Download PDF
BEFORE THEIR LORDSHIPS HON. JUSTICE M. B. DADDA Presiding Judge HON. JUSTICE M. N. ESOWE Judge HON. JUSTICE AUWAL UBRAIIIM Judge HON. JUSTICE O. A. SHOGBOLA Judge DATE: 19 October, 2009 SUIT NO. NIC/ABJ/CS/2/2008 BETWEEN: 1. ABU CLEMENT 2. ADEKOYA A.I.B. 3. ADEIELE O.CHEDONIE 4. AIGBEKAI STEPHEN 5. AKAA JUSTIN 6. AMEH O. JONATHAN 7. ATIME .JOSHUA 8. CHINYE GODWIN 9. IBRAHIM YUSUFU 10. MTSEVA TSVZA 11 MBIRIBOHA GODWIN 12. NWOBI EDWIN 13. OBI CLELMENT 14. OMOTAYO KINGSLEY 15. ONUAHA CHARLES 16. ONYEKWELU PATRICK 17. ORAFA D.D. (MAJOR RETIRED) 18. PESSU EMMANUEL 19. TION SAMUEL KASHA 20. JAYO JONATHAN 21. USMAN PAUL 22. AKEME M. RACHAEL 23. AYANGE KASEVE 24 CHRISTOPHER ISRAEL 25. ENUNEKU PAUL 26. EGAYIMA EGAYIMA RICHARD 27. IKYUMBUR MSUGHVE 28. IGOH BENSON 29. JIOGOR JOSHUA 30. MAOR PETER 31. NAHANGA MICHAEL 32. SHIRSHA GABRIEL 33. TSEVENDE GIDEON 34. SONGO VICTOR 35. CII EMICAL AND NON-METTALIC PRODUCTS SENIOR STAFF ASSOCIATION - CLAIMANTS AND 1. BUREAU OF PUBLIC ENTERPRISES 2. BENUE CEMENT COMPANY PLC - RESPONDENTS REPRESENTATION: S.O. SIMON ESQ. FOR 1st TO 34th CLAIMANTS A.S. ATUMBA ESQ. FOR THE 35th CLAIMANT MOHAMMED DANJUMA ESQ. FOR THE 1ST RESPONDENT VICTOR SODIPE ESQ. FOR THE 2ND RESPONDENT JUDGEMENT This matter was transferred to this court by the Federal High Court, Makurdi (hereinafter referred to as “the Federal High Court” vide letter dated 23rd July 2008 ref. no. FHC/MXD/LIG/V.1/61 and received by the court on 30th July 2008 and accompanying the letter were an Order of the Federal High Court dated 21st July 2008 and all the processes filed in the case before that court. The claim of the Claimants before the Federal High Court (which has not been altered) against the Respondents jointly and severally and/or in the alternative is as follows: 1. An Order setting aside each of the purported Agreements dated 28th October 2004 and 8/9th November 2004 and 2005 in which the 1st Defendants wrongly and unilaterally inserted final terminal benefits for the Plaintiffs which were grossly below the actual final terminal benefits of the Plaintiffs. 2. An Order directing the Defendants to pay each of the Plaintiffs (1-34) the balance of the final entitlements due to each Plaintiff in line with the conditions of Employment 1998 as already computed and shown in column 11 Annexure I. 3. The sum of N1,000,000.00 (one million naira) to each Plaintiff as general damages. 4. The cost of this action. The matter came up for mention on the 30th day of October 2008 before this court and the court observed that there is an existing judgment of this court which is part of the processes transferred to it by the Federal High Court. The Judgment is in the matter between Chemical and non-metallic Products Senior Staff Association V Benue Cement Co. PLC, Suit No. NIC/7/2000 delivered on July 24, 2001. The court then ordered the parties to address it in writing on the relationship between the court’s Judgment of 2001 earlier mentioned and the current claim of the Claimants now before this court. The parties filed their written addresses and adopted same. The Claimants address was dated 7th day of November 2008 and filed on the 10th November 2008 while the 2nd Respondent’s written submission was dated 20th November 2008 and filed on 1st day of December 2008. The Claimants’ reply on points of law to the address of the 2nd Respondent was dated 4th day of December 2008 and filed on the same date. The written address of the 1st Respondent dated 3rd December 2008 hut filed on the 16th December 2008 while the reply on points of law by the Claimants counsel to the 1st Respondent’s reply is dated 22nd January, 2009 and filed on 23rd January 2009. All the counsel to the parties adopted their written briefs on 23rd January 2009. - In their written address the Claimants formulated four issues for determination. 1. Whether the Judgment of this court in NIC/7/2000 is not valid and subsisting having regard to the fact that no appeal was filed against it an same has not been set aside. 2. Whether there is any valid agreement or memorandum of understanding between parties for claimants to be short paid as pleaded by the Respondents. 3. Whether parties can validly agree to alter, modify, or disobey an existing valid Judgment of a court of law. 4. Whether the Claimants are not entitled to Judgment having regard to the various admissions of the Respondents and also in view of the preponderance of documentary evidence before this court. On issue number 1 the Claimants’ counsel urged the court to observe and to hold that the existing Judgment in NIC/7/2000 is valid, subsisting and binding on parties and their privies and agents. He further submitted that when the 1st Respondent came to work for the 2nd Respondent to pay of her debts the lst Respondent thereby became an agent and/or privy of the 2nd Respondent and she ought to have duly informed the 1st Respondent of the existing Judgment. Counsel referred to the case of Jimoh Akinfolarin & Ors V Solomon Oluwole Akinola (1994) 4 SCNJ 30, and Tunde Osunrinde & Ors V Mtitairu Togun Ajamogun & Ors (1992) 7 SCNJ 79. On issue no. 2 learned counsel submits that the memorandum of understanding (MOU) attached to the Statement of Defence of the 2nd Respondents is not signed by the Claimants or their representatives. He further pointed out that that MOU was in respect of staff of the 2nd Respondents that were laid off in 2003. He draws the attention of the court to paragraph 2 of the said MOU which provides that staff salary arrears from October 2002 to September 2003 be paid in full. The Claimants employments were terminated in 1999 and as such could not have been the ones to be paid salaries of 2002 and 2003. He therefore submits that the MOU has no reference to the Claimants and they did not sign it and so are not bound by it. Arguing further counsel stated that the Claimants were misled by the lst Respondents into signing the forms tagged agreements (Annexure J) and that the circumstances which led the Claimants to sign them are pleaded in paragraphs 16, 17, 18, 19, 20, 21, 22 & 23 of the Statement of Claim and the Respondents, especially the Respondent, expressly admitted these paragraphs in paragraph 5 of the Respondent’s Statement of Defence. Counsel therefore urged the court to hold that the MOU and Annexure J do not and cannot constitute valid agreement between Claimants and Respondents and that is why the Claimants have protested by filing this action asking, among other things, the setting aside of the fraudulent Annexure J. On issue number 3 counsel submitted that the contention here is whether parties can agree to alter, modify, or disobey an existing, valid and subsisting Judgment of this court as the Respond pleaded in their Statements of Defence. He further submitted that any agreement to do illegality is void ab initio and urged the court so to hold and set aside the MOU and Annexure J. On issue number 4 counsel argued that if the court resolves all the three issues above in favour of the Claimants, then the court should have no difficulty in coming to the conclusion that the case of the Claimants is properly made out to warrant Judgment in their favour as per the claims in paragraphs 31 (a) to (d) of the Statement of Claim. Counsel adduced three reasons to support this point. Firstly that the 1st Respondent in paragraph 5 of its Statement of Defence admitted the major facts supporting the claim of the Claimants as contained in paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, & 23 of the Statement of Claim and that it is trite that parties are bound by their pleadings and facts admitted in pleadings are deemed established. He cited the case of Oladejo Adewuyi Ajuwon & Ors V Fadile Akanni & Ors (1993) 12 SCNJ 182. Secondly, that the Respondents have not disputed the balance of the terminal benefits of the Claimants as contained in Annexure H and I which were based on the Conditions of Service of the Claimants which were the terms or rates prevailing in 2nd Respondents’ in 2001 when the Judgment was handed down by this court. Thirdly, that the document titled “Gratuity/Separation Benefits for staff who left BCC Before September 2003” does not represent the rates and terms of Conditions of Service of the Claimants as at 2001 when this court gave the Judgment. He therefore reasoned that the computations in the document have not been stated to have been based on the 1998 Conditions of Service which was the one in vogue when Judgment was given by this court. He therefore urged the court to disregard this document and SC3 which are not in conformity with the Judgment of this court and hold that the Claimants case is well made out. In its written address the 2nd Respondent formulated two issues for determination, namely, (i) whether or not the Claimants in this suit have compromised their rights and benefits in the Judgment in Suit No. NIC/7/2000; (ii) whether or not the Claimants can rightly bring an action on terminal benefits based on the Judgment of Suit No. NIC/7/2000 after entering into a new agreement on terminal benefits and benefiting from the new agreement. In support of issue number (i), the 2nd Respondent submitted that Judgment in Suit No. NIC/712000 has been compromised by the beneficiaries (the claimants herein) as they did not execute or enforce their rights and benefits given to them under the Judgment in respect of their terminal benefits and subsequently entered into a new agreement in respect of their terminal benefits with the lst Respondent and received monies in payment of their terminal benefits based on the new agreement with the lst Respondent. The 2nd Respondent submitted further that there was a Judgment wherein the 2nd Respondent was to pay terminal benefits to some 201 persons. That this court held that the Board of Directors of the Respondents shall conclude negotiations with Appellants in Suit No. NIC/7/2000 since the said 1998 negotiated conditions of service was yet to be ratified by the Directors of the 2nd Respondents. As such the 1998 negotiated conditions of service of the 2nd Respondent as at March 1999 is incomplete and so not effective. He then humbly submitted that the purported 1998 conditions of service cannot be the yardstick or criteria for calculating the benefits to be paid to the claimants. He further submitted that judgment in a case confers rights or benefits on parties and their privies, and such rights or benefits can be compromised or abandoned, transferred and/or waived. In the case at hand he contended that the Appellants or beneficiaries in Suit No. NIC/7/2000 did not enforce their rights and benefits in the said judgment in the same suit up to 2003 when the 1st Respondent took over the 2nd Respondent in this suit. That when the 1st Respondent in this suit took over the 2nd Respondent in this suit it began the process of privatizing the 2nd Respondent and as a result of which there were several negotiations on terminal benefits to be paid to affected terminated staff of the 2nd Respondent which include the Claimants in this suit. These negotiations took place among the 1st Respondents, the 2nd Respondents and represent of the affected terminated staff which include the Claimants herein. That following the various meetings held with the affected staff and their representatives the lst Respondent and the Senior and Junior Staff unions executed a Memorandum of Understanding dated 4th October 2003 for the payment of the terminal benefits of all affected terminated staff of the 2nd Respondent among whom are the Claimants in this suit. Thereafter the 1st Respondent also entered into agreements for the payment of terminal benefits to all affected terminated staff of the Respondent among who are the Claimants in this suit who are alleged to be beneficiaries of the Judgment in Suit No. NIC/7/2000 and that the agreements are dated October 2004 and 8 and 9th November 2005 and attached to the Statement of Claim of the Claimants. The 2nd Respondent thus submitted that the Claimants have abandoned their rights and benefits conferred to them under the judgment of NIC/7/2000 and entered into a new agreement for payment of their terminal benefits and thereby compromised their benefits under the judgment in Suit No. NIC/7/2000. Learned counsel then submitted that the Claimants signed the said agreements after reading them and that they received cheques in payment of terminal benefits due to them under the new agreement, which was specifically stated as full and final payment of the terminal benefits. Therefore each of the Claimants compromised his rights and benefits under the judgment and transferred the liability of payment of terminal benefits from the 2nd Respondent to the 1st Respondent in this suit under new terms and conditions which the Claimants agreed with the lst Respondent. Counsel referred to the case of Akio Abey V Alex (1999) 14 NLWR (Part 637) where the Supreme Court stated that:- “A judgment in a civil case (except possibly where it has a public policy element in it because of its subject matter confers a private rig/it for the benefit of the successful party. Such a right can where possible, be transferred by him to another person or surrendered to the party who lost in the judgment or even abandoned without the judgment being executed, or he could execute partially. It must therefore be clear beyond dispute that it is open to a successful party in a case like the Respondents herein in respect of the Kalabari Native Court Judgment, to enter into terms of settlement of the said Judgment in any way it considered fit. That is in no measure unlawful or against public policy.” Going further the 2nd Respondent’s counsel submitted that by virtue of the new agreements dated 28th October 2004, 8th and 9th November 2005 signed by the Claimants and the 1st Respondents, the Claimants have compromised their rights in judgment of Suit No. NIC/7/2000 and as such the Claimants cannot sue based on the said judgment. Rather, the Claimants can only bring a new claim based on the new agreement signed between them and the 1st Respondent. Counsel also referred the court to the case of Offor V Leaders & Co (2007) 7 A’WLR (Part 1032) P. 17 paragraphs F-H. With respect to the 2nd issue, the 2nd Respondent’s counsel submitted that having agreed with the 1st Respondent to accept payment of their terminal benefits from it and having accepted monies in payment of same from the 1st Respondent, the Claimants have compromised their rights and benefits in judgment of Suit No. NIC/7/2000 and can only sue based on the new agreement which they entered into with the lst Respondents. He referred to the decisions in Offor V Leaders & to Co Ltd, supra. To buttress his point further counsel referred to the cases of Obayiuwana V Ede (1998) 1 NWLR (Part 535,) p. 679 and Abey V Alex, supra. In addition counsel contended that since the position of the law is to the effect that following a compromise of judgment a new cause of action can only be founded on the new agreements entered into by the parties, the only new cause of action that can arise in this matter is an action against the Respondent in the new agreement as the lst Respondent has taken the responsibility to pay full and final terminal benefits to the affected terminated staff of 2nd Respondent (BCC PLC) and the Claimants have accepted such terms. The 2nd Respondent therefore, according to counsel, is no longer liable to the Claimants for any terminal benefits. More so it is trite law that persons of full age and sound mind are bound by any agreement lawfully entered by them referring the court to the case of Okonkwo V Cooperative & Gommerce Bank of Nigeria (2006,) MJSC 122 at 136G. He again referred the court to the case of Osun State Government V Dalaini Ltd (2007) 6 MJSC 187 (Pt 202). Concluding, the learned counsel finally submitted that from the above arguments the rights and benefits in the judgment in Suit No. NIC/7/2000 in favour of the Claimants therein have been compromised and the Claimants can only bring an action based on the agreements between them and the 1st Respondents in which case the 2nd Respondent is relieved of any liability in the said agreement. He finally urged the court to strike out the name of the 2nd Respondent. Reacting to the submissions of the 2nd Respondent, the Claimants counsel submitted that before the Claimant can be said to have compromised a judgment as argued by the 2nd Respondent, it must he clearly shown that a valid agreement was negotiated and agreed upon by parties to so do as decided by the court in Akio Abey V Alex, (supra), and also Offor V Leaders & Co. Ltd (supra ) He added that it is trite that one of the major fundamental requirements before there can be a valid agreement is that parties must have consensus-ad-idem and the Claimants have consistently denied the existence of such agreement. He drew the court’s attention to paragraphs 16, 17, 18, 19, 20, 21, 22, and 23a-f (which have not been denied or controverted by the Respondents) of the Claimants Statement of Claim and that there was no consensus-ad-idem as to the terms of the agreement especially the amount put as the terminal benefits which were unilaterally inserted with biro by the Respondents after the signature of the Claimants. He urged the court to hold that there was no agreement by the Claimants to modify or compromise their Judgment and that is why the Claimants are in court asking for the setting aside of the so-called agreement. He ended his submission on that point by saying that the facts in the cases of Akio Abey V Alex (supra) and Offor V Leaders & Co Ltd (supra) are not on all fours with the present case at hand and urged the court not to rely on those cases. The Claimants’ counsel made a second point in his reply submitting that the conditions of Service of 1998 annexed to the Claimants processes as Annexure D & E are the signed and approved conditions of service by the Board of the 21st Respondent and those conditions are those being used and operated by the 2nd Respondents from 1998 till date. That there is n other conditions of service subsisting in the 2nd Respondent. That a took at the said Annexure D & E shows that they are made the same way with the old ones which were Annexure B & C but which gave way with the coming into effect of Annexure D& E That the negotiated conditions of service which was part of the subject matter in Suit No. NIC/7/2000 is not the same as the conditions of service of 1998 which the 2nd Respondent later approved through its Board and has become prevalent till date. He therefore urged the court not to be misled by the erroneous argument of the 2nd Respondent that the conditions of service of 1998 remain inconclusive and not operational by the 2nd Respondent. According to him that argument indeed is self-defeating because it would have then meant that the 2nd Respondents failed to obey the order of this court at page 30 paragraph (b) of the Judgment of this court annexed as Annexure G to the processes of the Claimant, but that is not the case because the 1998 conditions of service were later approved by the 2nd Respondent who has been operating the same since then till date. Counsel then urged the court to grant all the prayers and reliefs of the Claimants. On its own part the 1st Respondent formulated four issues for determination. 1. Whether the Judgment of this court delivered on 24th July 2001 is valid and subsisting having regard to the fact that no appeal was filed. 2. Whether a judgment of court binds a non party. 3. Whether a party who has a valid Judgment can compromise his Judgment by signing a memorandum of understanding. 4. Whether it is competent to commence an action in 2007 against a public officer concerning events which took place in 2004 and 2005. On issue number 1 counsel to the 1st Respondent submitted that Annexure “6” to the Claimants statement of claim is the Judgment of this court delivered on the 24th July 2001. There was no appeal and the Judgment has not been set aside by any court. He went on to say that a decision of a court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding. He referred the court to the cases of 1. Iyoho V Effiong (2007) All FWLR (Part 374) p. 204 at 207 ratio 6. 2. Oloro V Ekiti State Government (2007) All FWLR (Part 387) p.985 at 963 ratio 8. 3. Kiwale V State (2003 Part 169 1504 Page 1510 Ratio 14. On issue number 2 counsel submitted that a court cannot give judgment against a person not made a party’ before it or given the opportunity of defending the suit. In support of this ass counsel cited the case of Green V Green (2001) FIVLR (Part 76) P. 795 at 805 ratio 18. and also the case of Babatola V Aladejana (2001) FWLR part 61) p. 1670 at l674 ratio10. He further submitted that a court cannot make an order or judgment affecting the interest of a person who is not a party to an action before it. Reference was made to the case of Attorney-General of Lagos State V Attorney-General of the Federation & 35 Others (2003,) FWLR (Part 168,) p.090 at p. 959 ratio 24. On issue number 3 counsel contended that parties to a suit who have a valid and subsisting judgment may choose to compromise it by entering into an agreement thereby bringing to an end their rights in the judgment. To support this point he cited the case of Ude V Ojecheimi (l995) 9 SCNJ. P.178; Offor V Leaders, supra and prayed the court to hold that the Claimants have compromised their judgment by the MOU attached to 1st Respondent’s statement of defence. On issue number 4 counsel draws attention of the court to the writ of summons dated 29th March 2007 and filed on the same date and the statement of claim dated 20th March 2007 and filed on 29th March 2007 wherein the cause of action was said to have accrued since 2004 and/or 2005 especially paragraph 31 of the statement of claim seeking for an order of court against the Respondents jointly and severally and/or in the alternative: a) an order setting aside each of the purported agreements dated 28th October 2004 and 8th and 9th November 2005 in which the Respondent wrongly and unilaterally inserted final terminal benefits for the Claimants which were grossly below the actual final terminal benefits of the Claimants. b) an order directing the Respondents to pay each of the Claimant (1- 34) the balance of the final entitlements due to each of the Claimants in line with the conditions of employment of 1998 as already computed and shown in column 11 to Annexure 1. c) The sum of one million naira to each claimant as general damages. d) Cost of this action. Counsel submitted further that the 1st Respondent is a public office and protected by the Public Officers Protection Act which removes the right of judicial relief irrespective of how meritorious a cause of action may be. He cited the case of Mkpedeni V Udo(2001) FWLR (Part 66) p.827 at 830-831 ratio 3. He again submitted that the cause of action of the claimants accrued since 1999 a period of over eight years. He submitted that parties should not remain under the threat of being sued indefinitely, referring to the case of Justice Mamman Kolo V A-G of the Federation (2003) FWLR (part 184) p.349 at 352 ratio 1, 2 and 3. He emphasized that the concern of the lst Respondent is the non-enforceability of any right of action the Claimants may have and not as to how meritorious the cause of action may be. He referred to the case of Central Bank of Nigeria V Ukpong (2007) All FWLR (part 357) p.954 at 956 ratio 1. He finally urged the court to dismiss the Claimants claims with substantial cost. Replying on points of law, the learned counsel to the Claimants submitted that the cases of Ude V Ojechemi (supra) and Offor V Leaders (supra) are not relevant to the facts of this case, his reason being that the said MOU referred to has no reference to the Claimants and since the Claimants and their representatives did not sign it the claimants are not bound by it and to that extent the claimants cannot he said to have compromised their judgment. On the issue of Public Officers Protection law, learned claimants counsel submitted that the 1st Respondent cannot claim such protection especially as the claimants are asserting fraud and criminal activity practiced on them by the same 1st Respondents. He referred the court to paragraphs 15, 16, 17, 18, 19, 20, 21, 22, and 23 of the Claimants statement of claim. He also referred to the case of Michael Arowolo V Chief Titus Ifabiyi (2002) 2 SCNJ p. 65 Pt 78. Secondly that where the acts of the public officer are done outside his duty or intended duty he cannot claim the protection. He referred to the cases of Mr Gamu Yare V Alhaji Adamu Nunku (1995) 5 SCNJ 101 at 106 and Alhaji Aliyu lbrahim V Judicial Service Committee of Kaduna State and another (1998,) 11 & 12 SCNJ 255 at 273. He finally urged the court to reject the argument of the Respondent in its address and grant the reliefs of the Claimants. At its sitting of 25 May 2009 the court suo motu ordered for the joining of Chemical & Non Products Senior Staff Association (CANMPSSA), (who were the appellants in the judgment in said suit no. NIC/7/2000) as the 35 Claimants in this matter and further ordered it to file a written address on its position on the status of the said judgment, with the same order given to other parties to respond to whatever the union might submit. Pursuant to this order the union filed a written address dated 13th day of June 2009 but filed on 15th June 2009. The 2nd Respondent filed its written response dated 30th June 2009 but filed on 7th July 2009, while the 1st Respondent filed its written response dated 4th July 2009 but filed on 10th July 2009. The counsel to the 1st Claimants did not file any written response but rather informed the court orally that they were in support of the address and urged the court to uphold the submissions therein. In their written address, CANMPSSA formulated three issues for the determination of the court, namely, 1. Whether the 2nd defendant are not bound by the judgment of this court in NIC/7/2 000. 2. Whether there can be any valid agreement or memorandum of understanding to alter or modify the judgment of this court without CANMPSSA being a party to such agreement or memorandum of understanding. 3. Whether from the totality of this case the Claimants are entitled to judgment. Arguing issue no. 1 the Union submitted that the 2nd defendant and indeed their agents or successors are bound by the judgment of this court in Suit no. NIC/7/2007 delivered on 24th July 2001 against which there was neither an appeal nor an order setting it aside. They referred to the cases of Jimoh Akinfolarin & ors Vs Solomon Oluwole Akinola supra; Tunde Osunrinde & Ors V Mutairu Togun Ajamogun & ors, supra. On issue no. 2 the union submitted that for any Agreement and or memorandum of understanding to be effective and valid as in this case, CANMPSSA who was the Appellant in the case ought to have signed such agreement or memorandum of understanding. The memorandum of understanding attached by the 2nd defendants to their statement of defence is not signed by the claimants or their representatives nor CANMPSSA. On issue No. 3 the union urged the court to grant the claims of the claimants as they have shown clearly that: a. The terminal benefits calculated in annexure 1 is based on the negotiated conditions of service (annexure D & E) agreed by 2nd defendant and CANMPSSA pursuant to the order and judgment of this court. b. The defendants have not denied or contested annexure D, E & 1. c. There was no Agreement whatsoever that the entitlements and or terminal benefits of the claimants be reduced to what was eventually paid by the defendants. The memorandum of understanding that defendants are relying on was in respect of staff laid off in 2003 a result of privatization. The claimants were laid off since 1999, long before 2nd defendants went into privatization. d. The forms tagged agreements (bundles referred as annexure J) in claimants processes are not valid agreements as the terms were unilaterally affixed by the defendants after the claimants were ii to sign blank forms. Besides, CANMPSSA was not privy to that purported agreement. So all the arguments of the defendants that parties can agree to collect lesser sum than the judgment sum cannot hold water here because CANMPSSA who was the appellant in the initial case was not party to the purported agreement. Concluding their submission the union urged the court to consider their address and resolve this case on the documentary evidence before it and to go ahead and enter judgment in favour of the claimant as per paragraphs 31 a to d of the statement of claim. In responding to the written address of the union, CANMPSSA, the 2nd Respondent adopted the 1st and 3rd issues as formulated by the union and formulated a 2nd issue of its own. On the 1st issue the 2nd respondent submitted that the judgment in suit no. NIC/7/2000 on payment of terminal benefits no longer has binding effect on them. The 2nd respondent submitted further that the submissions of CANMPSSA are misconceived and lack merit. This is because in the first place it is not until an appeal has been lodged against a judgment or the judgment has been set aside that the judgment is no longer binding on the parties, privies, agents or beneficiaries of a judgment. And that a party can compromise a judgment as was decided by the Supreme Court judgment in the case of Akio Abey v Alex, supra. The 2nd respondent submitted further that the judgment in Suit no. NIC/7/2000 has been compromised by the claimants as such the judgment can no longer have binding effect and cannot be enforced against the 2nd defendants. Furthermore under issue No. 1 the 2nd respondents argued in paragraphs 3:03 to 3:07 of their written submission that the claimants have, by their conduct, compromised the judgment in suit no. NIC/7/2000 Reference was made to Okonkwo Vs Cooperative Commercial Bank of Nigeria PLC, supra; Osun State Government vs Dalami Ltd, supra; Offor vs Leaders & Co Ltd. supra; Obayiuwana Vs Ede, supra; and Abey vs Alex, supra. On the second issue, this is whether there can be any valid agreement or memorandum of understanding to compromise the judgment of this court in Suit no. NIC/7/2000 without CANMPSSA being a party to such agreement or memorandum of understanding, the 2nd respondents answered in the affirmative and proffered their arguments in paragraphs 3:08 to 3:11 of their written address. In paragraph 3:11 the 7 respondents adduced the argument that the claimants were no longer members of CANMPSSA after their retrenchment from the 2nd defendant’s company by virtue of which they were members of CANMPSSA. Thus, according to the 2nd Respondents, at the point of signing annexure J, the claimants did it rightly individually and the agreement binds their representatives in Suit No. NIC/7/2000. Besides, they added, the 1st defendant by virtue of privatization policy of the Federal Government became vested with the powers and duties of settling full and final payments of terminal benefits of the 2nd defendant’s company. And it is by virtue of the exercise of the duties on the 1st defendant on the privatization policy in the 2nd defendant’s company that the defendant entered into agreement with the claimants. The 2nd Respondent submitted therefore that the agreements in annexure J were rightly and validly entered into by the parties on behalf of parties in suit no. NIC/7/2000 and same is binding on the parties to the suit. And that the agreements validly compromised the judgment in Suit No. NIC/7/2000. On the 3 and final issue, the 2nd Respondents submitted that the Claimants are not entitled to any judgment against the 2nd defendant since the liability for payment of terminal benefits by the 2nd defendants to the Claimants has been compromised and transferred to the 1st defendant who has also effected the payment of the terminal benefits to the Claimants. Concluding their response, the 2nd respondents urged the court to hold that the judgment of the payment of terminal benefits to the Claimants in Suit No. NIC/7/2000 has been compromised and is no longer binding on the 2nd defendants and that the Claimants have also benefited from the compromise reached. That the Claimants can only have a cause of action based on the agreement signed between them and the lst defendant. The lst Respondent responded to the written address of CANMPSSA on all the three issues formulated. On the 1st issue, the 1st respondent submitted that this court cannot sit on appeal over its own decision or overrule its own decision in Suit NO. NIC/7/2000 going by the authority in the case of Ogunsola Vs Usman (2O03) FWLR (Part 180) pg 1465 at 1470 Ratio 8. They then urged the court to dismiss this suit as being incompetent and an abuse of court process. Here let us straight away point out to the learned counsel that going by the provisions of the National Industrial Court Act 2006, particularly section 7 (1) and (4) read together with section 8, this court has the power to confirm, vary, or set aside judgment, award, or order of the court. On issue No. 2 the 1st Respondent submitted that in the summary of findings of this court, the court directed parties to go and negotiate as in paragraph 3(b). And that they entered into negotiations and signed annexure J and therefore too late in the day to come more than two years after collecting their terminal benefits to- say that it is not complete. They submitted further that it is trite law that no order or judgment of a court affects the interest of persons who are not parties to the action referring to the case of Attorney- General of Lagos State V A-G Federation & 35 Ors (2003,) FWLR 168) pg 909 Pt 959 Ratio 24 and Babatola Aladejana (2001) FWLR (Part 61,) pg 1670 at 1674 Ratio 10. It is also their view that the 1st Respondent was not a party in the suit no. NIC/7/2000 and cannot be bound by the order and prays the court to so hold. On issue no. 3 the lst Respondents submitted that parties are in agreement that Annexure J attached to the claimants statement of claim is a judgment of this court which has not been set aside and that this suit is incompetent and an abuse of court process. They urged the court to reject the arguments of the claimants and dismiss the suit with substantial cost. After a careful consideration of all the processes filed and submissions of the learned counsel to the parties in this matter, certain issues came up for determination to assist the court reach a judicious and judicial conclusion. The first issue is about the judgment of this court in Suit No. NIC/7/2000 delivered on 24th July 2001. The portion of the Judgment relevant to this case is hereby reproduced as follows: which, inter alia, provides that: “3. On the issue of unnecessary staff reduction, this court finds that the staff rationalization exercise conducted by the respondent is in fact a redundancy exercise going by section 20 of the Labour Act 1990. But while section 20 of the Labour Act contemplates the payment of appropriate severance benefits, it does not contemplate reinstatement. Consequently, (a) the respondent is hereby ordered to pay the 201 staff whose names appear in the list annexed to this Judgment and whose appointments were terminated, their full redundancy benefits in accordance with section 20 (1) (c) of the Labour Act 1990 as at 24th March 1999 when their termination took effect. The rate to be used shall be the rates applicable in the company as at 24th March 1999 when their termination took effect. The rates to be used shall be the rates applicable in the company as at 24the March 1999. (underlining, our for emphasis) (b) the Board of Directors of the Respondent company shall conclude negotiations while the Appellants on the vexed issue of terminal benefits not later that 6 months from the date of this Judgment.” All the parties in this case agree that the said judgment has neither been appealed against nor set aside. It is also remarkable to point out that the order of the court for conclusion of negotiation between the Board of Directors and the Claimants was not carried out by the parties. The fact there was no change in the status quo until 2003 when the 1st Respondent came into the picture as a privatizing agency of the Federal Government of Nigeria to take over and privatize the 2nd Respondent, part of their responsibilities being payment of outstanding salaries and terminal benefits to affected staff of the 2nd Respondent. In the process of discharging this responsibility a Memorandum of Understanding (MOU) dated 4th October 2003 was said to have been entered into between “Bureau of Public Enterprises (BPE) and Junior/Senior Staff Unions Of BCC PLC” which document was signed by officers of the unions, the 1st Respondent and 2nd Respondent. The next step was Annexure J which is a collection of Agreements said to have been entered into between the Respondent and individual claimants on 28th October 2004, and 8th – 9th November 2005 which agreements were meant to implement the .directives of the National Council on Privatization (NCP) to pay terminal benefits to retrenched staff of the 2nd Respondent affected by the privatization of the 2nd Respondent. The said MOU and the agreements were said to be in full and final payment of the terminal benefits of the Claimants in this case. However, the Claimants rejected this and argued that the amounts paid were determined unilaterally by the 1st and 2nd Respondents and in disregard to the subsisting Judgment of the court. Here the Claimants’ rooted their case on the submission that the said agreements of 28th October 2004 and 8th-9th November 2005 were not made in accordance with the orders of the court in the said Judgment. To the contrary, both the and 2nd Respondents argue that by entering into the said agreements the Claimants have compromised and/or abandoned their rights in the said Judgment, because they had accepted payments which represent acceptance of whatever they would have been entitled to receive as full and final entitlements as their severance benefits for working for the 2nd Respondent. Here we have to say that having examined the contents of the MOU of 23rd October 2003 and the Agreements of 28th October 2004 and 8th and 9th November 2005, we do not see anywhere in which the Claimants stated that they were compromising, abandoning or modifying their rights which were created by the Judgment of this court in Suit No. NIC/7/2000. We also do not see anywhere in the agreements in which the Claimants and even the 1st Respondents had shown that whatever payments that were going to be made would represent a satisfaction of the rights created by the said Judgment. In fact no reference whatsoever was made to the existence of the said Judgment by the parties in the course of entering into the MOU and all other subsequent agreements. This makes it difficult for us to accept the position of the Respondents that the action of the Claimants in accepting the payments in accordance with the said MOU and agreements had satisfied the subsisting Judgment of this court in Suit No. NIC/7/2000. Also, the 35 Respondents, CANMPSSA, who represented the Claimants in Suit No. NIC/7/2000, clearly denied that there was any compromise of the said judgment as they did not participate in the processes of the MOU and Agreements of 2004 and 2005 respectively. We have read the judicial decisions referred to by the Respondents on circumstances in which a judgment of court was said to be compromised, transferred, abandoned or modified and what is clear in all of them is that direct reference was made to the Judgment that conferred the right which the parties clearly agreed to compromise, abandon, modify or forgo. See the case of Offor V Leaders & Co, (supra), where the Court of Appeal, held inter alia, “....the term of settlement or compromise must henceforth regulate the relationship and the entitlement of parties with regard to the subject matter of the action. In the instant case the Respondents and the Applicant were bound by terms of Exhibit 11, the focal point of which was that the payment of N200,000 naira by the Respondent to the Applicant is in full satisfaction of the Judgment of the trial court. In view of this settlement the rights of both parties one way or the other in enforcing the right of appeal at whatever stage has been extinguished, not unlawfully or illegally but the free choice of both parties”. Still on the 2004 and 2005 Agreements made between the Claimants and the Respondents, there is the issue of how the said agreements were actually arrived at. From our understanding of the records and submissions of counsel before this court, while the MOU was initially entered into between the Respondents and the representatives of the Claimants, the 2004 and 2005 Agreements were said to have been entered into with each individual claimant. Furthermore, as the 1st Respondent stated in its statement of defence, paragraph 7 (g) and (h) thereof, the forms were given to the claimants for the purpose of verification and computation and each claimant was to return same before the management of the 2nd Respondent could take a decision. This clearly means that the final decision on the exact amount to be paid to each claimant was decided upon unilaterally by the Respondents without recourse to the claimants or their representative (the union which is one of the parties to the said suit) which clearly goes against the term of the said Judgment. Both the representatives of the claimants who signed the MOU and the claimants themselves who signed the 2004 and 2005 Agreements were shut out from the actual calculation and confirmation of the terminal benefits to be paid to the claimants. This lends a lot of weight to the case of the Claimants that the Respondents unilaterally determined the final terminal benefits of the claimants. In our view this act falls short of the letter and spirit of the order of the court in Suit No. NIC/7/2000 which directed the Board of Directors of the 2nd Respondent to negotiate with the Claimants, their severance benefits. We therefore hold in favour of the Claimants on the first claim. On the second prayer of the Claimants which is “an order directing the defendants to pay each of the Claimants the balance of the final entitlements due to each Claimant in line with the conditions of service of 1998 as already computed and shown in column 11 Annexure I” (underline for emphasis), we are unable to grant this prayer. This is because it is not clear whether the conditions of service of 1998 should be the basis of calculation of the terminal benefits of the Claimants, i.e. annexure A and D, which require the approval of the Board of Directors and have not been shown to have been actually approved by the Board of Directors of the respondent company as observed earlier by the court at pages 8-9 of the said Judgment. Therefore; the contents of Annexure I, having been based on the conditions of service of 1998 (Annexure D & F), cannot stand or be granted to the Claimants. On the issue of the submission of the 1st Respondent that since they were not a party to the proceedings in Suit No. NIC/7/2000 and therefore not bound by it, and that the time limit within which the claimants should have come to court has elapsed. We hereby reiterate the position of this court that in labour matters, non-party to a suit may (depending on the circumstances of the case) be bound by the decision of the court whether or not he is a party thereto, and that labour rights are not at all times caught up by statutes of limitation. See the decisions of the court in ASCN V INEC (2006) 5 NLLR (Part II) p. 75 at p. 89; Association of Senior Civil Servants of Nigeria V INEC & Attorney-General of the Federation in Suit No. NIC/10M/2003 delivered on October 6, 2008. Therefore their argument on this leg has failed. From all the foregoing we hereby hold that the Judgment of this court in Suit No. NIC/7/2000 is still subsisting. Accordingly, we now order that the parties in this matter should comply with the order of this court in the said Judgment particularly paragraph 3 (a) and (b) thereto. As to the Claims for damages and cost of the action we are not awarding either as no details were given by the Claimants in support of such claims. Judgment is entered accordingly. Hon. Justice M.B. DADDA Presiding Judge Hon. Justice M.N. ESOWE Hon. Justice A. IBRAHAM Judge Judge Hon. Justice O.A. SHOGBOLA Judge