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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: February 12, 2015 SUIT NO. NICN/OW/53/2014 Between 1. Mr. J.M.J. Asinobi 2. Mr. S. Uche Claimants/Respondents (For themselves and as representing the 2004 Aba early retirees of Nigeria Breweries Plc.) And Nigeria Breweries Plc. - Defendant/Applicant Representation Elder C. D. Ndukwe for the Claimants Ogochukwu Onyekuluje for the Defendant RULING/JUDGMENT The claimants filed this action against the defendants on the 27th day of May 2014 claiming against the defendant the following reliefs:– 1. A declaration that the payment of out placement lump sum ex-gratia is one of the benefits, advantages other allowances etc. which staff of the claimants’ cadre (early retire) were entitled to and had enjoyed until the expiration of their notices as mutual obligations and rights under the defendant’s company’s personnel policy, the hand book and which the claimants are therefore entitled to enjoy or be paid as mutual obligations and right under the contract of service until the expiration of their notice on 26/11/2004. 2. A declaration that the failure by the defendant in 2011 to fully implement the judgment of the court or the management/union agreement of 24/5/2004 with regard to the payment of the out placement lumps sum (ex-gratia) as one of the other benefits, advantages and other allowances, etc. due to the claimants was a breach of the mutual obligations and rights between the defendant and the claimants under the terms and conditions of the contract of service. 3. An order of the court compelling the defendant to pay all the early retirees/claimants the out placement lump sum ex-gratia at the rate of 15 months basic salary based on the management/union agreement of 24/5/2004 and the handbook is one of the benefits, advantages, other allowances etc. that staff of their cadre had been entitled to and had enjoy as mutual obligations and rights under the employee handbook and which the early retiree/claimants are entitled to enjoy as mutual obligations and rights under the contract of service up till the expiration of their notice on 26/11/2004. By a motion on notice dated the 8th day of July and filed on the 9th day of July 2014, the Defendant seeks the order of this court striking out this suit for being an abuse of the process of the Court. The grounds for the application are that: 1. This suit is the same as in parties and reliefs as Suit No NIC/EN/09/2011: J.M.J. Asinobi & Others vs. Nigerian Breweries Plc. dismissed by this court. 2. Judgment in the suit No NIC/EN/05/2009 was delivered on 18th October 2010 while the order dismissing Suit No NIC/EN/09/2011 was made on 28th September 2011. 3. The terms of the judgment are clear and unambiguous. 4. The Defendant has complied fully with the said judgment. 5. This suit is oppressive, embarrassing and constitutes a wrong use of legal process. The motion is supported by a 12 paragraph affidavit wherein reference was made to the judgment of this court in suit No NIC/EN/05/2009 having been frontloaded with the complaint, and which according to the defendant, has been fully implemented. Further reference was made to a suit No NIC/EN/09/2011 dismissed on 28th September 2011 between the same parties. In the defendant/applicant’s written address in support of the application, counsel restated the claimant’s claims in this suit as stated above. He proceeded to recall the claim of the Claimants in Suit No NIC/EN/05/2009 as follows: In suit No. NICN/EN/05/2009 – J.M.J. Asinobi & Anor. (for themselves and as representing the 2004 Aba Retirees of Nigeria Breweries Plc) vs. Nigerian Breweries Plc, the claimants therein claimed as follows: (a) A declaration that the claimants are entitled to all their legitimate entitlements/benefits due to them at the time the employment was brought to an end on 26/11/2004 e.g. i. Six months full salary in lieu of notice of termination (less amount already paid). ii. Redundancy benefits as per the existing management/union agreements of 32 weeks’ pay for every completed year of service. iii. Service gratuities as applicable. iv. Benefits under the defendant’s pension funds. v. Goodwill ex-gratia bonus of 32 weeks’ pay for every completed year of service in appreciation of their services. vi. Company’s product in appreciation of their services. vii. Incentive Cash Award otherwise and called Productivity Bonus of 200% of the claimants’ monthly basic salaries. viii. 2004 Christmas bonus. ix. Refund of their National Housing Funds. (b) A declaration that the claimants’ successful periods of probation count as part of the length of service of the claimants for the exit or retirement benefit purposes. (c) An order of this court directing the defendant to: i. Re-compute and pay the claimants, through their Attorney in this suit, all the claimants’ legitimate entitlements/benefits due to them at the time the contract was brought to an end as specified in claim A above (less amount already paid). ii. Re-compute and pay to the following claimants through their attorney in this suit their retirement benefits based on 26 years service and not 25 years: Mr. J.M.J. Asinobi, Mr. E. Cookey, Mr. Nwakwe, Mr. I.K. Ugbogbo and Mr. M. Ahuekwe. iii. Calculate and pay the claimants through their attorney in this suit their redundancy benefits as per the existing management union agreement of 32 weeks; pay for every completed year of service. iv. Show the claimants the calculation of their retirement benefits. Counsel for the applicant went further to recall suit No. NIC/EN/09/2011 where the claimants, (same as the Claimants in this suit), again claimed as follows: 1. Interpretation of the said judgment of the court to determine whether the order of court in page 17, paragraph 2 line 9 – 13 that “the legal consequences is that the early retirees were still in the service of the defendant company and entitled to enjoy all the benefits, advantages, basic salaries and other allowances that staff of their cadre are entitled to until the expiration of the notice” ensure to only Mr. J.M.J. Asinobi, Mr. E. Cookey, Mr. Nwakwe, Mr. I.K. Ugbogbo and Mr. M. Ahuekwe (hereinafter referred to as the G5 and whose names were specifically mentioned in page 21 of the judgment) and not to all the other listed early retiree/claimants as the defendant has contended. A consequential order of the court directing or compelling the defendant to implement the page 17, paragraph 2, line 9-13 of the judgment by paying all the other early retirees/claimants all the debts, benefits, advantages and other allowances etc. that staff of their cadre were entitled to and which the defendant calculated and paid to only the G5 on 8/3/2011 in compliance with the page 17, paragraph 2, line 9-13 of the judgment and the defendant’s company’s Personal Policy, and the various management/union agreements. 2. A declaration that the retirement benefits itemized in the management/union agreement of 24/5/2004 inured to all the 259 employees affected by the management/union agreement and as such, the early retiree/claimant were inclusive in the said agreement and the benefits as applicable to them and that the tactical disobedience of the order of courts by the defendant in avoiding to pay the claimants the said benefits under the said agreements of 24/5/2004 amounts to contempt of court. A consequential order of the court that all the early retiree/claimants be paid all the outstanding benefits applicable to them as per the said management/union agreement of 24/5/2004. 3. An order of the court compelling or directing the defendant to fully implement page 21 paragraph 6 No. 2 of the judgment by re-computing and paying to the G5 their outstanding difference in their retirement gratuity to reflect their actual years of service based on the formula of 6% x NYS x ATE (6% x Number of year service x Annually Total emolument) as was ordered by the said judgment of the court. 4. A declaration that the tactical disobedient of the other (sic) of court by the defendant failing to implement the page 17, paragraph, line 9-13 of the judgment and the management/union agreement of 24/5/2004 with regard to the payment of the outplacement lumps sum (ex-gratia) and the other benefits, advantages and other allowances, etc. to the claimants was a breach of the mutual obligations and rights between the defendant and the claimants under the terms and conditions of the contract of service and therefore contempt of court. 5. A declaration that the payment of outplacement lump sum ex-gratia is one of the benefits, advantages other allowances etc. which staff of the early retirees cadre had been entitled to and had enjoyed as mutual obligations and rights under the defendants company personnel policy as contained in page 9, paragraph 4 of line 2-7 of hand book and which the claimants are therefore by page 17, paragraph 2 line 9-13 of the judgment entitled to enjoy on the 26/11/2004 by virtue of the management union agreement of 24/5/2004. A consequential order of the court compelling the defendant to implement the page 17 paragraph 2 line 9-13 of the judgment by paying all the early retirees/claimants the outplacement lump sum ex-gratia based on the management/union agreement of 24/5/2004 and the hand book as one of the benefits, advantages, other allowances etc that staff of their cadre had been entitled to and had enjoyed as mutual obligations and rights under the employee handbook and which the early retiree claimants are entitled to enjoy as mutual obligations and rights under the contract of service up till the expiration of their notice on 26/11/2004. 6. A declaration that the failure by the defendant to implement the management/union agreement of 24/5/2004 with regard to the payment of the monthly pensions and arrears thereof to the claimants was a breach of the page 17, paragraph 3, line 2-4 of the judgment of the court. According to the defendant, in these three suits, the parties are the same and the subject matter the same. In all the three cases, the issues revolved around the benefits which the ex-staff of the defendant ought to have received after their early retirement or outplacement. Counsel submitted that in the judgment of this court delivered on 18th October 2010, the court considered all the issues raised and came to a conclusion that the claimants herein have no claim against the defendant except those awarded to the claimants in the judgment. He recalled certain portions of the said judgments thus: “At page 20 of the judgment of the court (which judgment is frontloaded in this suit) the court held as follows: “The outplaced claimants are entitled to 3 months basic salary in lieu of notice only. Their employment with the defendant company was rightly determined on 26th May, 2004 and so they were no longer in the employment of the defendant after the 26th May, 2004. The defendant company in its letter to outplaced staff has complied with the provisions of the existing management/union agreement in force on redundancy”. And at same page (last but one the sentence) the court stated thus: “The outplaced claimants have not established that the defendant failed to pay to them their entitlements as stipulated in their letter of outplacement or short paid them in any way. They are only entitled to the severance benefits contained in their letter of outplacement. All other claims by them against the defendant company fails and are dismissed”. For the early retirees, the Honourable Court held at page 18 of the judgment as follows: “The claimants, who are early retirees, claim they are entitled to goodwill ex-gratia bonus of 32 weeks’ pay for every completed year of service, 2003 productivity bonus of 200% of the monthly basic salary and 2004 Christmas bonus and refund of National Housing Fund contributions. Page 18 of the exit scheme booklet, which they relied on in support of their contributions to the National Housing Fund, deals with the defendant company’s Voluntary Savings Scheme and not National Housing Fund. In a civil case, the burden of proof is cast on the party who asserts the affirmative of a particular issue. See Ibrahim v. Ojomo (2004) Vol. 4 MJSC 143. The claimants are not discharged of this duty in this court as their counsel would want us to hold. They are expected to substantiate and prove their claims to the reasonable satisfaction of the court. They have not been able to discharge this burden and so the claims are dismissed”. At page 21 of the said judgment the court awarded the following to the claimants. (i.e. the early retirees and outplaced staff). 1. the claimants who are early retirees, are entitled to six months’ notice of retirement and remained in the service of the defendant up to the 25th November, 2004. 2. The claimants who are early retirees are entitled to their monthly basic salary and all other monthly allowances up to the 25th November, 2004. They are not entitled to redundancy 3. The calculation of the years of service of the claimants, who are early retirees, shall be from the day they joined the defendant company. 4. The years of service of the following early retirees are as follows: (a) Mr. M.A. Ahuekwe 26 years and 5 months (b) Mr. K. Ugbogbo 26 years and 5 months (c) Mr. C. Nwakwue 26 years and 8 months (d) Mr. J. Asinobi 26 years and 8 months. (e) Mr. E.Cookey 26 years. 6. The outplaced claimants are not entitled to any further benefits. We therefore, make the following orders: 1. The claimants who are early retirees are to be paid all their monthly allowances for the period 26th May, 2004 to 25th November, 22004. 2. The retirement benefits of Mr. M.A. Ahuekwe, Mr. K. Ugbogho, Mr. C. Nwakwe, Mr. J. Asinobi and Mr. E. Cookey are to be re-computed and any outstanding difference paid directly to them, taking into account their years of service as indicated in the immediately preceding paragraph.” The defendant/applicant then proceeded to submit that from the claims of the claimants in this suit, the claims in the previous suit and the tenor of the judgment in the previous suit the only issue for determination is: 1. Whether this suit is not an abuse of the process of this court in view of the claims of the claimant in Suit No. NIC/EN/05/2009 and the judgment of the court and the order dismissing Suit No. NIC/EN/09/2011. In arguing the sole issue for determination as formulated by the defendant/applicant, Counsel submitted that abuse of court process consists in the intention, purpose and aim of the person exercising the right to harass, intimidate and annoy the adversary, and interfere with administration of justice such as instituting different actions between the same parties simultaneously in different courts even though on different grounds, where two similar processes are used in respect of the exercise of the same rights for example a cross appeal and respondents appeal. See Ogoejiofo vs. Ogoejiofo (2006) NWLR (Pt. 966) 205, Kabo Air Ltd vs. INCO Bev. Ltd. (2003) 6 NWLR (Pt. 9816), 323. The concept of abuse of judicial process is imprecise. It involves circumstances of situations of infinite variety and conditions. But the common feature of it is the improper use of judicial process by a party in litigation to interfere with due administration of justice. See Saraki vs. Kotoye (1990) 11/12 SCNJ Ugbe vs. Siki (2007) 8 NWLR (Pt. 1037) 452; Amaefule v. State (1988) 2 NWLR (Pt. 75) 156, Ujukwu vs. Gov. of Lagos State (1985) 3 NWLR (Pt. 36) Olawunmi & Ors. Mohammed (1991) 4 NWLR (Pt. 186) 516. According to the applicant the parties in suit No. NIC/EN/05/2009 are the same parties as in the instant case. The reliefs are the same. This suit is obviously intended to annoy, embarrass and intimidate the defendants and this amount to abuse of judicial process. According to the defendant, this court in the earlier suit wherein judgment was given, dealt with all the issues as are being canvassed in this suit. He submitted that the issue of outplacement lump sum payment cannot be re-litigated in this suit having been decided upon by this court. The issue can only be dealt in an appeal against the judgment of this court. This court cannot sit on appeal against its judgment. The court in its judgment categorically stated that the out placed staff are entitled to 3 months basic salary in lieu of notice only. The court also as stated earlier held that the out placed claimants did not establish that defendant failed to pay them their entitlements as stipulated in their letter of outplacement. The court then dismissed their claim for outplacement lump sum. To the applicant, as stated in the affidavit in support of this application, the defendant has paid over to the claimants all their outstanding salaries/wages, allowances and every other advantage which they ought to receive from the defendant at the time they were retired. The claimants are not entitled to any out placement lump sum under any condition of service or any management/union agreement in force at the time. This was the decision of this court in the said judgment. In coming to the conclusion which the court did, the court considered the provisions of the company’s Handbook, the contract of service, the exit packaged and the management/union agreement in force at the time. The claims of the early retirees were dealt with at the trial and judgment was delivered on all the issues canvassed. Counsel therefore submitted that the issue of outplacement lump sum payment cannot be re-litigated in this suit on behalf of the early retirees. The early retirees are only entitled to their basic salary and other monthly allowances up to 25th November 2004. They are not entitled to redundancy benefits. As stated in the affidavit, they have been paid all their salaries/wages, allowances and every other advantage which they ought to receive. It is therefore the submission of counsel for the applicant that this suit constitutes an abuse of court process and ought to be struck out. He urged the court to strike out the suit with punitive cost. In opposition to the application, the Claimant deposed to a Counter-affidavit of 32 paragraphs upon which counsel placed reliance. Counsel to the Claimants submitted that the claimants are former employees of the defendant that were compulsorily retired in 2004. Following the refusal to pay their retirement benefits, the claimants sued the defendant in suit No. NIC/EN/05/2009. On 18/10/2010, the NIC delivered its judgment and granted some of the relief’s and dismissed some others. The claimants and the defendants held several meetings aimed at implementing the said judgment. When there were stalemates at the meetings on some issues, the claimants sought for the interpretation and/or clarification of the judgment in Suit No. NIC/EN/05/2009 by filing Suit No. NIC/EN/09/2011. According to counsel, the said Suit No. NIC/EN/09/2011 was later withdrawn from court on the agreement of both parties and counsel. After withdrawing the Suit No. NIC/EN/09/2011 the defendant in 2011 started implementing the judgment of 18/10/2011 except the good will ex-gratia at the rate of 15 months basic salary based on Exhibit “A”. In Suit No. NIC/EN/05/2009, the claimants claimed the goodwill ex-gratia at the rate of 32 weeks pay for every completed year of service based on the collective agreements dated 13/1/2001 and 21/4/2004 made between the Association of Food Beverages and Tobacco Employers (AFBTE) and the National Union of Food Beverages and Tobacco Employees (NUFBTE). At the trial the defendant produced Exhibit A (collective agreement dated 24/5/2004) made between the NUFBTE and the defendant. The defendant purported same to be the applicable management/union agreement between the parties. The court, at the hearing, admitted the Exhibit A and rejected the AFBTE agreement and held the exgratia claim of the claimant which was based on the AFBTE agreement as having not been proved. Counsel referred the court to page 17, paragraph 2, line 9-13 of the exhibit B (i.e. the judgment in NIC/EN/05/2009) where the court held that “The legal consequence is that the early retirees were still in the service of the defendant company and entitled to enjoy all the benefits, advantages basic salary and other allowances that staff of their cadre are entitled to until the expiration of the notice”. To the Claimant, by virtue of paragraph 5 of Exhibit C it is not in doubt that the interest of the claimants were involved and carried along in the benefits contained in the Exhibit A and that the claimants were therefore entitled to the benefits, advantages and allowances therein according to their years of service. He went further that during the discussions with the defendant, the claimants urged the defendant to rely on the page 17, paragraph 2, line 9-13 of the Exhibit B and pay the claimants their exgratia entitlements based on the admitted Exhibit A since their interest were involved and carried along in the Exhibit A. The defendant insisted that the NIC did not make a follow up order directing it to pay the claimants the ex-gratia based on the Exhibit A and that a fresh order of court was necessary. This issue dragged for long until the claimants decided to seek for a fresh order as demanded by the defendant. See page 2, paragraph 1 of exhibit F. Counsel for the Claimant proceeded to formulate the following 3 issues for the determination of the court: (a) Whether the NUFBTE agreement and the AFBTE agreement are not different in relation to the claimants’ claim of good will exgratia benefit. (b) Whether the claimants who undoubtedly are entitled to benefits under a contract of service but sued the defendant under a wrong union agreement but lost are estopped from suing the defendant under the proper or applicable Union agreement. (c) Whether the ruling of court in page 17, paragraph 2, line 9-13 of Exhibit B “that the claimants are entitled to enjoy all the benefits, advantages and other allowance that staff of their cadre are entitled to until the expiration of their notice” is not rendered nugatory if the claimants are denied their right to enjoy the exgratia benefits which staff of their cadre had enjoyed until the expiration of their notice. In arguing Issue A, Counsel cited the case of OLORUNTOBA OJU vs. ABDUL RAHEEM (2010) Vol. 178 LRCN 131 at 173, where the Supreme Court held that “a plea of estoppel per rem judicata is a jurisdictional issue by which a court of law in being asked not to assume jurisdiction. A preliminary objection when successfully utilized is capable of determining the proceedings in limine. For the doctrine to apply, it must be shown that: (a) The parties in the previous proceedings and the current proceedings are the same. (b) The claims or the issues in dispute in both actions are the same. (c) The res of the subject matter of the litigation in the two cases are the same. (d) The decision relied upon to support the plea of estoppel is valid, subsisting and final. (e) The court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction. All the fore going requirements of the doctrine must be fully established before the plea can be sustained.” Counsel submitted that the parties in the previous proceedings and the current proceedings are the same but that the res of the issues in the previous proceedings are different from the res of the present proceedings and are not material to the current proceedings. Again, the issues in the current proceedings have not been resolved in the previous case. Counsel referred to Page 19, paragraph 3 of exhibit B (the judgment in the previous proceeding) stated thus; “we agree with the defendant’s counsel that the existing management/union agreement on redundancy in force is that exhibited by defendant’s counsel as an additional document marked Exhibits 001 which is titled “Conclusion Reached Between the National Union of Food, Beverage and Tobacco Employees (NUFBTR) and Nigeria Breweries Plc. Headquarters, Iganmu House, Lagos: we do not agree with the claimant’s counsel submission that this document was in anticipation of this suit. Rather we find that this agreement was reached in compliance with section 20 of the Labour Act Cap L1 LFN 2004 which provides for the steps the Union and Management must follow when a redundancy is declared. The agreement dated 13th January 2001, 21st April 2004, and another dated 21st April 2004 are collective agreements made between the Association of food Beverages and Tobacco Employers and the National Union of food, Beverages and Tobacco Employees which bind unit branches. However, neither the defendant nor the union made an issue as to their enforceability in the case at hand. Although the claimants contended that these three agreements were the management/union agreement mentioned in article 27, we do not think so as the said article is specific as to an agreement between the defendant and its local union. In this regard, we are inclined to follow our reasoning and decision on this issue in the earlier case of Lateef Adesigbin & ors. vs. Nigerian Breweries, Supra. We have not been shown any convincing reason why we should depart from it by the claimants counsel”. According to counsel, from this judgment, the following facts are visible: (a) That in claiming the exgratia allowance in the previous case, the claimant relied on the collective agreement dated 13/1/2001 and 21/4/2004 made between the Association of food beverage and tobacco employers (ATBTE) and the National Union of Food beverage and Tobacco Employer (NUFBTE) which provided for exgratia bonus of 32 weeks pay for every completed year of service but in the current case, the claimant, in claiming the exgratia allowance is relying on a collective agreement dated 24/5/2004 made between the local branch of the NUFBTE and the defendant which provided for the exgratia bonus of 15 months basic salary. (b) The AFBTE agreement which formed the res of the issue or subject matter in the previous case in completely different in form, date, context, content, target, parties, beneficiaries etc. from the NUFBTE agreement which form the res of the issue or subject matter in the present case. (c) The NIC, by the paragraph 19 of the said judgment distinguished the two agreements and confirmed that the 2 collective agreements (the AFBTE and the NUFBTE) which are the issues and causes of actions in the previous case and the present case respectively are different. The NIC held that they agreed with the defendant’s counsel that the NUFBTE agreement was applicable and admitted it. On the contrary, they held that “although the claimants’ counsel contended that the AFBTE agreements were the proper agreements, the NIC did not think so” and rejected it. (d) If the AFBTE and NUFBTE agreements were the same issues or causes of action or subject matters, the NIC would not have held that “However, neither the defendant nor the union made an issue as to their enforceability in the case at hand”. The NIC was right in holding that the defendant made no issue as to the enforceability of the AFBTE agreement in the previous case because the defendant relied on the NUFBTE agreement and made an issue as to its enforceability but did not make an issue as to the enforceability of the AFBTE agreement. On the contrary, the claimant made an issue as to the enforceability of the AFBTE agreement but made no issue as to the enforceability of the NUFBTE agreement, hence, the present suit. To Counsel, the NIC agreed with the NUFBTE agreement and disagreed with the AFBTE agreement. The claimants are now making an issue as to the enforceability of the NUFBTE agreement in the present case whereas they did not do so in the previous case. In the previous case, the claimants counsel submitted that the NUFBTE agreement was made (one month after the AFBTE agreement) in anticipation of the suit but the NIC found otherwise. Parties are bound by the decision of the court. The claimants are therefore entitled to make an issue as to the enforceability of the NUFBTE agreement in Exhibit A. Again, the issues in suit No. NIC/EN/09/2011 related to the interpretation of the judgment in Exhibit B which is not before the court in the present suit. The interpretation was not decided at the court in Lagos to constitute estoppel. See Exhibit D. In arguing Issue B, Counsel relied on the authority of OLORUNTOBA OJU vs. ABDUL RAHEEM (supra) to submit that failure to prove any of the 4 ingredients therein specified is fatal to the case of the defendant. In the present case, the issues forming the subject matters or the causes of action are completely different from the previous case in all respects and are predicated on the collective agreements existing at that time, equity will not stop the claimants whose rights are recognized in law from claiming under the proper law merely because their earlier claim was under wrong law. “A plea of rem judicata, when unsuccessfully utilized, sustains the proceedings”. See IGBEKE vs. OKADIGBO ORS. (2013) Vol. 225 (Pt. 1) LRCN 38. On Issue C, counsel referred to Page 17, paragraph 2, line 9-13 of Exhibit B (the NIC judgment) where it was held that “the legal consequences is that the early retirees were still in the service of the defendant company and entitled to all the benefits, advantages, basic salaries and other allowances that staff of their cadre are entitled to until the expiration of the notice. We therefore, find that the actual date of severance from the defendant’s company for the early retirees is 26/11/2004”. According to counsel, Paragraph 5 of exhibit C showed that the interest of the claimants were “involved and carried along” in the resolution of 24/5/2004 in the early retirement exercise. The claimants’ interests in the resolution of 24/5/2004 were existing before the expiration of their notice on 26/11/2004. In effect, the claimants were entitled to the exgratia before the expiration of their notices on the 26/11/2004. Counsel went on that Exhibit G showed that the claimants’ (early retirees) cadre were entitled to and were paid the exgratia as one of their benefits, advantages and other allowances etc. He therefore, submitted that the judgment of the NIC of 18/10/2010 (exhibit B) would have been rendered nugatory if the defendant is allowed to succeed in its mere technicalities and deny the claimants of the benefits, advantages and other allowances which they were entitled to enjoy. The defendant has not implemented the contract agreement reached on 24/5/2004 for which it retired the claimants compulsorily. He submitted further that: (a) Our courts do not rewrite contract agreements for the parties. (b) Our courts are no longer bound by technicalities. (c) The primary duty of the court is to interpret and enforce the terms of the contract as agreed to by the parties: The Supreme Court held that: “Where a legally permitted contract has been concluded between the parties to it, the parties became bound by the terms and conditions provided therein. None of the parties will be permitted by law to resile from such terms and conditions except for good and genuine reasons”. See KAYDEE VEN LTD. vs. MINISTER FCT. (2010) VOL. 181 LRCN 69 @ 93 EE. (d) Our court of equity will not permit the fraudulent defendant to resile from the terms of the exhibit A on mere technicalities and reap the benefits of its fraud by withholding the claimant’s benefits which the court had declared that they are entitled to enjoy. See section 15 of the NIC Act. 2006. Counsel for the Claimant urged the Court to hold that the present suit is not an abuse of due process of court and to dismiss the defendant’s application. He further submitted as follows: 1. The res of the subject matter of the litigation in the two cases are not same. The AFBTE agreement dated 13/1/2001 and 21/4/2004 were the res of the subject matter in the previous proceedings while the NUFBTE agreement dated 24/5/2004 is the res of the subject matter in the current proceedings. Where there are two or more separate agreement which created separate rights between the parties (as in this case) the determination of the rights of the parties in one agreement is not a bar to the determination of the rights of the parties in the other agreements. 2. The court did not decide that the claimants were not entitled to the out placement lump sum exgratia under any condition of service or any management/union agreement in force at that time. Rather, the court, in page 18 paragraphs 3 and page 19 paragraphs 3 of the exhibit B observed that the claimants relied on wrong law or agreement in support of their claim. The courts identified the applicable agreement. 3. The court did not and has not decided on the rights of the parties based on the applicable agreement so as to constitute estoppel or abuse of the due process of law. To counsel, since the claimants’ exgratia benefits were involved and carried along and recognized by the defendant prior to the suit, Equity will not allow technicalities to aid the fraudulent defendant to either rewrite or revoke the agreements in exhibit A and render nugatory the judgment that “the claimants are entitled to enjoy all the benefits etc. that staff of their cadre had enjoyed” or to reap the benefits of its fraud on the claimants. I have carefully considered the issues formulated by the counsels to the parties in their written addresses and it is my view that the sole issue formulated by the defendant’s counsel captures the essence of this application. I therefore adopt the defendant’s issue but I will modify it a little. The issue to be determined in this application is whether in view of suits NIC/EN/05/2009 and NIC/EN/09/2011, this suit is not an abuse of the process of this court? In this application, the defendant’s contention is that this suit constitutes a wrong use of legal process in that it has the same parties, issues and reliefs as suit No NIC/EN/05/2009 whose judgment was delivered on 18th October 2010 and Suit No NIC/EN/09/2011 which was dismissed on 28th September 2011. In the affidavit in support of the application, it is deposed that the claimants brought suit NIC/EN/05/2009 against the defendant claiming several reliefs some of these reliefs were granted in the judgment and others dismissed. It is further averred that most of the claims in this suit are either those granted or dismissed in Suit NIC/EN/05/2009. This suit is a duplication of suit NIC/EN/05/2009 or suit NIC/EN/09/2011 which was dismissed and it is therefore an abuse of the process of this court. The defendant relied on the judgment of this court in suit No NIC/EN/05/2009 which the claimant has frontloaded with the Complaint. In his written address, the defendant’s counsel submitted that in these 3 cases, all of which came before this court, the parties, the subject matter and the issues are the same. From the contention of the defendant, it is shown that suits NIC/EN/05/2009 and NIC/EN/09/2011 have either been determined or concluded. They are no longer pending before this court, judgment having been delivered in one and the other dismissed. Now in such situation where judgment has been delivered or case concluded or decided and subsequent proceeding is brought between the same parties and on the same issue or subject matter, it is the law that the previous suit will constitute estoppel per rem judicata to the present suit. As a principle of the legal process, the principle of res judicata is aimed at avoiding duplicity or multiplicity of litigation. Therefore, it will amount to abuse of court process for a party to re-litigate an issue which has been previously decided between the same parties in a previous suit. That appears to be the defendant’s contention in this application. Estoppel is a jurisdictional issue which if successfully invoked, ousts the jurisdiction of the court. For the doctrine to apply, it must be shown that: i. The parties in the previous proceedings and the current proceedings are the same. ii. The claims or the issues in dispute in both actions are the same. iii. The decision relied upon to support the plea of estoppel is valid, subsisting and final. iv. The court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction. All the foregoing requirements of the doctrine must be fully established before the plea can be sustained. See OLORUNTOBA OJU vs. ABDUL RAHEEM (2010) Vol. 178 LRCN 131 at 173; AKUKUJE vs. AKWIDO (2001) FWLR (Pt. 39) 1487 at 1501; ADONE vs. IKEBUDU (2001) FWLR (Pt. 72) 1893 at 1915. In this application, having read the affidavits of the parties and the written addresses of their counsels, they do not dispute the fact that the 1st, 3rd and 4th conditions for application of estoppel, that is the parties, finality of judgment and judgment by court of competent jurisdiction, are present between the previous suits and this suit. The only condition that appears to be disputed is that the issue in this case and the issue in the other cases are not the same. In paragraph 9 of the counter affidavit, the claimant says although the parties are the same as in suit NIC/EN/05/2009, the issue and subject matter are not the same. With regards to Suit EN/09/2011 the claimant’s counsel submitted that the suit was to interpret the judgment in suit EN/05/2009 which interpretation was eventually not decided because the suit was withdrawn. I shall shortly comment on the relevance of suit EN/09/2011 on the issue for determination in this application in the course of this ruling. In contending that the issue in this case is different from the issues canvassed in suit NIC/EN/05/2009 and EN/09/2011, it is deposed in the claimants counter affidavit that in Suit No. NIC/EN/05/2009, the claimants claimed the goodwill ex-gratia at the rate of 32 weeks pay for every completed year of service based on the collective agreements dated 13/1/2001 and 21/4/2004 made between the Association of Food Beverages and Tobacco Employers (AFBTE) and the National Union of Food Beverages and Tobacco Employees (NUFBTE). At the trial in that suit, the defendant produced Exhibit A (collective agreement dated 24/5/2004) made between the NUFBTE and the defendant. The defendant claimed that same was the applicable management/union agreement between the parties. The court, at the hearing, admitted the NUFBTE agreement of 24/5/2004 and rejected the AFBTE agreement and held that the ex gratia claim of the claimants which was based on the AFBTE agreement was not proved. The counter affidavit contains further facts to the effect that the claim of the claimant in this suit is for the payment of outplacement lump sum goodwill ex gratia at the rate of 15 months basic salary based on the management union agreement of 24/5/2004. The claimants are not claiming any other relief granted or dismissed in Suit NIC/EN/05/2009. The claimants further stated that the issue in this suit is therefore the claim for payment of the goodwill ex-gratia at 15 months based on the agreement of 24/5/2004 and that the payment of the ex gratia to the claimants based on the agreement of 24/5/2004 is one of the entitlements, benefits, rights, advantages and allowances which the judgment in NIC/EN/05/2009 recognized as due to the claimants. Upon these facts, the claimants counsel submitted in paragraph 4.4 (b) of his written address that the issue or subject matter of this suit is NUFBTE agreement of 24/5/2004. The question to ask at this point, and of course to also resolve is: did this issue arise in suit NIC/EN/05/2009 or NIC/EN/09/2011 and decided in the judgments? In order to determine whether the issue in this suit is on an issue decided in the said previous judgments, I am at liberty to study the pleadings, the proceedings and the previous judgments. I can also examine the reason for the judgments, the note of evidence by the judges and other relevant factors to discover what the issue in the previous suits were and compared with the issue in this case. See OBASI BROS. MERCHANT LTD vs. M.B.A.S LTD (2001) FWLR (Pt. 40) 1647 at 1660. It is at this point I shall pause to consider the effect of suit NIC/EN/09/2011 on this issue under consideration. It is the defendant’s contention that in view of that suit which was dismissed, this suit is an abuse of court process. But the claimants have stated in their counter affidavit that when the parties could not reach an agreement as to the implementation of some of the pronouncements in the judgment in suit NIC/EN/05/2009, the claimants instituted suit NIC/EN/09/2011 for the interpretation or clarification of the judgment in EN/05/2009. After the suit was filed, the defendant indicated its interest to settle the issues out of court and persuaded the claimants to withdraw the suit from court. Based on this understanding, the claimants withdrew suit EN/09/2011 from court. The record of proceeding was annexed to the counter affidavit as Exhibit D. The said exhibit shows that upon the application to withdraw, the court dismissed the suit. The defendant did not file a further affidavit to controvert these facts. I find from the facts that although the parties, issue and subject matter are the same with this suit, the suit NIC/EN/09/2011 was withdrawn and accordingly dismissed. It cannot in that nature constitute abuse of court process or res judicata; it does not matter whether it was a dismissal or striking out. To operate as estoppel, the issues canvassed in the case must have distinctly and finally decided in the previous suit and also the cause of action must have been determined on the merit. In D.Y.S TROCCA VALSESIA & CO, vs. OSAGHAE (2008) All FWLR (Pt. 413) 1313 at 1334, it was held that a suit not heard and dismissed on its merit does not create estoppel per rem judicata. See also OBASI BROS. MERCHANT LTD vs. M.B.A.S. LTD (SUPRA) at 1661; OKEREKE vs. N.D.I.C (2002) FWLR (Pt. 100) 1392 at 1406. In the same vein, since suit NIC/EN/09/2011 was withdrawn and it is no longer pending, it does not give rise to abuse of process. Therefore, the only other judgment relevant to the determination of the issue in this application is that of suit NIC/EN/05/2009. In suit NICN/EN/05/2009, a suit between the same parties herein, the claimants therein claimed as follows: (f) A declaration that the claimants are entitled to all their legitimate entitlements/benefits due to them at the time the employment was brought to an end on 26/11/2004 e.g. x. Six months full salary in lieu of notice of termination (less amount already paid). xi. Redundancy benefits as per the existing management/union agreements of 32 weeks’ pay for every completed year of service. xii. Service gratuities as applicable. xiii. Benefits under the defendant’s pension funds. xiv. Goodwill ex-gratia bonus of 32 weeks’ pay for every completed year of service in appreciation of their services. xv. Company’s product in appreciation of their services. xvi. Incentive Cash Award otherwise and called Productivity Bonus of 200% of the claimants’ monthly basic salaries. xvii. 2004 Christmas bonus. xviii. Refund of their National Housing Funds. (g) A declaration that the claimants’ successful periods of probation count as part of the length of service of the claimants for the exit or retirement benefit purposes. (h) An order of this court directing the defendant to: v. Re-compute and pay the claimants, through their Attorney in this suit, all the claimants’ legitimate entitlements/benefits due to them at the time the contract was brought to an end as specified in claim A above (less amount already paid). vi. Re-compute and pay to the following claimants through their attorney in this suit their retirement benefits based on 26 years service and not 25 years: Mr. J.M.J. Asinobi, Mr. E. Cookey, Mr. Nwakwe, Mr. I.K. Ugbogbo and Mr. M. Ahuekwe. vii. Calculate and pay the claimants through their attorney in this suit their redundancy benefits as per the existing management union agreement of 32 weeks; pay for every completed year of service. viii. Show the claimants the calculation of their retirement benefits. The defendant in this suit, who is also the defendant in that suit, however joined issues with the claimants regarding the agreement under which the claimants were entitled to be paid their outplacement/retirement benefits. The statement of defence in suit NIC/EN/05/2009 has been frontloaded alongside the Complaint in this suit. It is pleaded therein thus- Paragraph 6- “Paragraphs 5, 6 and 7 of the statement of fact are admitted except to state that the terms of contract of service of the claimants were sometimes varied by agreements and resolutions reached by the unions to which the claimants and the defendants belong. The said bodies are the National Union of Food, Beverages and Tobacco Employees (NUFBTE) and Association of Food Beverages and Tobacco Employers (AFBTE). These agreements are contained in the collective agreements in force from time to time. Paragraph 17- “In further answer, the defendant states that the employees entitlements are as stated in the terms of employment embodied in the Employees Hand Book and or as in the collective Agreement Prevailing at the time.” By these pleaded facts, the defendant had therefore put in issue what the claimants were entitled to and under which of the agreement, that is the one prevailing at the time of their outplacement. In the judgment in suit NIC/EN/05/2009, a copy of which has been front loaded with the complaint in this case, their Lordships found that the prevailing agreement under which the claimants were entitled was the management/union NUFBTE agreement of 24th May 2004. At page 11 of the judgment, the court reviewed the submissions of the defendants counsel in the following words- “Counsel submitted that the agreements cited above are not the agreements mentioned in article 27 of the employee hand book as the management/union agreement. That the existing management/union agreement is that dated 24th May 2004 exhibited and allowed as an additional document by leave of court. He referred to the decision of this court in Lateef Alao Adesigbin vs. Nigerian Breweries Plc unreported suit No. NIC/8/2008 delivered on 15th July 2009 where, in consideration of this same issue, this court held that the phrase existing management/union agreement in article 27 of the hand book presupposes an agreement between the management of Nigerian Breweries Plc and the union in the company and not the collective agreement between the Association of Food, Beverages and Tobacco Employers and the National Union of Food, Beverages and Tobacco Employees NUFBTE. Counsel submitted that the three agreement frontloaded by the claimants are not the existing management/union agreement mentioned in article 27 of the handbook. That the claimants have based their claim on that phrase in Article 27. He urged the court to hold that the existing management/union agreement is the agreement dated 24th May 2004 Upon this submission, the court found, at page 19 paragraphs 3 of the judgment thus- “We agree with the defendant’s counsel that the existing management/union agreement on redundancy in force is that exhibited by defendant’s counsel as an additional document marked Exhibit 001 which is titled “Conclusion Reached Between the National Union of Food, Beverage and Tobacco Employees (NUFBTE) and Nigeria Breweries Plc. Headquarters, Iganmu House, Lagos”. We do not agree with the claimant’s counsel submission that this document was in anticipation of this suit. Rather we find that this agreement was reached in compliance with section 20 of the Labour Act Cap L1 LFN 2004 which provides for the steps the Union and Management must follow when a redundancy is declared. The agreements dated 13th January 2001, 21st April 2004, and another dated 21st April 2004 are collective agreements made between the Association of food Beverages and Tobacco Employers and the National Union of food, Beverages and Tobacco Employees which bind unit branches. However, neither the defendant nor the union made an issue as to their enforceability in the case at hand. Although the claimants contended that these three agreements were the management/union agreement mentioned in article 27, we do not think so as the said article is specific as to an agreement between the defendant and its local union. In this regard, we are inclined to follow our reasoning and decision on this issue in the earlier case of Lateef Adesigbin & ors. vs. Nigerian Breweries, Supra. We have not been shown any convincing reason why we should depart from it by the claimants counsel”. It was upon this finding that the management/union NUFBTE agreement of 24th May 2004 is the prevailing and applicable agreement on the claimants’ entitlement that the court made these holdings at page 20 of the judgment- “The effective date of the management/union agreement, i.e. Exhibit 001 is May 26th 2004 wherein parties agreed that the out-placed employees will be paid as follows- 1. Three (3) months basic salary in lieu of notice 2. Industry negotiated redundancy benefit 3. Service gratuity 4. Nigeria breweries PLC pension fund contribution as appropriate 5. Ex gratia goodwill bonus The out-placed claimants are entitled to 3 months basic salary in lieu of notice only. Their employment with the defendant company was rightly determined on 26th May, 2004 and so they were no longer in the employment of the defendant after the 26th May, 2004. The defendant company in its letter to out-placed staff has complied with the provisions of the existing management/union agreement in force on redundancy”. And at same page (last but one the sentence) the court stated thus: “The out-placed claimants have not established that the defendant failed to pay to them their entitlements as stipulated in their letter of outplacement or short paid them in any way. They are only entitled to the severance benefits contained in their letter of outplacement. All other claims by them against the defendant company fails and are dismissed”. Their Lordships then concluded the judgment, putting into consideration its view on the management/union NUFBTE agreement of 24/5/2004, by holding these opinions which is at page 21 of the said judgment- “For all the reasons stated above, we hereby hold as follows- 1. The claimants who are early retirees, are entitled to six months’ notice of retirement and remained in the service of the defendant up to the 25th November, 2004. 2. The claimants who are early retirees are entitled to their monthly basic salary and all other monthly allowances up to the 25th November, 2004. They are not entitled to redundancy benefits. 3. The calculation of the years of service of the claimants, who are early retirees, shall be from the day they joined the defendant company. 4. The years of service of the following early retirees are as follows: (a) Mr. M.A. Ahuekwe 26 years and 5 months (b) Mr. K. Ugbogbo 26 years and 5 months (c) Mr. C. Nwakwue 26 years and 8 months (i) Mr. J. Asinobi 26 years and 8 months. (j) Mr. E.Cookey 26 years. 5. The out-placed claimants are not entitled to any further benefits.” It can be seen from the foregoing that the management/union NUFBTE agreement of 24/5/2004 was an issue suit NIC/EN/05/2009 and the court made a finding on it. In fact, the orders given thereat were based on their Lordships finding on the applicable agreement, which is the management/union NUFBTE agreement of 24/5/2004. To further show in this ruling that the claimants entitlement under the management/union NUFBTE agreement of 24/5/2004 agreement was actually an issue resolved in suit NIC/EN/05/2009, the claimants pleaded in their statement of facts in this suit as follows- Paragraph 4- “The contract of service between the claimants and the defendant was in writing and regulated by Employees Handwork, the Exit Benefit Scheme Booklets which are sometimes varied or enhanced by agreements and resolutions reached by the Unions to which the claimants and the defendant belong. The said unions are the National Union of food, Beverages, and Tobacco Employers (NUFBTE) and the Association of Food, Beverages and Tobacco Employers (AFBTE). These agreements are contained in the collective agreements in force from time to time. Paragraph 8- “About 24/5/2004, the defendant briefed the claimants union on the defendant’s plan to carry out retirement exercise due to re-organization and restructuring of its business processes and procedure to reposition the defendant to face the challenges of globalization. The defendant further confirmed to the union that the main driver for the retrenchment exercise was the defendant’s operational realignment and investment in technology and that the exercise will affect about 259 employees and 200 contract employers. Paragraph 9- “The defendant briefed the union on the benefits it planned to pay the 259 employees to be affected by the exercise. Both the defendant and the claimants’ union agreed in writing on the benefit which are hereby pleaded as document No. 5. It is observed that the document no. 5 referred by the claimants and front loaded by them is the management/union NUFBTE agreement of 24/5/2004. Paragraph 11- “The 43 claimants who are the early retirees in the defendant’s Aba branch were part of the employees whose interest were included in the management/union agreement of 24/5/2004 and were consequently affected in the 259 employees/outplacement exercise of 2004 for which the management and the union agreement 24/5/2004 was made. The defendant admitted this in her letter of 12/10/2004 addressed to the claimants’ solicitors and in her statement of defense in suit No. NIC/EN/05/2009. The suit was between the same parties at the National Industrial Court which had exclusive jurisdiction. The said letter and the certified true copy of the statement of defense are hereby pleaded as document No. 6 and 7. Paragraph 12- “In spite of the collective agreement of 24/5/2004 between the claimants’ union and the defendant’s union that entitled the claimant to the out placement lump sum ex-gratia, the defendant has refused and or neglected to comply fully with the said agreement and refused to pay the claimants all their due entitlements under the said agreement and under the Hand Book and Exit Booklet. Paragraph 13- “Following the non-payment of all benefits of the claimants by the defendant, the claimant and others (classified as out-places) sued the defendant in a representative capacity in suit No. NIC/EN/05/2009 and claimed, among other things, the good will ex-gratia at the rate of 32 weeks pay every completed year of service based on the management/union agreement of 2000 and 2001. On 18/10/2010, the court delivered its judgment in the suit. The said judgment, in line 9-13 of paragraph 2 of page 17 of the judgment stated thus. ‘the legal consequences are that the early retiree were still in the service of the defendants’ company up till 26/11/2004 and were therefore entitled to enjoy all the benefits, advantages, basic salary and other allowances that staff of the cadre is entitled to until the expiration of the notice’. The court further held that the applicable management/union agreement for the ex-gratia goodwill was the management/union agreement of 2004 which provided for the ex-gratia goodwill at the rate of 15 months basic salary and not that of 2000 and 2001 which provided for the goodwill ex-gratia at the rate of 26 weeks pay for every completed year of service. The said judgment is hereby pleaded as document No. 8. Paragraph 15- “Following the NIC judgment, the defendant in 2011, paid 5 of the claimants some of their allowances but refused and neglected to pay the other 38 claimants their benefits and good will ex-gratia at the rate of 15 months basic salary as contained in the 2004 Management/union agreement. The claimant therefore sued the defendant again in suit No. NIC/EN/09/2011, and sought for the court’s interpretation and clarification of the judgment of 18/10/2010. Paragraph 17- “c. That the failure by the defendant to pay the claimant the goodwill ex-gratia at the rate of 15 months basic salary in the 2004 agreement was a breach of the NIC judgment and the mutual rights and the obligations between the defendant and the claimant in the contract of service as contained in page 9, lines 14-20 of the employees and Hand Book annexed as document No. 4. The breach was a deliberate subterfuge aimed at cheating the claimants, some of who are now dead due to frustrations and distress related complications. d. Essentially, the NIC judgment of 18/10/2010, recognized the 2004 management/union agreement (produced by the defendant and herein marked as document No. 5) as the application agreement between the claimant and the defendant as against the 2000 and 2001 agreements which were relied upon by the claimants. Thus, the claimant’s goodwill ex-gratia was to be computed based on 2004 agreement as against the 2000 and 2001 agreement. Paragraph 30- “The failure by the defendant to pay the early retiree/claimants their out placement lump sum ex-gratia as one of the other allowances etc. that staff of their cadre were entitled to under the management/union agreement of 24/5/2004, Employee Hand Book and the judgment of the court is a breach of the terms and conditions of the contract of employment and the mutual rights and obligations between parties as provided in the contract of employment. It is in view of the foregoing pleaded facts that the claimants claim in reliefs 2 and 3 of the Complaint for the payment to them of the ex gratia on the basis of the pronouncements of this court its judgment in suit NIC/EN/05/2009 on the management/union agreement of 24/5/2004. For the avoidance of doubt, the reliefs read- “2. A declaration that the failure by the defendant in 2011 to fully implement the judgment of the court or the management/union agreement of 24/5/2004 with regard to the payment of the out placement lumps sum (ex-gratia) as one of the other benefits, advantages and other allowances, etc. due to the claimants was a breach of the mutual obligations and rights between the defendant and the claimants under the terms and conditions of the contract of service. 3. An order of the court compelling the defendant to pay all the early retirees/claimants the out placement lump sum ex-gratia at the rate of 15 months basic salary based on the management/union agreement of 24/5/2004 and the handbook is one of the benefits, advantages, other allowances etc. that staff of their cadre had been entitled to and had enjoy as mutual obligations and rights under the employee handbook and which the early retiree/claimants are entitled to enjoy as mutual obligations and rights under the contract of service up till the expiration of their notice on 26/11/2004.” The document which the claimants say is the subject matter of their claim in this suit is the management/union agreement of 24/5/2004 annexed as exhibit A to the counter affidavit and titled “CONCLUSION REACHED BETWEEN THE NATIONAL UNION OF FOOD, BEVERAGE AND TOBACCO EMPLOYEES (NUFBTE) AND NB PLC MANAGEMENT AT A MEETING HELD ON MONDAY 24TH MAY 2004 IN NB PLC HEADQUARTERS, IGANMU HOUSE, LAGOS” which contained thus- “It was agreed that the out-placed claimants will be paid as follows: 1. Three (3) months basic salary in lieu of notice 2. Industry negotiated redundancy benefit 3. Service gratuity 4. Nigeria breweries PLC pension fund contribution 5. Ex gratia goodwill bonus Ex gratia good will contained in (5) above will apply as follows: • Less than 5 years service – 6 months basic salary • 5-10 years service - 9 months basic salary • 10-15 years of service - 12 months basic salary • 15+ years and above - 15 months basic salary” It is clear from the foregoing that this management/union NUFBTE agreement of 24/5/2004 was an issue raised by the defendant in suit EN/05/2009. The judgment, at page 19 thereof, recognized that the applicable agreement is Management/union NUFBTE agreement of 24/5/2004 and held at page 20 of the judgment that the defendant has complied with the provisions of the said management/union agreement in the payment of entitlements to the out-placed staff of the defendant. Those same staff are among the claimants in this suit. In effect, the issue of the entitlement of the claimants under the Management/union NUFBTE agreement of 24/5/2004 was decided in the judgment. That is why in this case, the claimants pleaded and relied on that judgment in saying they are entitled to the payment as per the judgment and the NUFBTE agreement of 24/5/2004. In fact, paragraph 31 of the claimants’ counter affidavit state: “the payment of the ex gratia to the claimants based on the exhibit A is one of the entitlements, benefits, rights, advantages and allowances which the judgment in NIC/EN/05/2009 recognized as due to the claimants…” Therefore, the entitlement of the claimants to the benefits under the Management/union NUFBTE agreement of 24/5/2004 was an issue decided in suit EN/05/2009. Can the claimants re-litigate that same issue in this suit? Issue estoppel occurs where an issue has earlier been adjudicated upon by a court of competent jurisdiction and the same issue comes in question accidentally in subsequent proceeding between the same parties or their privies. As a general rule, once one or more of any such issue have been distinctly raised and determined between the parties by a court of competent jurisdiction, neither party nor their privies is allowed to re-open or re-litigate any of such issues again in another action between the same parties. See AKUKUJE vs. AKWIDO (SUPRA) at 1501; NIGERIA AIR FORCE vs. AKUKALIA (2008) All FWLR (Pt. 441) 967 at 1002. Issues raised by parties on the same subject matter and settled in a previous suit before a court of competent jurisdiction will constitute issue estoppel and can no longer be entertain in a later case. There is no doubt that the issue of the claimants entitlement under the Management/union NUFBTE agreement of 24/5/2004 on which the present suit is based, has been decided in suit NIC/EN/05/2009. The claimants have said so clearly in their statement of facts. Therefore, they cannot be allowed a second shot at the same issue. There must be a stop to litigation. By bringing the same issue in this suit, the claimants are craftily trying to make this court review its judgment in suit NIC/EN/05/2009 or sit on appeal over it or execute the judgment when the claimant in Paragraph 17 (c) of the statement of fact averred that “the failure by the defendant to pay the claimant the goodwill ex-gratia at the rate of 15 months basic salary in the 2004 agreement was a breach of the NIC judgment.” Parties cannot begin fresh litigation because of new views they may entertain of the facts of the case or of what they perceive they have been awarded under a previous judgment. The proper step to take in such circumstance is to either appeal to an appellate court if not satisfied with the judgment or apply for execution of the orders in the judgment the party thinks were made in its favour. Accordingly, it is my view that the claimants are caught by estoppel per rem judicata and in the circumstances; they are estopped from re-litigating on the same issue that has been settled between the parties in suit NIC/EN/05/2009. The claimants’ counsel has argued that the judgment in suit NIC/EN/05/2009 did not make any award to the claimants under the 2004 NUFBTE agreement that is why they now claim under the 2004 NUFBTE agreement in this suit. In my view, even if the court, when it considered the 2004 NUFBTE agreement, did not pronounce on the right and liability of the parties under it, it will still constitute issue estoppel. This was the same reasoning of the seasoned retired justice of the Supreme Court, Ayoola JSC, in ONYEABUCHI vs. INEC (2002) 4 SC (Pt. II) 27 at 36, when he made this comment- “if such a question is raised concerning a suit and it is determined to finality, in the sense that the court which gave the decision cannot vary, reopen or set it aside, notwithstanding that it is a threshold issue which may not determine question of rights and liabilities raised in the suit, there is no reason why the wider doctrine of estoppel per rem judicata should not apply so as to create, as between the same parties and in respect of the same question, an issue estoppel” Now, on the issues of abuse of court process canvassed by the defendant in this application, the concept is used to connote bias, malicious, irritating and deliberate use of the process of court to pervert the judicial system. It envisages that the process of court must be used bonafide and not improperly. See SARAKI vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188. Since the claimants have decided to bring this suit instead of appealing against the judgment in suit NIC/EN/05/2009 if they were not satisfied with it, it amounts to multiplicity of suits on the same issue or subject matter which had earlier been considered and determined by the same court. This is clearly an irritation to the defendant and a perversion of the due process of court. It is an abuse of court process for a party to seek to re-litigate an issue previously litigated and decided upon. See NIGERGATE LTD vs. NIGER STATE GOVERNMENT (2008) All FWLR (Pt. 406) 1939 at 1963. I therefore agree with the defendant that this suit is an abuse of court process. Consequently, I uphold the objection of the defendant and I accordingly dismiss this suit. I make no order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge