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<p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:13.0pt;mso-bidi-font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">REPRESENTATION:<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:13.0pt;mso-bidi-font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">S.C Orekwu for the claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:13.0pt;mso-bidi-font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">Chris Okonkwo for the defendant<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="text-align:center"><b><span lang="EN-US" style="font-size:13.0pt;mso-bidi-font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif"> </span></b></p> <p class="MsoNormal" align="center" style="text-align:center"><b><span lang="EN-US" style="font-size:13.0pt;mso-bidi-font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">JUDGMENT<o:p></o:p></span></b></p> <p class="MsoNormal"><span lang="EN-US" style="font-size:1.0pt;mso-bidi-font-size:14.0pt;font-family:"Times New Roman",serif"> </span></p> <p class="MsoNormal"><span lang="EN-US" style="font-size:14.0pt;line-height:115%; font-family:"Times New Roman",serif">On the 15<sup>th</sup>of June, 2015, the claimant filed a complaint before this court against the defendant for the following reliefs:-<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">1. An Order of court directing defendant to pay claimant the sum of N2,245,950.00 (Two million, two hundred and forty-five thousand, Nine hundred and fifty Naira) being the outstanding amount of his gratuity/retirement benefits.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">2. An Order of court directing defendant to pay the sum of N330,585.00 (Three hundred and thirty thousand, five hundred and eighty-five Naira) being the outstanding amount of the claimant’s pension to NLPC Pension Fund Administrators Limited on his behalf.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">3. An Order of court directing defendant to remit all claimant’s income taxes from October, 2002 to August, 2007 amounting to N92,000.00 same having been deducted from his salary to Delta State Board of Internal Revenue or the relevant tax authority and cause his tax receipt/clearance to be issued to him by the appropriate authorities.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">4. An Order of court directing defendant to pay 5% interest on claimant’s outstanding pension to NLPC Pension Fund Administrators Limited on his behalf for defaulting to pay the pension in good time in accordance with the provisions of the Pension Reform Act, 2004.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">5. An Order of court directing defendant to pay claimant 21% interest monthly on the debt from August, 2007 the date the debt accrued to the date judgment is delivered in this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">6. An Order of court directing defendant to pay claimant 21% interest daily on the judgment debt until defendant fully liquidate same.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">7. And the cost of this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:27.0pt;text-align:justify;text-indent: -27.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">8. Defendant may elect to pay reliefs ‘a’, ‘b’ and ‘c’ with cost to claimant or to claimant’s solicitors within the time allowed for appearance and upon the payment, the proceedings shall terminate.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is the case of the claimant by his sworn deposition that he was employed by the defendant on the 11<sup>th</sup> of October, 2002 as a Senior Mud logging Engineer vide a letter dated 14<sup>th</sup> May, 2003 and that other details of his employment is contained in the defendant’s condition of service (Workers Welfare Scheme) dated January, 2003. He averred that due to his performance and dedication among others, he was promoted in 2006 with a letter dated November 1, 2006. He also averred that he worked with the defendant from October, 2002 to August 2007 when he resigned his appointment with the defendant. That from October 2003 to October 2006, the sum of N1,500 was withheld monthly from his salary as income taxes totaling N72,000.00 and that from November, 2006 when he was promoted to August, 2007, N2,000 monthly was withheld from his salary, which amounted N20,000.00, that the total sum of the taxes withheld came up to N92,000.00 and that these monies were fraudulently kept by the defendant and not remitted to the relevant tax authorities, hence there was no tax receipt/clearance for any of the periods. Furthermore, claimant went on that during his employment, appointed NLPC Pension Fund Administrators Limited to administer its employees’ pensions and that the defendant did not pay his pension. He stated that his emolument per month before his promotion was N47,075.00 and his pension monthly was N7,061.25, that from June, 2004 when Pension Reform Act came into force, his total pension was N225,960.00 and that upon promotion, his salary rose to N77,500.00 and pension, N11,625.00 totalling the sum of N104,625.00 from November 2006 to August 2007 bringing his total pension to N330,585.00. Furthermore, he is entitled to gratuity/retirement benefits of N2,245,950.00 which is withheld by the defendant. He went on to state that the defendant has no justifiable excuse not to settle or to delay the payment of his benefits as it is an oil servicing company with big clients such as Chevron, Agip, Addax, amongst others.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Finally, he stated that following the failure, refusal and neglect of defendant to pay his entitlement, he engaged the services of his solicitors to recover the outstanding benefits from the defendant and a demand letter dated 9<sup>th</sup> March, 2015 was issued to defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">He tendered documents which were admitted and marked as Exhibits AO-AO5. He stated under cross examination that his gratuity was not paid to him but he was paid all his salaries and allowances by the defendant. He contended that he was qualified to receive his pension and retirement. He also stated that he was a member in the defendant’s union and he had spent four years and five months in the employment of the defendant. That it is not true that any worker that has not spent five years in the employment of the defendant and workers who voluntarily resign, will not be entitled to pension and gratuity. He stated that he currently works with CISCON. He denied that he was retained by the defendant as a poor pressure engineer upon his retirement. He stated that he was not aware that the collective agreement exhibit AO1 was effectively amended in 2006 before he resigned in 2007 and he denied not been aware of the circular circulated with regards to the amended ExhibitAO1. He stated that for a condition of service to be effectively amended, the workers and the management must meet and the minutes of the meeting, documents and attendees and all parties must sign, but that did not happen in this case. He posited that as at the time he left the employment of the defendant his housing allowance was paid in lump sum but it was paid monthly. That he requested for his tax clearance but was not given. He stated that the company has not paid him all his entitlements. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The defendant in its statement of defence pleaded that the claimant was employed on the 14<sup>th</sup> May, 2003 as a Mudlogging Engineer and that the claimant voluntarily resigned his employment in October 2007, also that at the time of his resignation, he had been paid all his salaries and allowances in full, including a housing lump sum allowance of one year covering January – December 2007. It is further averred that the claimant spent a total of 4 years and 5 months with the defendant and that he left the defendant services with 2 months housing allowances (November and December, 2007) amounting to N24,000.00, which sum the defendant said it is entitled to recover from the claimant. Defendant pleaded that the claimant was briefly retained after he resigned not as a staff but as a Pore Pressure Consultants on commission basis and that presently he is gainfully employed in another oil services company <b>(CISCON).</b> Defendant averred that the Article 27 of the said Collective Agreement has since been effectively amended by a Board Resolution properly passed by the Board of the Directors of the company on the 17<sup>th</sup> November, 2006to the effect that workers of the company who resigned voluntarily and/or who did not put up to five years in the services of the company are not entitled to gratuity/retirement benefits and pension and that it was properly circulated to all staff including the claimant by way of an Internal Memo or Circular dated 24<sup>th</sup> November, 2006. That as contained in the amended Article 27 of the above, gratuity/retirement benefits is only applicable to workers/staff duly retired by the company.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It pleaded that while the claimant was still in its services, it duly remitted the claimant’s full income tax deductions to the relevant authorities together with the income tax deductions of other categories of its staff and that these remittances were made to Delta State Board of Internal Revenue in the name of the company. Further to this, it stated that the claimant is not entitled to raise a claim on behalf of the relevant tax authorities and the NLPC as they are not parties to this suit. It stated that going by the conditions of service amended on the 17<sup>th </sup>Novemebr, 2006, it is not indebted to the claimant with respect to the issue of pension and gratuity/retirement benefits and that claimant had received all his full salaries and allowances from the time he was engaged up to the time he resigned from the services of the company. It stressed that after receiving the demand letter of the claimant’s solicitors dated 9<sup>th</sup> March, 2015, it passed it to its solicitors who sent a reply letter dated 18<sup>th</sup> March, 2015 to the claimant’s solicitors denying completely the indebtedness of pension and gratuity/terminal benefits.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The defendant by way of counter-claim claimed against the claimant as follows:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The sum of N24,000.00 being the outstanding 2 months housing allowance covering November and December, 2007 paid on behalf of the claimant who left the services of the defendant in October, 2007.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Interest at the rate of 10% on the sum of N24,000 from November, 2007 till the dated of judgment and thereafter interest at rate of 22% from the date of judgment till final settlement.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">3.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The sum of N1 million as general damages for loss of reputation to the public and the company’s Directors/shareholders.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">4.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> N500,000.00 as cost of this action.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">One Chukwuka Abraham and Ken Elue testified on behalf of the defendant as DW1 and DW2. They adopted their different witness statement on oath which is in all fours with its pleadings. They tendered documents which were admitted and marked as Exhibits CA-CA4. It is the testimony of DW1 that he is one of the signatories of Exhibit AO1. He stated that he does not have any means of identification in court. That he would not know if the claimant got a reply with respect to exhibit CA1 because he was not in the company as at the time. He stated that the claimant is not qualified for pension and gratuity because of Article 27 of the amended collective agreement, but that if the said collective agreement was not amended, claimant would be so entitled to his pension and gratuity. That article 27 was amended by the resolution of the board of directors but he was not in the service of the defendant when the resolution was passed. He posited that exhibit Ao1 was made in agreement with the board of director and no representative of the defendant’s staff was part of the resolution. That the claimant is paid the sum of N144, 000annually as his housing allowance but was paid 12,000 per month.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is the testimony of the DW2 that the claimant is owing the defendant in the sum of N24,000. He admitted that he is not in the services of the defendant. He stated that the reason for the amendment of the collective agreement is that the company spent a lot of money to be ISO compliant and to meet up with the standard of its clients. He also stated that within a short time the staff would leave the company if there is a down turn and it discovered that it no longer has enough staff and fund so it amended the collective agreement. He posited that he cannot remember if other parts were amended in the collective agreement. It is DW2 statement that if the collective agreement was not amended, the claimant would still be entitled to his gratuity but he does not know the exact amount.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The claimant subsequently filed a reply to the defendant’s statement of defence and defendant/claimant’s counter-claim on the 3<sup>rd</sup> November, 2015 wherein he stated in response that there is nothing in the Collective Agreement (Workers Welfare Scheme) especially on Article 27 that disentitles him from gratuity/retirement benefits and that from June 2004 when the Pensions Reform Act came into force, he became entitled to it under law. He further stated that the Agreement is a contract mutually binding on both parties and not a mere handbook and that same or any part thereof cannot be validly altered unilaterally by the defendant by whatsoever means including a resolution passed by its Board of Directors. Furthermore, he stated that the purported Board Resolution dated 17<sup>th</sup> November, 2006 was never passed and that the management Internal Memo dated 24<sup>th</sup> November, 2006 was never circulated, and that even if they were ever passed and circulated, they are mere invalid documents due to their inconsistencies with any portion of the Agreement and not effective to alter it or any part thereof. That the documents were fabricated in a desperate attempt to scheme against him to scuttle his terminal benefits and pensions. He averred that by a judgment delivered in this court in <b>Suit No. NICN/LA/105/2015: Abu Japhet v. Drilling Dynamics Limited </b>on 13<sup>th</sup> October, 2015 the defendant admitted that the Judgment Creditor was entitled to gratuity/retirement benefits, claimant stated that the Judgment Creditor, like himself, voluntarily resigned from the defendant in 2014, he wondered why the defendant did not deny the Judgment Creditor’s gratuity/retirement benefits with the resolution and circular purportedly made in 2006. The claimant stated that the defendant did not remit the money he deducted from his salaries as withholding tax to Delta State Board of Internal Revenue neither did it give him any tax receipt or tax clearance or evidence of payment and that the tax receipts the defendant seeks to rely on in proof of payment deducted from his salaries do not refer to him but that they are for payment of tax for 2014, 2013, 2012 and 2011 taxable years. Claimant stated that vides the defendant’s pleading at paragraphs 11, 19 and 20 of the defence, that the statements contained there are points of law and not fact. He further stated that he did not exit the service of the defendant with housing allowances for November and December, 2007, that after his promotion on November 1, his monthly emolument was N77,500 which include housing allowance and that he is not indebted to the defendant, therefore it cannot duly recover N24,000.00 from him any sum whatsoever.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">By way of counter-claim, claimant/ defendant to counterclaim denied paragraph 2 of the counter-claim and stated that the defendant/claimant did not pay him housing allowances for 2007 in advance and further stated that it paid his salaries which included housing allowances monthly and that it did not pay him salaries in November and December, 2007.Defendantto counterclaim further averred that he does not owe the defendant/claimant N24,000.00 or any sum whatsoever as residue of housing allowances since it did not pay him housing allowances in lump sum upfront in 2007. He averred also that he did not cause the defendant/claimant any loss of reputation to the public or its Directors or members but that it is the defendant/counterclaimant who has caused and is still causing him tremendous mental stress and serious economic by denying him his hard earned money unreasonably. He continued to state that his plan to use the money to set up an electrical materials business has been halted and the interest it could have yielded if it has been deposited in the bank, also the interest on the pension have all been lost because of the refusal of the defendant/claimant to pay him his due. He averred that the denial and refusal to pay him his money resulting in this suit has exposed him to gross legal expenses and that the worth of money since 2007 to date has hugely depreciated, he went on to state that in 2007, the exchange rate of Dollar to Naira was around N127 and N128 to $1 and that now, the exchange rate has increased, he therefore urged the court to dismiss the counter-claim for being frivolous and lacking merit and to award a cost of N2,000,000.00 against the defendant/claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The defendant filed its Final Written Address on the 12<sup>th</sup> May, 2016 and raised two issues for determination of this court and they are:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify;text-indent: -36.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">1. Whether the Collective Agreement (Workers Welfare Scheme) dated January, 2003, particularly Article 27 of the said Collective Agreement can be considered a valid document for regulating the condition of service between the defendant and the claimant as at the time the claimant voluntarily resigned from the services of the defendant in October, 2007<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify;text-indent: -36.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">2. Whether on the facts of this case, the defendant has made out a case that it is entitled to the counter-claim as claimed<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On issue 1, defendant submitted that the onus is on the claimant to adduce credible evidence to prove his case before it becomes necessary for the defendant to call evidence to rebuff his assertions, as weakness in the defendant’s case does not prove the claimant’s case. He cited the cases of <b>Nwaga v. Reg Trustees Recreation Club [2004] FWLR (Pt. 190) 1360 Ratio 2 & 6; Chiroma v. Suwa [1986]1 NWLR (Pt. 19) 751. </b>He posited that the claimant in his examination –in-chief during trial proceedings tendered the Collective Agreement dated January 2003 which was admitted in evidence and marked Exhibit “AO1â€, he went on to submit that it is clear law that where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning and referred to the following cases: <b>Abigoh v. Fagbohun [2011] 18 WRN 171 at 180, Nkuma v. Odili [2006] 25 NSCQR 687 at 704 and INEC v. Oshiomole [2008] 48 WRN 24 at 64. </b>Counsel continued that a close and cursory look at Exhibit “AO1†on which the claimant had placed heavy reliance and agree that the said document does not in any way assist the claimant in this case. He submitted that in the Attestation Clause of Exhibit “AO1â€, document which every page of it was duly signed and executed by parties to the Agreement provided as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><b><i><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">“We hereby certify that the foregoing are the terms and conditions of services of Drilling Dynamics Limited as negotiated and agreed on by the undersigned on behalf of Management and staff of Drilling Dynamics Limited on the 11<sup>th</sup> January, 2003, to take effect from 1<sup>st</sup> January 2003, <u>for a period of two years</u>â€</span></i></b><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif"><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">He stated that the underlining words in the above clause is <b><i>“to take effect from 1<sup>st</sup> January, 2003, for a period of two yearsâ€</i></b>. That this means that it would certainly expire by the 31<sup>st</sup> December, 2004. It also reproduced page 1 of the operative words of Exhibit “AO1†as follows: <b><i>“The duration of this Agreement shall be for <u>a period of two (2) years</u> commencing on the date of this Agreement and shall remain in effect until a new document is drawn up and signedâ€.</i></b> By this, counsel stated that after the period of two years from 1<sup>st</sup> January, 2003, the document ceased to be of any effect until a new document is drawn up and signed by the parties to that Agreement. It further submitted that two witnesses (Mr. Abraham Chukuka and Mr. Ken Elue) who testified for the defendant during trial of this case signed on behalf of the staff and management respectively. He stated that the said Exhibit had since ceased to regulate the condition of service of the claimant with the defendant and as such, all other reliefs being claimed by the claimant cannot be granted since they are predicated on the provision of the said Exhibit. The case of <b>Omega Bank Plc v. O.B.C Ltd [2005] 21 NSCQR 771 at 797 and EDIICO (Nig.) Ltd v. UBA Plc [2000] FWLR (Pt. 21) 792 Ratio 3. </b>He urged the court to discountenance with Exhibit “AO1†that it offends both statutory and judicial authorities and resolve the issue in its favour.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Furthermore, counsel submitted that the two witnesses called by the defendant at trial in their respective statements on oath explained that the amendment done in Article 27 of the Exhibit “AO1†was done unilaterally by the Board, but that this was done after workers had been consulted, and that the issues were fully discussed, negotiated and approved by the union leaders of the company’s workers and this evidence was not controverted or rebutted by the claimant during cross-examination at the trial proceedings. The said Board Resolution introducing this change was tendered and admitted in evidence as Exhibit CA1.That the amendments contained in Exhibit CA1 were properly circulated in 2006 by management to all workers of the company by way of Internal Memo which was tendered and admitted as Exhibit CA2 and that the claimant was aware of those changes as at the time he voluntarily resigned. It urged the court not to only consider a piece of evidence or the evidence of a particular witness in isolation or out of contest, but the totality of the evidence given in this case has to be evaluated and assessed together. It cited <b>Adebayo v. Adeusi [2004] 4 NWLR (Pt. 862) Ratio 9 pp 80 – 81, paras 4-D and Mogaji v. Cadbury [Nig] Ltd (1985) 2 NWLR (Pt. 7) 393.</b> Defendant submitted that virtue of <b>Section 135(1) of the Evidence Act 2011</b> and the decision in <b>Nwobodo v. Onoh [2004] 10 WRN 27</b>, the claimant must prove the allegation that Exhibits CA1 and CA2 were forged by the defendant in an attempt to escape liability beyond reasonable doubt.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On the issue of pension, defence counsel submitted that under the Pension Reform Act of 2004, pension has been made a mutual obligation between the worker and the employer in form of a contributory scheme. He went on to state that the claimant did not tender any evidence to prove that he contributed his own counter-part funding or his own contribution to the contributory Pension Scheme and that he, having not contributed his own counterpart funding cannot be heard to complain about non-payment of pension. It is further submitted that the old Article 27 of the Collective Agreement dated January, 2003 had provided for pension until 31<sup>st</sup> December, 2004 when the document ceased to be operative in regulating the condition of service of the defendant and its workers and that by the evidence of the claimant, he spent only 4 years and 5 months in the services of the defendant as he was employed in 2003 and resigned in 2007. Counsel also submitted that Exhibits AO3 and AO4 (Abu Japhet’s Retirement Savings Account Statement for the 4 quarter 2014 and Statement as at 24<sup>th</sup> March, 2015 respectively) which were tendered and admitted in evidence in this case during trial are of no evidential value as they do not relate or refer to the claimant in this case and that Abu Japhet is certainly not a party to this proceedings. He accordingly submitted that as at the time the claimant voluntarily resigned from the services of the defendant in October, 2007, he was not qualified for any payment of pension, defendant urged the court to so hold. Counsel, with reference to the issue of remittance of tax deductions referred the court to paragraph 10 of the defendant’s Amended Statement of defence and written statements on oath of the defendant’s two witnesses wherein evidence was led that the defendant duly remitted the claimant’s full income tax deductions to Delta State Board of Internal Revenue, not in the name of the claimant but in the name of the company and that this evidence was never controverted by the claimant, also that in proof of this, defendant tendered Exhibit CA3 which are copies of tax receipts by the Delta State Government on behalf of the defendant’s workers. He submitted further that these receipts were admitted in evidence, and during cross-examination of the defendant’s witnesses, no serious effort was made to rebut the evidence that these remittance included the tax deductions made on behalf of the claimant. Defence counsel therefore urged the court to refuse the claimant’s prayer urging the court to direct the defendant to remit his income tax deductions to the relevant tax authorities.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On issue 2, defence counsel citing the cases of <b>A.G. (Cross River) v. A.G. Fed. (2006) 22 WRN 1 at 47 and Jeric Ltd v. UBN (2000) 4 NSCQR 254 at 272 and Bilante International Ltd v. NDIC (2012) 9 WRN 1 at 22</b> counter claims against the claimant for the sum of N24,000 being the outstanding 2 months housing allowance covering November and December 2007 and other ancillary claims as stated in defendant’s counter claim. Counsel submitted that it relied on the oral evidence of the its two witnesses at trial who led evidence to prove the counter-claim, the amended statement of defence, defendant’s counter-claim and written statement on oath of the defendant’s witnesses. Counsel submitted further that the claimant in his reply only denied the counter-claim and nothing more and that his averment is simply a way to get off the hook and feign ignorance. It is also submitted that the burden is on the claimant who has made positive assertion to prove it by evidence. The defendant therefore submitted that since the claimant has failed completely to prove that Exhibit AO1 is applicable to regulate the condition of his service with the defendant as at the time he resigned, the court should grant all its reliefs in the counter-claim and to dismiss the claimant’s suit with substantial cost for lack of merit.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On the 30<sup>th</sup> January, 2017, the claimant filed his final written address and formulated two (2) issues for determination viz:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">1. Whether the claimant is entitled to the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">2. Whether the defendant is entitled to the counter-claim it set up.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is important to state that although the claimant filed his Final Written Address late, but the court in the interest of justice is to deem same as having been adopted.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify;line-height:112%"><span lang="EN-US" style="font-size:14.0pt;line-height:112%;font-family:"Times New Roman",serif">On issue one, claimant counsel submitted that parties are bound by their pleadings and cited the case of <b>A.I. Inv. Ltd v. Aribank (Nig) Plc [2013] 9 NWLR (Pt. 1359) 380 at 412 paras. E-F.</b> On claim on tax, counsel submitted that Exhibit CA3 tendered by the defendant are receipts for payment of tax for 2014, 2013, 2012 and 2011 taxable years and cannot be in respect of the payment of his tax because he left the defendant’s employment in 2007, he urged the court to enter judgment that the defendant should cause tax clearance to be issued to him. Also on pension, counsel submitted that pension is governed by the Pension Reform Act and that the Act makes payment of pension mandatory. He then submitted that it is a crime punishable under law for the defendant to default in paying the pension of the claimant, he referred to <b>Section 85 of the Pension Reform Act 2004 and Section 99 of 2014.</b> Counsel further submitted that his pension right is statutory and not one secured by an agreement and cannot be waived by the contract of parties, he urged the court to so hold. He went further to submit on terminal benefit that the defendant did not plead that the Agreement is not enforceable. He stated that party is not allowed to spring up a surprise, that pleading should clearly set out the case of a party to enable the other party meet them without surprise. He referred to <b>Order 26 Rule 6 of the Federal High Court Rules 2000 and Order 15 Rule 7 of the High Court of Lagos State Rules 2012</b> and that this court is permitted by law to apply the rules of other courts in the interest of justice (<b>Section 12 of the National Industrial Act 2006).</b> In furtherance of his submission, he stated that unenforceability of document constitutes facts which must be specifically pleaded, he cited the cases of <b>Barclays Bank DCO v. B. Hassan [1961] All NLR 836 [1961] A.N.L.R. 865; Jebara v. Mercury Assurance Co. Ltd v. Abere [1972] 2 U.I.L.R 498 and Ohochukwu v. A.G. Rivers State [2012] 6 NWLR (Pt. 1295) 53.</b>He also submitted that the Evidence Act admits of oral testimony in the construction of a document in deserving situation. Furthermore, claimant submitted that he could by credible, admissible and cogent evidence establish that the Agreement was allowed to continue, that the defendant is aware that the Agreement was allowed, by the agreement of the parties to continue in operation and that the following can be inferred from the conduct of the defendant:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span lang="EN-US" style="font-size:14.0pt; font-family:"Times New Roman",serif">1. The defendant relied on the Agreement.<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0cm 0cm 0.0001pt 36pt; text-align: justify; text-indent: -36pt;"><span lang="EN-US" style="font-size:14.0pt;font-family:"Times New Roman",serif">2. The Agreement was not substituted, it was purportedly amended by the defendant in November 2016 (a period more than two years after the supposed expiration)<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0cm 0cm 0.0001pt 36pt; text-align: justify; text-indent: -36pt;"><span lang="EN-US" style="font-size:14.0pt;font-family:"Times New Roman",serif">3. Exhibit CA, the resignation letter (last paragraph) evinced that there was a subsisting duty on the defendant to pay the gratuity of the claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">He continued to submit that an instrument which is not in operation is not amenable to amendment because an instrument must be alive before it can be amended. Also, that an expired instrument can only be substituted not amended because it is no longer alive and that if the Agreement was not allowed to continue, the defendant would not have carried out the purported amendment to Article 27 of the Agreement by Exhibit CA1. In response to the defendant’s submission that the amendment to Article 27 of the Agreement by Exhibit CA1 was not challenged, claimant submitted that:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">1. He challenged that piece of evidence during cross examination.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify;text-indent: -36.0pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">2. Exhibit CA1 is Board Resolution. It does not show that the employees participated in making it.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">In furtherance to the above, counsel submitted that an agreement can only be varied by the concurrence of all the parties to it and that a single party to an agreement cannot resile unilaterally from such a contractual agreement. The decision in the case of <b>A.G. Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at p. 148 paras C-F</b> was cited, by this, he stated that the defendant cannot unilaterally amend Article 27 of Exhibit AO1 which provides:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><b><i><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">“Any employee who terminates his/her appointment or resigns or withdraws shall be entitled to a Gratuity/Retirement payment as shown below for every completed year of service…..<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><b><i><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">*******<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><b><i><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">*******<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><b><i><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The Company will on her part ensure prompt payment of such money in other to ease the employee’s financial burden.â€<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">He further submitted that the defendant did not plead that the amendment was done by it and its employees but in a bid to lead evidence to show that the amendment was carried out with the concurrence of the employees introduced another witness (Mr. Ken Elue). He went on to state that parties must be consistent with their pleadings, that any evidence which is at variance with a party’s pleadings goes to no issue and also that evidence not covered by pleadings goes to no issue. He relied on the case of <b>Fayemi v. Oni (2009) 7 NWLR (Pt. 1140) 223, Ratio 19.</b> Furthermore, it is submitted that a party must make out his case by the best available evidence as a witness’ statement on oath is in the nature of pleadings and not evidence. Also the case of <b>Maduabum v. Nwosu (2010) 13 NWLR (Pt. 1212) 623 ratio 7</b> was cited. Counsel submitted again that the written depositions of the defendant’s witnesses are arranged and therefore discredited, he supported this with the decision in the of<b>Fayemi v. Oni (2009) (supra)</b> (Ratio 12) and urged the court not to act on all the paragraphs of the two witnesses’ written statement on oath. He also submitted that the defendants’ deposition on oath is an affidavit and as such must conform to the Evidence Act, 2011. It is submitted that paragraph 19 of the deposition dated 7<sup>th</sup> April, 2016 are legal arguments and that they offend section 115 of the Evidence Act, 2011 and are liable to be struck out. He relied on the cases of <b>Edu v. Caward [2001] FWLR (Pt. 55) 433 </b>and <b>N.I.P.S.S v. Osagie (2008) 6 N.W.L.R 239 at p. 251, para C-F </b>among others. He urged the court to grant his prayers.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On issue 2,counsel submitted that the defendant/claimant did not exhibit any document or lead credible evidence to show that the claimant received money for housing allowance in the period claimed and pleadings must be established by credible evidence he cited the case of <b>Arab Chem Ltd v. Owoduenyi [2013] 10 NWLR (Pt. 1361) 89 at 103 para C)</b>. The counsel submitted in his evidence that he received his salaries in addition to housing allowance from month to month and this piece of evidence was not contradicted. He urged the court to hold that the counter-claim lacks merit and dismiss it with cost as the totality of documents and evidence available before this court, the defendant/counterclaimant did not establish that it is entitled to the sum of N24,000.00 from the claimant/defendant to counterclaim or any other amount whatsoever.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;line-height:115%"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-language:HE">I have given a calm and careful consideration to the processes filed, the witness statement of all witnesses and the arguments of both learned counsel in their respective final submissions. It is in my humble view that the issues begging for the court’s verdict are;<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;line-height:115%"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="margin-left:36.0pt;text-align:justify;text-indent: -18.0pt;line-height:115%;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman";mso-bidi-language:HE">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif;mso-bidi-language:HE">Whether or not the claimant is entitled to his claims.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:36.0pt;text-align:justify;text-indent: -18.0pt;line-height:115%;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman";mso-bidi-language:HE">2.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif;mso-bidi-language:HE">Whether or not the defendant counterclaimant is entitled to its counterclaim.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The main crux of this case is whether or not the claimant is entitle to his claim under the collective agreement i.e. exhibit AO1. The claimant in prove of his case tendered Exhibit AO, his letter of employment and exhibit AO1 the collective agreement (Workers welfare Scheme), January, 2003 in prove of the fact that his employment is regulated by both exhibits. It is settled law that the burden of proof in civil cases is not static it shifts depending on the preponderance of evidence to the other party who will fail if no further evidence is adduced. See Section 131 (1) and (2) of the Evidence Act, 2011. The burden has now shifted to the defendant to prove that the claimant’s terms of employment has been so amended. The defendant in prove of this tendered in evidence exhibits CA1 and CA2 that is the defendant’s board resolution dated 17<sup>th</sup> of November, 2006 and an internal memo dated 24<sup>th</sup> of November, 2006 to all staff intimating them of the amended Article 27 of the collective agreement (Workers welfare Scheme), January, 2003. The resolution of the board vide exhibit CA1 was to the effect as I reproduce hereunder viz;<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">“that Article 27 of the company’s collective agreement (workers welfare scheme) dated January 2003 be and is hereby amended to read “that any employee of the company who voluntarily resigns and/or does not stay up to five (5) years in the services of the company shall not be eligible for gratuity/retirement benefits and pension. ….</span></b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">â€<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">To start with, what is a collective agreement?, the answer to this all important question will throw light into the scenario painted in this case and will also help to know whether or not a board resolution and nothing more can amend a collective agreement. By the Black's law dictionary, the 9th Edition at page 299, A collective agreement is defined as ''A contract between an employer and a labour union regulating employment conditions, wages, benefits and grievances''</span><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi">. Section 54(1) of the NIC Act 2006 also defines a “collective agreement†to mean –<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi">''any agreement in writing regarding working conditions and terms of employment concluded between –<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:36.0pt;text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi">(a) an organization of employers or an organization representing employers (or an association of such organization), of the one part, and <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi">(b) an organization of employees or an organization representing employees (or an association of such organizations) of the other part'' <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi">It is noteworthy that by Section 254C (1) (j) (i) of the 1999 Constitution as amended, this court is vested with jurisdiction to interpret and enforce collective agreement. An agreement that can be interpreted and applied cannot thereby be just a gentleman’s agreement. It must and does command a status higher than being a gentleman’s agreement to be tossed around or amenable by a Board resolution as the defendant would want to do. The process through which a collective agreement is arrived at is the collective bargaining process. So the collective agreement and collective bargaining agreement in practice mean one and the same. It stems from the right of freedom of association. This Court by Section 254C of the 1999 Constitution, as amended, is enjoined to apply conventions ratified by Nigeria. ILO Conventions 87 (dealing with freedom of association) and 98 (dealing with collective bargaining) have been so ratified by Nigeria. The learned authors B. Gernigon, A. Odero and H. Guido in their piece, “Collective Bargaining†in <i>International Labour Standards: A Global Approach, 75<sup>th</sup> anniversary of the Committee of Experts on the Application of Conventions and Recommendations</i>, First Edition 2002 at pp. 41 – 51 especially at pp. 49 – 50 posit that collective bargaining as governed by Convention 98 entails the following principles: the right to collective bargaining is a fundamental right; it is a right of employers and their organizations, on the one hand, and organizations of workers, on the other hand (in the absence of workers’ organizations, representatives of workers may assume this right). <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi">Now interventions by legislative or administrative authorities which have the effect of annulling or modifying the content of freely concluded agreements are contrary to the principle of voluntary collective bargaining; and restrictions on the content of future collective agreements are admissible only if, among other conditions, the restrictions are preceded by consultations with the organizations of workers and employers. See the case of <b>The Management of Compagnie Generale De Geophysique (NIG) Ltd V. PETROLEUM & NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA (PENGASSAN) an unreported Suit No. NICN/ABJ/172/2014, judgment delivered on 19th June, 2015.</b> </span><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is also obvious by exhibit AO1, that the collective agreement is effective from 2003 for a period of two years,( i.e. 2005), but there is no any other collective agreement replacing it, which means exhibit AO1 is still the only collective agreement that regulates the relationship between the claimant and the defendant uptill date, in the absence of any other agreement. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The claimant in this case resigned his employment from the defendant on the 16<sup>th</sup> of October, 2007 that is exactly one year and eights day after the alleged amendment and 4years and six months of his employment with the defendant. It is the claimant averment that the collective agreement exhibit AO1 was amended in 2006 before he resigned in 2007 and he denied knowledge of the memo circulated with regards to the amended Exhibit AO1. It is settled law that for a collective agreement to be effectively amended, the workers and the management must meet and the minutes of the meeting, documents and attendees and all parties must sign, but that did not happen in this case. I have stated above in this judgment that a unilateral amendment of a collective agreement is not acceptable in law. It has to follow the same procedure for which parties agreed on the terms. The evidence of DW2 when he stated that the reason for the amendment of the collective agreement is that the company spent a lot of money to be ISO compliant and to meet up with the standard of its clients. Also that within a short time the staff would leave the company if there is a down turn and it discovered that it no longer has enough staff and fund so it amended the collective agreement. That is not a tenable reason in law.</span><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi"> Interventions by legislative or administrative authorities which have the effect of annulling or modifying the content of freely concluded agreements are contrary to the principle of voluntary collective bargaining; and restrictions on the content of collective agreements are inadmissible.</span><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> It is consequent upon this that I find the unilateral amendment to Article 27 of the collective agreement by the Board of the defendant as an unfair labour practice and against International best practice. Accordingly, the amendment to clause 27 of the collective agreement is set aside. I also find the amended clause 27 of the collective agreement null void and of no effect. </span><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif;mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi"><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Now, is the claimant entitled to his claims under Article 27 of the collective agreement? Claimant is seeking for the sum of N2,245,950 as his outstanding gratuity/retirement benefit. By Article 27 of the collective agreement, the provision of which is hereunder captured thus for ease of reference-<span style="color:red"><o:p></o:p></span></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; color:red"> </span><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">ARTICLE 27:- GRATUITY/RETIREMENT BENEFITS</span></b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; color:red"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif"> Any Employee who terminates his/her appointment or resigns or withdraws shall be entitled to a Gratuity/Retirement payment as shown below for every completed year of service. Those dismissed for the offences contained in this Agreement shall be eligible for Gratuity/Retirement payment only at the Company’s discretion.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> The Company may retire any Employee who attains the age of <b>fifty five (55) years, </b>or may have served the Company for a period not less than <b>thirty (30) years.</b> Also if the Company for any reason decides to retire any Employee before his/her retirement age, <b>twelve (12) months gross pay</b> shall be paid to the employee plus Gratuity/Retirement benefits.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif"> For the purpose of separation benefits, <b>gross emolument</b> shall include all regular fixed monthly items as follows: Basic Salary, Housing Allowance, Transport Allowance, Medical Allowance and Utility Allowance.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif"> 0 - <1 years: No benefits<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:0cm;margin-bottom:0cm; margin-left:85.5pt;margin-bottom:.0001pt;text-align:justify;text-indent:-85.5pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> 1 – 3 years: 30% terminating annual gross salary multiplied by the number of years<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:0cm;margin-bottom:0cm; margin-left:85.5pt;margin-bottom:.0001pt;text-align:justify;text-indent:-85.5pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> 3 – 7 years: 40% terminating annual gross salary multiplied by the number of years<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:0cm;margin-bottom:0cm; margin-left:85.5pt;margin-bottom:.0001pt;text-align:justify;text-indent:-85.5pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> 7 – 10 years: 50% terminating annual gross salary multiplied by the number of years<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:85.5pt;text-align:justify;text-indent: -85.5pt"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif"> 10 years: 60% terminating annual gross salary multiplied by the number of years<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> The Company will on her part ensure prompt payment of such money in order to ease the Employee’s financial burden.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; color:red"> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; color:red"> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is clear from the above highlighted provision that the claimant who was in the defendant's employment from 2003 to 2007 October, which means he spent 4 years and 5 months in the services of the defendant is entitled to gratuity. Claimant by Article 27 is entitled to 40% of his annual gross salary multiplied by 4 years. Claimant did not tender his payslip or statement of account to evince his last pay, however, he tendered his last promotion letter dated November 1, 2006, and in it his salary was put at N77,500 per month, the annual gross of which is N930,000.00, 40% of which is N372,000 multiplied by 4 years is N1,488,000.00. It is in this regard that I find that claimant is entitled to the sum of N1,488,000.00 as his terminal benefit. I so find and hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is the claimant claims that from October 2003 to October 2006, the sum of N1,500 was withheld monthly from his salary as income taxes totaling N72,000.00 and that from November, 2006 when he was promoted to August, 2007, N2,000 monthly was withheld from his salary, which amounted to N20,000.00, that the total sum of the taxes withheld came up to N92,000.00 and that these monies were fraudulently kept by the defendant and not remitted to the relevant tax authorities, hence there was no tax receipt/clearance for any of the periods. The defendant in response contended that while the claimant was still in its services, it duly remitted the claimant’s full income tax deductions to the relevant authorities together with the income tax deductions of other categories of its staff and that these remittances were made to Delta State Board of Internal Revenue in the name of the company. The remittances shown on record, i.e exhibit CA3 presented by the defendant covers years 2011 to 2013 and not 2003 to 2007 when claimant was in its employment. what this means is that the defendant has failed to convince the court that it remitted claimant taxes to the Inland revenue authority, i. e. the statutory body . It is in this light that I hold that the defendant is to produce evidence of remittances made to inland revenue in respect of claimant's to court within 7days, failing which the defendant is to be reported to the appropriate authorities.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi; mso-font-width:107%">As regards the claim for pension. Claimant failed to tender his pay slip or any document to evince the fact that money was deducted from his salary as pension. See <b>Arab Chem LTD V Pharm Ralph Owoduenyi [2013] 10 NWLR (PT 1361) P 89. </b>The NLPC pension account he tendered is in the name of one Japhet, Abu and not in his name. I find that claimant has failed to adduce credible evidence in proof of his claim for pension. I so find and hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi; mso-font-width:107%">Having held that claimant's reliefs C fails, it then goes without saying that claimant's reliefs d, e, f, g and h fail. Reliefs d, e, f, g, and h are thus dismissed. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-bidi-font-family:"Times New Roman";mso-bidi-theme-font:minor-bidi; mso-font-width:107%">On issue two, it is the defendant’s counterclaim that the claimant/defendant to counterclaim is liable to it in the </span><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">sum of N24,000.00 being the outstanding 2 months housing allowance covering November and December, 2007 paid on behalf of the claimant who left the services of the defendant in October, 2007. The claimant/defendant to counterclaim contended that after his promotion on November 1, 2006 his monthly emolument was N77,500 which include housing allowance and that he is not indebted to the defendant, therefore it cannot duly recover N24,000.00 from him or any sum whatsoever. I agree with the claimant/defendant to counter claim that he is not entitled to the refund of the housing allowance, because at the time of the payment of the said allowance to the defendant, he was entitled to it and there is no understanding that the defendant/counterclaimant is liable to refund the said amount so paid in the event of termination/resignation. Moreso, Article 9 of the Collective Agreement (workers welfare scheme), 2006 at page 8 provides that;<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">“Housing allowance shall be paid as total yearly lump sum to all staff in the first month of every yearâ€<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The claimant is therefore, not liable to refund the sum of N24,000 being the outstanding 2 months housing allowance covering November and December, 2007.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">In sum, I find that claimant claim succeeds as regards his relief (a), but fail as regards reliefs b, c, d, e, f, g, and h. Consequent upon which I order that the defendant pay to the claimant the sum of N1,488,000.00 as his terminal benefit/gratuity. Defendant is ordered to remit claimant's tax deductions to the appropriate statutory tax authority within 7 days and evidence of same produced in court, failing which the court is to make a formal report to the tax authorities for appropriate sanction. <o:p></o:p></span></p> <p class="MsoNormal"><span style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">Parties are to bear their respective cost.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif;mso-ansi-language:EN-GB; mso-fareast-language:EN-GB">Judgment is accordingly entered.<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-ansi-language:EN-GB;mso-fareast-language:EN-GB"> </span></b></p> <p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">Hon. Justice Oyewumi Oyebiola O.<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">Presiding Judge<o:p></o:p></span></b></p> <p class="Style" style="margin-right:.45pt;text-align:justify;line-height:115%"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-font-width:108%;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif"> </span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif"> </span></p> <p class="MsoNormal"><span lang="EN-US" style="font-size:14.0pt;line-height:115%; font-family:"Times New Roman",serif"> </span></p>