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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice 0. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: OCTOBER 21, 2009 SUIT NO. NIC/EN/04/2009 BETWEEN Eleme Petrochemicals Company Limited - Claimant AND Dr Morah Chibuzor Emmanuel - Defendant REPRESENTATION Bamidele Aturu, with him is Mrs. B. C. Anyanwu, for the claimants. E. U. John, for the defendant JUDGMENT The claimant brought this action by way of general form of complaint dated 16th April 2009. By the endorsement on the complaint, the claimant’s claim is for the interpretation of Memorandum of Settlement and Collective Agreement pursuant to section 7(l)(c)(i) and (iii) of the National Industrial Court Act 2006 and specifically for: 1. A declaration that by virtue and under the terms of settlement recorded in a memorandum of settlement titled Full and Final Settlement executed on 24/04/2008 but dated April 3, 2008 the claimant is not liable to pay the defendant any further sum of money as entitlements other than the sum of N1,123,335.00 (One Million, One Hundred and Twenty-Three Thousand, Three Hundred and Thirty-Five Naira Only) paid to him. 2. A declaration that the defendant, having voluntarily accepted the sum of Nl,123,335.00 (One Million, One Hundred and Twenty-Three Thousand, Three Hundred and Thirty-Five Naira Only) paid to him by the claimant as his terminal benefits under the terms of settlement recorded in a memorandum of settlement titled Full and Final Settlement executed on 24/04/2008 but dated April 3, 2008, is not entitled to reinstatement or is estopped from demanding, harassing, intimidating or in any manner whatsoever putting pressure on the claimant to reinstate him. 3. A declaration that the proper construction of the commencement date of the collective bargaining agreement between the claimant and its employees is the 22nd of February, 2008 and that the said collective bargaining agreement cannot confer any benefits on the defendant. 4. An order forbidding the defendant from demanding that the claimant reinstate him or pay him any additional sum of money other than that which he was paid under the memorandum of settlement titled Full and Final Settlement executed on 24/04/2008 but dated April 3, 2008. Accompanying the complaint is an 8-paragraphed statement of facts together with the 4 claims against the defendant which is as endorsed on the complaint, the list of witnesses to be called and the list of documents to be relied on. The defendant entered a filed a statement of defence together with a counterclaim which are all dated 28th April 2009. Attached to the statement of defence and counterclaim are the documents to be relied on at the trial and the list of witnesses. In the counterclaim, the defendant sought for the following reliefs: (a) A declaration that the letter of de-regularisation of the defendant dated 12th November 2007 is void and of no effect whatever and the defendant is still the Chief Medical Officer in Eleme Petrochemicals Company Limited. (b) A declaration that the defendant is entitled to have the award that had been entered in his favour by the Honourable Minister of Labour and Productivity on 27th February, 2009 enforced against the claimant herein. (c) A declaration that the relationship of the claimant with the defendant is governed inter alia by the collective bargaining agreement of 22nd February 2008 and subsequent amended agreement to reflect accrued monetary increments by reason of the nullity of the letter of de-regularization dated 12th November 2007. (d) An order compelling the claimant to pay the defendant his entitlements computed in accordance with the collective bargaining agreement up to date of judgment as follows: 1. Housing allowance for years 2007, 2008 and 2009. 2. Leave allowance for years 2007 and 2008. 3. End of year bonus for the years 2007 and 2008. 4. Security allowance for the years 2008 and 2009. 5. Monthly salaries on the present value from November 2007 to date of judgment:- • A. C.M.S (N200,000 + 23% increment in 2008 + 13% increment in 2009). • B. General hazard allowance. • C. On call allowance for Doctors. • D. Excess hours general allowance. • E. Special hazard allowance. • F. Responsibility allowance. 6. Monthly meal allowance (meal ticket) monetized from November 2007 to date of judgment. 7. Monthly dry ration from November 2007 to date of judgment. 8. Christmas ration for the years 2007 and 2008. 9. IBTC monthly pension contribution from November 2007 to date of judgment. 10. Birthday cake for the years 2007 and 2008. (e) N150,000,000 as compensation for the trauma to which the defendant has been exposed to as a result of the unwarranted action of the claimant. The claimant filed a reply and defence to the counterclaim dated 20th May 2009. Both parties then agreed that this suit be argued on record, thus dispensing with the need to call witnesses. To this effect they filed and exchanged final written addresses. The claimant’s final written address dated 10th June 2009 was filed out of time. Consequently, the claimant applied by way of motion on notice dated 15th July, 2009 for an order extending the time within which it may file its written address and an order deeming the already filed and served final written address as properly filed and served, the necessary fees having been paid. The prayers of counsel to claimant were granted on the 21st July 2009 while the defendant’s motion dated 3rd July 2009 for setting aside claimant’s final written address filed out of time and for dismissal of the claimant’s claim was struck out having been withdrawn by the defendant’s counsel on the 29th July 2009. The defendant’s final written address is dated 3rd July 2009, and his reply to the claimant’s preliminary objection is dated 24th July 2009. The claimant’s reply on points of law which also contains its preliminary objection is dated 15th July 2009. Learned counsel to the claimant in his oral submission began by adopting the claimant’s final written address and relied on all the documents filed in support of its claim. In its written address, the claimant stated the facts of the case as follows: that the defendant was a probationary staff in the claimant’s clinic until 12th November 2007 when the management decided not to regularize his appointment for unsatisfactory performance of his duties having earlier extended his probationary period for the same reason. As a result, the defendant was dissatisfied with the decision and enlisted the intervention of the local branch of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) which brokered a negotiation. That following the negotiation, the claimant and defendant on the 24th April 2008 entered into a memorandum of settlement wherein it was agreed that the defendant would be paid the sum of One million, One hundred and twenty three thousand and three hundred and thirty five Naira only (N1,123,335.00) as his full and final entitlements from the claimant. The defendant collected the said amount and signed the memorandum of settlement between him and the claimant and in addition wrote on the document in his handwriting that he accepts the terms of the termination. The claimant further stated that after the disengagement of the defendant which was on 12th November 2007, the claimant and its employees under the aegis of PENGASSAN on 22nd February 2008, entered into a collective bargaining agreement. That it is the conditions of service stated in this collective agreement that the defendant in his counterclaim, contends is applicable to him. Learned counsel to the claimant thereafter made a preliminary point that the subject matter of this suit is the interpretation of the memorandum of settlement between the claimant and defendant and the collective agreement between the claimant and PENGASSAN pursuant to section 7(1)(c)(i) and (iii) of the National Industrial Court Act 2006. He stated that the commencement of a collective agreement and the scope of its application are matters of interpretation over which this court has original jurisdiction under section 7(1)(c)(i) and cited the case of Niger Progress Ltd v. N.E.L. Corp. [ 3 NWLR (Pt. 107) 68 at 97 — 98. He submitted that this court has original jurisdiction under section 7(1)(c)(iii) to interpret the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement. That it is for the interpretation of these documents that the claimant seeks to invoke the original jurisdiction of this court. He then framed two issues for determination as follows: 1. Whether the collective bargaining agreement made on 22nd February 2008 is applicable to the defendant. 2. Whether in view of the memorandum of settlement titled “full and final settlement” the defendant is still entitled to make any claim on the claimant. In arguing issue 1, counsel submitted that the main rule of construction of a written agreement is that the court is bound to give the operative words used in the agreement by the parties their simple and ordinary meaning so as to be able to discover the intention of the parties. He cited Osigwe v. Unipetrol [2005] 5 NWLR (Pt. 918) 261 at 265 Ratio 2 and at 281 paras D-F; and then referred to the introductory clause of the collective agreement which states that “this Collective Agreement is made this 22nd day of February 2008 between Eleme Petrochemical Company Ltd...and Petroleum and Natural Gas Senior Staff Association EPCL branch...,” and Article 1 of the collective agreement particularly paragraph 1.2 which provides that, “the terms and conditions of this agreement shall relate, apply to and be binding on the company and all the company’s senior staff who are voluntary and financial members of the Association and thus same shall form their condition of service”. The claimant’s counsel argued that on the face of the collective agreement, its commencement date is the 22nd February 2008 when it was made there being no other provision in the agreement that states otherwise and that by the provisions of Article 1 paragraph 1.2 of the agreement, its terms and conditions shall apply to and be binding on only the claimant and all its senior staff who are voluntary and financial members of the association at the date of the agreement. He then submitted that from the operative words of the collective agreement, what the parties intended was to enter into an agreement with terms that shall form the conditions of service of the claimant’s senior staff who are voluntary and financial members of PENGASSAN at the date of the agreement and not the claimant’s ex-employees who fall within the senior staff category and have ceased to be financial members of PENGASSAN. He referred to the case of Hamidu v. Sahar Ventures Ltd [2004] 7 NWLR (Pt. 873) 618 at 624 Ratio 3 at 646 — 647 paras D — F for the principle governing construction of agreements. Learned counsel to the claimant argued further that the relationship of employer and employee between the claimant and defendant ceased upon the termination of the defendant’s employment on 12th November 2007. Consequently he was paid the sum Nl,123,335.00 as his full and final entitlements from the claimant following a negotiation between the claimant and PENGASSAN acting on his behalf. That this being the case, the defendant as at 22nd February 2008 was no longer a senior staff of the claimant to which the terms and conditions contained in the collective agreement made on 22nd February 2008 is applicable to as there is no provision in the agreement that stipulates that it shall be applicable to ex-employees of the claimant. He cited (the case of Nwakhoba v. Dumez Nig. Ltd [2004] 3 NWLR (Pt. 861) 461 at 482 para F — G. On issue 2, counsel to the claimant submitted that where an employee accepts payments after his employment is brought to an end he cannot be heard to complain later that his contract of employment was not properly determined, as the acceptance of payment renders the determination mutual. He referred to the case of Ekeagwu v. Nigerian Army [2006] 11 NWLR (Pt. 991) 382 at 387 Ratio 8 at 397 paras E — F. He argued that the defendant upon the determination of his employment accepted the sum of N 1,123,335.00 as his full and final settlement from the claimant consequent upon which both parties executed the memorandum of settlement. He referred to the Stanbic Bank cheque made out by the claimant in favour of the defendant, the defendant’s acknowledgement of receipt and the memorandum of settlement on which the defendant in his handwriting wrote “I, Dr Morah Chibuzor, hereby accept this term of termination of appointment only on the basis that the company reserves the right to terminate the appointment of any of her employee whether guilty or not guilty or whether union member or management ...“ He submitted that based on this, the defendant has no legal right to challenge the determination of his employment or make any further claims on the claimant and cited Ekeagwu v. Nigerian Army, supra, and Morohunfola v. Kwara State College of Technology [1990] 4 NWLR (Pt. 145) 506. Counsel also contended that an employer of labour has no obligation to retain the services of any unwanted employee and may terminate the appointment of such employee with or without reason and referred to the case of NITEL Plc v. Akwa [2006] 2 NWLR (Pt. 964) 391 at Ratio 8 at 418 paras A E. He stated that the claimant in terminating the defendant’s employment gave the reason for the termination as unsatisfactory performance of his duties which he submitted is a plausible reason to justify termination and referred to the letter of termination and the claimant’s letter dated July 31, 2007 extending the defendant’s probationary period due to unsatisfactory performance. The claimant’s counsel also argued that there is no evidence to show that the defendant was victimized for any role he played in the trade union to permit this court to reinstate him on any of the recognized grounds for which this court can reinstate an employee. That the only evidence the defendant supplied is that he along with some 21 other people applied to form a branch of PENGAS SAN and that the defendant has a duty to show the court why he alone was singled out for victimization and terminated. He submitted that the defendant has not been able to discharge this duty and that it is not the law, neither is it a decision of this court, that once you are a member of a union and you are dismissed that the court will order reinstatement. Counsel argued that the defendant has to show those activities that he carried out to enable a verdict that they were union activities in order to warrant reinstatement and submitted that based on the letter written to the Managing Director of the claimant from Omni clinic, that the defendant was employed to work in the clinic in March 2008, the respondent has shown consistently that he accepted the termination of his employment on 12th November 2007 many months before the collective agreement was executed. Regarding the defendant’s counterclaim, learned counsel to the claimant raised a preliminary objection to the jurisdiction of this court to entertain it on the grounds that the cause of action is subject to conciliation and arbitration; and that the procedure outlined in Part I of the Trade Disputes Act (TDA) Cap. T8 Laws of the Federation of Nigeria 2004 has not been exhausted. He submitted that where there is. a challenge to the jurisdiction of the court, it is only the processes filed by the counterclaimant that the court should examine. He cited A.G.F. v. Guardian Newspapers Ltd [1999] 9 NWLR (Pt. 618) 187 at 233 and submitted that the cause of action in the counterclaim is whether or not the defendant’s employment was terminated as a result of his trade union activities as stated in paragraphs 31 of the statement of defense and paragraph 6 of the counterclaim. He argued that this is not related to the main suit which is seeking interpretation and referred to the case of AG Lagos State v. AG Federation [2004] 18 NWLR (Pt. 904) 1 at 89 — 90. Counsel argued further that the defendant in paragraph 4 of his statement of defence and counterclaim has stated that a trade dispute was declared by PENGASSAN against the claimant and a conciliator appointed by the Ministry of Labour whose award the claimant refused to abide by. He submitted that the defendant has not exhausted the procedure outlined in Part I of the Trade Disputes Act which includes arbitration by the Industrial Arbitration Panel in the event of failure of conciliation as in this case and, therefore, this court lacks original jurisdiction to entertain the defendant’s counterclaim as the process of conciliation has commenced. He referred to section 7(l)(a) and 7(3) of the National Industrial Court Act 2006 and the case of ASSBIFI v. Union Bank Plc Suit No. NIC/11/2007 (unreported) delivered on 24th January 2008. Counsel urged the court not to rely on the case of Management of Dangote Industries Ltd Pasta Plant v. NUFBTE (unreported) Suit No. NIC/2/2008 delivered on 28th January 2009 which came from arbitration and is distinguishable from this instant case. He finally urged the court to grant the claims of the claimant and dismiss the counter-claim. In reply to the claimant, learned counsel to the defendant began by adopting and relying on the defendant’s final written address, reply to the preliminary objection together with all other processes filed. The defendant began his written address by giving the facts and background of the case as follows: that he was employed in May 2005 by the Nigerian National Petroleum Corporation (NNPC) and was redeployed to the claimant prior to the privatization of the claimant by an internal memorandum with reference number Med/Ph/h25 dated 13th June 2005 by the Manager, Medical Services of NNPC with immediate effect. That upon completion of the privatization of the claimant, he joined it as the pioneer medical doctor on 1st July 2006 and was designated Chief Medical Doctor. He stated that in the claimant’s handbook given to him at his engagement, it was specifically provided in clause 7.2 which is titled Probationary Period, that the defendant having joined the claimant before its privatization shall not be subject to a period of probation. That in recognition of this fact, the claimant did not issue him with any fresh letter of appointment. On the 8th October 2006 the claimant formalized his salary and paid him arrears of salary for three months. The defendant stated that on the 18th July 2007, he picked up the membership form of PENGASSAN to facilitate the unionization of the workers of the claimant which he alleged displeased the claimant who tried to frustrate the initiative but failed and the union was inaugurated on 4th November 2007. He also alleged that the claimant’s Managing Director threatened to deal with those who pioneered the initiative and on the 12th November 2007 the claimant issued its letter of de-regularisation (meaning termination) of the defendant’s appointment giving unsatisfactory performance of duty as its reason. The defendant stated that in terminating his appointment the claimant did not follow the laid down procedure in its handbook and that his termination was as a result of his union activities. That following his disengagement, PENGASSAN declared a trade dispute in protest against the claimant upon which a conciliation meeting was set up by the Federal Ministry of Labour on March 2007 wherein the claimant failed to make out a case against him; and an award was made in his favour directing the claimant to drop all charges against him. He stated further that the claimant disregarded the said award made by the Hon. Minister of Labour that both parties return to status quo and apply the collective bargaining agreement to the relationship between it and the defendant, and instead decided to hoodwink the defendant with a prepared full and final settlement agreement on which he cautiously made an endorsement. With the above given as background facts learned counsel to the defendant proceeded to reply to the claimant’s preliminary point. He submitted that the claimant has not advanced any argument to show that the memorandum of settlement was indeed a full and final settlement and that it is not sufficient for the claimant to pass off the document as one of full and final settlement. He argued that in determining whether the document was indeed in full and final settlement of the dispute between the parties, the court should endeavour to discover the intendment of the disputants. That in this regard, equity demands that the court should not disregard the circumstance that gave birth to the document and decide whether the document indeed could effectively reflect the agreement of both parties. That if the court is restricted to the document without considering the entire circumstances it could work hardship against either party because what the parties had intended to be fully and finally settled was the employment of the defendant. The defendant’s counsel contended further that the Ministerial conciliation carried out by the Federal Ministry of Labour and Productivity in response to the trade dispute declared by PENGASSAN had the effect of setting aside the termination of employment of the defendant. Counsel prayed the court to take cognizance of the fact that the defendant was owed salary higher than the amount received by him as a result of the said settlement and could not have been ad idem with the claimant on the issue of full and final settlement because the defendant was guided by the verdict of the conciliation panel. He argued that what the defendant received was in that context only a part of his entitlements having not been paid salary from November 2007. He submitted that in the interpretation of the document in issue, due regard must be given to the endorsement by the defendant on the memorandum and that the true purport of the endorsement was a restatement of the common law position well known to the legal profession that a master can terminate the contract of service with the servant at any time and for any or no reason at all. He referred to the case of Joseph Ifeta v. Shell Development Company of Nigeria [2006] 8 NWLR (Pt. 983) 586 at 605 — 606 paras H — G; 615 paras B — C and argued that the defendant as at April 2008 had outstanding arrears of salary in his favour amounting to N1,200,000.00 calculated at the rate of N200,000 of gross salary without other allowances and benefits, having not been paid his salary from November 2007 to April 2008 when the document in issue was made; as against the lesser sum of N 1,123,335.00 which was supposed to represent a final disengagement package. Counsel submitted that the interpretation proposed by the claimant will lead to injustice and urged the court, being a court of equity by reason of the provision of section 13 of the National Industrial Court Act 2006 to reject the claimant’s interpretation so as to do substantial justice in the matter. He contended that the court has an inherent jurisdiction to do justice and this inherent jurisdiction supplements the statutory power of the court by the need for the court to fulfill itself in order to meet the ends of justice. He cited Universal Oil Ltd v. NDIC [2008] 6 NWLR (Pt. 1083) 276. The defendant’s counsel prayed the court to consider the defendant’s written endorsement in the memorandum of settlement particularly the word “however” used by him and give the word its ordinary grammatical meaning in the context used which is “In spite of that”, “Nevertheless”. That what the defendant was saying was that the claimant has the right to terminate his appointment whether he is guilty or not and in spite of that the document falls short of the award that required charges be dropped against him and parties return to the collective bargaining agreement for the determination of their relationship. That the matter was not over because his entitlement had not been properly computed, as the amount he ought to receive when computed under the collective agreement is higher. That in strict contractual term, the document under consideration was an offer to the defendant by the claimant with a request that the defendant acknowledge or accept by signing clause 1.3 on the document. He argued that in order to qualify as an acceptance, the response of the defendant must be unequivocal, positive and certain; it must not leave anything else to be done and cited Benue Cement Company Plc v. Sky Inspection (Nig) Ltd [2002] 17 NWLR (Pt. 795) 86 at 106 paras E — F. Counsel further submitted that the endorsement made by the defendant on the memorandum of settlement was not in the manner requested in the offer. That the acceptance of the Stanbic Bank cheque does not make the acceptance conclusive because the defendant took the matter back together with the payment to the conciliators and the award was reaffirmed. He then urged the court to hold that the memorandum was not in full and final settlement having regard to all the facts. In respect of the collective bargaining agreement, counsel urged the court not to accept that the commencement date of the agreement is the 22nd February 2008 because by Article 32 of the agreement the commencement date is 1st January 2008 and the agreement is expressed to last for two years thereafter. After this preliminary point, the defendant raised seven issues for determination as follows: (a) Whether or not the claimant’s final written address is competent to receive the consideration of the court having regard to the claimant’s failure to file the same within the time allowed by the order of the court made to the knowledge of the claimant. (b) Whether or not the de-regularisation of employment of the defendant by the claimant was irregular and not in accordance with the set terms and conditions in the claimant’s handbook and collective bargaining agreement especially whether the defendant was on probation. (c) Whether or not the claimant was right in disregarding and failing to comply with the award given in favour of the defendant by the Minister of Labour and Productivity especially by failure to withdraw all charges against the defendant and for not adopting the collective agreement as guide in the relationship between the claimant and the defendant. (d) Whether or not the defendant is not entitled to have his relationship regulated by the collective bargaining agreement, the letter of de-regularisation of the defendant’s employment having been adjudged irregular and of no effect whatever. (e) Whether or not the defendant is entitled to be regarded still as the Chief Medical Officer of the claimant and entitled to his salary and benefits in accordance with the collective bargaining agreement. (f) Whether the dispute of wrongful termination of the defendant on 12th November, 2007 without due process and non-payment of his salaries from November 2007 could be held to have been properly addressed in the memorandum of settlement dated 3rd April, 2008. (g) Whether or not the defendant is entitled to compensation for the unwarranted trauma especially having regard to the deliberate attempt by the claimant to disparage the professional integrity of the defendant while in breach of the terms and conditions of employment of the defendant. We must at this juncture comment on the numbering of the issues raised by the defendant’s counsel. They are raised in alphabetical order and argued in numerical order. There is the need for consistency in numbering as this assists the court and ensures clarity especially where two or more issues are argued together. We will, therefore, continue with the alphabetical order for consistency. Issue (a) is no longer a live issue as leave of court was granted the claimant on the 21st July 2009 to file and serve its final written address out of time with a deeming order. On Issue (b), the defendant’s counsel submitted that the claimant’s letter of de-regularisation of the defendant’s employment was irregular and therefore void. He referred to the internal memo dated 10th October 2006 and submitted that the claimant had acknowledged that the defendant had been its staff and recommended payment of his salary in arrears. That there is no document slating that the defendant was a probationary staff. He submitted that the law provides that an employer can terminate the employment of the employee but when a reason is assigned to such termination, it must be proved by the employer and this the claimant has failed to do since it has not stated the specific acts of non-performance and incompetence against the defendant. He, therefore, urged the court to hold that the letter of de-regularisation of the defendant’s employment is irregular, void and of no effect having been made mala fide. Learned counsel also argued that the claimant’s action is a reprisal against the defendant for his role in the unionization of the claimant. He submitted that it is the constitutional right of the defendant and the workers of the claimant to constitute themselves into an association or to belong to any union of their choice and that the claimant is prevented by law from penalizing any person that decides to belong. He cited the case of Dangote Industries Pasta Plant v. NUFBTE, supra, and section 9(6)(b)(iii) of the Labour Act Cap. LI LFN 2004. On the claimant’s submission that the defendant cannot seek an enforcement of the collective bargaining agreement in his favour as he is no longer a member of PENGASSAN, the defendant’s counsel submitted that by virtue of section 9(6)(b)(iii) of the Labour Act, the defendant should not be prejudiced and consequently his dismissal cannot be justified on that ground. That the defendant does not have to present a membership certificate as there is sufficient evidence in the case file to show that he is a senior staff and a member of PENGASSAN and so is entitled to the protection of both PENGASSAN and the collective bargaining agreement. He urged the court to hold that the defendant is entitled to be reinstated and paid his full entitlements based on the collective bargaining agreement. Issues (c), (d), and (e) were argued together by defendant’s counsel. He submitted that it is the statutory function of the Federal Ministry of Labour to regulate and arbitrate over labour disputes such as this and that the claimant is bound and can only avoid the effect of the award by lodging the appropriate appeal within the time allowed by the law in that regard. That having failed to do so, the claimant cannot avoid the effect of the award given in favour of the defendant by the Federal Ministry of Labour. He further submitted that the legal consequence of the above is that the defendant is entitled to avail himself of the benefit of the said award and the court should enforce it as prayed in the defendant’s counterclaim. Counsel urged the court to hold that the claimant is wrong in refusing to comply with the award which has the effect of setting aside the letter of termination and harmonizing the employment of the defendant in line with the collective bargaining agreement. On issues (f) and (g), counsel submitted that the defendant is entitled to compensation or damages as claimed in the counterclaim which the court has the power to order by virtue of section 19 (d) of the National Industrial Court Act 2006. He urged the court in making the order to take into consideration the various acts of the claimant aimed at disparaging the defendant in his profession and its various breaches of the laws of the land. On the preliminary objection raised by the claimant to the jurisdiction of this court to entertain the defendants counterclaim, learned counsel to the defendant submitted that it is misconceived in 1aw He submitted that the cause of action is the letter of de-regularisation of the defendant dated 12th November, 2007 without observance of the terms and conditions of his employment as provided for in the claimant’s handbook and the collective bargaining agreement and that cause of action is defined as the fact or hints which establish or give rise to a right of action and he cited Egbe v. Adefarasin [1987] 1 SC 34 and P. N Udoh Trading Company Ltd v. Abere [2001] 11 NWLR (Pt. 723) 114 at 129 para B —D; 135 para G—H; 136 para A. He argued that the cause of action does not arise from the address of counsel as the claimant seeks to. present but predates the address and that the claimant accepted the award and did not appeal against it. That having not objected to the verdict of the conciliator, the defendant is entitled to have it enforced against the claimant who is not entitled to raise an objection particularly as it has taken steps in the proceedings after service of the counterclaim on it. He submitted that a party seeking to abort the proceedings must not take any step beyond an appearance and in this case the claimant ought not to have filed any defence to the counterclaim. Counsel referred to section 5 of the Arbitration and Conciliation Act Cap A 18 LFN 200’ and the case of Kurubo v. Zach-Motison Nigeria Ltd [1992] 5 NWLR (Pt. 239) 102 at 118. The defendant’s counsel also submitted that the claimant has failed to show that the cause of action in the counterclaim is an issue listed in Part I of the Trade Disputes Act (TDA). That without conceding, even if Part I applies, the provisions thereof have been modified by sections 7(4) and 53(2) of the NIC Act 2006. He urged the court to dismiss the preliminary objection as it is a presumptive attempt to mislead the court. In reply on points of law, learned counsel to the claimant submitted that an advice given by a conciliator appointed under section 8 of the Trade Disputes Act (TDA) LFN 2004 is not an award under the Trade Disputes Act. That the only power given to a conciliator under the Act is to record the terms of settlement of any dispute referred to it in a memorandum of settlement, if settlement is reached by the parties in the course of negotiation and that the memorandum must be signed by the parties. He stated that the verdict of the Ministry of Labour attached to the statement of defense and counterclaim, which was not signed by the parties, is not a memorandum of settlement as envisaged by section 8(3) of the TDA. Counsel also submitted that in determining the intendment of parties, the court will look at both the circumstances that led to the memorandum and those after the memorandum as the intention of the parties is always to be gathered from the document itself and the terms determined by the parties, while the courts construe the words used by the parties. He cited Dantata v. Dantata [2002] 4 NWLR (Pt. 756) 144 at 162 paras E — F. The claimant’s counsel made further submissions that the law is settled that where an employment does not have statutory flavour an employer is entitled to terminate his employee’s employment for good or bad reason or for no reason at all and such t cannot be declared null and void. He cited Isievore v. NEPA [2002] 13 NWLR (Pt. 784) 417 at 434 paras A — U and Chukwu v. NITEL [1996] 2 NWLR (Pt. 430) 290 and urged the court to strike out the defendant’s counterclaim for want of jurisdiction and grant the claimant’s reliefs. We have carefully considered all the facts of this case, both parties’ documentary evidence and all the submissions by counsel. This is a complaint by the claimant which activates the interpretation jurisdiction of this court as enjoined by section 7(1)(c)(iii) of the National Industrial Court Act 2006. The claimant in its submissions raised a preliminary objection to the jurisdiction of this court to entertain the defendant’s counterclaim. We shall therefore begin this judgment with the preliminary objection raised herein. It is clear from the defendant’s counterclaim particularly paragraph 6 in which he adopts paragraphs I to 5 of his statement of defence that after his employment was terminated on the 12th November 2007, the defendant made a report to the local branch of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) and a trade dispute was declared. A conciliator was appointed by the Ministry of Labour. By the defendant’s own admission, the settlement reached at the conciliation meeting was not adhered to by the claimant. The defendant did not aver either in his statement of defence or counterclaim that both parties signed a memorandum of the terms of settlement agreed to at the conciliation meeting which would have been binding on the claimant as provided in section 8(3) of the Trade Disputes Act (TDA) Cap T8, LFN 2004. This is indicative of failure of conciliation leaving the last process which is arbitration unexplored. It is necessary at this juncture to state that by the provisions of section 13 of the Trade Disputes Act, it is the Industrial Arbitration Panel (IAP) that is empowered to make an award which it sends to the Hon. Minister of Labour and not the conciliator. Also, the Arbitration and Conciliation Act Cap A18, LFN 2004 which the defence counsel also referred to is not applicable to the proceedings of the IAP or to any award made by it as provided by section 9 of the Trade Disputes Act. We agree with the claimant’s counsel that the procedure outlined in Part I of the Trade Disputes Act has not been exhausted because the cause of action in the counterclaim is a trade dispute within the meaning of the term in section 48 of the TDA which defines the term ‘trade dispute’ to mean — any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person. This definition is reinforced in section 54(1) of the NIC Act 2006 in the following words — trade dispute means any dispute between employers and employees, including disputes between their respective organisations and federations which is connected with — (a) the employment or non-employment of any person, (b) terms of employment and physical conditions of work of any person, (c) the conclusion or variation of a collective agreement, and (d) an alleged dispute. The complaint of the defendant in the counterclaim is one connected with his employment or non-employment, which makes it a trade dispute within the meaning of section 48 of the TDA. This means that the process of mediation, conciliation and arbitration in Part I of the TDA ought to have been exhausted by the defendant before filing the counterclaim. See Hotel & Personal Services Senior Staff Association v. Ikeja Hotel Plc & ors (unreported) Suit No. NIC/39/2008 delivered on 2nd July 2009 and Anthony Oyekanmi & Ors v. NITEL & Bureau of Public Enterprises (unreported) Suit No. NIC/7/2008 delivered on July 15, 2008. The interpretation jurisdiction of this court cannot be used to adjudicate the trial issues raised in the counterclaim. See Itodo v. Chevron Texaco [2005] 2 NWLR (Pt. 5) 200 at 222 — 223 and Hotel and Personal Services Senior Staff Association v. Tourist Company of Nig. Plc (unreported) Suit. No. NIC/14/2002 delivered on October 27, 2004. We find that the counterclaim has not been properly raised and, therefore, the defendant cannot maintain his action against the claimant. We, therefore, hold that this court lacks original jurisdiction to entertain the counterclaim. The counterclaim is hereby struck out. We now turn to the two documents to be interpreted. The first is the collective bargaining agreement between the claimant and the local branch of PENGASSAN while the second is a document titled “full and final settlement” dated April 3, 2008 and referred to by the parties as memorandum of settlement. Where there is an agreement regulating any arrangement between parties, the main duty of the court is to interpret the agreement and give effect to the wishes of the parties as expressed in the document. In the case of Adetoun Oladeji Nig. Ltd v. Nigerian Breweries Plc [2007] 3 MJSC 29, the Supreme Court per Tobi, JSC held that — In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr Nzeribe [ 4 NWLR (Pt. 118) 755. However, where the meaning of the words used are not clear, the court will fall back on the intention behind the words. This presupposes that courts are enjoined to look at the words used in the document in order to ascertain the intention of the parties. There is no dispute between the parties that the date of termination of the defendant’s employment by claimant is 12th November 2007. It follows, therefore, that from the 13th November 2007, the defendant was no longer in the service of the claimant. The collective bargaining agreement was made on the 22nd February 2008 between the claimant and the local branch of PENGASSAN. Article 1.2 of the agreement provides that the terms and conditions shall “relate, apply to and be binding on the company and all the company’s senior staff who are voluntary and financial members of the association...” while Article 32 (a) provides that the agreement “shall be in force for a period of two (2) years commencing from January 01, 2008 to December 31, 2009 ....“ The combined effect of these two provisions is that the commencement date of the collective bargaining agreement is January 01, 2008 and it is applicable to the claimant’s senior staffs who are voluntary and financial members of the local branch of PENGASSAN. As a result of the claimant’s termination of the defendant’s employment, he was no longer a senior staff of the claimant having lost his job on the 12th November 2007, which is over one month before the commencement of the collective bargaining agreement and over two months before the agreement was made. We, therefore, hold that the defendant cannot have his terminal benefits determined by the collective bargaining agreement because it is not applicable to him. The memorandum of settlement titled ‘full and final settlement’ was between the management of the claimant and representatives of PENGASSAN within the zonal office and Eleme Petrochemical Company Limited branch. The parties in their own words “mutually agreed to resolve the issue pending pertaining to full and final settlement of Dr Morah Chibuzor Emmanuel”. The parties signed the agreement which was for the total amount of N1,123,335.00 to be paid to the defendant. The section of the document paragraph 1.3 reserved for the signature of the defendant wherein he agreed to have received all his entitlements with nothing outstanding against the company was not signed by him. Rather, he made an endorsement on the document in his own writing below the signature space accepting his termination and stating that “however” the document did not show that the management of the claimant has dropped the criminal charges which was the basis for the termination of his appointment on 12th November 2007. The defendant then appended his signature, wrote his name and put the date 24th April 2008 on the document. The defendant’s handwritten endorsement did not dispute the total sum negotiated by the union on his behalf. He collected a Stanbic Bank cheque for the sum of N1,123,335.00 being severance pay negotiated by PENGASSAN on his behalf and acknowledged receipt of same in his handwriting. A person’s signature, written names or mark on a document not under seal signifies an authentication of that document that such a person holds himself out as bound or responsible for the contents of such a document. See the case of Tsalibawa v. Habiba [1992] 2 NWLR (Pt. 174) 461 at 480 and Adefarasin v. Dayekh [2007] 11 NWLR (Pt. 1044) 89. We do not agree with defendant’s counsel interpretation of the handwritten endorsement. The parties were clearly ad idem on the severance pay. In the Blacks Law Dictionary, 18th edition, ‘full settlement’ means ‘a settlement and release of all pending claims between the part while the word ‘final’ means ‘concluded’. In the Chambers 21st Century Dictionary revised c tion, ‘final’ means ‘completed, finished, conclusive’. The words used in the memorandum of settlement, together with the defendant’s handwritten endorsement on it are clear and unambiguous and must be given their simple and ordinary grammatical meaning. We find that the defendant did sign the memorandum of settlement and endorsed the acknowledgement as request in paragraph 1.3 on the document. We hold that the memorandum of settlement is in full and final settlement of all monetary claims by the defendant against the claimant relating to his terminal benefits. The claimant is not liable to pay the defendant any further sum of money as severance pay. We make no order as to costs. Judgment is accordingly entered. Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice C.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim Judge Judge