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BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE - PRESIDING JUDGE DATE: MAY 3RD 2011 SUIT NO: NIC/49/2008 BETWEEN: MR. DANIEL UGOCHUKWU - CLAIMANT AND BRISTOW HELICOPTERS (NIGERIA) LTD - DEFENDANT REPRESENTATION: Erasmus Chukwuemeka Nwata for the claimant Fela Somoye, Akinloye Ajayi, O. I. Moniye (Miss) and O. Oniminde (Miss) for the defendant. JUDGMENT By a complaint and statement of facts dated and filed on 19th August, 2008, the claimant claim against the defendant as follows:- 1. The sum of two million, seven hundred and seventy-four thousand, four hundred and twenty seven naira, five kobo only (N2,774,427.05) being the short fall and outstanding balance due to the Claimant as redundancy benefit from the Defendant. 2. AND/OR IN THE ALTERNATIVE, The Claimant claims any short fall in the redundancy benefit paid to him by the Defendant as may be calculated and ordered by the Honourable Court. Opposing the claimant’s claim, the defendant filed its statement of defence dated 18th November, 2008 denying the claimant’s claim in it entirely and praying the court to dismiss same with substantial costs. Both parties gave oral evidence by calling a witness each. The testimonies of these witnesses are essentially in line with their statements filed before the court. On 17th January, 2011 the claimant, Daniel Ugochukwu (CWI), gave and concluded his evidence relying on the following documents which he had already frontloaded with his statement of facts: 1. Notice of Redundancy dated 4th April 2008 2. Redundancy Benefits Agreement dated 3rd April 2008 (RBA) 3. Payment Advice 4. Skye Bank PLC dated 7th April, 2008 5. Claimants Solicitor’s letter to the defendant dated 9th June 2008 6. Receipt issued by EMS upon delivery of Letter to Defendant. The defendant’s witness was Mr. Adeyemi Adegbayibi (DWI) gave his testimony on 3rd February, 2011. This witness is the Head of Industrial Relation and Performance Management in the defendant company. The defendant relied upon the following documents which it attached with its statements of defence: 1. Claimant’s Pay slip for March 2008 2. Defendant’s Harmonized Junior Staff Salary and Allowances Scale 3. Redundancy Benefits Agreement dated 3rd April 2008 4. Payment Advice showing details of the Claimant’s terminal and redundancy benefits 5. Skye Bank cheque dated 7th April 2008. Both parties agreed on these facts that the claimant was a former employee of the defendant company. He was employed as a driver by the defendant on 1st August, 1987 when he became a full member of staff of the defendant. He was placed on salary Grade level 5 Step 5. The claimant’s March 2008 Pay Slip reflected his last salary package given by the defendant. (Even though claimant did not frontload his March 2008’s pay slip with his initiating processes). As a result of declaration of redundancy by the defendant, the claimant’s employment was determined on 7th April 2008 by a notice of redundancy dated 4th April 2008. At the material time, the claimant was a member of the National Union of Air Transport Employees (herein call NUATE). NUATE had earlier entered into “Redundancy Benefits Agreement” (herein referred to as RBA) with the management of the defendant on behalf of its members in the defendant company. The agreement is dated 3rd April 2008. Parties admitted they were bound by the terms of the RBA. The claimant stated that prior to the issuance of the notice of redundancy and his disengagement from service, the defendant had agreed to pay all accrued terminal and redundancy benefit to its workers/staff that were declared redundant according to their years of service with the defendant. Other facts that are not disputed by the parties are that the defendant calculated and paid claimant the sum of two million, two hundred and sixty five thousand, four hundred and ninety eight naira, sixty four kobo only (N2,265,498.64) as his redundancy benefit and that claimant received his terminal benefit of two million, three hundred and seventeen thousand, seven hundred and ninety seven naira, seventy six kobo (N2, 317,797.76) from the defendant. Claimant also acknowledged being issued with a payment advice giving a breakdown of both the terminal and redundancy benefits. Parties filed and exchanged written addresses. The defendant in addition filed reply on points of law. The defendant’s written address is dated 25th February, 2011 but filed on 28th February, 2011. The claimant’s written address is dated and filed on 23rd February, 2011. Defendant’s address on points of law is dated 28th February and filed on 29th February, 2011. To the defendant, two issues arose from the facts of this case for this court’s determination they are: i. Whether the monthly entitlement paid to the Claimant as basic salary, housing allowance and transport allowance at the time he was declared redundant by the time he was declared redundant by the Defendant was N94,395.75? ii. Whether clause 2(d) of the Redundancy Benefits Agreement (RBA) allows for payment of the Claimant’s redundancy benefits beyond ten complete years of service; to a maximum limit of 24 Months basic salary + housing allowance + transport allowance? Arguing the 1st issue, Mr Akinloye Ajayi, counsel to the defendant, contended with respect to the claimant’s Monthly Basic Salary that the second document of the defendant shows clearly that the claimant’s annual basic salary effective from 29th November, 2007 was the sum of N389,167.00. In other words, the claimant’s monthly basic salary effective as at March, 2008 was N389,167.00 divided by 12, which would be equal to N32,430.56. Therefore the defendant is not disputing that the claimant’s monthly basic salary at the time he was declared redundant by the defendant. Learned counsel submitted that the foregoing facts go to establish the genuineness of the second document of the defendant and urged the court to so hold. On the amount of money the claimant is claiming as his housing allowance, learned counsel contended that apart from the facts deposed to in paragraph 6 of his statement of facts the claimant failed woefully to provide any concrete evidence in support of this fact that his monthly housing allowance is N29,220.03. On the other hand, the defendant’s position is that the claimant’s monthly housing allowance is N27,617.43. Counsel went on to say that DW1 relied on the 2nd document before the court and he submitted that this document clearly reveals that the claimant’s annual housing allowance is N331, 409.00. Continuing, he maintained that if N331,409.00 is divided by 12, it will be equal to N27,617.43 per month. Defendant submitted that the claimant’s monthly housing allowance at the time he was declared redundant by the defendant was N27,617.43. On Claimant’s Monthly Transport Allowance, defendant agreed with claimant that at the time he was declared redundant, his monthly transport allowance was N34,347.79. This is because that figure is in line with the content of its 2nd document. In that document, the claimant’s annual transport allowance was N412,173.00. In effect, N412,173.00 divided by 12 is equal to N34,347.79 per month. Defendant submitted that this fact goes to establish the genuineness of defendant’s 2nd document and urged the court to so hold. Defendant submitted that the claimant is wrong by alleging that his monthly housing allowance at the time he was discharged was N29,220.03 and urged the court to hold that the defendant’s calculation of the claimant’s monthly housing allowance of N27,617.43 is more accurate and correct. Defendant urged the court to hold that the total sum of the claimant’s monthly basic salary, transport allowance and housing allowance (that is, his monthly emolument) is N94,395.75 and that the correct breakdown is as follows:- Basic Salary -------------------------N32,430.56 Transport allowance ------------- N34,347.79 Housing Allowance -------------- N27,617.4 N94,395.75 Arguing the second issue of whether clause 2(d) of the Redundancy Benefits Agreement (RBA) allows for payment of the claimant’s redundancy benefits beyond ten completed years of service; to a maximum limit of 24 Months’ basic salary + housing allowance + transport allowance? Defendant contented that both parties acknowledged and admitted that they were bound by the terms of the Redundancy Benefits Agreement (RBA). Defendant went on that the major dispute between the parties is the correct redundancy benefits that the Claimant is entitled to under the RBA. Defendant submitted that in the absence of fraud or mistake, the court does not write or rewrite agreements for parties but will allow them to bind themselves as they deem appropriate; referring to the Court of Appeal decision in ISIYAKU V. ZWINGINA [2003] 6NWLR (PT. 817)560 CA. at 575; and THE MV CAROLINE MAERSIL V. NOKOY INVESTMENT LTD. [2000] 7 NWLR (PT. 666) 587 at 605. Defendant’s counsel, Mr Ajayi, reproduced clause 2 of the RBA and explained that as a display of good faith on the part of the defendant towards the claimant, the defendant paid the sum of N259,588.39 representing the claimant’s 2 months and 3 weeks’ Basic Salary + Housing Allowance + Transport Allowance; over and above the 2 months Basic Salary + Housing Allowance + Transport Allowance provided for in clause 2(b) of the RBA as payment in lieu of notice. Learned counsel submitted that the claimant, having served for twenty-one years with the defendant, falls into the category of discharged employees who were entitled to redundancy payment under clause 2(d) (iii) of the RBA. Clause 2(d) (iii) is the highest category and it makes provision for payment to a maximum limit of ten completed years of service less one month. Counsel submitted that it is trite law that the expression or inclusion of one thing implies the exclusion of the other. This principle of law is expressed in the latin maxim-“expression unis est exclusion alterius”. Therefore, where a document enumerates the things upon which to operate, everything else not enumerated must necessarily and by implication be excluded from its operation and effect citing AG, BENDAL V. AIDEYAN [1989] 4 NWLR (PT. 188)646 at 672. Mr Ajayi emphasised that the RBA does not contemplate the payment of redundancy benefits beyond 24Months’ B.S. +H. A. +T.A. He went on to say that the effect of this is that a redundant employee who had served for ten years would be restricted to the maximum of 24 months redundancy pay. If the claimant is allowed to claim redundancy benefit for each of his completed twenty-one years of service, it means he would be paid for fifty-two and a half (52 ½ ) Months’ B.S. +H.A. + T. A. This would be contrary to the terms of the RBA. Mr Ajayi submitted that the wordings and provisions of the RBA are clear, precise and unambiguous and that no more is necessary than to expound these words in their natural and ordinary sense referring to ISIYAKU V. ZWINGINA (Supra) @ 575 quoting the Court of Appeal per Obadina JCA where he stated as follows: Thus, if the words in a contract agreement are clear, precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. When the words of a document are clear and unambiguous and they are not unfamiliar or uncommon words as may aptly be described as “terms of art” it is necessary to travel beyond the document for the purpose of construing them. Learned counsel referred also to ONA V. ATENDA [2000]5 NWLR (PT.656)244@ 286, 287 and NIKA FISHING CO. LIMITED V. LAVINA CORPORATION [200816 NWLR (PT.1114) Mr Ajayi postulated but did not concede to the fact that even if the wordings and provisions of the RBA are unclear and ambiguous, his submission is that the court will fall back on the intention behind the words referring to ADETOUN OLADEJI NIGERIA LIMITED V. N.B.PLC [2007]5 NWLR (PT. 1027). Arguing that, it is not the function of a court of law to make agreements for parties or to change their agreement as made. He cited AFRICAN REINSURANCE CORPORATION V. FANTAYE [1986] 1 NWLR (PT.14) `133 in support of that principle. Counsel again submitted that the intention of the parties to the Redundancy Benefits Agreement (RBA) is not to pay redundancy benefits to the Claimant beyond a maximum limit of 24 Months’ basic salary + housing allowance + transport allowance. Defendant’s position is, the total sum of the claimant’s Monthly Basic Salary + Housing Allowance +Transport Allowance is N94,395.75. If this amount is multiplied by 24 Months, it will be equal to N2,265,498.64k. He went on that, it was the exact amount paid to the claimant as redundancy benefits as contained in his Payment Advice. Mr Ajayi submitted further that, the redundancy benefits accruable to a discharged employee in Nigeria, is always subject to negotiation. He referred to section 20 of the Labour Act CAP LI LFN 2004 on this principle. Mr Ajayi explained that, it is noteworthy that about 120 employees, including the claimant, were declared redundant by the defendant at the material time. All their redundancy benefits were calculated using the same basis, in accordance with the terms of the RBA. But curiously, all of them except three were very happy with their redundancy benefits. The claimant is one of these three. Continuing that this explains why the claimant’s union (NUATE) would not have anything to do with his complaint because claimant was a member of NUATE which is ordinarily expected to protect the claimant’s interest at all times. After a careful consideration of this matter as presented by both parties and their counsel, I am of the considered view that the defendant does not have any obligation to bring an officer of NUATE as a witness to testify that the defendant has complied with the RBA.. It is not in all cases that burden of proof shifts to the defendant; even when it does it is not automatic, the burden of establishing his claim to the satisfaction of the court first lies on the claimant before the defendant is expected to proof its defence. See section 137 (2) of the Evidence Act and the Supreme Court’s pronouncement in that respect in EZEMBA V. IBINEME [2004] 14 NWLR (Pt. 894) 617 AT 688. For ease of reference, I hereby reproduce clause 2 of the Redundancy Benefits Agreement which is the main bone of contention in this case as follows:- “2 That the employees being declared redundant shall be paid redundancy benefits as follows:- a. Basic Salary and Allowances up to last day worked; b. 2 Months’ Basic Salary + Housing Allowance + Transport Allowance in lieu of notice; c. Payment in lieu of any accrued leave; d. Redundancy Benefit shall be calculated as follows:- i. 1– 4 years 1½ Month’s Basic Salary + Housing Allowance + Transport Allowance shall be paid for every completed year of service to employees declared redundant in this category. ii 5 – 8 years 2 Month’s Basic Salary + Housing Allowance Transport Allowance shall be paid for every completed year of service to employees declared redundant in this category; iii. 8 – 10 years 2½ Month’s basic Salary + Housing Allowance + Transport Allowance shall be paid for every completed year of service to employees declared redundant in this category. The Redundancy Benefit in (d) above shall not exceed a maximum of 24 Month’s Salary + Housing Allowance + Transport Allowance.” In this judgment the claimant was said to have served the defendant for 21years. Claimant maintained that he is entitled to redundancy benefit for the whole of 21years. To him, since there is no provision for his own category of staff who served the defendant for more than 10years, his entitlement has been short paid and that the equitable thing to do is to pay his redundancy benefit under clause 2 (d) (iii) of the RBA for 21years. By this position the claimant is asking for benefits under clause 2 (d) (iii) of the RBA for 55months. It is pertinent that the RBA did not make provision for workers who had worked for 21years in the defendant company. Never the less, the claimant’s submissions on sections 7 (6), 13 & 15 of the NIC Act 2006 thereby urging the court to have regard to international best practice with a view to finding how the claimant would be paid redundancy benefit for 21years as against ten years provided for in the RBA is an adventure that cannot be sustained in my considered opinion. In section 20 (3) of the Labour Act, redundancy is defined as an involuntary and permanent loss of employment caused by excess manpower. Meaning that the claimant was declared redundant due to no fault of the defendant or himself but because there were more employees than the available work required; thereby making the defendant to operate at a loss. In my view, this is part of the reason why section 20 (1) (c) of the Labour Act allows the employer (the defendant in this instance) to use its best endeavour to negotiate redundancy payments to any discharged worker. If the parties who prepared the RBA wanted workers who are declared redundant under it to be paid according to the number of years they put in service, it will have been expressly stated in the RBA. But the law allows negotiation after which the parties did and came out with this Redundancy Benefit Agreement. In Odgers on “Construction of Deeds and Statutes” 5th Edition, 1957 page 276 of chapter 14 as reproduced in Nigerian Union of Construction and Engineering Workers V. Construction and Civil Engineering Employers’ Association of Nigerian (NUCACEAN V. CCEEAN) [2007]8 NLLR1 @ 9, the learned Author states that: The basic rule is that the court should not take upon itself to supply omission as this is to assume the function of Legislature or of the Parties as the case may be. This court agrees with the position of the Learned Author and holds that the court refuses to put into or infer from the RBA that the claimant is entitled to redundancy benefit for his 21years in service, since that is not contained in the RBA. In addition, the claimant’s claim for redundancy benefit for all the 21years he served in the defendant company is not equitable at all since he agreed that he is bound by the content of the Redundancy Benefit Agreement in his statement of facts and his oral evidence before the court. This court has earlier held on similar issue in Nigeria Employers’ Association of Banks, Insurance and Allied Institutions V. National Union of Banks, Insurance and Financial Institutions Employers & anor (NEABIAI V. NUBIFIE) [2006] 6 NLLR 301 @ 322 that: The joint agreement dated 6th August, 1986 entered into by Appellants and the 2nd Respondents on issues in the dispute namely items 1-7, is binding on the parties. The court hereby confirms the said agreement. I therefore hold that the RBA is binding on the two parties before the court particularly the claimant. This court again holds that all the claimant’s argument on sections 7 (6), 13 & 15 of the NIC Act 2006 and the cases referred to under these argument are irrelevant to this matter as the court cannot alter the RBA which was voluntarily entered by the parties. I also hold that the claimant’s redundancy benefit is covered by clause 2 (d) (iii) of the RBA dated 3rd April, 2008. Having settled the applicable agreement between the parties, what then is the claimant’s redundancy entitlement under the RBA? Clause 2 (d) (iii) of the RBA provides that: Employees declared redundant who had put in 8 – 10 years’ service are entitled to 2½ Months’ basic Salary + Housing Allowance + Transport Allowance for every completed year of service. The Redundancy Benefit in (d) above shall not exceed a maximum of 24 Month’s Salary + Housing Allowance + Transport Allowance.” The Implication of the proviso to the RBA is that all employees of the defendant declared redundant in April 2008 under clause 2 (d) (iii) of the RBA are entitled to redundancy benefit to the maximum of 24 months regardless of the number of years put in service in the defendant company. I hold that the claimant is only entitled to 24 months redundancy benefit under clause 2 (d) (iii) the RBA of 3rd of April, 2008. It is in evidence for parties that employees declared redundant, their last salaries from the defendant will be used to calculate their monthly basic salary (BS), transport allowance (TA), and housing allowance (HA). Defendant frontloaded a copy of claimant’s pay slip for the month of March, 2008 and its Harmonised Junior Staff Salary and Allowances Scale. However, the copy of the harmonised salary and allowances scale document is not legible at all. It is therefore of no assistance to the court in writing this judgment. As a result, the court will make use of only the pay slip of the last salary of the claimant in the defendant company in determining his applicable monthly emolument. In March 2008 pay slip of the claimant, his monthly basic salary is N32,430.56K, transport allowance is N34,347.79k while housing allowance is N31,050k. If the three allowances are added together it will equal to N97,828.35k. Then if this figure is multiplied by 24, the answer is two million, three hundred and forty seven thousand, eight hundred and eighty naira, four koko (N2,347,880.4k) as the redundancy benefits of the claimant. Furthermore, the two parties frontloaded payment advice in respect of what was paid to the claimant as his redundancy and terminal benefits. It is reflected in this document that the sum of N2,265,498.64k was paid to the claimant as his redundancy benefit. If this is deducted from his accruable benefit as calculated above, it shows that the claimant was short paid. His balance being the sum of eighty two thousand, three hundred and eighty one naira, eight kobo (N82,381.8K). The court holds that the defendant should pay the sum of eighty two thousand, three hundred and eighty one naira eight kobo (N82,381.8K) as the balance of his accruable redundancy benefit as agreed in the RBA. I hereby order that the defendant shall pay the said sum to the claimant within 30days from today. For avoidance of doubt, this court hereby holds and orders as follows: 1. That the claimant is only entitled to redundancy benefit as agreed to by the claimant’s union and the Management of the defendant in the RBA of 3rd of April, 2008; particularly under clause 2 (d) (iii) of the Redundancy Benefit Agreement. 2. That the claimant is entitled to a total sum of N2,347,880.4K as his redundancy benefit but he was paid N2, 265,498.64k. He was therefore short paid the sum of N82,381.8k. 3. The defendant is hereby ordered to pay the sum of N82,381.8k to the claimant within 30 days from today; the 3rd of May, 2011. Judgment is entered accordingly. I make no order as to cost. Hon Justice F. I. Kola-Olalere Presiding Judge