Download PDF
Representation: Paul Madu for the Claimants U. C. Ngeleoka for the Defendant JUDGMENT On 10th April 2014, the Claimants commenced this suit with a complaint. By an amended Statement of Facts filed on 12th December 2014, they sought the following reliefs: 1. A Declaration that the Defendant is in breach of her contract of employment with the Claimants. 2. Special damages: (i) 10 months withheld part salaries and entitlements due to the Claimants for the period between August 2008 to May 2009 = N 13,022,316.00 (ii) Special unpaid permit of 15 working days per year at the rate of N163,813.54 × 9 number Claimants = N 1,474,321.86 (iii) 1 month + 3 weeks salary as end of contract Allowance, which is N186,405.00 + N139,803.75 = N 340,191.75 × 9 claimants = N3,061,725.75 (iv) Solicitor’s fees = N5,100,000.00 (v) General damages for breach of contract = N20,000,000.00 TOTAL = N37,558,363.61 The complaint was filed alongside pleadings and other processes which were served on the Defendant. The Defendant on 3rd June 2014 entered appearance and filed their accompanying processes. The Defendant’s amended Statement of Defence was filed on 3rd March 2015 and the Claimants filed a Reply to the amended Statement of Defence on 13th March 2015. Hearing commenced on 11th May, 2015. The 1st Claimant testified as CW1. The Defendant subpoened Miss Okey Ogonnaya a staff of Heritage Bank who testified as DW1 while one Kenna Njoku the HR supervisor of the Defendant testified as DW2. Hearing ended on 26th May 2016 and parties were ordered to file final addresses. The Defendant’s Final Written Address was filed on 16th June 2016. Thereafter, on the 11th day of August 2016, the Claimants filed an application to further amend their Statement of Facts, an application which was argued on the 13th day of January 2017 and refused in a considered ruling delivered on 7th March 2017. The Claimants subsequently filed their Final written Address on 5th April 2017. Parties adopted their respective written addresses on the 27th day of April 2017. In the Defendants’ final written address, Learned Counsel for the Defendant addressed the court on his objection to Exhibit G. In this regard, counsel submitted that for a document to be admitted as an exhibit in a suit, it must be relevant, pleaded and admissible in law. Counsel cited the case of ASUQUO vs. EYO (2013) LPELR 20199 (CA) 17-18 and submitted that Exhibit G which evinces the fixed term contract employment between Nduka Akara and A. A. Dike & Sons is irrelevant for the purpose of this case and inadmissible in law because the persons in the exhibit are not parties in this suit, the defendant is not named in it and there is no privity of contract between the parties in this suit and in persons in Exhibit G. Counsel referred the Court to its ruling on 23/2/2016 in respect of the payslips of some of the Defendant’s employees which were rejected because they were irrelevant as the employees were not parties to this suit, and the decision in AGUNBIADE vs. SASEGBON (1968) NMLR 223 at 226. Counsel urged the court to reject this exhibit. With reference to Exhibits J1-J12, Counsel drew the court’s attention to Section 6 of the Evidence Act 2011 and ASUQUO vs. EYO (supra), and submitted that the payslips sought to be tendered are relevant to this case, owing to the fact that they contain salaries and allowances paid to the Claimant during the period of August 2008 to May 2009; the subject matter of this suit. Counsel urged the court to admit these exhibits into evidence because they are relevant, pleaded in paragraph 20 of the Statement of Defence and are admissible in law. Regarding Exhibit D16, Counsel submitted that it is pleaded, relevant and admissible in law following the decision in ASUQUO vs. EYO’s case. Again, counsel submitted that glancing at the signature of Victor Ikuru on his contract of employment (Exhibit K8) and the said Exhibit D16 shows that the signatures on both documents are his; Exhibit D16 is authentic. Counsel submitted further that Section 93(1) of the Evidence Act empowers the court to compare handwriting for the purpose of arriving at a conclusion. The court was urged by counsel to admit Exhibits D16, J1 to J12 in evidence. Counsel then proceeded to distil three issues for determination as follows: 1. Whether this suit is statute barred and whether this Honourable Court has jurisdiction to entertain same. 2. Whether persons under employment on the same conditions have a collective right to sue. 3. Whether the Defendant breached its contract of employment with each of the Claimants and whether the Claimants are entitled to sue. With regard to issue one, counsel submitted that jurisdiction is fundamental to the determination of a suit and unless a court is competent, it cannot exercise jurisdiction. A court is seised with competence when it is properly constituted as regards the number and qualifications of the members of the bench and no member is disqualified for one reason or the other and the subject matter of the case is within its jurisdiction, nothing prevents the exercise of the court’s jurisdiction and the case is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of the court’s jurisdiction. Counsel cited the case of G & T INVESTMENT LTD vs. BUSH LTD (2011) 8 NWLR (Pt. 1250) 500 at 531. It is counsel’s further submission that after evidence has been taken in a suit, a court of law can have recourse to the totality of evidence before it in deciding whether the case is statute barred. It is the contention of counsel that from the averments in paragraphs 39, 40, 41, 42, 43 and 44 of their amended statement of facts, the Claimants alleged a breach of the Collective Agreement which was noticed between 1st and 3rd September 2008 by the Claimants and this action was commenced on 10/4/2014; a period of 5 years, 7 months and 7 days after the cause of action in this suit arose. Counsel referred to the case of AMEDE vs. UBA (2009) All FWLR (Pt. 409) 506-7, where it was held that the test in determining when a cause of action accrues is when there exists a person who can sue and another who can be sued; and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See also DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1348. Counsel referred to Section 16(1) of the Limitation Law of Rivers State which provides as follows: “No action founded on contract, tort … shall be brought after the expiration of five years from the date which the cause of action arose.†Counsel submitted that from the pleadings and reliefs, it is evident that this suit is rooted in contract and where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be validly instituted after the expiration of the prescribed period. See CPC vs. INEC (2011) 18 NWLR (Pt. 1279) 493 at 532. Similarly, counsel submitted that the Rivers State Limitation Law made no provision for extension, thus this action having been caught up by the limitation time cannot be extended for the Claimants. Also, counsel contended that in the event that the court holds that the breach of the collective agreement continued up to May 2009 when the Claimants averred that the Okoloma Gas Project ended; it is only Claimants who were still the Defendant’s employees as at 10/4/2009 till 30/5/2009 that can validly institute an action against the Defendants in respect of purported claims arising from the collective agreement. Counsel referred to Paragraphs 37(a)(v) and 46(a)(5) of the Statement of Defence and DW2’s deposition in buttressing his submission that the Claimants were paid their terminal benefits at different times. Counsel added that on the assumption that the alleged breach of the collective agreement continued till May 2009, the claims of Ukah Chimezie, Nwauju Godson, Umunna Stanley, Charles Okparaocha, Emeka Akukaria and Cassidy Peter are statute barred. Counsel also submitted that even if the Claimants’ employments were not terminated, they still have lost their right to institute an action that does not exist in perpetuity. Furthermore, counsel referred to the case of AMEDE vs. UBA (supra), and contended that the court has to consider the writ of summons and statement of claim; which sets out the time the wrong suffered by the Claimant occurred, and compare this time to the date the writ was issued, to decide that a case is statute barred. Counsel contended further that if the present suit is analyzed, the court will arrive and the conclusion that this case is statute barred, and the Claimants have lost their rights to enforce their cause off action by judicial process because their rights to judicial relief for any alleged breach of contract and collective agreement, wrongful termination or fraud; have been extinguished by the Rivers State Limitation Law. Counsel drew the attention of the court to its judgment in EZUMEZU vs. ALCON NIGERIA LTD Suit No: NICN/OW/60/2014 delivered on 18/3/2015, and the cases of AJAYI vs. ADEBIYI (2002) All FWLR (Pt. 634) 1 at 24 and ELABANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604; and submitted that where a case is statute barred, the appropriate order to make is an order dismissing the suit. Accordingly, counsel urged the court to dismiss this suit because same is statute barred. With respect to issue two, counsel cited the case of CCB PLC vs. AMADI ROSE (1998) 4 NWLR (Pt. 544) 37 at 50, where it was held that the employment contract is personal to each person affected. In the event of a breach, such affected person does not have a collective right to sue or to be represented in a suit. Counsel argued that the Claimants who were employed and disengaged on separate dates respectively, earned different salaries with various durations of service cannot validly bring a representative action. Counsel submitted further that the fact that the Claimants in this suit had separate employment contracts was affirmed by CW1 under cross-examination on 30/6/2015; and in the extant case, no relief can be granted to the Claimants based on a case study of Okechukwu Osuji’s salary, which is peculiar to the said Okechukwu Osuji. It is counsel’s submission that from paragraph 3 of the Statement of Facts (also in line with paragraphs 3 and 4 of the statement of defence and DW2’s deposition respectively), it is evident that the Claimants do not have a common right or interest because of the claimant’s right is tied to his individual contract of employment with the Defendant; hence an action in representative capacity does not apply in this case. Counsel submitted further that the Claimants’ case is bad for misjoinder of persons and causes of action. Counsel urged the court to resolve this issue in favour of the Defendant. Regarding issue three, counsel argued that there is nothing in the employment contracts executed between the Defendant and the respective Claimants, suggestive of the fact that their relationship was to be governed by any other extraneous document. Also, it is counsel’s argument that a party who has performed the contract in tandem with its terms cannot be said to be in breach of the contract. Similarly, counsel submitted that since the Claimants seek reliefs arising from an alleged breach of contract, it lies on the court to examine the individual contracts to determine if the Defendant has breached any of the terms. In doing so, Counsel is of the view that it is only the terms of contract between each of the Claimant and the Defendant that are relevant for the purpose of determining if there was a breach of contract. It is the contention of counsel that from the employment contracts of the Claimants, it is clear that the Claimants’ engagement by the Defendant was for the Okoloma Project, a fact reinforced by clause 2 of the Consultant Agreement, which reads as follows: “the agreement shall be for the duration of the project and availability of contract and may be terminated anytime without notice if there is no job and without payment in lieu†Counsel also drew the court’s attention to Paragraphs 7 and 26(c), 7 and 34 (c) of the statement of defence and DW2’s deposition respectively and Exhibit D14. It is counsel’s argument that the Claimants were engaged solely for the Okoloma Project and subject to the availability of contract and were not entitled to out of station allowance or feeding allowance. Again, counsel submitted that from the Claimants’ pay slips, they were paid N10,000 monthly and N700.00 outstation the term used for feeding allowance at that time, later changed to feeding allowance in September 2008 to reflect its purpose and distinguish it from out of station allowance paid to workers who travel outside their primary place of employment. Further, counsel asserted that Exhibits K1 - K10 did not provide for housing allowance but the Defendant paid the sum of N10,000 monthly as shown in Exhibits J1-J12 to enable the Claimants secure accommodation. It is counsel’s view that the Claimants knew that they were not entitled to the out of station allowance indicated in Exhibit C, because as elicited from CW1 under cross- examination, he did not leave Okoloma to work. Counsel submitted that the Claimants did not supply proof that any of them ever worked outside Okoloma. In the event this court holds that the contracts provided for out of station allowance, and the Claimants engaged in Port Harcourt were entitled to it; counsel submitted that the Claimants are bound by the contracts of their employment and cannot claim any sum above N700.00 daily stated in the contract and N2,500.00 out of station allowance, feeding allowance at N1,500 daily not provided in the contract. Counsel referred to the case of OKOJIE vs. EPOYUN (2010) 11 NWLR (Pt. 1206) 456 at 479; and argued that the position of the law is that parties are bound by their contract and a party cannot go outside the terms of the contract in search of more favorable terms, and it is not the duty of the court to include terms that do not form part of the contract. Similarly, counsel argued further that none of the claimants are entitled to a 10% increment in salary because such is not provided for in either their employment contract or collective agreement. More so, counsel submitted that the claimants cannot rely on the salary of Okechukwu Osuji as a basis for calculating their claims, especially as the collective agreement the Claimants are relying on made provision for a 7.5% increment for consultants; the class where the Claimants belong, and the terms of a written contract are to be deciphered from the contract agreement. See OSIN & OSHIN LTD vs. LIVESTOCK LTD (1997) 2 NWLR (Pt. 486) 162 at 170. Again, counsel contended that from the evidence elicited from CW1 under cross-examination, it is deducible that the monthly salary of each of the Claimant varies monthly depending on the number of days worked and flowing from this, none of them are entitled to a 10% increment on the basis of Okechukwu Osuji’s salary and allowance because they did not earn the same salaries and allowances. Counsel contended further that this argument applies to the one month terminal benefit allegedly withheld and leave allowance, calculated on 15 days salary upon completion of 12 months of continuous service and not 3 weeks as stated by the Claimants. It is counsel’s submission that he who asserts must prove, and owing to the fact that that the Claimants have not proven the manner in which any of their employment contracts were breached by the Defendant, they are not entitled to their reliefs. In addition, counsel argued that the Claimants have based their claim on Exhibit C, which is not an agreement between the individual Claimants and the Defendant and does not confer the right to sue on any of the Claimants. Counsel relied on the case of ANAJA vs. UBA PLC (2011) 15 NWLR (Pt. 1270) 377 where it was held that a collective agreement is at best a gentleman’s agreement that does not give the right of action in respect of any breach of its terms unless it is accepted to form part of the terms of employment. See also the cases of UNITY BANK vs. OWIE (2011) 5 NWLR (Pt. 1240) 273 at 291, and GBEDU vs. ITIE (2010) 10 NWLR (Pt. 1202) 227 at 282. It is counsel’s submission that there is nothing in the Claimants’ pleadings to show the required connected between Exhibit C and the individual contracts of employment, upon this absence, counsel urged the court to hold that Exhibit C is not binding on the Defendant. Also, in the event Exhibit C may be binding, counsel submitted further that the claimants cannot be entitled to a 10% increment because they were all engaged as consultants and page 3 of Exhibit C expressly states that the consultants are entitled to 7.5% increase on gross pay. It is the submission of counsel relying on ODUA INVESTMENT vs. TALABI (1997) 10 NWLR (Pt. 523) 1 at 51, that the Claimants who have worked as consultants throughout the duration of their employment without complaining are estopped from stating that they are not consultants. Similarly, counsel contended that the claimants attempted to raise the issue of fraud in their Reply to the Statement of Defence, which in counsel’s view is too late to be raised and in respect of this case statute barred. Furthermore, counsel submitted on the authority of SHELL PETROLEUM DEVELOPMENT COMPANY vs. NELSON (2008) 9 NWLR (Pt. 1091) 85, that it is unethical and against public policy for a party to pass the burden of the payment of solicitor’s fees to the other party. On this note, counsel submitted further that no solicitor fees’ note or receipt was brought forward into evidence and this head of claim has not been proved to entitle the Claimants to solicitor’s fees. Counsel urged the court to refuse the claim for solicitor’s fees because it is unethical and against public policy. Regarding general damages claimed by the Claimants, counsel contended that they are damages which the law implies to have accrued as a necessary result of the wrong complained of, and may be awarded only when the claimant succeeds in his claim upon the provision of credible evidence. See UBN PLC vs. ISHOLA (2001) FWLR (Pt. 735) 47. Counsel submitted further that the Claimants in this case have failed to prove their case. He urged the court was urged to disbelieve the entire evidence of the Claimants’ witness because he is not a witness of truth for providing inconsistent information. For example, counsel contended that CW1 in his Deposition at paragraph 37, stated that he and other Claimants earned a basic salary of N50,000 monthly before Exhibit C came into force, and they started earning N83,925. However, it is counsel’s opinion that under cross- examination, CW1 stated that he did not know the amount paid to the other workers, the pay slips tendered in evidence also contradict the fact that CW1 was neither paid the sum of N50,000 or N83,925. Counsel went further to contend that the Claimants are not telling the truth and urged the court to dismiss their claims with substantial costs. Learned Counsel for the Claimants filed his final written address on 5/4/2017 vide a motion for extension of time which was granted by this court on 27/4/2017, in which he formulated the following issues for determination namely: 1. Whether two (2) different sets of agreement (by way of Terms of Employment) represented by “Exhibits B and C†respectively; and each having radically different provisions, can regulate the parties’ contract of employment. 2. Whether where a contract of employment has been reduced into writing, as in “Exhibit Câ€, can a party thereto import other meanings to “Exhibit C†contrary to the express provisions of the written document? 3. Whether fraud can vitiate “Exhibit Bâ€, being the purported Consultant Agreement. 4. Whether it is lawful and permissible for the Claimants to make use of evidence proffered by the Defendant in the course of these proceedings, and which said evidence is useful to the Claimants’ case. 5. What are the remedies available to the Claimants in their common law employment and or master/servant relationship with the Defendant upon the termination of their employment? Regarding issue one, counsel submitted that “Exhibits B and C†are two different sets of agreement which cannot regulate the parties’ contract of employment at the same time, and going by the evidence before the Court, and pleadings in paragraph 10 of the Amended Facts and paragraph 9 of the Amended Defence; “Exhibit B†purportedly bound the parties under their contract of employment until it was determined by the parties through their later agreement namely in Exhibit C. Therefore, in counsel’s opinion “Exhibit C†was entered into by the parties to replace “Exhibit B†because “Exhibit C†is a subsequent agreement to “Exhibit Bâ€. Counsel referred to the case of KAYDEE VENTURES LTD. vs. HON. MINISTER OF F.C.T. & 2 ORS. (2010) 2-3 SC (Pt. III) 1, where it was held that a contract may be determined where subsequent agreement has taken place. It is counsel’s submission that “Exhibit B†whose provisions are radically different from “Exhibit C†cannot regulate the contract of employment of the parties at the same time as “Exhibit Câ€. Counsel urged the court that issue number one be resolved in favour of the Claimants and against the Defendant. With respect to issue two, counsel contended that where a contract has been reduced into writing, none of the parties to it is permitted by law to read any meanings to the contract different from its expressed provisions. Counsel drew the court’s attention to the case of ADETOUN OLADEJI (NIG.) LTD. vs. NIGERIA BREWERIES PLC (2007) 1 SCNJ 375, where it was held that where there is a contract regulating any arrangement between the parties, the main duty of the Court is to give effect to the wishes of the parties as expressed in the contract documented. Similarly, counsel argued on the authority in OGUNDEPO vs. OLUMESAN (2011) 2 SC (Pt. 1) 39; that it is not the business of the Court to rewrite parties’ contract for them, but to interpret the contract as contained in the instrument made by the parties on their free volition. Consequently, counsel submitted that the defence counsel’s argument that there was a popular understanding between the parties, which said understanding was not contained in the written contract of the parties is baseless in law; and should not be entertained by this Court. Again, counsel contended that parties to a contract are those whose names appear on the contract document, and with particular reference to “Exhibit C†the parties to it, are the Claimants (in their capacity as employees of the Defendant and members of NUCECFWW) on one hand; and the Defendant (as employers) on the other hand. Counsel relied on the case of FIRST FUEL LTD. vs. THE VESSEL LEONA II & ANOR (2003) 1 SCM 170, where the Supreme Court held that a person who can neither claim rights under a written document nor be subjected to an obligation under it is a stranger; and submitted that the so-called “consultants†written at the end of “Exhibit C†are strangers to the said “Exhibit Câ€. It is the view of counsel that the word “consultant†as applied in Exhibit C does not refer to a party to the written agreement, but is one of the sub-heads that the Defendant listed for special considerations. Counsel cited the case of I.T.L vs. ADEREMI (1990) 6 SCNJ 63, and submitted that consultant as inserted into Exhibit C is an irrelevant term that has no application, and may be severed from the contract without impairing the contract. Counsel urged the court to uphold his submission that it is only the Defendant and/or the Claimants, as members of NUCECFWW that can lawfully exercise the provisions of Exhibit C. On issue three, counsel cited the case of OTUKPO vs. APA JOHN & ANOR. (2012) 3 SC (Pt. iv) 95, where the Supreme Court held that fraud is an intentional perversion of the truth or something that is dishonestly and morally wrong, and submitted that in paragraph 3 of the Reply to the Amended Defence, the Claimants averred that Exhibit B is a fraud; spelt out the particulars of the said fraud by showing that they were misrepresented by the Defendant to be consultants; when they were employed as either mason, scaffolder, security men or carpenters. The court was urged by counsel to take judicial notice of Exhibit B. Counsel asserted that the only explanation provided by the DW2 upon cross-examination was that the Claimants were engaged for specific contract, but the same DW2 said that there were other persons of similar position/qualification as the Claimants in the Defendant’s employment who were not so misrepresented. In the opinion of the Claimants’ counsel, the Defendant through achieve this fraud ensured that Claimants cannot make any claim as consultants truly so called; and the Claimants are precluded from obtaining their due rights as employees of the Defendant properly so-called. Counsel submitted that the Defendant’s fraud continued when they made the Claimants sign the Consultant Agreement under duress, several months after the employment had taken off. It is counsel’s submission that what is admitted requires no further proof, and the Defendant having not denied this fraud and such fraud vitiates any given agreement or transaction including the judgement of a law court because it is one of the exceptions to the rule of statute bar, or estoppel. Therefore, counsel urged the Court to discountenance the existence of Exhibit B, owing to the fact that it is fraud and resolve issue three in favour of the Claimants. With respect to issue four, counsel argued that from the decision in EDOKPOLOR & CO. LTD. v BENDEL INSURANCE CO. LTD. (1997/98) ALL NLR 63, where the Supreme Court held that it is quite lawful and permissible for a Plaintiff or a Defendant to make use of evidence from the other side that is useful to it; the Claimants in the extant case are entitled to rely on the cross-section of the Claimants’ pay slips made available by the Defendant in her Amended Defence to argue the case of the Claimants as set out in the Schedule to their Counsel’s final written address. In the same Schedule, counsel adumbrated the comprehensive monetary remedies available as formulated in issue five to each of the Claimants respectively, in line with counsel’s submission that the remedies open to employees under a common law employment are as provided in their Terms of Employment; and in this case, as provided under Exhibit C. At this juncture, counsel proceeded to address the court on the admissibility of certain Exhibits for which he sought leave during trial to raise in his address. Firstly, counsel submitted that as CW 1 stated that he and 9 others filed this case in Court, the number of Claimants in this suit is 10, and not 9 as mistakenly put by the Counsel to the Claimants towards the end of the Claimants’ pleadings. Again, pertaining Exhibit G, Counsel submitted that provided the Court has already admitted this piece of evidence and marked same as an Exhibit in this matter, without breaching any rule of evidence; it will be wrong in law to further address the Court on the admissibility of an already admitted exhibit. Counsel urged the Court to hold that Exhibit G was duly admitted in evidence in these proceedings. Counsel submitted further that parties are only entitled in Law to address the Court on the weight to be attached to already duly admitted document. Furthermore, counsel urged the court to disregard the cross examination of CW1 on 30/6/2015, pertaining to CW1’s Consultant Agreement getting burnt because such facts were not elicited during his examination-in-chief and the essence of a cross-examination is not to misrepresent the witness; and thereby mislead him. Similarly, counsel contended that Exhibit I was wrongly admitted in evidence and ought to be expunged from the records of the Court for the following reasons: i. it was not pleaded by either of the parties in the suit, ii. a copy of Exhibit I was not made available to the Claimants’ Counsel till date; iii. the Claimants were not parties in the suit in which the motion was filed, iv. the rule of fair hearing requires that the Claimant ought not to have been taken by surprise. Regarding Exhibits J1-J12, counsel reiterated his earlier argument that an admitted document marked as an Exhibit requires no further address for purpose of its admission. It is the submission of counsel that once an order of court is made admitting a document in evidence, the same Court cannot sit on appeal over its ruling; unless the rules of evidence were not duly followed; or there was a fraud perpetrated. In addition, counsel argued that from the testimony of DW1 on 20/5/2015, it may be correctly deduced that Exhibit D11 which ought to authenticate the good condition of the computer and the process employed at arriving at the computer-generated documents was not contemporaneously produced at the same time as the Statements of Account, and no explanation was made on why the first certificate was not stamped and presented. Similarly, counsel submitted that the evidence of DW1 as well as Exhibits D1-D11 ought to be discountenanced by this Court because the Claimants’ Counsel was not availed copies of Exhibit D1-D11 to cross-examine the DW1; leading to a breach of the rules of fair hearing. Counsel cited the case of NWABUOKU vs. ONWORDI (2006) All FWLR (Pt. 331) 1236 at 1252, where it was held that where a document earlier admitted does not carry any probative value, the judge can expunge the document or disregard it in the course of evaluating the totality of the evidence to enable him arrive at a proper decision; contended that Exhibits D1-D11 have no probative value. In proof of his contention, counsel stated that Page 1 of Exhibit D1 recorded that on the 16th and 19th of December 2008, Osuji Okechuku was purportedly paid monthly salary on those days, and there is no evidence of the parties where it was established that the Claimants were paid more than once a month; it was the same scenario in Exhibits D3, D4 and D5. Counsel argued that Exhibit D13 ought to be rejected by the Court because it fails to fulfil certain requirements of the law, such as: bearing the stamp of endorsement of the receipt of the reply by the ministry and being certified as a public document. In the same vein, counsel is of the opinion that Exhibit D16 ought not to be admitted in evidence; for the reason that while the Defendant alleged that it was a photocopy, the document in question has a fresh mark of ink on it; and therefore cannot pass for a photocopy. Counsel urged the court to discountenance the said exhibit. Also, counsel urged the Court to discountenance whatever insinuation that the DW2 made over Exhibit F which is not in tandem with the said Exhibit; for the reason that a document speaks for itself. Counsel went further in his address to review observe the Defendant's Counsel's written address to address the points raised in it. On this note, counsel submitted that it is “untrue†for the Defendant to contend that the Claimants’ terms of contract was as contained in Exhibits Kl-Kl0 after the coming into effect of a new Collective Agreement, Exhibit C. Counsel submitted further that the Claimants joined the membership of NUCECFWW in the course of their employment with the Defendant; and that the Defendant endorsed the Claimants’ membership of NUCECFWW; by making a deduction of the sum of N400.00 from each of the Claimants’ monthly salaries, and that it is too late in the day for the Defendant to try to qualify NUCECFWW's membership especially when there is no evidence in that regard before the Court. Also, counsel argued that any “popular understanding†as indicated by the Defendant’s counsel of Exhibit C, that qualifies the meaning of “out-station†goes against the principle of law to the effect that a document speaks for itself. It is counsel’s argument that the parties in this case are agreed that the Defendant has one headquarters of Plot 17 Trans-Amadi Industrial Layout Port Harcourt and the rest of the Defendant’s branches or work sites are referred to as “Out Stationâ€; especially as no qualification was given to “out station†by Exhibit C. Counsel urged the Court to take judicial notice of the Defendant’s attitude in the defence of this case because the Defendant admitted the Claimants’ membership of NUCECFWW; and the consequent agitation by the said NUCECFWW which led to Exhibit C, the same Defendant repeatedly argued that the Claimants are not part of Exhibit C; meaning that a the defendant is approbating and reprobating at the same time; which the Law frowns at. Counsel urged the court to discountenance the entire argument of the Defendant’s counsel as contained in his final address. It is contended by the Claimant’s counsel that the Claimants’ rights under Exhibit C were not repudiated by Exhibit D12 after pleading the said Ugo Uzoho’s letter in paragraphs 16 and 17 of the Defendant's Amended Defence, yet the Defendant continued to effect the provisions of Exhibit C. thus, counsel submitted that the Defendant admitted Exhibit C applied in the relationship of the parties. Learned counsel for the Claimants went further to argue that the extant case is not statute barred, owing to the reason the Defendant recalled the Claimants after the shut-down of the 5/9/2008; on the firm promise to implement the provisions of Exhibit C, and the cause of action was put in abeyance by the Defendant's promise to honour the provisions of Exhibit C until the job finished at the end of May, 2009. Counsel further contended that from the 31/5/2009 to 10/4/2014 is less than 5 years that is allowed by the limitation law of Rivers State. It is counsel’s position that his contention is strengthened by the fact that no evidence was tendered in proof of the Defendant counsel’s assertion that the employment of some of the Claimants had been terminated earlier before 31/5/2009, and the address of Counsel does not take the place of evidence before the Court. It is counsel’s argument that in the event that some of the Claimants’ actions are statute-barred, payment of salaries in arrears cannot be forfeited on the grounds of statute limitation. See A.G. RIVERS STATE vs. A.G. BAYELSA STATE & ANOR (supra). In response to the Defence Counsel’s argument in his Final Written Address that the Claimants cannot maintain an action over “Exhibit C†being a collective agreement, in aid of which the case of CCB (NIG.) PLC vs. MRS. AMADI ROSE & ORS (supra); counsel submitted that this piece of case law reveals technicality being enthroned beyond the essence of substantial justice. Counsel referred the court to MANIE MANAGEMENT ASSOCIATIONS INC & ANOR vs. NATIONAL MARITIME AUTHORITY (2012) 12 SC (Pt. II) 141, where the Supreme Court held that the Court is more interested in substance than technicalities that lead to injustice. In addition, counsel argued that the National Industrial Court by virtue of Section 254 of the 1999 Constitution of Nigeria (as amended) has exclusive jurisdiction to determine any question as to the interpretation and application of any collective agreement. Counsel also drew the attention of the court to the case of NEIBIAI vs. NUBIFIE (2006) 6 NWLR (Pt. 751) 301 at 322, where it was held that for a court to adopt a collective agreement, it must be duly executed by the parties to it. Similarly, counsel cited the case of ITODO vs. CHEVRON (2005) 2 NLLR (Pt.5) 200, where it was held that though the general rule is that only parties to a Collective Agreement can benefit from its terms; however individual employees who are members of a union can benefit from the collective agreement through their union which entered into the agreement, and where the executive of the union is not willing to file an action on behalf of the union, individual members can also sue to derive benefit from the collective agreement. At this point, counsel submitted that AMADI ROSE’s case is bad law and does not accord with the constitutional provision which has vested the National Industrial Court of Nigeria with jurisdiction to interpret and apply the provisions of a collective agreement. Regarding the Defendant’s counsel’s contention the Claimants’ reliefs are not sustainable, counsel for the Claimants contended that Section 75 of the Labour Act, requires the Defendant, and not the Claimants, to make available to this Honourable Court all evidence of payment of salaries and allowances to her staff. It is counsel’s submission that the reliefs claimed by the Claimants are based on the average of the allowances owed the Claimants, in the knowledge that their salaries fluctuate, though within a predetermined bracket and the reliance on Okechukwu Osuji's payment slips, stems from the fact that was the Claimants could not trace all the copies of their payment slips as at the time of filing this action. Again, counsel contended that he Claimants can validly rely on the pay-slips tendered in evidence by the Defence, in proof of their claims, in placing reliance on Exhibit J1 – J12 to arrive at the special damages which the Defendant owe the Claimants, the Court is urged to take judicial notice of the fact that special damages are those damages that arose after, and as a result of the cause of action. Similarly, counsel relied on OWENA BANK PLC vs. OLATUNJI (2002) 12 NWLR (Pt. 781) 259 at 341, and submitted that the Court’s award of damages is not based on any geometric calculations but, rather on the peculiar circumstances of each case; and on a fluctuating salary, the Court can only rely on the average earnings of each Claimant to arrive at the award of damages. In the case of ONYIAORAH vs. ONYIAORAH (2008) All FWLR (Pt. 397) 152 at 160, where it was held that the assessment of damages must be based on the evidence before the court. Consequently, counsel submitted that a simple average of Exhibits J1-J12 supplied by the Defendant is sufficient for the court to find special damages due to the Claimants. Furthermore, counsel contended that Exhibit C can answer whether outstation and feeding allowances are provided and the percentage of increment due the claimants. Similarly, counsel submitted that the Claimant’s major relief borders on accommodation and feeding allowances as provided for in Exhibit C, which do not vary with sickness or absenteeism. Again, counsel submitted that the case of SHELL PETROLEUM DEVELOPMENT COMPANY vs. OKONEDO (supra) cited by the Defendant’s counsel did not hold that solicitor’s fees is outlandish to principle of special damages and should not be allowed. Rather, Counsel submitted that the same case reported as SPDC vs. OKONEDO (2007) LPELR 8198 held as follows: “I did not agree with the submission of learned counsel that the award of special damages for solicitor’s fees is unknown to law.†Counsel contended further that solicitor’s fees was pleaded in paragraphs 47-49 of the amended statement of facts, but the court refused the Claimants counsel’s application to tender the solicitor’s receipt. Learned counsel for the Claimants argued that paragraph 6.7 of the Defendant’s final address is false because CW1 never testified that his consultant agreement got burnt, what burnt was a resolution to sue dated 14/3/2012. Also, counsel submitted that Exhibit D13 is admissible because it is relevant to this case by showing the membership of the Defendant’s staff, date of employment, amongst other facts. Similarly, counsel urged the court to disregard the Defendant counsel’s argument that Exhibit F was written in error because the argument is not supported by evidence. In conclusion, counsel submitted that the Claimants’ case has been proven on a balance of probabilities by the totality of evidence before this court. Counsel urged the court to grant all the reliefs sought by the Claimants. Learned counsel for the defendant filed a Reply to the Claimant counsel’s final address on 27/4/2017. In respect of issue one of the Claimants counsel’s address, counsel cited the case of AJI vs. CHAD BASIN DEVELOPMENT AUTHORITY (2015) LPELR 24562 (SC) where it was held that the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails on the terms of it, and the court will not look outside the stipulated terms of the employment contract to decide the right and obligations of the parties. On the authority of AJI’s case (supra), counsel submitted that in the extant case, Exhibit C is not the Claimants’ employment contract and they cannot base their claims on it. Counsel submitted further that it is the contract of employment that regulates the relationship between employer and employee, which in the present case is encapsulated in Exhibit B. With regards to Claimants counsel’s issue two, counsel contended that the principle in ADETOUN OLADEJI (NIG.) LTD. vs. NIGERIA BREWERIES PLC (supra) is not applicable because, OLADEJI’s case relates to individual contracts of employment and it cannot apply to cover cases involving collective agreements. It is counsel’s argument based on the decisions in IKPEAZU vs. ACB (1965) NMLR 374 at 379, and EBHOTA vs. PLATEAU INVESTMENT AND PROPERTY DEV. CO LTD (2005) 7 SC (Pt. III) 8, to the effect that only parties to a contract can maintain an action on it; that since the Claimants’ names do not appear in Exhibit C, they cannot base any claims on it because it is only NUCECFWW that can maintain an action in that respect. Counsel argued further that the Claimants’ counsel misrepresented the principle of law that he cited in FIRST FUEL LTD vs. THE VESSEL LEONA II (supra). Further, counsel submitted that the word “memorandum†as contained in Exhibit C was held in KERNER vs. HUGHES TOOL CO. 128 CAL RPTR 839 at 845 to imply “something less than a complete contract that functions as evidence of the contract. See also SAFETRUST SAVINGS AND LOAN LTD vs. GOVERNOR EKITI STATE (2014) LPELR 22778 (CA) and STAR FINANCE & PROPERTY LTD v NDIC (2012) LPELR 8394 (CA). Counsel also argued that it is only a contract of employment embodying the terms in Exhibit C, that can be enforced and not Exhibit C itself; and that the term “popular understanding†that he used earlier is in order from the reasoning the just mentioned decided cases. It is the submission of counsel that the terms consultants is the foundation of the terms of the Claimants’ employment, the term has nothing to do with educational qualification, and that Claimants’ counsel argument on the insertion or irrelevance of the term consultant in Exhibit C, go to no issue because evidence was not led on it, and address of counsel cannot substitute evidence in an action. See OKWEJIMINOR vs. GBAKEJI (2008) 5 NWLR (Pt. 1079) 179. In respect of Claimants’ issue three, Counsel submitted that DW2 on 16/05/2016 explained during cross-examination that the Claimants were recruited as consultants by the Defendant, a construction company that engages workmen who are referred to as consultants because they are contracted for a specific project. With regard to issue four, counsel argued that the Claimants cannot utilize the evidence put forward by the Defendant, and that EDOKPOLOR vs. BENDEL INSURANCE LTD (supra) cited by Claimants’ counsel may only apply to this present case, in the event that the case put forward by the Defendant is the same as that of the Claimants. Regarding the preliminary issues raised in the Claimants counsel’s address, counsel submitted that the Claimants’ counsel cannot amend the number of Claimants in his final address. Again, counsel argued that the submission of Claimants’ counsel regarding the inadmissibility of Exhibits D1- D11 are unreasonable in the light of the fact that such reasoning cannot be the intent of Section 84 of the Evidence Act 2011. Similarly, counsel submitted that Claimants counsel’s contention regarding not being availed copies of Exhibits D1-D11 does not arise for documents tendered by a subpoenaed witness, not being the Defendant or Counsel. Counsel further submitted that it is unethical for the Claimants’ counsel to mislead the court when he was provided with photocopies of the said exhibits by the court’s registrar. Furthermore, counsel cited the cases of BOSSA vs. JULIUS BERGER (2005) NWLR (Pt. 948) 426 and BEMIL NIGERIA LTD vs. EMERIBE & ORS (2009) LPELR 8732 (CA) in reiteration of his submission that in the event of a breach of employment contract, there is no collective right to sue or be represented in the suit. Counsel referred to the case of INTERCONTINENTAL BANK v BRIFINA (2002) LPELR 9717 (SC) where it was held that legal fees sought to be recovered falls within special damages category and must be strictly pleaded and proved, and submitted that the claimants’ claim for solicitor’s fees will fail as same was not pleaded or successfully proven at trial. Again, counsel argued that the schedule attached to the Claimants counsel’s final address is at variance with the Claimants’ pleadings and was never part of their case, and cannot come in as the amendment to reflect the entitlements refused by this court on 6/2/2017. Counsel submitted that the court cannot allow a party put forward a different case, as that will amount to permitting the Claimants to approbate and reprobate in the conduct of their case; contrary to the Supreme Court’s decision in ABEKE vs. ODUNSI (2013) LPELR 20640 (SC) 25. It is the submission of counsel that notwithstanding the Claimants’ appeal to the equitable jurisdiction of the court, equity follows the law. See EJIGINI vs. EZENWA (2003) LPELR-10329 (CA) at 29. Counsel urged the court to dismiss this suit with substantial cost and enter judgment for the defendant because the Claimants have failed to prove their case. COURT’S DECISION Having heard the submissions of the learned counsels to the parties in their final written addresses, I will now proceed to examine the case presented before the court by the parties. The Claimants case, as stated in their amended statement of facts and the evidence given by the 1st Claimant, who is the sole witness for the Claimants, is that they are trained technicians of different fields who were employed by the Defendant between 2006 and 2007 and deployed to the Defendant’s Okoloma Gas Plant Project at Afam, Oyigbo in Rivers State. When they were employed, the Claimants entered into and executed a Consultant Agreement with the Defendant between 2006 and 2008. Upon joining the employment of the Defendant, the Claimants registered with the National Union of Civil Engineering Construction, Furniture and Wood Workers (NUCECFWW), which is the umbrella union of the various trades of the Claimants and the Defendant was deducting the sum of N400 from the monthly salaries of each of the Claimants as the NUCECFWW dues. While in the Defendant’s employment, the Claimants were subjected to inhuman working conditions. The Claimants were compelled to report to site at 6.00am and made to work from 7.00am to 6.00pm every day. They were also compelled to work extra hours beyond 6.00pm everyday and on Saturdays, Sundays and public holidays. This made the workers at the Defendant's Okoloma Gas Plant Project to agitate for better working conditions and enhanced salary package in 2008 but the Defendant refused. The Claimants reported their ill treatment in the Defendant’s employment to the Federal Ministry of Labour and Productivity, who held meetings involving the Nigerian Labour Congress, the NUCECFWW, and the Defendant. The negotiation which followed the meetings resulted in a new collective agreement known as Memorandum of Collective Agreement which was reached and executed between the Management of the Defendant and the National Union of Civil Engineering Construction, Furniture and Wood Workers (NUCECFWW). The collective agreement, dated 8/8/2008, came into effect on 1st August 2008 and its terms superseded the initial Consultant Agreement between the Defendant and the individual Claimants. The beneficiaries of the Collective Agreement, as stated in it, include painters, scaffolders, carpenters, masons, electricians. These are the trades of the Claimants. When the Claimants received their August 2008 salaries, they noticed that the Defendant refused to implement the terms of the collective agreement. This made the Claimants to commence a strike action in protest of the Defendant's breach of the Collective Agreement. The Defendant however used the Mobile Police to arrest the Claimants and had them detained at the Oyigbo Divisional Police Station, Oyigbo, Rivers State. When the Claimants returned to work after their release on 5/9/2008, they met a memo from the Defendant directing them to commence their leave until further notice. The Defendant later recalled the Claimants and promised to implement the collective agreement but it failed to do so till date. The Claimants started work at a monthly salary of N50,000.00 which later rose to N83,925.00 by October 2008. They also pay their monthly dues of N400 to the Union which was usually deducted from their salary. By the terms of the Collective Agreement, the Defendant was to provide accommodation and feeding for all her staff on out-of-station duty and where it was not possible to provide accommodation and feeding, the Defendant was to pay N2,500 per day in lieu of accommodation and N1,500 per day in lieu of feeding. The Defendant's Gas Plant at Okoloma which the Claimants were deployed, is one of the outstations of the Defendant but the Claimants were not provided with accommodation and feeding. They were entitled to daily sum of N2,500 for accommodation and Nl,500 for feeding which sums were to be added to the Claimants' monthly salaries and other allowances. But the Defendant failed to implement the payment of the Claimants' salaries and allowances in accordance with the provisions of the Collective Agreement or to pay the agreed daily sum of N2,500 and Nl,500 for Accommodation and Feeding respectively. Using the May 2009 salary of one of the Claimants, Mr. Okechukwu Osuji, as illustration, the total monthly salary and allowances of each of the Claimants, based on the collective agreement, is N186,405.00. The collective agreement also provided for 10% annual increment, terminal benefit of 1 month salary and 3 weeks monetized leave. The total sum of the withheld salaries and allowances of each of the 9 claimants is N1,446,924.00 and the total sum for all the 9 claimants is N13,022,316. The failure of the Defendant to pay the withheld salaries, allowances and terminal benefits to the Claimants made the Claimants to incur a total of N5,100,000.00 in solicitors fee including paying the sum of N10,000 as appearance fee to their counsel each day the court sits. In the Claimants reply to the Defendant’s amended statement of defence and in the further evidence of CW1, the Claimants further aver that they were induced and forced by the Defendant to sign the Consultancy Agreement after 12 months of commencement of the employment contract. The Consultancy Agreement was a fraud because it was executed long after the Claimants had started work; the Claimants signed the agreement out of fear of losing their job; the Claimants are not consultants as represented in the agreement and the Defendant did not properly execute its part of the agreement. The Claimants also aver that the Defendant’s headquarters is in Portharcourt while Okoloma is an out-station. The Claimants were employed by the headquarters in Portharcourt and posted to the outstation at Okoloma. The Consultant agreement and the Memorandum of Collective Agreement cannot both regulate the same employment. The Memorandum of Collective Agreement is the only authentic terms of employment voluntarily made by the parties. The Memorandum of Collective Agreement is later in time and the essence was for it to supersede the Consultant agreement. The Memorandum of Collective Agreement is the only binding agreement on the parties. Even if the Claimants are entitled to 7.5% gross increment under the Collective Agreement, the Defendant did not implement it. The defence of the Defendant to the Claimants’ claims is contained in its amended statement of defence and the evidence of DW2, one Kenna Njoku who said he is the Human Resources Supervisor of the Defendant company. The case of the Defendant is that the Claimants were employed separately and in various capacities by the Defendant to work at the Shell Petroleum Development Company Gas Plant Project at Okoloma. Each of the Claimants separately signed a consultancy agreement with the Defendant which agreements had come to an end and the Claimants had ceased to be employees of the Defendant before the institution of this suit. It is the terms of the consultancy agreements; which terms include terms of service, discipline, salaries, allowances and terminal benefits; that governed the employment of the Claimants in the Defendant company. The Claimants did not work under harsh conditions nor subjected to inhuman condition. They were paid fair wages in accordance to work done including overtime. By the terms of the consultancy agreement, the Claimants were not obligated to work on Sundays and public holidays or for extra hours and where they did, it was counted for them as overtime for which they were usually paid N120 and N150 per hour respectively. The Defendant related with each of the Claimants in line with their employment contract contained in the consultancy agreement. The collective agreement between the Defendant and the NUCECFWW did not supersede or replace the Claimants’ individual consultant agreement with the Defendant. The collective agreement was not made part of the Claimants’ terms of employment even though the provision for 7.5% increase in gross for consultants was implemented to the Claimants. When the Defendants’ workers demanded for increase in their salaries, a meeting was convened between the Federal Ministry of Labour and Productivity, the NLC, the workers representative and the Defendant. Following the meeting, the Defendant had several negotiations with the NUCECFWW which resulted in the Memorandum of Collective Agreement dated 8th August 2008. By the terms of the Memorandum of Collective Agreement, out-of-station allowance is payable to worker who is sent on duty to another station other than the station for which the worker was engaged. Also, a provision for 7.5% increase in gross pay was made for the Claimants’ category of consultants. The Claimants who were employed for the Okoloma project and who had worked on the site are not entitled to out-of-station allowance. Prior to the collective agreement, the claimants were being paid monthly allowances for housing and N700 per day for feeding. These were stated as “outstation†in their pay slips and consultant agreement. The defendant implemented the Memorandum of Collective Agreement which resulted in 7.5% increase on gross (basic salary, housing and feeding (outstation) for the Claimants but the 10% increase across board was not intended for consultants. Some of the consultants, including the Claimants, were not happy that only one provision in the MCA applied to them, hence, they went on strike on their demand for payment of out-of-station allowance which they were not entitled to. The Defendant did not breach any collective agreement nor had the Claimants arrested or detained. None of the Claimants was started on a basic salary of N50,000 per month and the salary did not rise to N83,925. The Claimants were differently engaged and they were paid different salaries as contained in their respective consultant agreements. The Claimants salaries were increased after implementation of the Memorandum of Collective Agreement and the increased salaries were paid to them as at when due. Accommodation and feeding at N2,500 and N1,500 per day respectively are out-of-station allowance and only applies to workers sent on assignment outside the workers duty post. The Claimants are not entitled to out-of-station allowance because they never worked outside Okoloma. What the Claimants are entitled to are those entitlement stipulated in the consultant agreement signed by each of them. The Claimants were paid their terminal benefits into their respective salary bank accounts following the conclusion of the Okoloma project without any complaint. They also received their end of contract entitlements which they signed for. The Defendant did not agree with the Claimants or the union for monetization of leave. The Defendant did not withhold any sum from any of the Claimants. The Defendant is not liable for any of the claims of the Claimants which claim the Claimants are estopped from making and which is also statute barred. Having reviewed the facts of the case, it does appear to be a simple and straight forward case. I will go straight to determine it. From the facts of the Claimants’ case, it is clear to me that the foundation of their claims against the Defendant is the Memorandum of Collective Agreement executed between the Management of the Defendant and the National Union of Civil Engineering Construction, Furniture and Wood Workers (NUCECFWW) on 8/8/2008. This document is in evidence as Exhibit C. According to the Claimants, the Memorandum of Collective Agreement applied to them and by its terms, they are entitled to out-of-station accommodation and feeding allowances, 10% annual increment and terminal benefit of 1 month salary and 3 weeks monetized leave. The Claimants further stated that the Defendant failed to implement the terms of the Memorandum of Collective Agreement in the payment of the Claimants' salaries and allowances. It was upon the alleged failure of the Defendant to implement the Memorandum of Collective Agreement with regards to the Claimants that resulted to filing this suit where they claim for breach of contract and payment of outstanding or unpaid entitlements under the Memorandum of Collective Agreement. Furthermore, when the Defendant pleaded in its amended statement of defence that the terms of the consultant agreement signed by each of the Claimants governed the employment and not the collective agreement which was not made part of the Claimants terms of employment, the Claimants denied these allegations in their reply to the amended statement of defence and contended that the Memorandum of Collective Agreement is the only authentic terms of their employment and it superseded the initial consultant agreement signed by each of the Claimants. From the facts, it is obvious that the basis of the claims of the Claimants in this suit is the Memorandum of Collective Agreement. The crucial issue arising therefrom is this: Can the Claimants make claim against the Defendant on the basis of the Memorandum of Collective Agreement? The Memorandum of Collective Agreement, Exhibit C, was made between the Defendant and the National Union of Civil Engineering Construction, Furniture and Wood Workers NUCECFWW on 8th August 2008. The Claimants said they were members of the union and pay monthly due of N400 to the union which sum was usually deducted from their monthly salaries. The Claimants also said it was the agitation of the workers of the Defendant for better working conditions and enhanced salary package in 2008 that resulted to the making of Exhibit C between their employer and their union. A collective agreement is defined in Section 48 of the Trade Dispute Act 2004 to mean any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between (a) an employer, a group of employers or organizations representing workers, or the duly appointed representative of any body of workers, on the one hand; and (b) one or more trade unions or organizations representing workers, or the duly appointed representative of any body of workers, on the other hand. Therefore, Exhibit C, made between an employer and a workers union, is in the true sense of it, a collective agreement. It is settled law that collective agreements are not intended or capable of giving individual employees right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest nor are they meant to supplant or even supplement their contract of service. Failure to act in strict compliance with collective labour agreement is not justiciable except its provisions have been expressly adopted either in the letter of appointment or in subsequent communication varying the terms of employment before the employee can enforce its content against the employer. See RECTOR, KWARA STATE POLYTECHNIC vs. ADEFILA (2008) All FWLR (Pt. 431) 914 at 958-959; BANK OF THE NORTH LTD vs. ADEGOKE (2008) All FWLR (Pt. 398) 263 at 289; OGUEJIOFOR vs. SIEMENS LTD. (2008) All FWLR (Pt. 398) 378 at 390; ANAJA vs. UBA (2011) All FWLR (Pt. 600) 1289 at 1300. In the case of the Claimants, they said they were employed at various times between 2006 and 2007. The Memorandum of Collective Agreement was made in August 2008. That is to say it came into effect after the Claimants had been in the Defendant’s employment. Therefore, for the Claimants to claim under the Memorandum of Collective Agreement, they must show that it was incorporated into their terms of employment. The Claimants however did not make such assertion nor did they supply any proof to that effect. There is no evidence from the Claimants to the effect that the terms of the Memorandum of Collective Agreement were incorporated into their respective contracts of employment neither did they produce before the court any communication or subsequent contract of employment from the Defendant incorporating the terms of the Memorandum of Collective Agreement. Their case is that the Defendant failed and refused to implement the terms of the Memorandum of Collective Agreement since it was signed in August 2008. This averment implies that the Memorandum of Collective Agreement was at no time made a part of their contract of service, either expressly or by implication, by the Defendant. The Claimants appeared to say that the Memorandum of Collective Agreement is the sole condition of their employment and no other. In their reply to the amended statement of defence, the Claimants averred that the Memorandum of Collective Agreement is the only authentic terms of their employment which they voluntarily made with the Defendant and since it is later in time to the consultant agreement, it supersedes the consultant agreement and it is binding on the parties. What the Claimants’ allegation portends is that the Memorandum of Collective Agreement be considered the only terms of the Claimants’ employment. This has the effect of replacing or obliterating the initial consultant agreement signed by each of the Claimants. In paragraph 5 of the amended statement of facts, the Claimants pleaded that when they were employed they entered into and executed consultant agreement with the Defendant. This agreement is in evidence as Exhibit B and K1-K10. The Defendant averred on the other hand that the Claimants were employed separately and each of them signed a consultancy agreement with the Defendant. From these facts, it is clear that the contract of employment executed by the Claimants when they were employed by the Defendant were the individual consultant agreements in Exhibits B, K1-K10. The Claimants went further to discredit the consultant agreement in order to have the court discountenance it. In their reply to the amended statement of defence, the Claimants aver that the consultant agreement was a fraud and they were induced or forced to sign it. I do not believe these allegations of the Claimants. I think it is an afterthought. The Claimants first introduced and pleaded the consultant agreement in their amended statement of facts but they did not allege that it was a fraudulent document or that they were forced to sign it. It was only when the Defendant made a case that the only condition of service which regulated the Claimants’ employment was the consultant agreement that the Claimants decided to condemn the consultant agreement. Whether fraudulent or induced to sign the document, the Claimants signed anyway. The law is trite that a party that intends to rely on illegality or fraud in an agreement should not have participated or benefitted from the alleged illegal or fraudulent agreement. In OYEGOKE vs. IRIGUNA (2001) FWLR (Pt. 75) 448 at 461, the Court of Appeal expressed this view: “It is the highest degree of dishonesty for a party who has knowledge of an illegality in a transaction to enter into the transaction, draw benefit there from and then turn back to condemn such transaction, label it as illegal and raise illegality as a defence. Equity shall not condone that as one cannot approbate and reprobate. It is both morally and legally despicable.†The Claimants are estopped, after having severally received benefits under their respective consultant agreement, from denouncing it. In any case, I have examined the contents of the consultant agreements but what I see are mere standard terms of employment. I do not see any element of fraud in it or which could warrant someone being forced to sign it. Although the agreements were headed consultant agreement, there is nothing in their content which described the claimants as consultant. There is also no term in them indicating they are consultancy agreements or that the Claimants were employed as consultants. To me, the use of the heading “consultant agreement†did not mislead the Claimants in anyway. The consultant agreement was the contract signed by the Claimants when they were employed by the Defendant. It was a valid condition of service. The Memorandum of Collective Agreement was not a direct contract between the Claimants and their employer. The Memorandum of Collective Agreement could not have superseded or replaced or supplanted a direct employment contract signed by the Claimants. For the Memorandum of Collective Agreement to find life in the contract of employment of the Claimant, it must have been incorporated into the existing condition of service. I find no evidence that it was so incorporated. In its statement of defence, the Defendant averred that it implemented the Memorandum of Collective Agreement by paying 7.5% gross increment in salary to the Claimants but the Claimants denied this fact in paragraph 13 of their reply to the statement of defence where they maintained that the Defendant never implemented any term of the Memorandum of Collective Agreement. The fact of implementation by the Defendant by paying 7.5% increment contained in the Memorandum of Collective Agreement to the Claimants would have been taken to be an implied incorporation of the terms of the Memorandum of Collective Agreement in the Claimants’ employment but the Claimants shot themselves in the foot by denying the fact. The result is that the Claimants could not show that the terms of the Memorandum of Collective Agreement were incorporated into their individual employments. Consequently, they cannot make any claim under the terms of the Memorandum of Collective Agreement or found their cause of action on it. See CHUKWUMAH vs. S.P.D.C (NIG.) LTD (1993) 4 NWLR (Pt.289) 512; NIGERIAN SOCIETY OF ENGINEERS vs. OZAH (2014) All FWLR (Pt.761) 1571 at 1584; TEXACO vs. KEHINDE (2002) FWLR (PT.94) 143 AT 162. Since the claims of the Claimants are based on the terms of the Memorandum of Collective Agreement the claims must necessarily be dismissed. That is not the end of the matter. The Memorandum of Collective Agreement was executed in August 2008. In paragraph 24 of the amended statement of facts, the Claimants pleaded that by the end of August 2008, they noticed that the Defendant failed to implement the terms of the Memorandum of Collective Agreement and in paragraph 28, the Claimants averred that the Defendant refused to implement the Memorandum of Collective Agreement till date. In my view, “till date†means date of this action. In effect, it is the Claimants’ case that the Defendant failed to implement Memorandum of Collective Agreement right from end of August 2008 to date of filing this action which was on 10th April 2014. In paragraph 48 of the amended statement of defence, the Defendant pleaded that the suit is statute barred. In the final written address of the Defendant, learned counsel for the Defendant argued that the Claimants suit is statute barred by effect of Section 16 (1) of the Limitation Law of Rivers State, Laws of Rivers State 1999. According to counsel, the Claimants had 5 years from the date of their cause of action in August 2008 within which to file the action. Having filed it in April 2014, the suit is statute barred. In view of the facts in the amended statement of facts, the Claimants’ cause of action arose by the end of August 2008 when the Defendant was paying the month’s salary but failed to pay in accordance to the terms of the Memorandum of Collective Agreement. When the Claimants noticed none implementation or failure to pay them the salaries and allowances stipulated in the Memorandum of Collective Agreement, their cause of action had arisen and started running from 1st September 2008. The cause of action arose in Rivers State. Section 16 (1) of the Limitation Law of Rivers State 1999 provides that actions founded on contract shall be brought after the expiration of five years from the date the cause of action arose. The provision of the above law is very clear. It is to the effect that actions founded on contract are statute barred if they are not instituted within 5 years of the accrual of the cause of action. Such suit instituted outside the time stipulated by the limitation law cannot be entertained by the courts. By the provision, this action, which is founded on a collective agreement in a contract of employment, ought to be commenced against the Defendant within five years of the accrual of the cause of action. The cause of action in this case arose from 1/9/2008. By the time this suit was filed on 10/4/2014, a period of 5 years 8 months had elapsed. By effect of Section 16 (1) of the Limitation Law of Rivers State, the Claimants suit was already statute barred by the time they eventually filed it. It is trite that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action which is not brought within the prescribed period becomes statute barred and the Claimant who might have a cause of action, losses his right to enforce the cause of action as the right has been extinguished by law. See AJAYI vs. ADEBIYI (2012) All FWLR (Pt. 634) 1 at 21; ELABANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604. Consequently, this suit is statute barred and it can no longer be maintained. It ought to be dismissed on this ground also. In the final result, I find that the suit is not competent. It is accordingly dismissed. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge