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I. Must have attained the age of 55 years of age or II. Must have served up to 30 years length of service in the second party. The eligibility criteria for early retirement stated in the scheme as different from the eligibility criteria for early retirement stated in the employee Handbook of March 2007, is the eligibility criteria under the scheme was reduced and made more flexible to accommodate staff who ordinarily would not qualify for early retirement under the Employee Handbook March 2007. The parties exchanged briefs of argument. The appellant’s brief of argument was filed on 17th September 2018. The respondents filed their joint brief of argument on 1st November 2018. The appellant with the leave of court fled a reply brief. The facts that culminated to this referral are that; On 19th February 2015, the Appellant via email informed all its members of staff of a window for voluntary Early retirement with incentive (‘’the scheme’’). The publication gave a 2 days deadline for submission of applications of intention to participate under the Scheme. Albeit, the incentive was not defined in the circular, members of staff of the Appellant made inquiries/calls to Human Capital Management for clarification. In response members of staff were told that the incentive package was 200% of total emolument (100% early retirement benefit + 100% incentive package). Due to lack of good response, the deadline for submission of application was later extended by another memo dated February 26, 2015 for an additional five (5) days to end on February 27, 2015, to afford interested and qualified Staff applicants more time to take advantage of the Scheme. The conditions for eligibility to apply for early retirement under the Scheme as stated in the published memo are that each applicant must have spent at least 5 years in the service of the Claimant in the first instance and must be 50 years of age and /or attained 20 years length of service in the Clamant. The eligibility criteria for early retirement as stated in the Scheme is different form the eligibility criteria for early retirement stated in the Employee Handbook of March, 2007 (“the Handbook) which provide that the applicant must have attained the age of 5 years of age or must have served up to 30 years length of service in the Bank. At end of the deadline for the application, a total of 337 applications were received and processed. Upon their retirement in April, 2015, each of the retirees was paid the incentives due to them under the early retirement Scheme. The Respondents relying on the corporate responsibilities and reputation of the Appellant applied to take advantage of the early retirement. It is the position of the respondents that they would not have responded based on the voluntary early retirement in the employees handbook but for the incentive clause and assurances modelled after the 2012 one-off payment. The modalities for early retirement with incentives had already been worked out between the trade union and management of the bank. The bank had previously used the same template on one-off basis to compensate and pay early retirees of the bank. The 2015 retirees who were given a 24 hour window were assured that the template already previously approved on a one-off basis between the union and the management would apply to the 2015 retirees with incentives. It is the position of the Respondents that there is difference in the normal early retirement package as contained in manual handbook and the early retirement with incentive as advertised and offered by the bank. The ordinary early retirement package is for members of staff who qualified, elected to go on early retirement. The 2015 early retirement scheme is restructured with incentives. The Respondents aver that members of staff within the set criteria were coerced by heads of department into acceptance of the scheme. The Respondents collectively and individually accepted the early retirement with incentive as offered by the bank. The Respondents also stated that contrary to the incentive package as advertised, the bank paid to the retiring staff members only the voluntary early retirement entitlements as contained in page 26 Clause 8.12.1 of the employee handbook without the incentive as assured. Worst still the Appellant hid under an unfair labour/obnoxious clause in the employee handbook, to deny the Respondents their pay for performance and profit sharing emoluments which they worked for and earned in 2014 financial year. The 2015 retirees have met with the Appellant through their union. Several Government agencies including National Assembly and Federal Ministry of Labour have intervened but without success. The Appellant had reneged on all the promises made to pay the respondents their entitlements. The Respondents insisted they were only paid 100% incentive and the Respondents are demanding payment of the remaining 100% The Respondents also claimed repatriation allowance, salary in lieu of notice, waiver of up-front payment, pay for performance and profit sharing for 2014 financial year (variable pay), deferred pension scheme, and gratuity. At the instance of the Respondents the matter was referred to the Industrial Arbitration Panel wherein, the Respondents relied on several documents marked as Annexures 01-12 and made several claims which include: i. payment of 200% Incentive Package ii. payment of 30% annual basic salary as repatriation allowance iii. payment of 3 months basic salary in lieu of notice iv. refund of sum reclaimed as 10 months unutilized upfront to the retiree; v. payment of pay for Performance and Profit sharing for the years 2014. vi. deferred pension Scheme; vii. gratuity; and viii. interest of 21% from March, 2015 and N5 Billion as damages. The Appellant at IAP challenged the jurisdiction of the Industrial Arbitration Panel to entertain the matter. On 19th March, 2018, the Panel entered an Award in favour of the Respondents and against the Appellant. Consequent upon which the Appellant objected to the Award. APPELLANT’S ARGUMENT. ISSUES FOR DETERMINATION The Appellant submitted three issues for determination. They are: 1. Whether the Industrial Arbitration Panel had jurisdiction to entertain the dispute between the Claimant and the defendants? 2. ‘’Whether the Defendants’ action commenced in a representative capacity at the industrial Arbitration Panel was competent. 3. Whether the Defendants’ are entitled to the reliefs they sought at the Industrial Arbitration Panel? ARGUMENT ON ISSUE ONE ‘‘Whether the Industrial Arbitration Panel had jurisdiction to entertain the dispute between the Appellant and the Respondents’’. Counsel for the Appellant submitted that the Respondents’ Petition at the Industrial Arbitration Panel was pursuant to sections 5 (B) (sic) and 9 (1) of the Trade Disputes Act, Cap. T8, Laws of the Federation of Nigeria, 2004. The said sections provides as follows: “S.5(1) Notwithstanding the foregoing provisions of this Act, where a trade dispute is apprehended by the Minster he may in writing inform the parties or their representative of his apprehension and of the steps he proposes to take for the purpose of resolving the dispute. (2) Such steps as the Minister may, pursuant to this section take may include. (b) a reference of the dispute or any matter relating thereto for settlement to the Industrial Arbitration Panel under Section 9 of this Act. S.9 (1) provides: ‘‘Within fourteen days of the receipt by him of a report under section 6 of this Act, the Minister shall refer the dispute for settlement to the Industrial Arbitration Panel establishment under this section.” Counsel submitted that from the above, it is germane that the grounds for referral of a matter to the Industrial Arbitration Panel by the Minster is to be on a matter that is a “trade dispute”. The cardinal question to be asked is: Does the dispute between the Appellant and the Respondents qualify as a trade dispute within the contemplation of the Act? In answer, counsel referred the court to the provisions of section 48(1) of the Trade Dispute Act, which defined what a “Trade Disputes” is. It provides as followings: “….Trade Dispute’ means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment and physical condition of work of any person. Worker means any employee that is to say any public officer or any individual who has entered into or works under a contact with an employer, whether the contract is for manual labour, clerical work or otherwise, express or implied, oral or in writing, and whether is a contract of service or of apprenticeship. It is the argument of counsel that from the definition of trade dispute and a worker set out above, as far section 48(1) of Trade Disputes Act and section 91(1) Labour Act, are concerned. It is clear that for a dispute to amount to trade dispute, it must be between an employer and an employee/worker or between a worker and a worker. The question to be asked then is: Are the Respondents (who are retirees), employees/workers for the Appellant within the contemplation of the Law? Counsel answered the question in the negative and submitted that, with effect from the very day the Respondents retired from the services of the Appellant, they ceased to be workers/employees of the Appellant. Further to the above, from the definition of “worker”, it is clear that, a worker is an employee who has a subsisting contract of employment (whether express or implied, oral or in writing, for service or of apprenticeship) with an employer. In the instant suit, the Respondents do not have subsisting contracts of employments within the Appellant since they had retired from its employment. It is argument of counsel that upon the retirement of the Respondents their contract of employment with the Appellant terminated and they became ex-workers of the Appellant. In support of this position counsel cited and relied in the cases of OSOH V UNITY BANK PLC (2013) 9 NWLR (Pt. 1358) 1 at 50, paras B-E, where the apex Court held: “The next issue that arises for consideration is whether the Respondents workers within the meaning and intendment of Section 47(1) of the Act. Before the dispute between the parties arose, as to quantum of benefits payable to them following the cessation of their respective employments and the determination of the parameters of its computation, their respective employments had earlier been terminated. The bottom line following the foregoing conclusion is obvious: that the cross respondents not being workers, the dispute between them and the cross appellants, being their former employer, is not a trade dispute within the meaning of section 47 (1) of the Act. The section is explicitly clear on the phrase that the dispute must be between employers and workers or between workers and workers: this connotes that non-workers who are no longer in the employment of the employer are not covered as wrongly conceived by the cross-appellants leaners counsel.” Counsel submitted that from the above authority, the dispute between the Appellant and the Respondents is not a trade dispute on the grounds that: 1. the dispute arose after the Respondents have retired from the Appellant’s employment; and 2. the Respondents having retired from the Appellant’s employment are no longer workers within the meaning of Section 48(1) of the Act. Counsel contended that on the strength of the foregoing, it is clear that the dispute between the Respondents and the Appellant is not a trade dispute within the meaning of Section 48(1) of the Trade Disputes Act and 91 (1) of the Labour Act. Counsel contended that the referral of the disputes to the industrial Arbitration Panel by the Minister and the assumption of jurisdiction by the panel was wrongful in law. The net effect being that the panel lacked the jurisdiction to have entertained the matter same not being a trade dispute. Counsel urged the court to resolve the issue in favour of the Appellant. ISSUE TWO ‘’Whether the Respondents’ action commenced in a representative capacity at the industrial Arbitration Panel was competent. Counsel for the Appellant commenced argument on issue two by submitting that it is trite law that the authority of the persons in whose favour a representative action is commenced must be obtained before such action can be properly initiated. In support of this position counsel referred to the Supreme Court decision in Apeh & Ors. V PDP & ORS. (2016) 7 NWLR (PT.1510) where it was held that: ‘’The powers that inhere on the named plaintiff are hedged around with limitations. For instance, he can only represent those who have given him authority to do so, and in respect of a claim in which his interest in the subject matter is common with that of those he represents. He cannot without their authority and order of court authorizing him to do so, defend counter claims made against him in the principal action’’. In another case, ANIEKA MELEFONWU & ORS. V CHARLES EGBUYI & ORS. (1982) LPELR SC, the Supreme Court held inter alia that: ‘’it is clear under the rule that representative action is only permissible if more persons than one have a common interest in a suit and the person interested in suing have given authority to the named plaintiff to sue on their behalf’’. The case of ONYEMAECHI NWOSU & ORS. V HFP ENGINEERING NIG. LTD (2014) LPELR-23197(CA) 38, it was held that: ‘’A representative is a person authorized to act or speak for another or others. It therefore means that, the party wishing to sue or defend in a representative capacity must obtain the authorization to sue or defend from the person or persons he wishes to represent’’. It is also the contention of counsel that apart from lack of authorization. The Respondents do not have a common interest with that of the majority of the retirees of 2015, before commencing the action on their behalf. To support this contention counsel referred the court to exhibit OA1 in the schedule of documents. See page 263 to 272 of the schedule of documents. The said annexures contained three columns showing the purported claims of each retirees in respect of incentive, performance, allowance and pension contribution or in respect of one or two of the heads of claim. What it means is that, all the persons purportedly represented by the Respondents do not have common interest as required by law in a representative action. It is further argued that where there is an objection to representation, the burden of proof is on the Appellant/respondents to show or establish the existence of a common interest and a common grievance. If an action is commenced in representative capacity and it turns out that there is no common interest a representative action cannot be instituted. On this submission reliance was placed on the case of ALAFIA & ORS. V GBODE VENTURES (NIG.) LTD (2016) 7 NWLR (Pt.1510) 116. It is the contention of counsel that the effect of failure of the Respondents to show that they have common interest with that of the persons contained in exhibit OA1 is fatal to the case of the Respondents at the IAP. It is also submitted that the order made by the panel wherein they struck out the names of the persons whose interest were not same with that of the respondents cannot cure the damage to the respondent’s action. This is because the Respondents had commenced the action in a representative capacity and not in their individual capacities. Thus it is not a case of misjoinder of parties which could be remedied by an application for severance of the parties. APEH & ORS. V PDP (supra) referred to in support of this contention. Counsel urged the court to hold that the Respondents’ action being in representative capacity is incompetent on the ground of lack of common interest and lack of authority to sue in representative capacity. ISSUE THREE ‘‘Whether the Respondents are entitled to the reliefs sought at the Industrial Arbitration Panel’’. Counsel argued this issue based on the several reliefs claimed as follows: CLAIM FOR 100% INCENTIVE PACKAGE AND 100% EARY RETIREMENT BONUS. It is the submission of counsel that the respondents in this suit and indeed all the retirees of the 2015 Early Retirement Scheme (ERS) have been fully paid all their emoluments accruable to them under the 2015 ERS and that there are no additional entitlements for early retirement aside the standard benefits as provided in the Employee Handbook clause 9.1 of the Handbook, which provides: ‘’The bank operates a dual payment structure comprising Guaranteed pay and the variable pay components. Guaranteed pay is that element of each staff’s annual total emolument (as advised in the offer letter) that is secured, so far she/he discharges his/her responsibilities as expected. Payments are made on monthly, quarterly and annual basis. However, staff who exit the system before the end of any financial year will have the unutilized portion of such payments deducted from their exit package’’. Page 286 of the schedule of documents. It is submitted that the Respondents are only entitled to the benefits stated in clauses 8.12.1. and 9.1 of the Employee Handbook. In the absence of an express agreement as to incentive benefits other than the benefits provided in clauses 8.12.1 and 9.1 of the Employee Handbook, the defendant cannot claim that they are entitled to additional benefits. It is the submission of counsel that contrary to the submission of the respondents they are not entitled to take benefit under the 2012 agreement as they are not parties to it. In law it is only parties to agreement that can take benefit of the agreement. It is trite law that, a person who is not party to an agreement/ contract cannot enforce or seek to enforce same, this is predicated on the doctrine of privity of contract. On this submission counsel relied on the case of CCB Ltd. Vs. NWOKOCHA (1998) 9 NWLR (Pt. 564) 98 at 118, where it was held that: "The doctrine of privity of contract as a general rule is that a contract affects only parties thereto and cannot be enforced by or against a person who is not a party thereto even if the contract was made for his benefit and purports to give him the right to sue or make him liable upon it". The Respondents are not in law entitled to seek to enforce the terms of Annexure 4. In Ebhota vs P.I. & P.O. Co. Ltd. (2005) 15 NWLR (Pt. 948) 266 at 289 paras D-F, the Supreme Court in restating the position of the law held: " ... In my humble view the above excerpts of paragraph 3 of exh. 2 is merely a policy statement or guideline, the non-implementation of which does not entitle the appellants to a legal redress against the respondent. It did not create a contractual relationship between the parties to this appeal. If it was an agreement between the Federal and State Governments or their agencies, the appellants cannot maintain an action thereunder, they being strangers to the agreement. This on the principle of privity of contract which recognizes that only parties to a contract can maintain an action thereunder ... As the appellants entered into no contractual relationship with anybody by virtue of exhibit.2, their contention for option to outright purchase of the housing units is not well founded" Counsel urged the court to hold that the Respondents are not part of the 2012 retirees, they cannot benefit from the agreement the Appellant reached with the 2012 retirees. It is also submitted that the Respondents attempt to claim under the 2012 retirement scheme is misconceived as the said scheme had expired long before the 2015 ERS in which the Respondents participated. This is more so where there is no evidence that provisions of the 2012 scheme was incorporated into the Handbook or the 2015 Scheme. In support of this contention counsel placed reliance on the case of OSOH vs. UNITY BANK PLC (Supra) at 28, paras A-D, where the apex Court, per Chukwuma Eneh, J. S. C. in considering a case which facts are similar to the facts of this case held that: "On whether the respondent therefore is contractually bound to the appellants as per the terms of the agreements contained in exhibits D, F, J1-J5, N, P I and G in other words, whether their employment relationships have included and incorporated the said agreements as contained in the aforesaid exhibits, the lower court has also found and again, rightly in my view that unless and until the appellants can satisfy the requirements, that is to say, that the said agreements have created legal relations coupled with their respective incorporation into the appellants' respective contracts of employment, the appellant cannot sue (and even be sued) for any breaches of the aforesaid exhibits ... " PAYMENT OF REPATRIATION ALLOWANCE OF 30% OF ANNUAL BASIC SALARY. It is the contention of counsel that by virtue of Clause 8.12.2 of the Handbook to qualify for payment of repatriation allowance under the Handbook, the retiring staff must have retired from the employment of the Appellant under normal conditions. Clause 8.12.1 of the Handbook provides for the normal condition for retirement. Clause 8.12.1 provides: "The compulsory retirement age for every employee is sixty (60) years or 35 years in service, whichever comes first. An employee can however go on voluntary early retirement after attaining the age of 55 years or have served up to 30 years or at his/her own discretion or at the discretion of management". It is submitted that the Respondents who voluntarily chose to retire under early retirement scheme and not under normal conditions are therefore disqualified from claiming Repatriation Allowance as they claimed. Consequently, the Respondents are not entitled to repatriation allowance as claimed. PAYMENT OF SALARY IN LIEU OF NOTICE It is the contention of counsel that the provision of Clause 8.10(a) of the Handbook, which provides for cessation of appointment by giving notice or payment in lieu of notice is not applicable to the Respondents. This is because of the condition under which the Respondents retired from service did not require notice. The Memos which invited interested applicants to apply and take advantage of the scheme to retire outside the period provided for in Clause 8.10(a) of the Handbook is an offer which equally takes the place of a required notice in the normal conditions. Having accepted the offer, the Respondents were not entitled to an additional notice. Furthermore, the Respondents' retirement under the scheme is by their own volition and not by compulsion by the Appellant. To that effect, the claim by the Respondents for payment in lieu of notice is misconceived. WAIVER OF UP-FRONT PAYMENT Generally, the Appellant pays its employees a portion of the employees' emoluments for the entire year. This is called advance payment or up-front payment. The Black's Law Dictionary (10th Edition), Bryan A Gamer (ed.) Thomson Renters. P.1309, defines "advance payment" as: "A payment made in anticipation of a contingent or fixed future liability or obligation." Counsel argued that from the definition proffered above, the Respondents are under obligation to refund the balance of the advance payment made to them by the Appellant for the unexpired period of the year 2015. Counsel observed that the Respondents have recognized the fact that they are obliged or under a duty to refund the balance of the advance or upfront payment, hence they applied for waiver of same. The Black's Law Dictionary (p. 1813) defines the word "waiver" as: "The voluntary relinquishment or abandonment-express or implied - of a legal right or advantage. The party alleged to have waived a right must have had both knowledge of the existing right and the intention of foregoing it." From the above definition, it means that the Appellant has the discretion either to allow the Respondents go with the balance of the advance payment or deduct same from their retirement benefits. The Appellant exercised its discretion and deducted the balance of the upfront payment. An attempt by the Respondents to rely on the 2012 scheme to demand for a waiver is grossly misconceived as the right as to whether or not to deduct the advance payment at the point of exit by the Respondents is discretionary and the discretion was judiciously exercised by the Appellant. PAY FOR PERFORMANCE AND PROFIT SHARING FOR 2014 FINANCIAL YEAR It is the contention of counsel that by virtue of Clause 9.2 of the Handbook, pay for performance and profit sharing for year 2014, is payable to members of staff of the Appellant on the nominal roll as at the time of payment. The Respondents having not been on the pay roll of the Respondents as at the time of payment are not eligible for the said payment. It is the position of the Appellant that from the above provisions of the Handbook, for a person or staff of the Appellant to qualify or become entitled to Payment for Performance and Profit Sharing (the PFP & PS") the staff must be in the payroll of the Appellant on the day of the payment. Counsel submitted that the Respondents having exited from the Appellant’s employment on 28/2/2015, whereas the PFP & PS were paid by the Appellant on 22/4/2015 and 24/4/2015, respectively. The Respondent cannot not lay any claim to the performance and profit sharing for the year 2014. The Respondents contention that Annexures 7 and 8 form part of the remuneration package for the 2014 financial year was misconceived in that, the documents are of no moment, reason being that, the Respondents are not even qualified for payment of the PFP & PS for 2014, under Clause 9.2 of the Handbook. For the Respondents it was contended that the Appellant cannot claim that the Respondents were not in the payroll unless the Appellant had discharged its financial obligations to them pursuant to Section 11 (7) of the Labour Act, Cap. L1, Laws of the Federation of Nigeria 2004. Section 11 (7) of the Labour Act provides: " All wages payable in money shall be paid on or before the expiry of any period of notice" It is submitted that the reliance on the above provision of the Labour Act by the Respondents is misconceived and misplaced in that the said provision relates to the issue of termination of employment by notice which is not the issue in the instant case. Assuming but without conceding that the aforesaid provision of the Act relates to the issue of payroll, it is contended that, the Appellant had fully paid the Respondents and indeed all the retirees of the 2015 ERS their entitlements. Thus, they ceased to be in the payroll of the Appellant with effect from 28/2/2015 which was the day they exited the Appellant's employment. It is the contention of the Appellant that the argument of the Respondents that, the Appellant having deducted the balance of the upfront payment from their entitlement upon their exit, was bound to pay the Respondents the PFP & PS cannot stand for the following reasons: 1. Clause 9.2 of the Handbook is explicit on the fact that only those who are in the Appellant’s payroll on the day of payment are eligible to benefit from the PFP & PS. The Respondents exited the Appellant’s employment on 28/2/2015, whereas the PFP & PS was paid on 22/4/2015 and 24/4/2015 respectively. Thus, the Respondents were not eligible to benefit from the PFP & PS for the year 2014. 2. Clause 9.1 of the Handbook expressly provide that, a staff who exits the system before the end of any financial year will have the unutilized portions of such payment deducted from their exit packages. 3. Paragraph 3 of Annexures 2A - 2Aiii specifically provide that the 100% of the Respondents' commitments will be deducted from the Respondents' terminal benefits. On the strength of the foregoing, counsel for the Appellant submitted that the Respondents are not entitled to payment of Pay-For-Performance. DEFERRED PENSION SCHEME On pension, it is the contention of counsel that the Appellant had fully remitted the pre-2004 pension contributions of all staff in lump sums to the respective Pension Fund Administrators of the Respondents. Thus, there was no outstanding pension payment due to the Respondents from the Appellant. The Appellant contended that all the pension contributions of the respondents were duly remitted/transferred to the Pension Fund Administrators. On this contention counsel placed reliance on the Statements of account by the Pension Fund Administrators which are marked Annexures 10-10x respectively. Using Annexure 10 as a case study, the postings shown therein are from September, 2006 - April, 2007. A summary of the amount in the posting is approximately N125,000.00. There is no information or explanation by the Respondents, as to how the value of the contribution rose to the sum of N2,793,787.33 as at 31st December, 2011. There is also no information as to the postings made in the said account between July, 2010-December, 2011. It is worthy to note that, same issues with Annexure 10 applies to Annexures 10i-10x respectively. It is trite law that he who asserts the existence of a fact bears the burden of proof. See Section 131 (1) of the Evidence Act, 2011 (as amended). The Respondents who asserts that the contributions were not transferred by the Appellant has to provide a link between the postings in the Statement of account and the outstanding balance as at 31/12/2011. It is also pertinent to note that none of the Respondents ever complained of the non-remittance of their pension contribution until they retired from the Appellant’s employment. GRATUITY It is the contention of counsel that, the Appellant replaced the Leaving Service Benefits 2002 with the Review of Compensation Strategy & Policy: Gratuity, vide a memo dated 31/12/2013. (see Annexure 12, pages 385-387 of the schedule of documents). Therefore, the extant policy is the Review of Compensation Strategy & Policy: Gratuity, 2013. After the circulation of the new policy (Annexure 12), the Appellant began to implement same. The Respondents and indeed other staff of the Appellant that retired or resigned their appointment with the Appellant had all benefitted from the new Policy without protest. The implementation of the 2013 policy began in 2014 and the Respondents retired in 2015, which was a period of one year and two months. The Respondents did not contest the implementation of the policy throughout the said period neither did they contest the policy when the Appellant paid them their retirement benefits. It is therefore unconscionable for the Respondents to tum around and rely on the 2002 Leaving Service Benefits after they had taken benefit under the new policy of 2013. It is submitted that the Respondents had ample opportunity to object to the new policy when the Memo was circulated on 31/12/2013, while they were still in the service of the Appellant. Having failed to do so, they are estopped from seeking to rely on the 2002 Leaving Service Benefit which was repealed by the new policy of 2013. This is more so as the Respondents have taken benefit of the new policy. Relying on the 2002 leaving service by the Respondents amounts to approbating and reprobating which ought not to be allowed. INTEREST/DAMAGES. With respect to claim for interest, it is the contention of counsel that the Respondents did not adduce any credible evidence to substantiate their claims. This is because, the Appellant is not owing any outstanding entitlement to the Respondents whatsoever. Thus, the Respondents are not entitled to interest whatsoever. On the claim for damages, it is submitted that damages whether special damages or general damages are not awarded at large. A party who seeks for the award of damages must furnish the court with the requisite materials upon which to predicate the award. The Respondents did not place materials before the Court upon which damages could be awarded. In view of the foregoing, counsel urged the court to also resolve this issue in favour of the Appellant. In concluding his submission, counsel urged the Court to resolve all the issues raised for determination in favour of the Appellant and grant the reliefs sought by the Appellant and in doing so, to set aside the Award made by the Industrial Arbitration Panel on 19th March, 2018, and to accordingly to hold that: 1. The dispute between the Appellant and the Respondents is not a trade dispute within the meaning of Section 48(1) of the Trade Dispute Act, Cap T8, Vol. 14, Laws of the Federation of Nigeria, 2004. 2. The Industrial Arbitration Panel lacked jurisdiction to entertain same. 3. The Respondents' action at the Industrial Arbitration Panel is incompetent in that they do not have the authority of the members of the 2015 retirees of ERS and that the members do not share common interest. 4. The Appellant had fully paid the Respondents all their retirement benefits, therefore the Respondents are not entitled to the reliefs awarded to them by the Industrial Arbitration Panel. THE SUBMISSION OF 1ST -5TH RESPONDENTS JOINT BRIEF OF ARGUMENT. The Respondents in their joint brief of argument divided their arguments into two parts. Part A, covered what they termed as issues of law and in Part B deals with argument on facts. In Part A dealing with law, the Respondents formulated the following issues for determination. They are:- a. Whether the Honorable Minister of Labour had powers to refer respondents matter to arbitration and conciliation and thereafter declare a trade dispute which culminated in the trial determination by the industrial arbitration panel and the award thereof. b. Whether the Trade Disputes Act, Labour Act, National Industrial Court Act respectively survived as existing law under the 1999 constitution more particularly the 3rd amendment to same constitution. c. Whether early retirement as contained in the manual of service is same as retirement with incentives intended to compensate for loss of legitimate expectations in the remuneration and tenor of employment promised and guaranteed to the 2015 FBN retirees in their ordinary cause of employment? d. Whether under the doctrine of legitimate expectation and estoppel the bank appellant can void and or derogate from their promise to pay respondent’s severance package together with incentives. e. Whether First Bank (FBN), can renege on and or void a promise to pay for retirement with incentives benefit when the 2015 retirees had already accepted the offer and retired based on the promise of FBN to pay incentives, a practice already approved with the trade union and implemented in 2009 and 2012 early retirement with incentives by the bank. f. Whether the union is right to continue the struggle to recover the entitlement of the 2015, retirees which said entitlement accrued whilst the 2015 retires were still in the employment of FBN and union members. g. Whether under the industrial rules and procedures the respondents are obligated to apply to court for an order to sue in a representative capacity to pursue arbitration and conciliation and other right under the trade dispute and labour law of Nigeria. h. Whether the appellant can introduce new facts and appeal against the facts of the award where appellant elected not to file pleading at the IAP trial and at same time are time bound by their promise to pay all retirement and severance package due and owing to the 2015 retirees. i. Whether the respondent can waive their entitlement, contribution to pensions, gratuity and other severance packages and whether it is lawful for appellant to fail and or neglect to remit all monthly and other contribution towards retirement benefits and severance packages. ARGUMENT OF ISSUES. It is to be noted that argument of the issues formulated by the Respondents was not tailored in the order of listing of the issues. The counsel for the Respondents began his submission by adopting the IAP award in its entirety and urging this Court to uphold the award. Counsel submitted that the IAP award was not a default award but an award on merit. As the Appellants were duly served and took part in the proceedings. However, the Appellant failed or refused to file any statement of defence at the IAP. Rather chose to challenge the jurisdiction of the IAP to entertain the matter. Counsel argued that the Appellant is deemed to have accepted the facts as contained in the statement of claim that proceeded to trial and culminated in the award. Counsel submitted that failure of the Appellant to file statement of defence is deemed to be admission of the Respondents case presented before the IAP. On this submission counsel relied on the cases of JAMES V MIDMOTORS (1978) 11-12 SC 31, EZENWANI V ONWORIDI (1986) 4 NWLR (Pt.33) 21, SABRU MOTORS NIGERIA LTD V RAJAB ENTERPRISES NIG. LTD (2002) 4 SC (Pt.11) 67 @74. It is the submission of counsel that the National Industrial Court in exercise of its Appellate jurisdiction is not a court of trial. The court can make inferences from facts already before it. It is not allowed to introduce facts not contained in the record of proceedings before the IAP. For an award to be challenged the reasons for the appeal must be cogent, weighty and compelling. In support of this submission reliance was placed on the case of EZEKWESILI V AKPAPUONWU (2002) 9 NWLR (Pt.825) 340, where it was held that an issue on appeal must be a proposition of law or facts so weighty and compelling for the appellate court to intervene and find for either parties. It is the submission of counsel for the Respondents that this appeal lacks merit and should be dismissed. The Appellant cannot at this stage challenge the facts that formed the basis of the award at the IAP. Because under the rules of this court it is only allowed to make inferences from the facts before the court. The only facts are those presented by the Respondents at IAP. Counsel urged the court to discountenance facts introduced by the Appellant in the Appellant’s brief and to make all inferences from the facts put forward by the Respondents. This court and the parties before it are bound by record of proceedings from IAP. Counsel for the Respondents contended that the Appellant has challenged classification of the subject matter as trade dispute and right of the 2015 retirees and their union ASBIFFI to claim against the Appellant. Counsel contended that with the jurisdiction of the court to apply international best practices in its appellate jurisdiction, the IAP correctly interpreted the meaning of the word retirement with incentive as distinct from early retirement. Therefore, the IAP award in favour of the Respondents was correctly made. On issue of payroll, it is the contention of counsel that the Respondents are on and remain on the payroll of the Appellant until they are paid all their entitlement earned in the cause of their employment. Section 11(7) of the Labour Act was relied upon on this contention. It is the submission of counsel that the IAP award was made in the exercise of the jurisdiction conferred on IAP, through the referral instrument by the Minister of Labour in the exercise of the powers conferred on him by the Trade Disputes Act. The matter having been referred to IAP by the Hon. Minister was not commenced by any of the parties. It was the Minister pursuant to the powers conferred on him that initiated the action before IAP after conciliation has failed in which both parties herein participated. It is the contention of the Respondents that the cause of action accrued to them while they were union members and staff of the Appellant. The collective agreement signed between the Appellant and the union at all material time formed part of the individual contract. While in the employ of the Appellant, they belonged to their umbrella trade union and paid their union dues accordingly. Their labour rights, severance, packages, accruals and entitlements formed part of the legal and equitable rights sought to be protected by both the union and the 2015 retirees individually and collectively. It is argued that on 19/2/15, the Appellant introduced opened window for early retirement with incentive. Prior to the circular Respondents were not due for retirement and had not applied for early retirement. The Respondents hesitated to accept the offer and asked for clarification on the terminology with incentive. This enquiry led to the extension of the window and email from the bank clarifying the package incentive. In the conditions of service there is early retirement but is not applicable to the Respondents herein. The Appellant and workers through trade union had in 2012 negotiated and agreed on a new method and terms of retirement outside the general terms of employment as stated in the manual general condition of service. It is the 2012 negotiated severance package that was enforced in 2012 that is to the 2015 early retirees with incentive. The union has locus to protect terms of employment and severance packages that accrued to its members while in the service of the Appellant and arising from terms of employment negotiated by the union on behalf of all individual workers of the Appellant. It is the submission of counsel that it will be inequitable to argue that since 2015 retirees had left service of the Appellant they lost all the rights to be protected by the trade union. They cannot be denied their entitlement on the sole ground that their employment had terminated. The Appellant cannot benefit from its own wrong. They had legitimate expectation when they accepted the offer for early retirement with incentive. Doctrine of legitimate expectation applies where there has been acquiescence to a way or manner of doing things without objection; Possibly a waiver of statutory limitation. Counsel cited and relied on many English cases and the Nigerian case of LADEJOBI V & ORS. V OTUMBA OGUNTAYO & ORS (2004) ALL FWLR (PT.231) 1209, in support of his position. It is also the contention of counsel that the Appellant is estopped from repudiating their agreement to pay the full early retirement benefit with incentive. The Appellants took benefit of the early retirement when they induced the 2015 retirees to retire before their due dates. The retirees gave up their financial entitlement and expectation to work and retire at the due dates in future. The detriment is to the retirees while the benefit to the Appellant. It is the contention of counsel that retirement with incentive was both a valid contract and legitimate expectation. The Respondents accepted offer of the Appellant. Thus offer was identified and clarified to members before acceptance early retirement with incentive. The acceptance of early retirement with incentive cannot constitute a waiver of statutory entitlements such as pension, gratuities and other severance packages rightly earned and accruing to the benefit of the 2015 retirees. The Respondents cannot be forced to waive their pensions and gratuities. It is forcefully argued that pension and gratuity and other severance packages is a statutory duty that must be performed by the Appellant. To support this submission counsel relied on the AG BENDEL STATE V AG FEDERATION & ORS. (2001) FWLR (pt.65) 448, by inducing the 2015 retirees to retire, the Appellant has taken benefit of the promise. It is the submission of counsel for the Respondents that the Hon. Minister of Labour pursuant to powers conferred on him under the Trade Disputes Act commenced an amicable resolution (Mediation Conciliation and Settlements). Both parties were invited for negotiations under the auspices of the Hon. Minister. Both parties made representation. A compromise was arrived at. See pages 210 to 212 of the record. The Hon. Minister sent several reminders and after it became obvious that the Appellant is not interested in honouring the obligations, the Appellant reneged from their obligations arising from the settlement. The Hon. Minister of Labour pursuant to Trade Disputes Act, declared a Trade Dispute and referred the matter for Arbitration. After award by IAP upon objection section 48 and 57 of the Trade Disputes Act, defined a trade dispute as any dispute between employers and workers or between workers and workers which is connected with employment or non-employment or terms and conditions of employment. The Supreme Court in NATIONAL UNION OF ROAD TRANSPORT WORKERS V OGODO & ORS. (1998) 41 NSCQR (Pt.1) 611, (1998) 2 NWLR (Pt.537) 189, identified the ingredients of trade dispute thus: there must be a dispute. Dispute means to make a subject of argument, to contend for, to oppose by argument, to call in question, to argue, to debate. In MUYIWA DANIEL & 4 ORS.V MRS OLUFUNKE FADIUGBA & ANOR. (1998) 3 NWLR (Pt.582) 482, it was stated that: I. The dispute must involve a trade. II. The dispute must be between: III. Employers and workers IV. Workers and workers. This means that the dispute could be inter or intra union dispute. Intra union dispute is a dispute within a union, while inter union dispute is dispute envisages the fact that the parties to the dispute belong to different trade unions. V. The dispute must be connected with the employment or non-employment, or the terms of employment and physical condition of work of any person. Counsel referred to provisions of the Constitution of the Federal Republic of Nigeria 1999, (as amended) more particularly sections 6, 254D and provisions of sections 13-20 and 32-34 of NICA 2006 and submitted that NIC has original and appellate jurisdiction. Counsel argued that the court can exercise jurisdiction without going through Part I of TDA. On this submission counsel relied on the case of GBADEGESIN V WEMA BANK PLC (2009) 15 NLLR (Pt.40) 1. It is the contention of counsel that this court has jurisdiction to hear cases on appeal from the award of IAP as provided by sections 14 of TDA. The aggrieved party commenced appeal by filing objection with Minister of Labour as it was done in this case. It is the contention of counsel that Trade Disputes Act is an existing law not repealed or abrogated. Aside the Hon. Minister of Labour pursuant to Trade Disputes Act, referred this matter to this court. The matter is properly before the Court. CAPACITY OF ASBIFFI. It is the contention of counsel that the union has power to sue, mediate and intervene on behalf of its members. But under general jurisdiction, only parties before the court are bound. On this submission counsel cited section 254E (l) of the 1999 Constitution as amended and several decisions of this court. Counsel submitted while a party under regular court need leave to sue in representative capacity, this court has held that no such requirement of leave is needed to sue before the court in representative capacity. OYEKANMI V NIGERIA TELECOMMUNICATONS LTD (2009) 16 NLLR (pt. 44) 246. PART B In the Part B of the Respondents’ briefs issues dealt with by the Appellant under issue three were dealt with by the Respondents. According to the Respondents incentive means 100% of 1 year entitlement. Counsel also argued that qualifying age was variation of eligibility criteria and does not amount to an incentive package. Incentive is monetary compensation for loss of job. The offer was accepted because of incentive clause. It is the contention of counsel that suing in representative capacity was not canvassed at the lower court and Appellant did not adduce any evidence to prove lack of representative capacity to sue. The Appellant cannot raise this issue for the first time in this appeal. It is the contention of counsel that Respondents engaged the Appellant on the outstanding issues arising from their retirement. Negotiation commenced on 30/12/15, but the Appellant abandoned the negotiation and hence the matter was reported to Federal Ministry of Labour and Employment and relevant bodies for intervention and conciliation. The matter was referred to IAP when the Appellant reneged on the conclusion reached at final conciliation at the Ministry of Labour. It is the submission of counsel that jurisdiction of this court is three fold. The relevant one regarding this matter is the jurisdiction of this court over referral by the Minister of Labour. i.e jurisdiction arising out of award of Industrial Arbitration Panel, which jurisdiction is predicated on trade dispute. REPLY BY THE APPELLANT TO THE RESPONDENTS JOINT BRIEF OF ARGUMENT. Counsel began reply on the submission of the Respondents that the failure to file defence at IAP means the Appellant has admitted the facts submitted by the Respondents to the IAP and that Appellants cannot challenge facts. In reply counsel contended that the proceedings at the IAP was predicated on jurisdiction. Counsel argued that issue of jurisdiction can be raised at any time even for the first time on appeal. On this counsel relied on the case of LATEEF ADEGBITE & ANOR. V AMINU AMOSU (2016) 15 NWLR (PT.1536) 405. It is the contention of counsel that the fact that the issue of IAP’s lacked jurisdiction to entertain the dispute between the Appellant and the Respondents, the entire proceedings conducted by the IAP together with the award it made will be set aside. To buttress his contention counsel cited the cases of OLUBUMI OLAFIPO ONI V CADBURY NIG. LTD (2016) 9 NWLR (Pt.1516) 80, LABOUR PARTY V YAHAYA BELLO & 2 ORS. (1=2017) 2 NWLR (PT.1548) 145. It is also the contention of counsel that averments in pleadings does not constitute evidence. Thus, even when there is no defence to the Appellant’s claim, the Appellant is bound to prove its case by evidence. In the case at the IAP, the Respondents could not adduce evidence in support of the reliefs they sought before the IAP. To that effect, the award made by the IAP in the defendant’s favour is subject to be set aside. In support of this contention counsel relied on the case of DR. SAMPSON UCHECHUKWU OGAH V DR. OKEZIE IKEAZU & ORS. (2017) 17 NWLR (pt.1594) 299. On the contention of introduction of new facts counsel submitted that the Appellant did not introduce any new facts in this case, outside the facts and evidence presented at the IAP. Counsel referred the court to the record of proceedings and submitted that all that is contained in the record of proceeding contained therein are virtually the documents frontloaded by the Respondents at the IAP. Secondly, what the Appellant filed before the court is brief of argument which is predicated solely on the documents presented by the Respondents at the IAP. It is submitted that brief of argument filed by the Appellant in this court does not qualify as pleadings. It is therefore, erroneous for the Respondents to argue that the brief of argument filed by the Appellant in this court amounts to introduction of facts outside that presented at the IAP. It is also argued that the facts of the cases cited by the Respondents are clearly distinguishable from the facts of this case and therefore inapplicable. It is also submitted that the applicable rules to this case is Order 3 Rule 6 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. It is argued that a matter that came before this court by way of referral is not an appeal within the contemplation of the rules rather it is a separate procedure commencing an action in this court. In reply to paragraph 3 of the Respondents brief counsel submitted that the dispute between the Appellant and the Respondents is not a trade dispute within the meaning of section 48(1) of the Trade dispute Act. Thus, IAP lacked jurisdiction to entertain same. The Minister of Labour can only exercise power under section 5 of TDA if the dispute is a trade dispute. On payroll the provision of section 11(7) by virtue of provision of section 11 (7) of the labour Act, is not applicable to this case. On the argument that counsel has participated in meeting consequently cannot challenge validity of referral, counsel submitted that parties consent cannot confer jurisdiction where there is none. OLUBUMI PLADIPO ONI V CADBURY NIG> LTD (supra) and LABOUR PARTY V YAHAYA BELLO & 2 ORS (supra). It submitted the appropriate thing to have been done by Minister of Labour is to advice the parties to institute legal action. Counsel maintained that Respondents have been fully paid their entitlement and that they cannot take advantage of 2012 early retirement benefit. It is also submitted that they were neither induced nor compel to take advantage of early retirement. All that was done was to encourage those who wish to take advantage of the scheme to do so and those who retired under the scheme did so voluntarily. While those who did not take advantage of the scheme were neither sanctioned nor penalized by the Appellant. It was submitted in response to paragraph 10 that there is no justifiable ground for Respondents to expect to benefit from the agreement reached between the Appellant and the 2012 retirees when the said agreement did not say it would apply to subsequently early retirees. The memo of 19/2/15 and subsequent correspondences between the Appellant the Respondents did not refer to or suggest that the terms of the agreement the Appellant had with 2012 retirees would apply to 2015 retirees. All the cases cited were out of context, as there is no indication expressly or impliedly to that effect. On pension, it is the contention of counsel that the Appellant fully remitted the Respondents pension contributions to the Respondents various pension funds administrators and that the Respondents have taken full value of the pension contributions. Letter written to Minister of Labour informing of remittance and agreement at page 219 of the record of proceeding was relied to back up this contention by the Appellant. On gratuity, Appellant maintained that that gratuity had been fully paid as per annexure 12 at pages 385 – 387 of the record of proceedings, the Respondents cannot justify r lay claim further claim for payment of gratuity. The claim that a compromise was reached and Appellant reneged was faulted in that the letter written by Minister of Labour on outcome of conciliation meeting was his own opinion and not an agreement as erroneously alleged by the Respondents counsel. The stand maintained by the Appellant throughout the meeting remained that gratuity fully paid. In response to paragraphs 34, 35, 36 and 38 of the Respondents’ brief of argument, the Appellant contended that from the emal of Barbra A. Harper which says ‘’100% of 1 year total emoluments, I advise you take advantage of this opportunity’’ page 277 of the record of proceedings and letter of acceptance of voluntary early retirement of 23/2/15 it was a mere suggestion and not a command. All those who took advantage of the scheme did so voluntarily. And not by inducement, coercion or compulsion as alleged. In reply to paragraphs 43, 44 and 60 of the Respondents brief of argument on issue of gratuity, it was argued that some of the ways of creating terms and conditions of employment are; I. By terms imbedded in the letter of employment II. By internal workplace regulations on conditions of service III. By express agreement between the employer and the employee; or IV. By internal memo or circular Thus, the clause on mode of payment of gratuity as contained in the 2002 Employees Handbook (annexure 3) was validly altered and/or modified by the internal memo of December 31, 2013 (annexure 12). In concluding his submission counsel urged the court to resolve all the issues raised by the Respondents against them and to hold that: A. The IAP lacked the jurisdiction to entertain the subject matter of this suit B. The Respondents are not entitled to the reliefs they sought C. Set aside the awards made against the Appellant by the industrial Arbitration Panel. COURT’S DECISION We have carefully considered the processes filed in respect of this referral and the submissions of the parties. The Appellant formulated three issues for determination. While the Respondents formulated nine issues for resolution by the court. Having regards to the various positions canvassed by counsel for both sides, the three issues formulated by the Appellant are adequate enough to resolve the dispute arising from the referral. We wish to also state that this court has time without number reiterated the position of the law in respect of what a reply address or brief is or what it should contain. The Learned counsel for the Appellant in the guise of responding or replying the points contained in the Respondents brief went to town to further argue and fortify his argument on the appeal. It is to be remembered that reply brief or reply address simply means what it says. It is an opportunity given to a party who has right of reply to respond to new issues and not make a new case or re-argue his case. The purpose of reply brief or address is not to afford an Appellant another or further opportunity to have another bite at the cherry or provide an opportunity to offer additional arguments in support of an appeal, but to answer, reply or respond to any fresh or new points raised in the Respondents brief. See DUZU & ANOR. V YUNUSA & ORS (2010) LPELR-8989(CA), OLAFISOYE V F. R. N. 2004 4 NWLR PT.864 580, MOIE V MBAMALI 2006 15 NWLR PT.1003 466, OCHEMAJE V STATE 2008 ALL FWLR PT.435 1661. In the circumstance we will discountenanced all argument in the reply brief that did not qualify as reply in its proper sense. The Respondents in their joint brief filed before the court in opposition to this appeal formulated nine issues termed as questions of law. And in Part B of the brief made submissions that they termed as submission on facts. The issues formulated by the Respondents are unwieldy. In the circumstance, we believe that the three issues formulated by the Appellant can adequately cover all the issues raised in the Respondents joint brief of argument. It is to be noted that a referral to this court by the Minister of Labour is an appeal, a species of appeal in its own class. It cannot be equated with appeal being lodged at the court of appeal. The use of the word ‘appeal’ is no more than to signify objection or non-satisfaction against the award or decision of the issue which this court is enjoined to look into. See UTC FOODS V NUFBTE unreported suit no. NIC/ABJ/111/2016, the judgment of which was delivered on 5/12/2016. It is to be noted that in this judgment the Appellant as shown on the briefs or arguments of the parties will be Appellant while the Respondents would be referred to as Respondents. RESOLUTION OF ISSUES: ISSUE ONE The challenge to the jurisdiction raised by the Appellant as per notice of preliminary objection at pages 410 – 422 of the record of proceedings shows that the objection was hinged on the assumption that with the coming into force of the Third Alteration Act 2010, IAP has been divested of its jurisdiction to entertain any matter falling within the items enumerated in section 254C of the Constitution of the Federal Republic of Nigeria 1999, (as amended). That was the position canvassed by the Appellant at IAP. But, IAP rightly overruled him. See pages 433 – 435 of the record of proceedings. It is to be noted that the nature of challenge to the jurisdiction raised by the Appellant at IAP differs from the approach adopted in this appeal. As pointed out earlier the contest of jurisdiction at IAP was based on total lack of jurisdiction. However, the issue being canvassed before us here is on the dispute referred by the Minister of Labour to IAP not being a trade dispute. The change of position by Appellant goes to show acceptance of the position of IAP by the Appellant that it has jurisdiction to entertain question of trade dispute if referred to it by the Minister of Labour. Coming to the first issue raised by the Appellant which is; ‘’Whether the Industrial Arbitration Panel had jurisdiction to entertain the dispute between the Appellant and the Respondents? Counsel for the Appellant answered in the negative and argued that the Respondent’s Petition at the Industrial Arbitration Panel, was brought pursuant to sections 5 (1) and 9 (1) of the trade Disputes Act, Cap. T8, Laws of the Federation of Nigeria, 2004. Counsel contended that from the provisions of TDA, under which the Minister acted, it is germane that the ground for referral of a matter to the Industrial Arbitration Panel by the Minster, must be on a “trade dispute”. Counsel then asked: Does the dispute between the Appellant and the Respondents qualify as a trade dispute within the contemplation of the Act? According to counsel the answer to this question is in the provisions of section 48(1) of the Trade Dispute Act, which defined what a “Trade Dispute” is. It provides as followings: “….Trade dispute’ means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment and physical condition of work of any person. Worker means any employee who has entered into or works under a contact with an employer, whether the contract is for manual labour, clerical work or otherwise, express or implied, oral or in writing, and whether is a Contract of service or of apprenticeship. It is the position of the Appellant that the Respondents are not workers since they retired from service. The IAP does not have power to try a trade dispute which has non workers as parties, as they are no longer employees of any employer. Counsel contended that the referral of the disputes to the industrial Arbitration Panel by the Minister and the assumption of jurisdiction by the panel was wrongful in law. The net effect being that the panel lacked the jurisdiction to have entertained the matter same not being a trade dispute. For counsel for the Respondents Industrial Arbitration Panel, (IAP), has the requisite jurisdiction to entertain this suit. The exercise of jurisdiction was conferred on IAP by instrument of referral from the minister of Labour in the exercise of the powers conferred on him by the Trade Disputes Act. The matter having been referred to IAP by the Hon. Minister was not commenced by any of the parties. It was the Minister pursuant to the powers conferred on him that initiated the action before the IAP after conciliation has failed in which both parties herein participated. The appellant relied on Akauve Moses Osoh & ors v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1 in arguing that because the respondents were retirees, they are not employees and so the dispute between them and the appellant is not a trade dispute given the definition of the term in section 48 of the TDA. This argument of the appellant suffers from a number of fronts. In the first place, the argument did not factor in the meaning of the phrase ‘non-employment’ used in the definition of a trade dispute in section 48 of the TDA. Secondly, like pointed out by the respondents, the issues giving rise to this dispute arose when they were still employees of the appellant. Lastly, it is curious that the appellant would argue that disputes over terminal/retirement benefits are outside of the purview of a trade dispute. Are issues of terminal/retirement benefits not part and parcel of the terms and conditions of employment? There is the worrying issue of our grasp of legal issues in the world of work especially the manner in which we tend to still look at present day things from the prism of the old dispensation. In labour relations, labour rights inure at three levels: pre-employment rights i.e. those rights that arise prior to the start of an employment e.g. rights inuring to job applicants; employment rights i.e. rights arising during the pendency of an employment; and post-employment rights i.e. rights inuring at the end of the employment such as pension rights. See Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017, Kefre Ekpo Inyang v. Alphabeta Consulting LLP unreported Suit No. NICN/LA/550/2016, the judgment of which was delivered on 4th June 2018 and Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4th December 2018. What this means is that applicants for employment or retirees from an employment may in appropriate circumstances be clothed in law with certain labour rights. To our minds, this is the context, and the reason, in which the phrase “trade dispute” is, for example, defined by our laws to include the twin issues of ‘employment’ and ‘non-employment’ as they relate to employers and workers in terms of section 48(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 and section 54(1) of the NIC Act 2006. In fact, section 54(1) of the NIC Act 2006 has gone the further step in enlarging the definition of “trade dispute” to even include “an alleged dispute”. It must be noted that the reliance of the appellant on Akauve Moses Osoh & ors v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1 is actually a reliance on the concurring judgment of Hon. Justice Ogunbiyi, JSC at pp. 49 – 50, not on the leading judgment; and with a concurring judgment, care is to be taken. See Nwana v. FCDA & ors [2004] LPELR-2102(SC); [2004] 13 NWLR (Pt. 889) 128; [2004] 19 NSCQR 142. The point to note here is that neither the leading judgment nor the concurring judgment in Akauve Moses Osoh & ors v. Unity Bank Plc defined what the phrase ‘non-employment’ in the definition of trade dispute means or stands for. As indicated earlier, the phrase accommodates pre-employment and post-employment matters such as the instant case. The cause of action in Akauve Moses Osoh & ors v. Unity Bank Plc arose in 1994 when the case was filed at the High Court of Edo State, Benin long before the enlarged definition of trade dispute as per section 54(1) of the NIC Act 2006 and the Third Alteration to the 1999 Constitution were promulgated. These two statutes acknowledge and make provision for conciliation and arbitration as part of the corpus of labour law and jurisprudence in this country. See section 7(3) of the NIC Act 2006 and section 254C(3) of the 1999 Constitution. Akauve Moses Osoh & ors v. Unity Bank Plc cannot thus be read as saying that terminal benefits are not part and parcel of the terms of employment since a trade dispute is first and foremost a dispute over terms and conditions of employment. To read Akauve Moses Osoh & ors v. Unity Bank Plc in that manner is to apply the case out of context given the enlarged definition of trade dispute under section 54(1) of the NIC Act 2006 and the Third Alteration to the 1999 Constitution. In all, we reject the argument of the appellant and hold that the IAP was rightly seized of the matter in terms of its jurisdiction. ISSUE TWO ‘’Whether the Respondents’ action commenced in a representative capacity at the industrial Arbitration Panel was competent. The position of the counsel for the Appellant is that for a party to sue in representative capacity such a party must have been authorized by the person to undertake such an action, as such where a suit is commenced without authorization, the suit will be rendered null and void. According to counsel a representative action is only permissible if more persons than one have a common interest in the suit and the persons interested in suing have given authority to the named plaintiff to sue on their behalf. The party is a person authorized to act or speak for another or others. Therefore, it means that, the party wishing to sue or defend in a representative capacity must obtain the authorization to sue or defend from the person or persons he wishes to represent. It is the argument of counsel that the parties do not have common interest and so lacked authorization. It is the submission of counsel that the Respondents do not have a common interest with that of the majority of the retirees of 2015, before commencing the action on their behalf. To buttress his contention counsel referred the court to exhibit OA1 in the schedule of documents, pages 263 to 272 of the schedule of documents. The said annexures contained three columns showing the purported claims of each retirees in respect of incentive, performance, allowance and pension contribution or in respect of one or two of the heads of claim. What it means is that, all the persons purportedly represented by the Respondents do not have common interest as required by law to sue in a representative action. In response to this issue counsel for the Respondents contended that suing in representative capacity was not canvassed at the lower court and the Appellant did not adduce any evidence to prove lack of representative capacity to sue. The Appellant cannot raise this issue for the first time in this appeal. It is the contention of counsel that Respondents engaged the Appellant on the outstanding issues arising from their retirement. Negotiation commenced on 30/12/15, but the Appellant abandoned the negotiation and hence the matter was reported to Federal Ministry of Labour and Employment and relevant bodies for intervention and conciliation. The matter was referred to IAP when the Appellant reneged on the conclusion reached at final conciliation at the Ministry of Labour. The concern of the Respondents on their submission that the issue of suing in representative capacity has not been raised by the Appellant at the IAP, is a genuine concern. We thoroughly examined the notice of preliminary objection filed by the Appellant at the IAP, the entire record of proceedings as well as the award made by IAP in favour of the Respondents and there is nothing to indicate that the Appellant ever raised the issue of representative capacity to sue on the part of the Respondents. What is very clear and unambiguous from the notice of preliminary objection and the decision of IAP on the objection as encapsulated in the award, is that the Appellant challenged the jurisdiction of IAP to hear and entertain the referral by the Honourable Minister of Labour and Productivity. The issue of authority of the Respondents to sue in representative capacity having not been one of the issues canvassed at the IAP by the parties cannot be raised before us. It is important to note that the issue of authority to sue in representative capacity raised by the Appellant in the brief of argument before this court was never raised at the IAP. The law has long been settled that a party must be consistent in presenting his case and not engage in gamble. An issue not raised at IAP cannot be surreptiously smuggled into an appeal by ingenuity of counsel. See BALOGUN V ADEJOBI (1995) 1 SCNJ 242, (1995) 2 NWLR (PT.376) 131; OLATUNJI V ADISA (1995) 2 SCNJ 9, (1995) 2 NWLR (PT.376) 167, ORUNENGIMO & ANOR. V EGBE & ORS. (2007) 7 SC (PT.II) 197, (2007) 15 NWLR (P.1058) 630. In any event the law has long been settled that, a party intending or wishing to challenge the propriety of a representative capacity of his opponent is required to do so before the trial court or court of first instance by way of motion on notice. The trial court would then take the motion and proceed to determining the competence or otherwise of the representative capacity of the party being challenged. See MELIFONWU & ORS. V EGBUJIA & ORS. (1982) NSCC 3, ANABONYE V NWAKAIHE (1997) LPELR-478(SC). In this appeal the Appellant is trying to challenge authority of suing in a representative capacity. This will be allowed only via a preliminary objection at the IAP. In any case, failure to obtain leave to sue in a representative capacity does not vitiate validity of an action. See OFAPO V SUNMONU (1987) 2 NWLR (PT.58) 587. There is no doubt that a party can challenge the authority of a person to sue in a representative capacity, however such an objection has to be made at the trial court otherwise an Appellant will be estopped from raising such issue on appeal. It is our view that the Appellant having failed to challenge the capacity of the Respondents at the IAP cannot do so now. We also note that the decisions being relied on by counsel in challenging the competency of the action based on power to sue in representative capacity were all based on rules of courts other than the rules of the tribunal and those of this court. What should be at the back of the mind in considering suing in representative capacity is the consideration of the unique nature of proceeding of this court and that of the IAP. In this respect the decisions relied on by counsel are not applicable to this proceedings. This court had in numerous cases departed from the decisions of Court of general jurisdiction, more particularly when following such decision will result in obvious injustice on the parties before the court. The Appellant has argued that the contract of employment of the Respondents with the Appellant is personal to each of the Respondents and they do not have collective right to sue, each had a separate cause of action against the Appellant, they cannot sue in representative capacity. To adhere strictly to this principle may occasion great injustice on the Respondents. To toe this line of argument will also be in disregard of the rules of this court. Order 13 Rule 11(1) provides that where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons interested. This clear provisions of the rules of this court has given licence to parties wishing to litigate to institute action for and on behalf of large number of parties having same interest in the suit. In the case at hand there can be no doubt that the Respondents have same interest. They are all retirees of the Appellant contesting the adequacy of their terminal entitlement paid to them and are requesting for the balance of the entitlement. It is plain and unambiguous that there is no requirement under the rules for letter of authorization to be given to a party suing in representative capacity. If there should be any objection it should be from the party or parties contesting not giving consent or authority to the institution of the action in representative capacity. We are of the view that the litmus test is: if the Court is convinced that the parties have same interest in the matter, which we are. Argument of Appellant regarding representative action is hereby rejected. ISSUE THREE ‘‘Whether the Respondents are entitled to the reliefs sought at the Industrial Arbitration Panel’’. Counsel argued this issue based on the several reliefs claimed. CLAIM FOR 100% INCENTIVE PACKAGE AND 100% EARY RETIREMENT BONUS. It is the case of the Appellant that Respondents and indeed all 2015 retirees in respect of early Retirement Scheme are only entitled to the benefits stated in in clause 8.12.1. and clause 9.1 of the Employee Handbook. In the absence of an express agreement as to incentive benefits other than the benefits provided in clause 8.12.1 and 9.1 of the Employee Handbook, the defendant cannot claim that they are entitled to additional benefits. They have been fully paid all their emoluments accruable to them under the 2015 ERS. It is also argued that they are not entitled to benefit under the 2012 agreement as they are not parties to it. Counsel urged the court to hold that the Respondents are not part of the 2012 retirees, they cannot benefit from the agreement the Appellant reached with the 2012 retirees. The scheme had also expired long before 2015. The Respondents on their part argued that on 19/2/15, the Appellant introduced opened window for early retirement with incentive. Prior to the circular, the Respondents were not due for retirement and had not applied for early retirement. The Respondents hesitated to accept the offer and asked for clarification on the terminology with incentive. This enquiry led to the extension of the window and email from the bank clarifying the package incentive. See pages 274, 275 and 276 of the record of proceedings. Counsel also argued that in the conditions of service there is early retirement but is not applicable to the Respondents herein. It is also the position of the Respondents that the Appellant and workers through trade union had in 2012 negotiated and agreed on a new method and terms of retirement outside the general terms of employment as stated in the manual general condition of service. It is the 2012 negotiated severance package that was enforced in 2012 early retirees with incentive. It is also argued that the Respondents have legitimate expectation when they accepted the offer for early retirement with incentive. Doctrine of legitimate expectation applies where there has been acquiescence to a way or manner of doing things without objection; Counsel cited and relied on many English cases and the Nigerian case of LADEJOBI V & ORS. V OTUMBA OGUNTAYO & ORS (2004) ALL FWLR (PT.231) 1209, in support of his position. It is also the contention of counsel that the Appellant is estopped from repudiating their agreement to pay the full early retirement benefit with incentive. The Appellants took benefit of the early retirement when they induced the 2015 retirees to retire before their due dates. The retirees gave up their financial entitlement and expectation to work and retire at the due dates in future. The detriment is to the retirees while the benefit to the Appellant. It is the contention of counsel that retirement with incentive was both a valid contract and legitimate expectation. It is not in doubt that the Respondents and all the other remaining 2015 retirees of the Appellant have been paid 100% of their 1 year total emolument less variable pays. The Appellants are now seeking for another 100% emoluments to be paid to them making the total pay to be 200%. This was based on the Respondents’ interpretation of the memo sent to members of staff of the Appellant via email message of 19/2/15, intimating the members of staff of the opening of window for voluntary Early Retirement with incentive. See pages 274, 275 and 276 of the record of proceedings. Vide page 277 of the record of proceedings, the voluntary early retirement incentive was put at 100% of the 1 year total emoluments. See also pages 278, 279, 280 and 281 of the record of proceedings what all these pieces of evidence show is that all the 2015 retirees of the Appellant, who took advantage of the voluntary early retirement with incentive are entitled to be paid 100% 1 year total emolument, as incentive for taking advantage of early retirement scheme. This is in addition to their entitlement under the early retirement benefit as provided for in the conditions of service (Employee Handbook). We are of the view that a combined reading of the memo of 19/2/15, the email message from Barbra Harper and the letters of acceptance of voluntary early retirement issued by the Appellant to the retirees as shown in pages 2274, 277, 278, 279, 280 and 291, of the record of proceedings, what was conveyed to the Respondents was that any member of staff of the Appellant that chose to benefit from the Early Retirement Scheme will be paid 100% of his/her 1 year total emolument less variables as incentive component of early retirement. The payment is in addition to whatever a retiree is entitled to under the Appellant’s Employee Handbook. In view of the above finding, we are of the view that the Respondents cannot benefit under the 2012 Early Retirement Benefit. The reason being that a careful perusal of the 2012 agreement will show that they are not party to that agreement and the agreement’s lifespan has expired it cannot be revived. The only way the Respondents can benefit is through negotiation with the Appellant which they did not do before opting to accept the offer for early retirement as contained at pages 274, 275 and 276 of the record of proceedings. One other noticeable inherent defect in the 2012 agreement as contained at pages 295 – 299 of the record of proceedings is absence of execution. Even if the 20015 retirees are envisage under the 2012 agreement, the Respondents cannot rely on it due to absence of execution. The absence of execution has rendered the 2012, valueless, as it has no evidential value. To buttress this trite position of the law the aid of case become apposite. The Supreme Court in OMEGA BANK (NIG) PLC V O.B.C LTD (2005) 8 NWLR. Ft.928. 547. Tobi JSC of the blessed memory held that '"A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious". Moreover, in FINE BONG & ANOR V El) EM & ORS (2016) LPELR- 41190(CA), Oyewole JCA, held that an unsigned document is totally worthless and incapable of conferring any title. In the more recent case of RAJ1 V UNIVERSITY OF ILORIN & ORS (2018) LPELR-44692(SC) an unsigned notice of appeal was held to be defective and invalid and rendered the appeal to be incompetent. Also in UZOKWELU V PDP & ORS (2018) LPELR-43767(CA), it was held that an unsigned document is a worthless paper. It is inadmissible and where admitted, it cannot be relied upon by the court to resolve any controversy between the parties as no weight or probative value can be attached to an unsigned document. Shuaibu JCA also held in ALHAJ1 UMAR ALIYU TECHNICAL V FBN & ANOR (2018) LPELR-44663(CA,) that a document which is not signed does not exist in the eyes of the law. In effect, it is worthless and can neither be admitted nor be enforced. Therefore we are of the view that annexure 4 as contained at pages 2295 – 299 of the record of proceedings being a worthless piece of paper cannot be relied upon to found a claim before a court of law. As it is not reliable we hereby discountenanced it. The effect of this finding is that the Respondents cannot make their claim under the 2012 agreement. PAYMENT OF 30% REPATRIATION ALLOWANCE The claim of payment of 30% repatriation allowance is not in the referral of the Minister. Consequently, it is not within the jurisdiction of the IAP or this Court to enquire into it. This is because it is only items of the referral that the IAP or this Court has power to determine. PAYMENT OF SALARY IN LIEU OF NOTICE The Appellant’s position is that the Respondents are not entitled to payment of salary in lieu of notice because the relevant provision is not applicable to early retirement. This is because of the condition under which the Respondents retired from service did not require notice. The Memos which invited interested applicants to apply and take advantage of the scheme to retire outside the period provided for in Clause 8.10(a) of the Staff Handbook is an offer which equally takes the place of a required notice in the normal conditions. Having accepted the offer, the Respondents were not entitled to an additional notice. The Respondents did not deemed it fit to respond to the argument advanced by the Appellant in support of the position taken that the Respondents are not entitled to payment salary in lieu of notice. In the circumstance, we deem it that the Respondents have conceded to this point. Furthermore, the IAP has held that the Respondents are not entitled to payment of salary in lieu of notice and the Respondents have not filed any objection on this point. The Appellant raising this issue is unnecessary since the finding of the IAP on the issue is in tandem with the position taken by the Appellant. The IAP’s holding that the Respondents are not entitled to payment in lieu of notice accordingly stands and is hereby affirmed. PAY FOR PERFORMANCE AND PROFIT SHARING FOR 2014 FINANCIAL YEAR. In reliance on Clause 9.2 of the Handbook, the Appellant argued that pay for performance and profit sharing for year 2014, is payable to members of staff of the Appellant on the nominal roll as at the time of payment. The Respondents having not been on the pay roll of the Respondents as at the time of payment are not eligible for the said payment. However, the Respondent disputed this assertion and argued that it formed part of remuneration package for 2014 financial year, which was due and owing in Respondents favour. As at the time of payment of the pay-for-performance on 15/4/15, the Respondents were still in the pay roll of the Appellant by virtue of section 11 (7) of the Labour Act. The reason being that they were paid second tranches of their exit entitlement on 2/6/15. Therefore to apply Clause 9.2 of Staff Handbook to deny the Respondents their legitimate earning will amount to unfair labour practice. We share the view of the IAP on this issue. The Appellant who would wrongly deduct unearned upfront payments should not be allowed to deny payment of what was earned by and due to the Respondents. Therefore, the Respondents are entitled to the payment of 2014 pay-for-performance profit sharing. We so hold. DEFERRED PENSION SCHEME On the issue of deferred pension, counsel for the Appellant submitted that the legacy pension contribution, which is the pre-2004 pension reform Act, had fully been remitted in lump sums to the respective Pension Fund Administrators of the Respondents. Thus, there was no outstanding pension payment due to the Respondents from the Appellant. The Appellant also contended that all the pension contributions of the respondents were duly remitted/transferred to the Pension Fund Administrators. On this contention counsel placed reliance on the Statements of account by the Pension Fund Administrators which are marked Annexures 10-10x respectively. According to counsel using Annexure 10 as a case study, the postings shows therein are from September, 2006 - April, 2007. A summary of the amount in the posting is approximately N125,000.00. There is no information or explanation by the Respondents, as to how the value of the contribution rose to the sum of N2,793,787.33 as at 31st December, 2011. There is also no information as to the postings made in the said account between July, 2010 and December, 2011. Counsel argued that, same issues with Annexure 10 applies to Annexures 10i-10x respectively. It is trite law that he who asserts the existence of a fact bears the burden of proof. See Section 131 (1) of the Evidence Act, 2011 (as amended). The Respondents who asserts that the contributions were not transferred by the Appellant has to provide a link between the postings in the Statement of account and the outstanding balance as at 31/12/2011. It is also pertinent to note that none of the Respondents ever complained of the non-remittance of their pension contribution until they retired from the Appellant’s employment. The Respondents disputed the claim of the Appellant that all the pension entitlement of the Respondents have been remitted to their Pension Funds Administrators. We have deeply examined the documents in the record of proceedings at pages 360 to 384, and we are unable to discern any payment of legacy contributions of the Respondents which they were entitled to prior to enactment of Pension Reform Act in 2004. The Appellant has argued that the onus is on the Respondents to prove that there was no remittance. This submission is clearly based on misconception of the law regarding burden of proof in respect of payment of employees’ remunerations and entitlement. Furthermore, it is trite law that the burden of proof is on he who asserts positively. This means that the Appellant who asserts that remittance has been made has the burden of proving the remittance. In the case of HONIKA SAWMILL NIG. LTD V HOLF (1992) 4 NWLR (PT.238) 678 (CA), it was held that: as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period, but also how much the salary that he paid the employee was. Furthermore, the law is trite that whoever asserts the affirmative or the positive of a fact/issue is the one with the legal burden to prove that issue. This is based on the latin phrase- Ei incumbit probatio qui dicit non qui negat, cum per naturam factum negantis probatio nulla sit which means the proof lies upon him who affirms, not upon him who denies, since, by the nature of things, he who denies a fact cannot produce any fact. See he cases of ELEMO V OMOLADE (1968) NMLR 359, Also in TORNO INTERNAZIONALE NIG LTD & ANOR V FSB INT'L BANK PLC (2013) LPELR- 22775(CA), IMONIKE V UNITY BANK PLC (2011) 5 SCNJ, ABUBAKAR L. ABDULLAHI & ANOR V. HON. YAHAYA SADAUKI & ORS APPEAL (2008) LPELR-3557(CA), AFOLAYAN V ARIYO & ANOR (2014) LPELR-22775(CA), PDP V ALI & ORS (2015) LPELR-40370(CA), ABDULGANIYU V ADEKEYE (2012) LPELR-9250(CA) AND HABU V ISA (2012) LPELR-15189(CA). The Appellant having not adduced any credible evidence indicating that the pension entitlements of the Respondents prior to enactment of Pension Reform Act has been remitted to their various PFA’s has failed to discharge the burden of proof. In the circumstance, it is our view that the Respondents are entitled to be paid their pensions entitlements before the enactment of Pension Reform Act. The reliance by the Appellant on the letter written to the Minister of Labour, telling the Minister that the Appellant’s investigation revealed the pre-2004 pension contributions of all the staff were duly remitted to their respective pension funds, is not capable of proving remittance. For the Appellant to discharge the burden of proof in respect of remittance, concrete, cogent and compelling evidence needs to be adduced. If such remittance has been made what stops the Appellant from tendering evidence and amount for each of the retirees. It is our view that the letter at page 219 of the record of proceedings is not capable of establishing remittance of legacy pension contributions to the pension funds administrators of the Respondents. We so hold. GRATUITY It is the contention of counsel that the Appellant replaced the Leaving Service Benefits 2002 with the Review of Compensation Strategy & Policy: Gratuity, vide a memo dated 31/12/2013. (See Annexure 12, pages 385-387 of the schedule of documents). Therefore, the extant policy is the Review of Compensation Strategy & Policy: Gratuity, 2013. After the circulation of the new policy (Annexure 12), the Appellant began to implement same. The Respondents and indeed other staff of the Appellant that retired or resigned their appointment with the Appellant had all benefitted from the new Policy without protest. The implementation of the 2013 policy began in 2014 and the Respondents retired in 2015, which was a period of one year and two months. The Respondents did not contest the implementation of the policy throughout the said period neither did they contest the policy when the Appellant paid them their retirement benefits. It is therefore unconscionable for the Respondents to tum around and rely on the 2002 Leaving Service Benefits after they had taken benefit under the new policy of 2013. It is submitted that the Respondents had ample opportunity to object to the new policy when the Memo was circulated on 31/12/2013, while they were still in the service of the Appellant. Having failed to do so, they are estopped from seeking to rely on the 2002 Leaving Service Benefit which was repealed by the new policy of 2013. This is more so as the Respondents have taken benefit of the new policy. Relying on the 2002 Leaving Service Benefit by the Respondents amounts to approbating and reprobating which ought not to be allowed. The Respondents position regarding gratuity is that it should be the 2002 Leaving Service Benefit Scheme document that should be the basis of calculation of gratuity and not the 31/12/13 internal memo annexed 12 at page 385 of the record of proceedings It is clear that the Respondents are not denying receiving their gratuity, their quarrel is the policy adopted in calculation of the entitlement. The Respondents are of the view that it is the 2002 document that should have been used in the calculation and not the internal memo of 31/12/13. The resistance of the Respondents stems from their inability to understand that conditions of service may be contained in not more than one documents. It may be in several documents not necessarily in one whole document. Se LADIPO V CHEVTRON NIGERIA LTD (2005) 1 NWLR (Pt.907) 277 (CA). The employer can from time to time review policies regarding issue of conditions of service. Where employee are not in agreement of a particular policy the option open to them is to protest through their union as one of the function or purposes of establishing a trade Union is to see to the welfare of workers and protect their interest. The Respondents have benefitted in the policy they are now protesting against without raising eyebrow at the time they were taking the benefit of the policy. In the circumstance the Respondent are not entitled to the claim being made on 2002 Leaving Service Policy of the Appellant. We do not agree with the position of the IAP on the issue of 2002, policy on gratuity as the document to be used in calculating the Respondents gratuity and not the revised policy annexure 12. The calculation made in line with annexure 12 is the correct one. The reason being that the Appellant can revised its policy at any time. Even the 2002 Leaving Service Benefit, was as a result of review of the previous policy. So there is no reason why the 2013 review should not be accepted. It is our view that the 2013 policy annexure 12 at pages 385 – 388, is the applicable policy in calculating gratuity. The Respondents having benefited under the 2013 policy cannot now make claim under another policy different from the 2013 policy. INTEREST/DAMAGES With respect to the claim for interest, it is the contention of counsel that the Respondents did not adduce any credible evidence to substantiate their claims. This is because, the Appellant is not owing any outstanding entitlement to the Respondents whatsoever. Thus, the Respondents are not entitled to interest whatsoever. On the claim for damages, it is submitted that damages whether special damages or general damages are not awarded at large. A party who seeks for the award of damages must furnish the court with the requisite materials upon which to predicate the award. The Respondents did not place materials before the Court upon which damages could be awarded. In view of the foregoing, counsel urged the court to also resolve this issue in favour of the Appellant. We note that counsel for the Respondents did not attempt in the joint brief to respond to the argument canvassed in respect of the claim for general/special and exemplary damages in the sum of N5 Billion Naira. The failure or neglect by the Respondents to respond to the arguments canvased by the Appellant in respect thereof will lead to the irresistible conclusion that the Respondents have no response and they are in agreement with the argument canvased by the Appellant in that respect. In any event a claim for special or exemplary damages are never inferred. They have to be specially pleaded and particularized. Evidence must also be adduced to sufficiently prove the claim. We have combed the entire record of proceedings and we are unable to find cogent and compelling evidence in proof of this claim. The apex court of the land, has made it clear regarding proof of this kind of claim in NNPC v. CLIFCO NIGERIA LTD [2011] LPELR-2022(SC) the court puts the law thus: …Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with General damages. They are exceptional and so must be claimed specially and proved strictly… …To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the court. Although, we found the Respondents entitled to payment of 100% of 1 year total emolument as being the balance of their entitlement for Early Retirement with incentive, pay-for-performance for 2014, deferred pension, the Respondents have not established the quantum of their entitlement. In the claim before the IAP and supported by exhibit OA1, no particulars were provided in respect of the quantum of their claim. There is no doubt that reading of the claims of the Respondents one will not find it difficult to come to the conclusion that the claim of the Respondents is vague and devoid of certainty. We have scrutinized the attached exhibit OA1 of the retirees and the amount of money shown in their respective columns as their entitlements. But there is nothing to show how the claims/entitlements were arrived at. The failure of the Respondents to prove the quantum of what each of them, means that this court cannot grant any sum in respect thereof. It should be remembered that claims in respect of remuneration, terminal benefits and pension and gratuity are in the species of special damages which have to be pleaded specifically and proved before a court of law to grant same. The Respondents did not specifically plead the quantum of money referred to as their and entitlements. The absence of particularization of this claim has rendered the relief vague and uncertain. This claim on the authority of NITEL V OSHODIN (1999) 8 NWLR (Pt.616) 528 and UNIVERSITY OF JOS V DR. M. C. IKEGWUOHA (2013) 9 NWLR (Pt/1360) 478, are not grantable. We so hold. In the case of 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), a more apposite case, puts the law in tis words: The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items. To put a seal on this issue it is apposite to refer to the decision of this court in INEH V MONDAY MGBETI V UNITY BANK PLC. unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, this Court held thus: …the rule is that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Here, the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the Appellant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the Appellant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 - 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC). See also STEPHEN AYAOGU & 16 ORS. V MOBIL PRODUCING NIGERIA UNLTD & ANOR. unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017. From the above decided cases it is patently clear that for the Respondents to succeed in this case they must prove their entitlement to the damages or claims. The next thing after establishing entitlement is to prove the quantum of their entitlements. It is when these two conditions are met by the Respondents that this Court can make pronouncement of their exact entitlement as per what they are claiming. Apart from four of the retirees whose payment advices were annexed to the claim, there is nothing from the plethora of documents presented regarding the remaining retirees to establish their claim in the quantum of what they would be entitled to. See pages 290 – 294 of the record of proceedings. In view of the payment advices attached as exhibits 2B, 2bi, 2Bii, 2Biii, and 2Biv, the four retirees whose payment advices were tendered before the court would succeed in terms of the quantum as per what was stated in the payment advices, since the Appellant has not adduced any evidence to the contrary. The four retirees, who by their payment advices are entitled to be paid by the Appellant as follows: 1. Onaburexham, Mr. Humphrey Onofelagu, is entitled to the sum of N3,334, 745.46 2. Njoku, Mrs. Chibuzo Uloma, is entitled to be paid the sum of N4,061,892.04, 3. Ireobude Mrs. Doris Emre, is entitled to the sum of N6,425,897.36, 4. Nwobia, Mrs. Beatrice Udelue, is entitled to the sum of N9,589,681.14. For all the reasons already given and for the avoidance of doubt we order as follows:-: 1. The dispute between the Appellant and the Respondents is a trade dispute within the meaning of Section 48(1) of the Trade Dispute Act, Cap T8, Vol. 14, Laws of the Federation of Nigeria, 2004 and section 54 of the National Industrial Court Act 2006. The IAP according has jurisdiction to hear the matter. 2. The argument of the Appellant that the Respondents have no authorization to sue in representative capacity is hereby rejected since it has not been raised at the IAP. The objection is hereby rejected. In any event the rules of this court allowed bring of an action in representative capacity without any authorization. 3. The IAP’s award in respect of 100% payment of entitlement as per Clause 8.12.1 of the Employee Handbook is hereby varied to the extent that only the four retirees who have proved the quantum of their entitlements are entitled to the payment. They are as follows:- I. Onaburexham, Mr. Humphrey Onofelagu, is entitled to the sum of N3,334, 745.46 (Three Million Three Hundred and Thirty Four Thousand Seven Hundred and Forty Five Naira, FortySix Kobo). II. Njoku, Mrs. Chibuzo Uloma, is entitled to be paid the sum of N4,061,892.04 (Four Million, and Sixty One Thousand Eight Hundred and Ninety Two Naira, Four Kobo). III. Ireobude Mrs. Doris Emre, is entitled to the sum of N6,425,897.36 (Six Million Four Hundred and Twenty Five Thousand Eight Hundred and Ninety Seven Naira, Thirty Six Kobo). IV. Nwobia, Mrs. Beatrice Udelue, is entitled to the sum of N9,589,681.14 (Nine Million Five Hundred and Eighty Nine Thousand Six Hundred and Eighty One Naira, Fourteen Kobo). 4. The IAP award ii on payment of salary in lieu of notice is hereby affirmed. 5. The IAP award iii having not been challenged is hereby affirmed. 6. The IAP award iv is hereby affirmed. 7. The IAP award v is hereby set aside. 8. The IAP award vi is hereby affirmed. 9. The IAP award vii is hereby set aside. 10. The IAP award viii is set aside. 11. The IAP award xix is hereby set aside. Judgment entered accordingly. We make no order as to cost. ……………………………………. …..……………………………………. Justice B. B. Kanyip, PhD Justice R. B. Haastrup, Presiding Judge. Judge. …………………………………………… Sanusi Kado Judge