law, Rules or Agreement” conferring any interest or entitlement for construction. Yet, the case was brought vide an originating process. The authorities are quite clear on what an originating summons signifies. Under the Rules of this Court, for instance, Order 3 Rule 5A of the NIC Rules 2007 as inserted by the NIC Practice Direction 2012 provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(1) Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">(2) The Originating Summons shall be accompanied by:<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">a) An affidavit setting out the facts relied upon.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">b) Copies of the instrument sought to be construed (other than an enactment) and other related documents.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">c) A written address containing the issues to be determined and succinct argument of the issues.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The case law authorities reinforce this stance of the Rules. Accordingly, by <i>Famfa Oil Limited v. AG of the Federation & anor</i> [2003] LPELR-1239(SC); [2003] 18 NWLR (Pt. 852) 453; [2003] 9 – 10 SC 31 –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights. If there are serious dispute as to facts then a normal writ must be taken out and not Originating Summons.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">And by <i>Njideka Ezeigwe v. Chief Benson Chuks Nwawulu & ors</i> [2010] LPELR-1201(SC); [2010] 4 NWLR (Pt. 1183) 159 SC –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">It is settled law that Originating Summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law; or where there is likely to be no or any substantial dispute of law or of any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">From these authorities, the originating summons is available to a person claiming an interest under an instrument; and the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in circumstance where there is not likely to be any dispute as to the facts. See <i>Hon. Michael Dapianlong & ors v. Chief (Dr) Joshua Chibi Dariye & anor (No. 2)</i> [2007] LPELR-928(SC); [2007] 8 NWLR (Pt. 1036) 332; [2007] 4 SC (Pt. III) 118. The claimant in the instant case is first not even claiming an interest; what it is claiming is that it has no obligation. Secondly, the requirement is that there is an instrument (upon which the interest is claimed) for construction. In the instant case, there is no such instrument; at least no instrument was frontloaded for construction as required under Order 3 Rule 5A(2)(b) of the NIC Rules, as amended by the NIC Practice Directions 2012.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">All of this aside, like I pointed out earlier, all of the issues were raised within the context of a threat to an industrial action. Yet in framing the issues, nothing is said of the impending industrial action. The point is that but for the threat of an industrial action, the claimant would not have come to court since it believes in the first place that it has no duty whatsoever to review upward pensions of its ex-staff. In other words, as framed, the two issues are devoid of any competent issue that can activate the original jurisdiction of this Court. A dispute over upward review of pensions of ex-staff would qualify as a post-employment dispute between an employer and an organization(s) representing the claimant’s ex-staff. In this sense, it is doubtful if this Court would have original jurisdiction over the matter as filed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This probably explains the 1<sup>st</sup> and 2<sup>nd</sup> defendants’ submission that pleadings be ordered as the issues involved in this case cannot be resolved on affidavit evidence as the questions stated for determination were not simple questions of construction or interpretation of a statute or document, a submission the claimant objected to. The difficulty with the 1<sup>st</sup> and 2<sup>nd</sup> defendants’ submission is that pleadings may be ordered but only if the matter itself qualifies to be heard by this Court in its original jurisdiction; and here I have my doubts. What the claimant brought before this Court is almost like a <i>fait accompli</i> – head or tail, the claimant expects that the answer will be that it has no obligation to increase upward pensions of ex-staff, yet the information brought before this Court to decide this issue is scanty. It is certainly not an issue that can be resolved through affidavit evidence alone.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant talked about its magnanimity in the payment of pensions and that “no rules, agreement, laws or even the provisions of Pension Act provide for a review of the pension of a retiree after retirement and the upward review done by the claimant in 2008 and 2011 was done and, therefore, the claimant cannot be compelled to review the pension of the members of the 1<sup>st </sup>and 2<sup>nd</sup> defendants who are ex-staff of the claimant”. The point the claimant fails to understand is that the Pension Act 1990 may not have provided for a review of pension of a retiree but it does not state that where an employer has created an expectation interest in such a review such will not be binding on it. The present dispute between the parties is one that can be termed a dispute of interest. <span lang="EN-GB">An <i>interests dispute</i> is one which arises from differences over the determination of future rights and obligations (e.g. the present request for an upward review of pensions of ex-staff of the claimant), and is usually the result of a failure of collective bargaining, as appears to be the present case. It does not have its origins in an existing right (the claimant argued it has no obligation to review upward pensions of its ex-staff), but in the interest of one of the parties to create such a right through its embodiment in a collective agreement (the case of the defendants for an upward review of the pensions of their members), and the opposition of the other party to doing so (as the claimant is presently doing). Here, parties would have an interest in securing a particular outcome but no right to it. Disputes of interest, if settled, invariably create rights and obligations. The procedure for resolving this kind of dispute is to refer it to mediation/conciliation. Where this fails, a dispute of interest is resolved through pressure in the form of industrial action. This is exactly what has played out in the instant case. In at least three cases (</span><i>Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor</i>, unreported Suit No. NIC/12/2000 delivered on <st1:date month="3" day="30" year="2006" w:st="on">March 30, 2006</st1:date>, <i>Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria</i> unreported Suit No. NIC/8/2004 delivered on <st1:date month="5" day="8" year="2007" w:st="on">May 8, 2007</st1:date> and <i>Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor</i> unreported Suit No. NIC/1/2007 delivered on July 4, 2007<span lang="EN-GB">), this Court had cause to reiterate the fact that disputes of interest are ill-suited for adjudication where no rights have crystallized.</span><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">However, where expectations are created by the employer even in terms of disputes of interest, they may thereby create entitlements that may become enforceable; and this Court has recognized such and given a remedy. See <i>Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health</i> unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on July 22, 2013 and <i>Mr. Patrick Obiora Modilim v. United Bank for Africa Plc</i> unreported Suit No. NICN/LA/353/2012 the judgment of which was delivered on June 19, 2014. In 2008 and 2011, the claimant, by its own acknowledgement, made <i>suo moto</i> an upward review of the pensions of its ex-staff when the salaries of the claimant’s then existing staff were increased. This is sufficient to create an expectation on the part of members of the 1<sup>st</sup> and 2<sup>nd</sup> defendants that each time salaries of existing staff are increased, the pensions of ex-staff will correspondingly be increased. This is an expectation that the claimant cannot just wish away, although the 1<sup>st</sup> and 2<sup>nd</sup> defendants did not make a case on this; and there is no evidence before the Court that the 1<sup>st</sup> and 2<sup>nd</sup> defendants had prayed for an upward review of pension because salary of existing staff of the claimants were increased. In paragraph 5 of the counter-affidavit, the deponent averred that his pension is N72,000 per month while that of his contemporaries in Union Bank is over N250,000.00 per month. There is no documentary evidence before the Court showing this disparity other than this affidavit averment, which I earlier held to be outside of the issues farmed as per the originating summons. Since the 1<sup>st</sup> and 2<sup>nd</sup> defendants did not counterclaim or file a fresh suit, this issue cannot be appropriately before this Court in terms of the instant suit; and I so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Even aside from all that I have said so far about the inadequacies of the claimant’s instant action brought vide originating summons, there is the issue whether as filed, the claimant even made any case for the reliefs it seeks. I indicated earlier that what prompted and so activated the original jurisdiction of this Court to take up this case as filed was the alleged threat of industrial action by the defendants, hence relief 4 wherein the claimant seeks for an order of perpetual injunction restraining the defendants from picketing the claimant’s premises. Exhibit A attached to the affidavit in support is supposedly the documents authenticating the prayer for relief 4. However, Exhibit A is dated 16<sup>th</sup> October 2015, while this case was filed on 2<sup>nd</sup> February 2016. For a threat of industrial action communicated vide a letter of 16<sup>th</sup> October 2015, an action filed on 2<sup>nd</sup> February 2016 is way too far apart from it as to be said to be authenticated by such a letter.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Secondly, the claimant wants an order of this Court restraining the defendants from picketing its premises. Section 43(1) of the TUA states in clear words that picketing, subject to conditions, is lawful. Nowhere in the claimant’s written address in support of its originating summons did the claimant do as much as mention section 43(1) of the TUA, not to talk of discussing it. It was in the written address in support of the reply affidavit that the claimant mentioned section 43(1) of the TUA; even at this, it was in reaction to the issues raised by the 1<sup>st</sup> and 2<sup>nd</sup> defendants as per how they quoted section 43(1). The claimant simply assumed that relief 4 will be granted as a matter of course. The claimant did not even address the conditions that were absent in order to make the threatened picketing unlawful.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the whole, and for the reasons given, I see no merit in the claimant’s case. It accordingly fails and so is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>