Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: March 23, 2015 SUIT NO. NICN/UY/02/2013 BETWEEN MR. SUNDAY UDOKA UDOH - CLAIMANT AND 1. MOBIL PRODUCING NIGERIA UNLIMITED 2. GRAFEN ENTERPRISES LIMITED DEFENDANTS 3. ENYIWOH NIGERIA COMPANY LIMITED REPRESENTATION Ini Archibong for claimant. I.E.Okorie for 1st defendant. E.E.Ekanem for 2nd and 3rd defendant. JUDGMENT The claimant filed this complaint against the defendants on the 28th day of February 2013. He is seeking the following reliefs against the defendants jointly and severally in his statement of claim: a) A declaration that the document tagged “Release and Indemnity in Respect of Terminal/Retirement Benefits” is an engine of fraud, is illegal and not binding on the claimant as it was obtained by duress and undue influence. b) The sum of N9,750,000.00 (Nine Million, Seven Hundred and Fifty Thousand Naira) being unpaid redundancy benefit based on the claimant's last gross monthly pay for 36 months. c) The sum of N614, 274.06 being the amount illegally deducted from the claimant's terminal benefits at the point of payment. d) The 2nd defendants’ portion of pension contribution amounting to N367, 920.14, which should have been paid along with the claimant's contribution as required by the Pension Reform Act. e) An order that the defendants pay over to the claimant the sum assured due to the claimant from the Group Life Assurance. f) The sum of N30 million being damages for the injuries sustained by the claimant in an industrial accident while working for the defendants. Accompanying the complaint is the statement of facts, witness deposition and copies of documents to be relied upon. The 1st defendant entered appearance and filed its statement of defence, counterclaim and other accompanying processes on September 6, 2013. The 2nd defendant entered conditional appearance and filed its statement of defence and other accompanying processes on October 2, 2013. The 3rd defendant entered appearance on 17th July 2013, filed its statement of defence and accompanying processes. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that he was hired by the 1st defendant in 1997 as a contract staff and thereafter was seconded to work first with the 3rd defendant, and then with the 2nd defendant who are both agents of the 1st defendant. He pleaded that his employment relationship with the defendants was governed by the collective agreement which does not contemplate a retirement age for contract staff. That when he turned 62 he was informed that the retirement age for staff of the 1st defendant was 60 and that he would be retired. The claimant pleaded that the defendants decided to ease him out from his job because his ability to continue with manual work had been severely diminished by the industrial accident he sustained while working for the defendants in year 2000 for which he was never compensated. The claimant averred that the industrial accident occurred while he was working as a roustabout in the warehouse of the 1st defendant. The claimant pleaded that the 1st defendant failed to adhere to its own safety standards as he was not given appropriate safety equipment as required in the Health, Safety and Environment - HSE policy of the 1st defendant. That while he was working at the 1st defendant’s warehouse he was wearing low quality and worn out boots supplied by the 1st defendant through its contractor the 3rd defendant. That as a result of the inferior quality boots that he was given by the 1st defendant through its agent the 3rd defendant, he slipped and fell off the truck and the steel drum of oil hit him crushing his pelvis, torso and limbs. The claimant pleaded that he was rushed to the 1st defendant's clinic where he was given first aid and thereafter transferred to the 1st defendant's retainer hospital, Good Samaritan Hospital. He pleaded that a surgical operation was performed on him and the Hospital bill was paid by the 1st defendant. That thereafter the defendants refused to pay further medical expenses arising out of the accident even though he continued to receive treatment from time to time, at his own cost. That on many occasions he was given medication to enable him carry on the defendant’s physically demanding work. He pleaded that in December 2008, he collapsed while on duty and was admitted at the University of Uyo Teaching Hospital. That the medical investigation showed that severe degenerative changes had taken place and he could no longer do the physical work he was employed to do. The claimant pleaded that from that time the defendants began to look for a way of easing him out from their services and in December 2011 he was retired by the 2nd defendant from the services of the 1st defendant. He pleaded that the defendants made him sign a release and indemnity document under duress. That he signed the papers without a full understanding of its meaning and was paid a cheque that was N614,274.06 short of the amount on the indemnity form. He stated that his solicitors wrote the defendants a series of letters demanding the correct payment of terminal and redundancy benefits as well as compensation for the accident but except for one reply, the defendants ignored the letters. He pleaded that the 2nd defendant deducted his pension contributions but did not in several months remit it to his pension account. The claimant testified in support of his case. His evidence in chief was by witness statement on oath which he adopted and was in the exact terms of the pleadings. Under cross-examination the claimant told the court that he is 63 years old and is no longer fit to work. He said he was employed by the 1st defendant as a contract staff but was not given a letter of employment and that the 1st defendant handed him over to its Contractor. He told the court that the 2nd defendant gave him an employment letter but he that he worked directly with the 1st defendant. He said the 1st defendant pays the 2nd defendant who in turns pay him his salary. The claimant told the court that the 1st defendant also sent him to work with the 3rd defendant. He said he had an industrial accident on September 6, 2000 and that after his treatment the Hospital advised that he be put on light duty and as such he was posted to an office for more than three months until he was able to regain some physical capacity. The claimant told the court that it was after his accident that the workmen were given good safety gear. He said he informed the 3rd defendant of his injury and that the defendants had his medical report. He said he knew it was unsafe to work without safety gadgets but that the 3rd defendant refused to provide them. The claimant told the court that he was retired by the 2nd defendant when he was 61 years plus and that he was given a pre-retirement vacation for one month. He said that contract staff are not entitled to pension. He said he reads every document and understands it to some extent before he signs. That it is untrue he signed the indemnity after three months of duress. He admitted that he did not return the money paid to him under the indemnity. He said he signed for his terminal benefits in January 2012 but received it in March 2012 and that he had complained that he was short paid in the calculation of his terminal benefits. He told the court that the 2nd defendant did not pay up its own 7.5% pension contribution from September 2009 till his retirement and is therefore indebted to him. He told the court he did not know how much he is entitled to from the Group Life Assurance. The claimant then closed his case. The 1st defendant’s case on the pleadings is that the claimant was not its staff but was employed by Labour Service providers. It pleaded that the 2nd and 3rd defendant are Contractors who supply labour to it. That the collective bargaining agreement between the claimant and the labour providing firms had a retirement age of 60 years and the claimant was asked to leave as he had advanced beyond the age of 60 years. The 1st defendant pleaded that it is mandatory for all workers to undergo safety training and to wear safety gear at work. It pleaded that the claimant negligently went to work without wearing his safety gear and was negligent in the manner he undertook his work which was geared at deliberately injuring himself. That he had not bothered to notify his employer of the injury allegedly suffered at the time. It pleaded that the claimant’s medical bills were paid and he was adequately treated at the time and returned to work afterwards. That the 2nd defendant retired the claimant from its services in December, 2011 and the claimant signed for his terminal benefits on 25th January, 2012. The case of the 2nd defendant on the pleadings is that the claimant was born on 19th June 1950 and it engaged his services in August 2009. The 2nd defendant pleaded that the claimant’s employment was governed by the collective bargaining agreement of 1st July 2010 that expired on June 2013 which provides that retirement age of a worker is sixty years. That the claimant was properly retired in accordance with the agreement of the parties at the age of sixty one years and seven months in January 2012 having been given one month's notice of retirement and retirement leave. The 2nd defendant pleaded that the claimant worked all through and was never incapacitated till his retirement. It pleaded that it provides good and adequate safety gear for its workers and was not careless or negligent. The 2nd defendant pleaded that the claimant fully understood the contents of the document of release and indemnity and voluntarily signed it without duress. It pleaded that it never declared the claimant redundant and is not the claimant’s pension manager. The 3rd defendant’s case on the pleadings is that it was never an agent of the 1st defendant for the purpose of employing the claimant and its relationship with the claimant is not bound by the collective bargaining agreement. It pleaded that it was never given poor quality boots by the 1st defendant to be given to the claimant and is unaware of any industrial accident or associated medical reports. That it has never been served with any letter, complaint, report or allegation of any type by the claimant or his solicitor. The 1st defendant called one witness Margaret Ighalo (DW1) Senior Human Resources Co-ordinator. Her evidence in chief was by witness statement on oath which she adopted. It was in terms of the pleadings. Under cross examination she told the court that the 1st defendant sets the safety standards and that it is the duty of the employees to abide by the safety standards. DW1 told the court that when there is a breach of the Health and Safety Standards the 1st defendant is liable in respect of its staff; while the employers of those not its staff are liable to ensure adherence to their contracts. The 1st defendant then closed its case. The 2nd defendant did not call the listed witness to give oral evidence and adopt the witness deposition. The law is settled that if a party to an action fails to lead evidence in support of the averments in his pleadings, the averments go to no issue and will be taken as having been abandoned. See Help Ltd v Silver Anchor Ltd [2006] Vol 5 MJSC 171. The 2nd defendant has therefore not led any evidence in support of its defence. I therefore hold that its averments are abandoned. The 3rd defendant called one witness Nathan Akpan (DW2) its Project manager. His evidence in chief was by witness statement on oath which he adopted. It was in terms of the pleadings. He told the court he was a Contractor’s staff and that he did not know Good Samaritan Hospital as the 1st defendants retained hospital. The 3rd defendant then closed its case. The parties were directed to file final addresses. The 1st defendants final address is dated 10th July 2014 and filed on the 14th July 2014. The 2nd defendant did not file a final address. The 3rd defendant’s final address is dated 7th July 2014 and filed the same day. The claimant’s final address is dated 13th October 2014 and filed on the 14th October 2014. Learned counsel to the defendant submitted the following issues for determination as follows: 1. Whether the 1st defendant’s preliminary objection is sustainable in view of the circumstances of this cause? 2. Whether the claimant is entitled to “a declaration that the document entitled “Release and Indemnity in Respect of retirement benefits” is an engine of fraud, illegal and not binding on the claimant as it was obtained by duress and undue influence? 3. Whether the claimant is entitled to redundancy benefits of N9,750,000.00 being claimant’s monthly gross pay for 36 months? 4. Whether the claimant is entitled to the sum of N614,274.06 being the amount illegally deducted from the claimant’s terminal benefits at the point of payment? 5. Whether the 2nd defendant’s is obliged to pay any sums to the claimant as the defendant’s portion of pension contribution amounting to N367,920.14? 6. Whether the claimant is entitled to an Order that the defendants pay over to the claimant the sums due to the claimant under the Group Life Assurance? 7. Whether the claimant is entitled to the sum of N30,000,000.00 being damages for the injuries sustained in an industrial accident whilst working for the defendants? 8. Whether the claimant may pay the costs of the 1st defendant’s legal representation herewith? He submitted that relief (f), the claim for injuries sustained is brought outside the period contemplated by the limitation law. He argued that the injury occurred in year 2000 when his cause of action arose and this suit was filed on February 28, 2013 thirteen years after he allegedly suffered the injury citing Sulgrave Holdings Inc v FGN [2012] NWLR (Pt 1329) 309 at 333-334. He submitted that the applicable law was the Section 13(1) and 17(1) of the Workmen’s Compensation Act Cap W6 LFN 2004. That a combined reading of Sections 13(1) and 17(1) shows that a person applying for compensation must apply within six months of the injury whilst his employer must respond within 21 days. That the limitation period under the Workmen’s Compensation Act is a consecutive period of 6 months, 21 days and it has taken the claimant 13 years to make such application to court. He submitted that this claim time barred. He referred to Section 7(4) and Sections 8 (2), (3) & (7) of the Limitation Act, 1966 and submitted that a literal interpretation of this provision would show that the claimant ought to have brought a claim for personal injuries sustained by an alleged breach of duty within 3 years and that a claim under for personal injury brought after 13 years must fail because of this. He submitted that assuming without conceding that the claimant’s application was brought within time, Sections 7 and 9 of the Workmen’s Compensation Act LFN 2004 describe both the nature of incapacities that may be compensated for as well as the amount payable as compensation. He argued that the evidence shows that the claimant was never incapacitated as to entitle him to compensation as he continued to work after the injury. He submitted that neither the claimant nor any of the other defendants are privy to the Collective Bargaining Agreement made on 1st July, 2008, on which the claimant’s cause of action as per reliefs (b), (c) and (d) are based and thus have no standing to sue or be sued on it. He submitted that unless a collective bargaining agreement is incorporated into an employees contract of employment, he may not sue or be sued on it citing Osoh v. Unity Bank Plc. [2013] 9 NWLR (Pt. 1358) 1. He argued that the claimant has not adduced any contract of employment incorporating the collective agreement and as such cannot rely on the collective agreement as basis for ascertaining his retirement age or his redundancy and terminal benefits. Learned counsel submitted that on the evidence adduced there was thus no fraud or duress on the claimant. He submitted that the claimant’s evidence is laden with material contradictions and should be rejected citing Ayinde v. Abiodun [1999] 8 NWLR (Pt. 616) 587. It was his contention that it is contradictory for the claimant to take the benefit of payment under a void agreement and yet seek for a nullification of the agreement without returning the money he had been paid. If the Indemnity is void, no rights may accrue from it. He cited Oyegoke v. Irigana [2002] 5 NWLR (Pt. 760) 417 at 439, W.C.C. Ltd v. Batalha (2006) 9 NWLR Pt. 986 p. 595. He submitted that a case of redundancy has not been made out by the claimant from the pleadings and evidence led. He argued that from the claimants evidence, he complains about the soft postings, about underutilization and early retirement but nonetheless argues that he ought to keep working despite being unfit to work. Counsel submitted that an employee cannot get retirement benefits and redundancy benefits at the same time save for explicit provisions in his contract of employment referring to Isheno v. Julius Berger (Nig) Plc [2008] 6 NWLR Pt. 1084 p. 582 at 604. He referred to Section 3 and 8 of the Personal Income Tax (Amendment) Act 2011 and submitted that the law requires an employer to make deductions for tax purposes and as such he is not entitled to any sums statutorily deducted. It was his submission that the 2nd defendant is not obliged to pay any sums to the claimant as its portion of pension contribution as no fact was pleaded or evidence led in this regard citing IMNL v Nwachukwu [2004] 13 NWLR (Pt 891), 543 at 564 . He referred to Section 11 of the Pension Reform Act 2004 and submitted that there is no evidence that the claimant’s pension managers have not been receiving funds from the 2nd defendant. On the Group Life Assurance Policy, he stated that it is not in evidence and no facts were pleaded relating to it and so the issue must be resolved against the claimant citing IMNL v Nwachukwu [2004] 13 NWLR (Pt 891) 543 supra. On the claim for sum of N30,000,000.00 damages, he submitted that the evidence in support of the claim has no probative value and the claimant had suffered no loss and any compensation paid to him would amount to double compensation. He argued that the essence of damages is to restore the claimant as far as money can to the position he was prior to the incident citing Taylor v Ogheneovo (2012) 13 NWLR (Pt. 1316) 46 at 68. Learned counsel submitted that under Nigerian law, expenses incurred on services of counsel are reasonably compensated. Thus costs will be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel costs is usually awarded for a leader and one or two juniors”. He urged the court to grant the 1st defendant’s counter claim hereof. Learned counsel to the 3rd defendant submitted two issues for determination as follows: (i) Whether the claimant has established a master/servant relationship with the 3rd defendant to warrant the consideration of these reliefs sought. (ii) Whether the claimant has established a reasonable cause or a cause of action against the 3rd defendant. He submitted that no letter of appointment was pleaded or tendered and as such a Master/servant relationship was not established with the 3rd defendant and therefore the court cannot grant the claimant's reliefs. He submitted that the suit is baseless and without a cause and urged that it be dismissed with cost. Learned Counsel to the claimant raised five issues for determination as follows: 1. Is the claimant entitled to compensation for the injuries sustained in the industrial accidents of 2000 and 2008? 2. Is the claimant entitled to redundancy benefits in addition to the terminal benefits already paid? 3. Is the claimant entitled to the sum of N614,274.06 being the difference between the sum calculated by the 2nd defendant as the claimant’s net terminal pay and the amount eventually paid to the claimant as his net terminal pay? 4. Is the claimant entitled to a refund of pension contributions totaling N367,920.14 not made by the 2nd defendant into the claimant’s pension account contrary to Collective Bargaining Agreement and the Pension Act? 5. Is the claimant entitled to the sum assured from the Group Life Assurance commanded by the Collective Bargaining Agreement? 6. Is a party entitled to have his own legal counsel’s fees paid by the opposing party? 7. Whether the defendants are liable jointly and severally? He submitted that the employer had knowledge of the accident through other means and that the failure to apply for compensation within 6 months is not fatal as it was caused by the deception of the employer. That time does not begin to run until the deception has been discovered. He referred to Sections 16 and 17 and 31 (4) of the Limitation Law of Akwa Ibom State 2000 and submitted that the claim for injuries which occurred twice - in 2000 and 2008 was not statute-barred, as the last injury occurred in December 2008, while this action was instituted within the 5 years limitation period in February 2013. He argued that the period of limitation does not begin to run until the claimant has discovered the fraud, concealment or mistake or could, with reasonable diligence have discovered it. He submitted that length of time is not a bar in the absence of laches on the part of the person defrauded citing Unity Bank Plc v Nwadike [2009] 4 NWLR (Pt. 1131) 352 at 380-38. He submitted on the issue of indemnity that Section 27(1) of the Workmen’s Compensation Act renders null and void any contract or agreement whether made before or after the commencement of the Act, whereby a workman relinquishes any right of compensation from an employer for injury arising out of and in the course of his employment in so far as it purports to remove or reduce the liability of any person to pay compensation under the Act. Learned counsel submitted that the applicable collective agreement to the relationship between these parties is the one effective July 01, 2008. He argued that the evidence shows that the claimant was involuntarily edged out because he had become redundant and is entitled to redundancy benefits and the sum of N614,274.06 being the difference between the sum calculated by the 2nd defendant as the claimant’s terminal pay and the amount eventually paid to the claimant. He submitted that the claimants averment that the 2nd defendant’s portion of pension contribution amounting to N367 920.14 was not remitted is unchallenged and must be taken as true. He cited Ezeokonkwo v Okeke [1991] 12 NWLR (pt. 173) 334, Sodipo v Ogidan [2008] 4 NWLR (Pt. 1077) 346, Eke v Okwaranyia [2001] FWLR (Pt. 51) 1978, Veepee Ind. Ltd v Cocoa Ind. Ltd [2008] 13 NWLR (Pt. 1108) 493, Ejimadu v Delta Freeze Ltd [2007] 3 NWLR (Pt. 1050) 99, Abubakar v Waziri [2008] 14 NWLR (Pt. 1108) 511. He submitted that on the Group life Insurance that the defendants owe the claimant a duty to have insured him and are liable to account to him for his portion of the sum assured. On counsel’s fees, he submitted that legal fees are not recoverable under Nigerian law as it is unethical and an affront to public policy. He cited Nwajei V Coastal Services Ltd (2004) 11 NWLR (Pt.885) 552, Ihekwaoba V Acb Ltd (1998) 10 NWLR (Pt.571) 590, Guiness (Nig.) Plc V Nwoke (2000) 15 NWLR (Pt. 689) 138. He submitted that the case of International Offshore Construction Ltd V SLN Ltd (2003) 16 NWLR (Pt.845) cited by the 1st defendant is not relevant as it is not on all fours with this case. He urged the court to grant the claims of the claimant. I have carefully considered the processes filed, the evidence led, submissions and authorities. The issues for determination raised by both counsel are virtually the same. I will however adopt the issues raised by the claimant for the purposes of this judgement. I will begin with the employment relationship before proceeding to the preliminary issue of Limitation raised by the 1st defendant. There is no dispute regarding the following facts: that the 2nd and 3rd defendants are contractors who provide labour services to the 1st defendant; that the 2nd defendant is the contractor and employer of the claimant; and assigned the claimant to do manual work for the 1st defendant. I find this to be a Contract Labour System with the 1st defendant as the Principal employer for whom the work was done by the claimant for about 14 (fourteen) years. The evidence adduced is that the claimant had an industrial accident in the course of his employment in the premises of the 1st defendant’s Qua Iboe Terminal on September 6, 2000. He was hospitalized and his medical bill amounting to N68,600.00 was paid by the 1st defendant. I am satisfied from the evidence adduced that all the defendants had knowledge of the accident. The claimant did not apply for compensation within six months as required under the Workmen’s Compensation Act CAP W6 LFN 2004 (now repealed) which was then the applicable law. Relief f is sought by the claimant to recover damages independently of the Workmen’s Compensation Act as provided for in Section 25 of the Workmen’s Compensation Act. I find that in December 2008, the claimant did not have another workplace accident. He was simply carrying out his duties when he collapsed. The applicable law is the Limitation Law CAP 78 Laws of Akwa Ibom State 2000. Sections 16, 17 and 31 (4) provide as follows: 16. No action founded on contract, tort or any other action not specifically provided for in parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued”. 17. This section applies notwithstanding anything contained in any other enactment to the contrary, to actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the person for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. 31. Subject to sub-section (4), where in the case of any action for which a period of limitation is prescribed by this law, either – (a) The action is based upon the fraud of the defendant; or (b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) The action is for relief from the consequences of a mistake; The period of Limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. In deciding whether a case is statute barred or not, the court only has to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7 SC 24. Section 16 provides that the action be filed within five years after accrual of cause of action. The cause of action arose on September 6, 2000 and this action was filed on February 28, 2013. This is 12 years after the cause of action arose. The claimant has in his witness deposition stated that after he was discharged from hospital, he made enquiries about compensation from his supervisors in the 1st and 3rd defendants and was told he was entitled to accident benefit compensation but that it would be paid along with his terminal benefits. He stated that he was advised not to sue the defendants’ as this would attract dismissal without benefits. This piece of evidence was not controverted by the defendants. I believe the claimant that he was misled by his supervisors in the 1st and 3rd defendants into not applying for compensation at the material time and his right of action deliberately concealed from him by the defendants. I find this to be an unfair labour practice. The claimant became aware of his rights in 2012 after his retirement and his lawyers wrote the defendants demanding for compensation for his injury. This action falls within the provisions of Section 31(4) (b) & (c) of the Limitation law Akwa Ibom State and is therefore not statute barred for the reasons of concealment and mistake. The claimant has alleged that the injury was caused by the negligence of the 1st and 3rd defendants in not providing him with adequate safety gear. This allegation of negligence and inadequate safety gear has not been established by evidence to the satisfaction of the court. This notwithstanding, the claimant as a workman is entitled to compensation to be paid by his employer for personal injury by accident arising out of and in the course of his employment by the provisions of Section 3 (1) of the Workmen’s Compensation Act which was in force at the time of the accident. There is no expert evidence of his medical condition at the material time to ascertain the extent of the injuries or incapacitation. However, the evidence is that he was hospitalized and after he was discharged, he resumed work and was given light duties for a length of time as advised by the Hospital. Even though the claimant was misled by his supervisors into not applying for his compensation in the year 2000, I hold that he is still entitled to an award of compensation for his injury because it is his statutory right. Consequently and also pursuant to the provisions of Section 19 (d) of the National Industrial Court Act, I award the sum of N3,685,641.96 (Three Million, Six Hundred and Eighty Five Thousand, Six Hundred and Forty One Naira Ninety Six Kobo) being twelve months salary (based on December 2011 salary) as compensation for personal injury. This sum is to be paid by the 1st and 2nd defendants. The claimant has made a claim for redundancy benefits relying on the collective bargaining agreement made on 1st July 2008 between the 1st defendant, Labour Contractors Forum and NUPENG Contract Staff Branch in the 1st defendants locations. The collective bargaining agreement has been incorporated into the conditions of service of financial members of the union. The claimant is a financial member of NUPENG as borne out by his pay slips. The evidence adduced is that the claimant was retired by the 2nd defendant with effect from January 1, 2012 because he had exceeded the retirement age of sixty years. The collective bargaining agreement does not stipulate the age for retirement. However, the claimant gave evidence that he began to work for the 1st defendant in 1997 and when he turned 61 years plus, he was retired. He had worked for a period of 14 years. He admitted that he was not fit enough to work because of the injury. Now, redundancy is defined in the collective agreement as ‘an involuntary permanent loss of employment by an employee due to excess manpower as declared by the company’. This is not the case with the claimant as the defendants never declared a redundancy. I find that the claimant was not declared redundant but retired. I hold that the claimant is not entitled to redundancy benefits. The claimant has complained that there is a short fall of N614,274.06 (Six Hundred and Fourteen Thousand, Two Hundred and Seventy Three Naira, Sixty Six Kobo) in the payment he received as terminal/retirement benefits. Exhibit CW9 is the Release and Indemnity document. I will reproduce a part of it as follows: I, Sunday U. Udoh employed by your Company Grafen Enterprises Ltd and assigned to Mobil Producing Nigeria Unlimited ( MPN) under the contract for ‘Provision of Non-Regular Staff’ acknowledge receipt of the sum of N9,441,386.15 (Nine Million, Four Hundred and Forty One Thousand, Three Hundred and Eighty Six Naira, Fifteen Kobo) being Terminal/ Retirement Benefits for the period served under the subject contract. The claimant signed the document on 25th January 2012 acknowledging receipt of the sum and releasing the defendants from liability as regards his benefits. However, the cheque given to him dated 12th March, 2012 is for the sum of N8,827,112.49 (Eight Million, Eight Hundred and Twenty Seven Thousand, One Hundred and Twelve Naira, Forty Nine Kobo). I find that the 1st and 2nd defendants made the claimant sign for a higher figure and afterwards issued a cheque for a lower figure leaving a shortfall of N614,273.66 (Six Hundred and Fourteen Thousand, Two Hundred and Seventy Three Naira, Sixty Six Kobo) which is due to the claimant. This conduct of the 1st and 2nd defendants is highly improper and unacceptable in the World of Work. I hold that the 1st and 2nd defendants cannot use the Release and Indemnity document to deprive the claimant of his rightful benefits and escape liability for wrong doing. I find this to be an unfair labour practice and I so hold. The 1st and 2nd defendants are to pay the claimant the difference amounting to N614, 273.66 (Six Hundred and Fourteen Thousand, Two Hundred and Seventy Three Naira, Sixty Six Kobo) and I so hold. The claimant is entitled to receive the amount stated on the Release and Indemnity document that he signed. The claimant has made a claim for N367,920.14 (Three Hundred and Sixty Seven Thousand, Nine Hundred and Twenty Naira, Fourteen Kobo) being the 2nd defendant’s own statutory contribution into his retirement savings account which was not paid. He has put in evidence his statement of accounts from his Pension Fund Administrator. This has not been challenged by the 2nd defendant. The law is settled that evidence not contradicted must be taken as true. See Sodipo v Ogidan [2008] 4 NWLR (Pt 1077) 346. The 2nd defendant is to pay into the claimant’s retirement savings account the sum of N367,920.14 (Three Hundred and Sixty Seven Thousand, Nine Hundred and Twenty Naira, Fourteen Kobo) The claimant is seeking an order that the defendants pay over the sum assured and due to him from the Group Life Assurance Policy. The law is that he who asserts must prove. See Section 131(1) of the Evidence Act 2011, Skye Bank Plc v Akinpelu [2010] 8 NWLR (Pt 1198) 179, IMNL v Nwachukwu [2004] 13 NWLR (Pt 891) 543. The claimant has not placed the Policy before the court nor has he pleaded the event upon which the insurance sum will be paid. This relief therefore fails. On the counterclaim, the 1st defendant has not adduced any evidence to substantiate its averments. I find it to be frivolous and lacking in merit. It is hereby dismissed in its entirety. For all the reasons given above, I hereby declare and make the following orders: 1. It is an unfair labour practice for the 1st and 2nd defendants to use the Release and Indemnity document to deprive the claimant of his rightful benefits. 2. The sum of N3,685,641.96 (Three Million, Six Hundred and Eighty Five Thousand, Six Hundred and Forty One Naira Ninety Six Kobo) is to be paid by the defendants jointly as compensation for the industrial injury. 3. The sum of N614,273.66 (Six Hundred and Fourteen Thousand, Two Hundred and Seventy Three Naira, Sixty Six Kobo) wrongly deducted from the claimant’s terminal benefits is to be paid by the 1st and 2nd defendants. 4. The 2nd defendant is to pay into the claimant’s retirement savings account the sum of N367,920.14 (Three Hundred and Sixty Seven Thousand, Nine Hundred and Twenty Naira, Fourteen Kobo) 5. Costs of N100,000.00 is to be paid by the defendants to the claimant. All sums are to be paid within 30 days. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae