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NIGERIA UNION OF SEAMEN AND WATER TRANSPORT WORKERS AND NIGERIAN SHIPPING FEDERATION (COMPRISING THE NIGERIAN NATIONAL SHIPPING LINE AND NIGERIAN GREENLINE) (NATIONAL INDUSTRIAL COURT) HON. JUSTICE B.A.ADEJUMO - PRESIDENT PROF. B.B. KANYIP - MEMBER BARR. M.B. DADDA - MEMBER SUIT NO: NIC/2M/2001 DATE OF RULING - NOVEMBER 29,2005. COMPANY LAW Winding-up of a company - Where not at the instance of the court - Section 414, Companies and Allied Matters Act - Whether applicable thereto. LABOUR LAW Gratuity - Payment of- Principles governing. LABOUR LAW National Industrial Court - Judgment of -Enforcement of -Law applicable thereto – Whether tied to statutes of limitation. LABOUR LAW National Industrial Court -Power of interpret its judgment. LABOUR LAW Pension - How calculated - “Final pay” for purposes of Meaning. LABOUR LAW Salary and gratuity of a seaman - Payment of -Principles governing. NATIONAL INDUSTRIAL COURT National Industrial Court - Judgment of -Enforcement of -Law applicable thereto -Whether tied to statutes of limitation. WORDS AND PHRASES “Final pay” for purposes of pension Meaning of. ISSUE Whether the Applicant members are entitled to gratuity, which should be at the rate of 40% in United States Dollars (USD) and the balance of 60% in Naira as argued by the Applicant. FACTS The judgment Applicant by way of a motion on notice applied to the National Industrial Court to enforce the judgment of the court dated 28th May, 1991, against the Respondent. The parties filed their respective affidavit evidence in support of their positions, and also exchanged memoranda. The parties also agreed and filed written briefs of argument. The Applicant’s case was that members of its union, having collected their remuneration partly in foreign currency (40%) and partly in Naira (60%) when in active service, should likewise collect their benefits. at retirement both in Naira and foreign currency. Alternatively, that even if the retirement benefits were to be paid in Naira, 40% of this should first be denominated in foreign currency before being converted into Naira, and then paid to the beneficiaries. On that basis, the Applicant computed what it thought were the retirement entitlements of its members (1230 people). It calculated their benefits, of which the total sum demanded by the Applicant came to 1,459,489,000.00. The Respondent’s on the other hand raised the following issues: 1. That the judgment of the court dated May 9, 1991 had lapsed. 2. That by reason of the Nigeria National Shipping Line (NNSL) being in liquidation and a liquidator appointed, the said judgment of the court, even if it was still subsisting, could not be enforced. 3. That the totality of the application of the revised condition of service dated 1st January, 1993, and the demand for the payment of 40% gratuity in United States Dollars (USD) was a fresh dispute which, as provided by section 14 of the Trade Disputes Act, the court is empowered to interpret and give judgment. 4. Whether the court can order the enforcement of the said judgment considering the sum of 11,439,624.82 Naira set aside by the Respondent, which the Applicant turned down for the reason that their individual discharge books could not be submitted for verification. 5. Whether failure to produce individual discharge certificates was not detrimental to the Applicant’s case. 6. The total number of claimants as per the Applicant’s annexure before the court was in excess of 121 names as against 1009 names contained in the Respondent’s Annexure C, which was a serious conflict which the court must resolve. The parties canvassed arguments in support of their respective positions. HELD (Granting the application in part): 1. On How pension is calculated and meaning of “final pay” Section 1(1) of the Pensions Act is to the effect that pension is to be calculated based on the final pay of the person entitled to it. And the phrase “final pay” must be read to mean the last pay a worker received before leaving the workplace, either by retiring or terminating the employment on any of the acceptable grounds. One cannot determine this final or last pay unless one knows what the pay itself is. 2. On Principles governing payment of salary and gratuity of a seaman - The pay of seamen is made partly in Naira and partly in foreign currency; but this is on the basis that, having to sail out of the shores of Nigeria, they needed the foreign currency if they are to sustain themselves while on service outside Nigeria. The seaman’s salary at employment was denominated in Naira first. It is when the seamen would sail out that part of that salary would be denominated partly in foreign currency and that part paid to him. The rationale for all this is not hard to find. The seaman cannot use the Naira outside the shores of Nigeria, hence the payment of part of his salary in foreign currency. To apply the same principle to gratuity, which would be spent after one’s service years and in Nigeria, would be to stretch the definition of the phrase “final pay” used in the Pensions Act too far. 3. On Principle governing payment of gratuity - It is not the requirement of the law that gratuity be first denominated in foreign currency before re-converted into Naira and then paid out, even if in part, in the absence of a specific agreement to that effect. 4. On Power of National lndustrial Court to interpret its judgment - The National Industrial Court has power under the Trade Disputes Act to interpret its judgment. 5. On Law that governs the enforcement of the judgment of the National Industrial Court - Enforcement of the judgment of the National Industrial Court is not tied to the statutes of limitation, whether federal or state. The regulatory law that governs an action that seeks to give effect to a judgment given by the court is the Trade Disputes Act, and it is not tied to any statute of limitation. The argument of the Respondent that the instant matter was caught up by the statutes of limitation could not be sustained. 6. On Whether section 414 of the Companies and Allied Matters Act is applicable to winding-up which is not at the instance of the court – The provision of section 414 of the Companies and Allied Matters Act deals with winding-up at the instance of the court. In the instant case, the argument of the Respondent that the judgment of the court given on May 28, 1991 could not be enforced on the Respondent in view of the fact that the NNSL was in liquidation, was not tenable, because the matter was not a winding-up at the instance of the court, and so the provision of section 414 of CAMA was not applicable.