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IN THE NATIONAL INDUSTRIAL COURT HOLDING AT LAGOS BEFORE THEIR LORDSHIPS: Hon. Justice B.A Adejumo - President Hon. Justice B.B Kanyip - Judge Hon. Justice M. B. Dadda - Judge Date: 5th February. 2008 Suit No. NIC/8/2002 BETWEEN National Union of Civil Engineering [ Applicant Construction, Furniture and Wood Workers 1. BETON Bau Nigerian Limited [ Respondents 2. SKY GRADE Construction Co. Limited REPRESENTATION Mr. J.O Esezoobo, for the Applicant Mrs. O Adeleke, for the 1st Respondent Mr Kola Faniran, for the 2nd Respondent JUDGMENT The Applicant brought this action against the respondents by way of originating summons dated 28th May 2002 and filed on 30th May, 2002. The originating summons is brought pursuant to section 15 of the Trade Disputes Act (IDA) Cap. 432 LFN 1990 and under section 6(6)(b) of the 1999 Constitution of the Federal of Nigeria. The applicant in its summons posed the following questions for the determination by this Court: 1 That by the agreements executed by the applicant and the 1st respondent minutes of meetings on 23/2/2001 and 6/4/2001, 19/3/2001 and 5/3/2002 together with the two separate agreements executed by the respondents respectively on 19th February 2002, the respondents are liable jointly and severally to pay to the applicant for their workers the terminal benefits and arrears of unpaid salaries and allowance amounting to N45 Million. 2. A DECLARATION that by the agreement and or understanding between all the parties particularly by Deed of Assignment dated 19/2/2002 and Deed of Loan and Transfer the 2nd respondent assumed joint-liability for the debt of 1st respondent and the applicant became entitled to be paid the sum of N45 Million by both respondents being terminal benefits and arrears of salaries and allowances in respect of its 158 workers laid off by1st respondent. 3. AN ORDER directing the respondents to pay over to the applicant the total sum of N45 Million being terminal benefits and unpaid arrears of salaries and allowances for its members listed in the documents attached to the accompanying affidavit in support who the respondents laid off on a mutual agreement to pay the benefits together with the costs of this action. The applicant filed along with the motion, an affidavit of 20 paragraphs dated 30th May, 2002 with exhibits A-A3, B-B2, C, D-D2, E, F, G.-G2, H-H6, l-ll, J-JI, K-KI, L, M and N-NI, respectively , attached. The affidavit was sworn to by one Benjamin Ogwegbu a litigation clerk in the clambers of the applicant's counsel. The respondents re-acted to the applicant's motion by filing separate preliminary objections challenging the jurisdiction of this court to hear the application. Arguments on the preliminary objection were taken by the court; and the court on 6th February, 2007 ruled that it has the jurisdiction to entertain the matter. Thereafter, and with the consent of the parties, the court directed that the parties should file written addresses on the matter. The applicant on 26th February, 2007 filed its written address dated 16th February, 2007. The 1st respondent reacted by tiling on 2nd May, 2007 a counter-affidavit of 12 paragraphs and dated same date. The counter affidavit was sworn to by one Lawrence Ezeana, Legal Practitioner in the Chambers of the 1st respondent's counsel. The counter-affidavit is more or less challenging the competence of the action before the Court. Also, the 1st respondent filed on the same date (2nd May, 2007) a motion on notice dated 2nd May, 2.007 praying the court for: 1) An order of this court granting leave to the 1st respondent/applicant herein to file its counter-affidavit to the applicant's originating summons of the 28th day of May, 2002. 2) An order deeming the 1st respondent/applicant's counter-affidavit already filed as proper in law. 3) An extension of time within which the 1st respondent/applicant herein may file and serve its written submission in opposition to the applicant's originating summons. 4) And for such further order and/or other orders as this court may deem just in the circumstances. Attached to the motion is a 10-paragraphed affidavit dated 2nd May, 2007 deposed to by Lawrence Ezeana, the same legal practitioner in the Chambers of the 1st respondent's counsel. The prayers of counsel to the 1st respondent for extension of time to file its counter affidavit and written submissions and deeming same as properly filed and served on parties, were granted by the Court. Only the applicant and 1st respondent filed written briefs of arguments as ordered by the court. The applicant in its written address began by way of introduction as follows: 1. The claim by application under section 15 of the TDA 1990 is essentially for the interpretation of agreements executed between the applicant and the 1st respondent. The agreements dated 23/2/2001, 6/4/2001, 199/2001 and 5/3/2002 were subsequently assigned by the 1st defendant. Copies are attached to the application marked exhibits B-B2, C, D-D1, E, F and G-G2. 2. The assignment of the agreements by the 1st to the 2nd respondent is evidenced by a Deed attached as Exhibit HI¬-H6. Other pieces of evidence showing and leading to the agreements between the applicant and the 2nd respondent following the assignment are minutes of meeting attached as Exhibits I-I1, and J-J1. 3. The relationship between the applicant and 2nd respondent following the assignment is further evidenced by the exchange of letters attached as Exhibits L, Ml and N respectively. Upon the totality of the documents herein mentioned which the court is asked to interpret, the applicant as a union of workers listed in Exhibit A-A3 is making a claim of N45million arising from arrears of salaries and wages of the workers. 4. The application is supported by an affidavit of 20 paragraphs sworn to by Benjamin Ogwuegbu a litigation clerk in the Law Firm of J. ODION ESEZOOBO & CO of counsel to the applicant together with the affidavit are the documents marked Exhibits A - N. 5. It is of note that there is no counter affidavit to the affidavit evidence of the applicant. By this, the applicant's averments are deemed correct and admitted and unchallenged. See OGOEJEOFO V OGOEJEOFO [2006] 3 NWLR (Pt. 966) 205. KOLAWOLE V A-G OYO STATE [2006] 2 NWLR (Pt. 966) 50. The applicant then paraphrased the issues for determination thus: 1. Whether by the agreements evidenced by the documents before the court, the applicant is entitled to a declaration that the defendants are not liable jointly and severally to pay to the applicant for their workers the terminal benefits of calculated at N45million by both parties. 2. Whether if the answer to the 1st question above is in the affirmative the court will not make the order for payment of the sum of N45million by the respondents to the applicant. The applicant then submitted that the issue is narrow and resolvable on the clear intention of the parties from the documentary evidence before the court. This intention can be gathered principally from Exhibit B-B1. Page one of this exhibit shows that parties "extensively discussed" the matter of the wages of the workers listed in Exhibit A-A3 as "On the pay roll as at February 23, 2001” (see page 2 para. 1) and at page 2 of the same Exhibit B-B1, it was the 1st respondent who "finally offered" the terms on which the sum of N45million was calculated, and the applicant then "accepted the offers" and "also promised to explain these agreements to their members in Warri". The applicant continued that on the face of it, no more is required to establish an intention to enter into a collective agreement between the 1st respondent and the applicant enforceable between the parties. It is now trite that the court will uphold the sanctity of parties' intention and give effect to an agreement voluntarily entered into by the parties. The applicant contended that a look at paragraphs 4, 6 and 7 of the unchallenged depositions in the supporting affidavit together with Exhibits A-A3, B-B2, C, E and F wherein parties mutually agreed to a lay off following the 1st respondent's promise to "recall the workers in due course or pay off the terminal benefits". In addition to this, that the 1st respondent gave an undertaking to make all payments not later than January 31, 2002. The 1st defendant might as well have made it otherwise dealing with the workers individually. But it chose to do so collectively. The applicant went on to state that it wants to persuade the court to an inference from Exhibits B & C reasonable in the circumstance that the reason the mutual agreement for a lay-off was made, was to prevent a possible industrial crisis that could have resulted from non-payment of wages. Exhibit C conveyed the "painful decision" to disengage the workers with the good news of "Arrangements have been concluded to pay all the outstanding salaries and allowances together with full redundancy benefits". In other words the Exhibit re-affirmed the agreement of 19/9/2001. With this the 1st respondent successfully prevented any possible industrial crisis. That the element of redundancy in the whole exercise even vests the court with power to make the declaration sought. In NATIONAL UNION OF HOTELS AND PERSONAL SERVICES WORKERS V. WHASSAN EUREST NIG LTD [2005] 2 NWLR (Pt. 4) 145 at 154 paras C - D, this court held that all that an applicant needs to show in an application of this nature under section 15 TDA is the "nexus between the party and the collective agreement". This is clear from the documents before the court. To the applicant, but as averred in paragraphs 9, 10, 11 and 12 of the affidavit in support, the 1st respondent who concluded arrangements by October 2001 to pay all outstanding (?) defaulted and became shifty until it brought in the 2nd respondent vide Exhibits F, G and H. That the coming in of the 2nd respondent upon the documents before the court made her a necessary party to the collective agreement. By Exhibit G-G2 in particular, the 1st respondent assigned the liabilities in Exhibit B-B2 to the 2nd defendant who as assignee therein "accepted all the rights, liabilities, obligations, undertakings, duties, etc. From the Exhibit, the 2nd respondent took over the 1st respondent's site at which –the applicant's workers laid off by mutual consent upon the 1st respondent's undertaking could have raised dust. By this the 2nd respondent took benefit of the rights. It should therefore also fulfill the obligations under the agreement. Moreover, that by Exhibit H-H6, both respondents mutually agreed to transfer the 1st respondent's indebtedness of N45million to the 2nd respondent who undertook "To pay and discharge all the' Transferor's (i.e. 1at respondent's) liabilities detained in schedule III hereto". The applicant then submitted that if the 2nd respondent voluntarily entered into an agreement as in Exhibits G and H to takeover the payment of the sum due to the applicant for the consideration it derived there from and further to that went into further discussion with the applicant as in Exhibit l-h, there can be no other intention than that the three parties agreed to be bound by the agreement. The 2nd respondent cannot, therefore, recile now from such agreement. The applicant then urged the court to hold on the authority of TODO V. CHEVRON TEXACO NIGERIA [2005] 2 NWLR (Pt. 5) 200 at 221-222 that the applicant being a signatory to the agreement here, in which agreements confer financial benefits on its members who have been suspended for almost five (5) years now, sent tea to the declaration sought and an order of enforcement of the agreements. That the court may also look at the matter from the point that the claim relates to arrears of salaries and wages on which there was a negotiation and signed agreement, urging the court to note the case of CHEMICAL & NON-METALLIC PRODUCTS SSA V. BCC [2005] 2 NWLR (Pt. 6) 446 at 470 paras. C - D relating to the "sacredness" of the wages of workers which have been held now for over 5 years. On the totality of the documents before the court, the applicant urged the court to hold that there is enough material to hold that there was a tripartite agreement between the 1st and 2nd respondents on the one hand and the applicant on the other which is capable of being interpreted arid enforced by the court. Accordingly, the applicant has proved with sufficient materials that it is entitled to the declaration sought. On issue No. 2, the applicant submitted that when facts exist upon which a declaration can be made, the court has the power to make the order sought. That in this case overwhelming affidavit evidence and exhibits show that the parties mutually agreed that the sum of N45million was due from and payable by the 1st respondent to the applicant arising from arrears of unpaid salaries and wages. To the applicant, there is the further evidence, also overwhelming, that the 1st respondent assigned the liability to payment of the 2nd respondent tor a benefit the 2nd respondent took. And further to the assignment, the three parties held meetings at which the 2nd respondent confirmed its assumption of the liability under the first agreement executed between the applicant and 1st respondent. The applicant then contended that from the materials before the court, the claim is an undisputed claim in which the court will readily give a summary judgment on the ordinary form of action. We submit further that by its statutory and inherent jurisdiction the court has power to make the order sought for the payment of arrears of salaries and wages, urging the court to make the order accordingly. By way of an introduction, the 1st respondent commenced its submissions as follows: The applicant's claim brought pursuant to section 15 of the TDA 1990, is basically for the interpretation of the agreements/meetings dated 23-02-2001, 06-04-2001, 19-09-2001 and 05-03-2001 entered into by both the applicant and the 1st respondent on the one hand, and the agreements (i.e. Deed of Assignment dated 19-02-2002 and the Deed of Loan and Transfer) entered into by both the 1st respondent and the 2nd respondent, on the other hand; as well as the consequences on the relationship among the three parties. Thereafter, it set out the issue to be determined by the Court, thus: Whether from the totality of the documentary evidence before the court, the 1st respondent is liable to pay to the applicant the sum of N45,000,000.00 (Forty-five Million Naira) as claimed in its originating Motion on Notice, To the 1st respondent and by way of a preliminary observation, the law that governs a cause of action is the law in existence as at the time the cause of action arose, referring the court to the case of ADESOYE & 5 ORS V. GOVERNOR OF OSUN STATE & ANOR. [2005] 16 N.W.L.R. (Pt. 950) 1 at 21 - 22 per IBIYEYE, J.C.A. It then submitted that the competence of this court to adjudicate on this matter is referable to the status and jurisdiction of this court prior to the enactment of the National Industrial Court Act, 2006, that is to say, section 20 of the TDA 1990, the cause of action having arisen in the year 2002. The 1st respondent then argued that from the above, this court lacks the power to grant prayer No 2 of the applicant's claim in that it is a declaratory relief. The Court of Appeal in the case of KALANGO V. DOKUBO [2003] 15 W.R.N. 32 at 78 had this to say: Considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, I am of the firm view that, even with the promulgation of section 1A of the Act the Court still lacks the competence to make declarations and order injunction of the type sought by the plaintiffs/respondents in the instant case. It can only make awards and determine questions as to the interpretation of the three types of documents specified. All other things that are neither ancillary nor incidental to the specified jurisdiction and powers would be clearly outside its jurisdiction and powers, per IKONGBEH, J.C.A. The 1st respondent then continued that it is not in dispute that some members of the applicant union were at one time or the other in the employment of the 1st respondent. On the contrary, that the 1st respondent admits that they were its employees up until it ran into troubled waters consequent upon its inability to secure a renegotiation of its contract project with Shell Petroleum Development Company for Contract No. W14466-- "EPIC" DEVELOPMENT OF NEW SHELL CLUB OGUNU. However, the 1st respondent being a responsible corporate citizen that feels the pulse of its work force, with a view to alleviating the hardship of its workers, entered into contractual relations with the 2nd respondent, by which the 1st respondent assigned, transferred and passed its full benefits rights obligations duties liabilities undertakings, etc, under the said contract to the 2nd respondent for a consideration. (See EXHIBITS G-G2 and H-H6 of the affidavit in support of the applicant's originating Motion on Notice dated the 28th day of May, 2002). The 1st respondent then asked, what, in law, is the purport and effect of these documents (i.e. Exhibits), whose existence have neither been challenged nor impugned? Most importantly, that the applicant accepts that these documents exist and are valid. In like manner, that the 2nd respondent has not repudiated them. The 1st respondent than submitted that the issue of these documents (Exhibits G-G2 and Exhibits HrH6) duly executed by both the 1st and the 2nd Defendants fall within the realm of the Law of Contract. The 1st respondent went on to submit that these documents speak for themselves as no more is required to prove an intendment of both parties to enter into contractual relations enforceable between them. It is now well established that the court will uphold the sanctity of parties' intention and give effect to an agreement voluntarily entered into by the parties, referring the court to the case of SONA BREWERIES PLC V. SIR SHINA PETERS & ANOR. [2005] 1 NWLR (Pt. 908) 478 at 489 para. E where the Court of Appeal (Lagos Division) said that - A court of law must always respect the sanctity of the agreements reached by parties as it favors the inalienable rights of the freedom of formation of contracts by parties and would not make a contract tor them or re-write the one they have already made for themselves. The 1st respondent further referred the Court to the decision of the same Court of Appeal (Abuja Division) in the case of CENTRAL BANK OF NIGERIA V. SYSTEM APPLICATION PRODUCTS NIGERIA LIMITED [2005] 3 NWLR (Pt. 911) 152 at 186 para. B to the effect that - The position of the law is that where a party to a contract has given his consent to a particular cause of event or action, he cannot later be heard to complain. The principle is akin to the principle of Law of Torts: volenti non fit injuria. The 1st respondent then contended that, the plinth of its submission that the 1st respondent has been effectively relived of any liability to the applicant is even corroborated by the applicant in its submissions contained in paras. 3 and 4 of its written submission dated the 16th of February, 2007, that the liability of its claim attaches to 2nd respondent. The 1st respondent concluded that in view of the arguments proffered above, coupled with the totality of the documentary evidence before the court, the court should absolve and discharge it of any liability whatsoever to the applicant. As we indicated earlier, the 2nd respondent did not submit any written address and indeed Mr. Kola Faniran, who substituted Mrs. N.A. Bolanle as counsel, showed no interest in the matter as he absented himself in the hearing of this matter on many occasions. We are, therefore, constrained to consider the matter without the input of the 2nd respondent. We have carefully considered the processes, written briefs and arguments of the parties in this matter. The applicant wants this court to interpret a collective agreement (Exhibit B-B2) it entered into with the 1st respondent, the effect of which entitles its listed 158 members (Exhibit A-A3) to a certain sum of money. The argument of the applicant is that the said amount of money is payable by the 2nd respondent given that the 1st respondent by two instruments assigned to the 2nd respondent the responsibility to make the payment. The two instruments are Exhibits G-G2 (the deed of assignment) and H-H6 (the deed of loan and transfer). We had earlier in the ruling on the preliminary objection raised by the respondents held that this court has jurisdiction to entertain the matter at hand and asked the parties to treat the issue of the efficacy or otherwise of Exhibits G-G2 and H-H6 in terms of their relationship with the collective agreement as one that goes to the merit of the case. The applicant was expected to address the court on the issue whether Exhibits G-G2 and H-H6 can be said to be part of the collective agreement in issue given that what the applicant did was to activate the interpretation jurisdiction of the court Unfortunately, the applicant failed to do this. Instead it assumed that the two documents are necessarily applicable without more and took the character of a collective agreement for which this court should hold the respondents liable. Even assuming that the Exhibits G-G2 and H-H6 are applicable to the matter at hand, their contents are such that raise doubts as to their efficacy. In the first place, Exhibit H-H6 in the recital talks of N45,000,000.00; but in Schedule III, it talks of N55,000,000.00. Secondly, the same Exhibit in clause 2A talks of the transferor covenanting with the transferee 'To pay and discharge unto the Transferee the sum of N420,000,000.00... which sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein. No where did the applicant establish that this said sum has been paid by it to warrant the 2nd respondent to make the payments that the applicant is praying for. We have consistently held that this court will not permit its interpretation jurisdiction to be used to settle triable issues. This is one such instance where the applicant in the guise of interpretation wants this court to order the payment of a large sum of money that is not certain, to persons that we are not sure are employees. All we have is a list of 158 people. Their employment letters are not even exhibited and so we are not certain about their status. On the whole, the applicant has not made out any case to warrant the granting to it of the reliefs it seeks. In consequence, the application of the applicant must fail; and we so order. Judgment is entered accordingly. Hon. Justice B. A. Adejumo PRESIDENT Hon. Justice B. B. KANYIP Hon. Justice M. B. DADDA JUDGE JUDGE