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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: May 5, 2015 SUIT NO. NIC/LA/193/2014 BETWEEN 1. Mr. Mohammed Dungus 2. Mr. Anebi Emmanuel 3. Mr. Essien Ubong (Suing for themselves and on behalf of disengaged staff of ENL Consortium Ltd) - Claimants AND ENL Consortium Ltd - Defendant REPRESENTATION Moses O. Okosun, and with him are Duke Akomi and L. S. Jerome, for the claimants. O. O. Ajayi, and with him is Boye Uzamot, for the defendant. JUDGMENT The claims of the claimant as per the complaint and statement of facts dated and filed in this Court on 29th April 2014 are for the following reliefs – 1. i. Outstanding Redundancy benefits - N76,813,801.00 ii Outstanding Gratuity Claims - N38,861,774.05 iii Ex-gratia payment for 46 persons at N700,000 per staff - N32,200,000.00 iv. Family medical for year 2008 for 46 persons at N150,000 per staff - N6,900,000.00 v. Essien Ubong outstanding leave allowance - N36,216.00 vi. Victor Ogbewi outstanding one month salary in lieu of notice - N50,290.00 TOTAL - N154,862,081.05 2. Such further or other benefits and entitlements as the Court shall found due and payable to the claimants and the represented disengaged staff. Accompanying the complaint and the statement of facts are the list of claimants’ witnesses, statements on oath of the claimants’ two witnesses, list of documents and copies of the documents. In reaction, the defendant filed its statement of defence and counterclaim, list of witness(es), defendant’s witness written statement on oath, list of documents and copies of the documents. By the defendant’s counterclaim, the defendant is claiming against the claimants – a) That sum of N1,000,000,000.00 (One Billion Naira) being the estimated amount of the defendant/counterclaimant’s goods, machines, plants and equipments destroyed by the claimants and other disengaged staffs on the 17th October, 2008 and the stolen goods belonging to the defendant. b) Interest on the said sum of N1,000,000,000.00 (One Billion Naira) at the rate of 21% per annum from January, 2010 until satisfaction of any judgment which may be entered herein at 6% annum from the date of judgment until the judgment debt is liquidated. c) Cost of this action. d) Such further order as this honourable court may deem fit to make in the circumstances. In reply, the claimants filed a reply to the statement of defence, list of witness, statement on oath by the claimants’ witness in response to the statement of defence, list of documents and copies of the documents. The claimants also filed their statement of defence to counterclaim, list of witness, written deposition in support of defence to counterclaim, list of documents and copies of the documents. At the trial, parties agreed to argue the case on record relying on the processes already filed. In consequence, the claimants filed their final written address on 1st December 2014, while the defendant filed its on 24th January 2015. The claimants then filed on 30th January 2015 their reply on points of law to the defendant’s final written address as well as the claimants’ final written address in opposition to the defendant’s counterclaim. To this, the defendant filed its reply on points of law. CLAIMANTS’ CASE The case of the claimants and the other represented disengaged staff of ENL Consortium Ltd is that they were former employees of the defendant company, who was and still is one of the Port Concessionaires with the mandate to operate Terminals C and D of Apapa Port as contained in its agreement with the Nigeria Ports Authority (NPA). That the appointments of the claimants were terminated when they were laid off due to the outsourcing of their workshop department by the defendant to a contractor. That over seventy of them were thus rendered redundant. The claimants continued that while in the employment of the defendant, they were members of the Maritime Workers Union of Nigeria (MWUN). That their local ENL Consortium Ltd unit was formally inaugurated by the National Headquarters of MWUN with the consent and concurrence of the Management of the defendant. That the defendant was a member of the Management of Shipping, Shipping Agencies, Clearing and Forwarding Association being the employer group in the maritime industry. That the defendant duly recognized the claimants as members of MWUN and pursuant to the said recognition the defendant deducted at source monthly dues from the claimants’ salaries and on its own remitted the dues to the MWUN on a monthly basis. The claimants went on that in their letters of appointment, which were similarly worded, the defendant promised to issue the claimants conditions of service and a detailed letter of offer upon resumption. That the defendant reneged on this promise. The vacuum thus created prompted the claimants to present a proposal for negotiations with the defendant dated 12th March 2008. That this proposal was based on the provisions of the Memorandum of Agreement between Management of Shipping, Shipping Agencies, Clearing and Forwarding Employers Association and Maritime Workers Union of Nigeria Shipping Branch and the Constitution of the National Joint Industrial Council (NJIC) for Maritime Workers Union of Nigeria (MWUN) Shipping/Courier Branch effective from 2004. This proposal led to several meetings between the claimants and the defendant’s Management to discuss and agree on the terms and conditions of service for the claimants. That at the several meetings held to discuss the proposals, the claimants and the defendant agreed and adopted the End of Service Gratuity and Redundancy Benefits as provided for in the Memorandum of Agreement between the Employers’ representative and the Employees’ representatives. Also adopted were the relevant provisions of the constitution of the National Joint Industrial Council (NJIC) for the MWUN. In addition, the meetings agreed to change the shift system from two to the three shift system as provided in the NJIC. The meeting also agreed that the defendant should commence immediate implementation of decisions that were due for implementation such as the change in the shift system, increase in. the allocation of beverages and detergent to workers, etc. The meeting also resolved to pay the staff of the defendant (which included the claimants) an allowance known as Family Medical in the sum of N150,000.00 per junior staff per year as different from the N200,000.00 demanded by the claimants in the said proposal. That detailed and accurate records of the said meetings were documented by way of minutes by the 3rd claimant who was the Secretary of the ENL Consortium Ltd unit of the MWUN. To the claimants, their appointments were unceremoniously terminated without notice, query or any hearing whatsoever. That the defendant, in line with the said constitution of the NJIC and the Memorandum of Agreement which were adopted at the negotiation meeting paid the disengaged claimants one month salary in lieu of notice, leave allowance and pro-rated salary till date of termination. That in the letter of termination which was similarly worded, the defendant promised to pay the claimants their “final entitlements”. That the defendant reneged on this promise which is what resulted in this claim before this Court. For ease of comprehension and adjudication, the claimants computed and demonstrated in graphic details their unpaid final entitlements. The computation covered gratuity, redundancy benefits, family medical and ex-gratia payments. That the unpaid leave allowance of the 3rd claimant and the unpaid one month salary in lieu of notice of Victor Ogbewi (one of the claimants) are still outstanding. The sum total of the claims of the claimants is accordingly N154,862,081.05. That to avoid paying the promised final entitlement, the defendant laid false and malicious charges of destruction of company properties against the claimants. That some of the claimants (9) were charged to Court in a criminal charge. That the defendant and its staff did not come to the Court for a single day to prove their false charge, and the charge was struck out for want of diligent prosecution. DEFENDANT’S CASE The case of the defendant is that the claimants and other disengaged staff of the defendant’s company were fully aware of the conditions of service of their appointments which was written and clearly stated in their various letters of employment and duly acknowledged by each and every one of them. The defendant then denied ever been a signatory to the Memorandum of Agreement between Management of Shipping, Shipping Agencies, Clearing and Forwarding Employers Association and Maritime Workers Union of Nigeria Shipping Branch. To the defendant, it, therefore, flows that the said Agreement being referred to by the claimants is not binding on the defendant. Equally that the several meetings held between the claimants and the defendant’s Management team were inconclusive, and as a result there was no binding agreement existing whatsoever between the two parties; and no clause of the proposal were yet to be agreed upon or adopted. And so, all the illegal calculations done by the claimants allegedly based on the proposed Memorandum is baseless, frivolous, vexatious and gold-digging and same should be discountenanced by the Court. The defendant then insisted that all the claimants’ entitlements have been duly paid and collected by each and every one of them as exhibited by the defendant in its exhibits attached to its statement of defence. Therefore, that the claims of the claimants for the total sum of N154,862,081.05 is frivolous, gold-digging, vexatious, abuse of court process and same should be thrown out and dismissed by this Court. CLAIMANTS’ SUBMISSIONS The claimants framed one issue for the determination of the Court to wit: whether, having negotiated and agreed on the terms and conditions of service of the claimants, the defendant is not bound to honour the decisions amicably reached with the claimants. The claimants addressed this sole issue under three sub-issues, namely: the relationship between the claimants and the defendant; the negotiations and agreement between the claimants and the defendant; and the issue of redundancy. In terms of the relationship between the claimants and the defendant, the claimants contended that from the pleadings, the evidence by way of statement on oath and the exhibits or documents before the Court, both parties are agreed that the claimants were former employees of the defendant. The claimants then referred to and relied on all the various letters of employment, confirmation and termination in evidence before the Court. They also referred to paragraphs 1, 2 and 3 of the statement of facts and paragraph 1 of the statement of Defence. That the defendant did not deny or rebut the averments in paragraphs 1 to 5 of the statement of facts. As to the negotiations and agreement between the claimants and the defendant, the claimants submitted that in paragraphs 4 and 5 of the statement of facts and paragraphs 5 and 6 of the statement on oath by the 3rd claimant, the claimants averred that while in the employment of the defendant they were members of the Maritime Workers Union of Nigeria (MWUN). The defendant accepted and accorded due recognition to the claimants as members of the said MWUN. The defendant also accepted and recognised the constitution of the National Joint Industrial Council of MWUN when it commenced the deduction of union dues from the claimants’ salaries and remitted same directly to the National Headquarters of the MWUN (Shipping/Courier Branch). The claimants referred to and relied on some of the cheques used by the defendant to remit the dues to MWUN. Some of the used cheques were Oceanic Bank Cheques Nos. 603, 740, 770, 826, 897 and 924. To the claimants, by a letter dated 11th December 2007, the National Headquarters of the MWUN (Shipping/Courier Branch) wrote directly to the defendant and formally intimated the defendant of the election and inauguration of the defendant’s unit of MWUN. It is accordingly the claimants’ submission that by recognising the claimants’ membership of the MWUN, deducting and remitting the claimants’ monthly dues pursuant to the aforementioned constitution of the NJIC which is globally applicable to the Nigeria maritime industry, the defendant had accepted and acted on the said constitution and cannot now resile from or alter its position to the detriment of the claimants. The claimants went on that in the various letters of employment issued to them by the defendant, which were similarly couched, the defendant expressly promised to make available to them “a detailed letter of offer”. Upon resumption, the claimants found out to their disappointment that the defendant had no conditions of service as obtainable in other companies and organisations in the maritime industry in Nigeria. The claimants then submitted that the letters of appointment given to them by the defendant admitted that there was a lacuna that needed to be filled. That it w¬as an admission that the letter issued did not contain the requisite terms and conditions of service of the claimants’ employment. That the claimants had to take necessary steps to fill the hiatus that existed in the defendant’s conditions of service. The claimants initiated an in-house negotiation with the defendant’s management vide a letter dated 12th March 2008 and titled “PROPOSAL FOR 2008 IN-HOUSE NEGOTIATIONS”. The defendant accepted the invitation to enter into negotiations with the claimants (through their representatives) and several meetings were held respectively on 9th July 2008, 31st July 2008 and 14th August 2008, referring to paragraphs 10 – 18 of the statement of facts and paragraphs 9 – 16 of the 3rd claimant’s statement on oath and the 1st claimant’s statement on oath. The claimants and the defendant were ably represented at the said meetings by high level competent union officials and management staff. With such adequate representations the parties negotiated and agreed on critical terms and conditions of the service of the claimants. That the proceedings of the meetings including venue, attendance, issues, decisions/resolutions and adoptions of the meetings were scrupulously recorded in minutes taken by the Secretary (i.e. the 3rd claimant), referring to and relying on handwritten minutes of the meetings held on 9th July, 31st July and 14th August 2008. That a perusal of the said minutes reveals the followings – (i) The claimants and the defendant were adequately represented at the meetings. (ii) The then existing state of affairs regarding conditions of the service in the defendant company was unsatisfactory and urgent steps needed to be taken to fill the gaps. (iii) The existence and applicability of the above mentioned collective agreements (i.e. the memorandum of agreement and constitution of the NJIC) were duly acknowledged, accepted, recognized and adopted. (iv) The claimants and the defendant agreed to change the shift system in the defendant’s company from the two-shift system to three-shift system in accordance with the provisions of the NJIC collective agreement. This change was agreed upon and it took effect from the 9th July 2008. (v) The issue of payment for overtime was also discussed and resolved that payment shall be made for services rendered beyond the normal official hours. (vi) Productivity and Christmas bonuses were recognised as a national issue and the need to streamline what was obtainable in the defendant’s company with what was applicable to other workers in the MWUN. The defendant agreed to abide by the globally prevalent practice of paying the universal percentage in the maritime industry. (vii) Leave allowance at the rate of 21% was also agreed upon and adopted in accordance with the said collective agreement. (viii) The meeting also agreed on payment of hazardous allowance, increase in provision of beverages from two tins of milk to six tins, increase in provision of detergent from two tablets of medicated soap to four tablets and two kilograms of detergent per staff rather than the previous situation where four staff shared a pack of detergent. (ix) The defendant decided and pledged to bring the working conditions of its staff to the industry standard. This decision was applauded at the meeting. (x) The defendant agreed at the meeting to pay End of Service Gratuity in accordance with the provisions of the NJIC collective agreement. (xi) The defendant also agreed to pay redundancy benefits based on the stipulations of the NJIC collective agreement. (xii) Other sundry issues covered at the meetings included meal subsidy and utility (stepped down), productivity, non-accident bonus, death and burial arrangements, etc. (xiii) On family medical, the claimants proposed N200,000.00 per annum per staff but the defendant accepted to pay N150,000.00 per annum per staff. The claimants then submitted that minutes of a meeting is a legal, legitimate and universally accepted method of proving what is said or done at a meeting. That the defendant has not denied or disputed the minutes attached to the statement of facts of the claimants. In paragraphs 7 and 9 of the statement of defence, the defendant only said it “never conceded to all the paragraphs of the proposal letter” and that “it did not resolve at accepting all” the claimants’ proposal. That the claimants have never said that the defendant accepted “all” the proposals in the letter of 12th March 2008. For example, the minutes showed that the defendant accepted to pay N150,000.00 instead of the proposed N200,000.00 on family medical. That the minutes also showed that some sundry issues were stepped down for further discussion. To the claimants, it is pertinent to draw attention to the fact that while the defendant said it did not accept or concede to all the proposals, it did not tell this Court what it accepted and what it did not accept. Therefore, that the defendant is only being evasive and trying to avoid a just obligation it freely and voluntarily entered into. That having entered into negotiations with the claimants and having agreed, accepted and adopted terms and conditions of service of the claimants, which agreement made the claimants to continue to work for the defendant, the defendant is estopped from denying the decisions and resolutions of the meeting, relying on section 169 of the Evidence Act 2011, which provides that – When one person has, either by virtue of any existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing. On the above issue of estoppel by conduct, the claimant also relied on Dr (Mrs.) Aize Obayan v. University of Ilorin & 3 ors [2006] All FWLR (Pt. 9) 1374 at 1391 where the Court held that – By virtue of Section 151 (now 169) of the Evidence Act, Cap 11 Laws of the Federation of Nigeria, 1990 when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing. The claimants accordingly submitted that it is too late in the day for the defendant to disavow its commitment and obligations voluntarily made at the said meetings. That the defendant is bound by the decisions, resolutions and adoptions made at the said meetings, urging the Court to so hold. The claimants continued that it is apposite and interesting to note that both the claimants and the defendant relied on the same record or minutes of the meetings. That in paragraph 9 of the statement of defence, the defendant averred that it will rely on its minutes of the meeting dated 14th August 2008. In the bundle of documents frontloaded by the defendant, the document numbered as No. 8 is the same as one of the minutes earlier pleaded and frontloaded by the claimants. That where the claimant and the defendant rely on the same document before the Court, the Court would actually act on such a document provided it is not inadmissible, urging the Court to accept the minutes of the meetings as accurate records of what transpired in the meetings mentioned above. The claimants went on that one legal issue that naturally flows from the above facts and circumstances is whether the two documents, namely, the memorandum of agreement and the constitution of the NJIC, can be relied upon by the claimants in support of their claims before this Court. The claimants asserted that by their nature the two documents partake of the nature of collective agreement. That generally, and particularly in our Nigerian jurisdiction, the Courts are still very skeptical of enforcing collective agreements except in limited circumstances and exceptions. That the reasons often adduced for this general position of unenforceability of collective agreement are lack of intention to enter into legal relations and absence of privity of contract between the employer and the employee seeking to rely on the collective agreement. That it is said to be a mere gentleman’s agreement. The usual authorities cited in support of this general position include Texaco Nigeria Plc v. Kehinde [2002] FWLR (Pt. 94) 143 and Union Bank of Nigeria Ltd v. Edet [1993] 1 NWLR (Pt. 287) 288. The claimants’ submission on this issue is, however, that this matter comes within the exceptions to the general position of the law. That the parties herein at the several meetings referred to above resolved, adopted and indeed acted on the said documents. That the defendant did not deny the meetings and the decisions made thereat. In fact, that the defendant relied on the same minutes of the meetings as the claimants did. Consequently, on the grounds that the parties adopted and acted on the said collective agreements, the claimants urged the Court to hold that the defendant is bound by the said documents and is estopped from resiling from the obligations and commitments it made at the said meetings, relying on the authority of The Rector, Kwara State Polytechnic & 3 ors v. Adefila & 2 ors [2008] All FWLR (Pt. 431) 914, which case demonstrates that our labour jurisprudence is in a progressive paradigm shift in judicial attitude on the issue of enforceability of collective agreements. The Court of Appeal (Ilorin Division) held, inter alia, that – By the judicial authorities, cited and considered, it is also clear that to be enforceable the defendants must have adopted same either expressly or by implication. Furthermore, Agube, JCA said – 1 am therefore in agreement with the findings of the trial court...that the defendants cannot be allowed to blow hot and cold at the same time and that they were therefore estopped from resiling from the agreement regarding the sixty-five years retirement age for academic staff of the Kwara State Polytechnic. His Lordship went further and held that – If parties follow a certain course of action plainly because of the existence of a collective agreement such as commencing to pay wages at new rates, that provision of the collective agreement will be considered as incorporated in the contract of employment. This is in line with estoppel, the rule of evidence which precludes a person from denying what he has either expressly or by implication admitted. The claimants also relied on the statement of Augie, JCA in Osagie v. New Nigeria Bank Plc [2005] All FWLR (Pt. 257) 1485 at 1510 that – Collective Agreements, except where they have been adopted as forming part of the terms of employment, are not enforceable. To the claimants, another exception to the general rule is where a party or the parties had already relied on the collective agreement. In the instant matter, that both the claimants and the defendant not only considered and adopted the said collective agreements, the defendant has specifically acted on them. That the defendant pursuant to the said NJIC agreement agreed at the meetings and changed its shift system from two shifts per day to three shifts per day. On issues like leave allowances, productivity and Christmas bonuses the defendant also acted on the said collective agreements. In the payment of one month salary in lieu of notice and leave allowances upon termination of the employment of the claimants the defendant also acted on the collective agreements. These payments were not in the letters of employment of the claimants. They were discussed and agreed on when the collective agreements were adopted. The claimants then submitted that the defendant must not be allowed to approbate and reprobate. It must not be allowed to blow hot and cold at its convenience, relying further on Cooperative and commerce Bank (Nig.) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114, and Adegboyega v. Barclays Bank of Nigeria [1977] 3 CCHCJ 497 where Akibo Savage J. held that – Where an employer had acted on a collective agreement in such a way as to give the impression that it is binding, the agreement would be taken to have been impliedly incorporated into an individual employee’s contract of employment. This is because the Court will not allow a party to approbate and reprobate at the same time. The claimants continued that in construing the terms of their employment in this matter and in determining their claims the Court is to read cumulatively all the relevant documents before the Court including the letters of appointment, confirmation, termination, correspondence and minutes of the meetings. That it is only a community reading of these documents that will give the Court a bird’s eye view of the terms and conditions of the claimants’ employment, urging the Court to consider and adopt the Supreme Court judgment in Central Bank of Nigeria & anor v. Igwillo [2007] All FWLR (Pt. 379) – the page is not supplied – where Ogbuagu, JSC held that – Where a contract which includes contract of employment involves several documents, the trial Court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. That the claims of the claimants have been computed and exhibited before the Court. The total claim is N154,862,081.05. That the perusal of the statement of defence shows that the defendant has not challenged nor faulted or contradicted the correctness or accuracy of the computation. The defendant did not present an alternative computation. That the defendant only contests the basis of the claims. The claimants then submitted that if this Court finds that the claimants are entitled to be paid their gratuity, redundancy benefits, family medical and ex-gratia allowances, then the Court should grant the claims of the claimants as prayed. That the claims of Essien Ubong (N36,216.00) and Victor Ogbewi (N50,290.00) have not been denied or contradicted. The defendant has not produced any evidence that it has paid these claims which the respective claimants are entitled to. That the reliefs being sought herein by the claimants are the “final entitlement” that the defendant promised the claimants in their letters of termination but the defendant reneged on the promise, referring to and relying on the various letters of termination all dated 20th October 2008. That having paid some of the claimants their leave allowances and one month salary in lieu of notice, the defendant added that “Please note that all your indebtedness to the Company will be deducted from your final entitlement”. It is this “final entitlement” that is the subject matter of this claim. On the issue of redundancy, the claimants submitted that the reasons adduced and the circumstances surrounding their disengagement by the defendant clearly show that the claimants were rendered redundant by the defendant. The letters of termination clearly stated the reason for the termination in these words: “In view of the on-going re-organization in the Company, your services will no longer be required”. The claimants also referred to and relied on the averments in paragraphs 20, 21 and 22 of the statement of facts, paragraphs 12 (viii) of the reply to the defence and paragraphs 17, 18, 19 and 20 of the defence, which irrefutably buttress the assertion that the disengagement of the claimants by the defendant was indeed an act of redundancy. That the defendant outsourced the workshop department where all the claimants worked and consequently the claimants became redundant. The claimants then submitted that under section 20 of the Labour Act what the defendant did to the claimants amounted to redundancy. That the defendant refused, failed and neglected to abide by the provisions of the said law on redundancy. That the claimants are entitled to be paid their redundancy benefits as claimed. In conclusion, the claimants urged the Court to hold that they are entitled to the claims endorsed in the complaint and statement of facts. The claimants also urged the Court to grant them their prayers for the sum of N154,862,081.05 as itemized in the originating processes and discountenance the statement of defence. DEFENDANT’S SUBMISSIONS In reaction, the defendant formulated three issues for determination, namely – 1. Whether the claimants are entitled to their claims despite the fact that they have all been paid with their entitlements which majority of them have voluntarily collected while only few have refused out of their own free will to collect. 2. Whether the defendant/counterclaimant is entitled to its claim against the claimants/counter-defendants’ act for vandalization/stealing of goods, machines, plants and equipment belonging to the defendant. 3. Whether the claimants are still entitled to any claims at all against the defendant when the defendant has already paid their entitlements to them and has equally raised the issue of theft/vandalization against them in its counterclaim. Regarding issue 1, the defendant submitted that it is fully discharged with no further commitment to the claimants after their entitlements have been fully paid by the defendant. That all the alleged new/strange entitlements being demanded/claimed by the claimants are totally strange and unknown to the defendant because there is no binding or existing agreement between the claimants and the defendant to warrant the claimants to be demanding for such claims and entitlements/emoluments. That the defendant duly exhibited all the copies of the cheques paid to the claimants and duly signed/acknowledged by the claimants for their settlements, thereby foreclosing any further demand for any further payments in respect of this matter. That paragraph 9 of the defendant’s statement of defence being referred to by the claimants in paragraph 4.13 of their final written address is very clear on the position of the defendant. That the defendant specifically stated in the said paragraph that the said meeting did not resolve at accepting all the claimants’ proposals. More so that it was only a proposal, which was yet to have any legal backing or did not make it binding on the defendant for implementation or reliance of same in any disputes or in court of law. Therefore, the issue of estoppel being canvassed for by the claimants in paragraph 4.10, 4.11 and 4.12 of their final written address did not arise in this case and so same should be disregarded/discountenanced by the Court. The defendant continued that paragraph 4.15 of the claimants’ final written address even supports the defendant’s case; just as is the case quoted and relied upon by the claimants as per Augie, JCA in Osagie v. New Nigeria Bank Plc [2005] All FWLR (Pt. 257) 1485 at 1510, which is to the effect that “Collective Agreements, except where they have been adopted as forming part of the terms of employment, are not enforceable”. That in this case at hand, the collective agreements are not enforceable because they are yet to be adopted as forming part of the terms of employment. That the parties are yet to finally resolve and adopt, and have not acted on the said document, as erroneously canvassed by the claimants. That the claimants only want to mislead the Court and reap where they did not sow at all. In respect to paragraph 4.18 of the claimants’ final written address, that the defendant did not bother itself with either to challenge or fault or contradict the claimants’ correctness/accuracy of their computation, purposely because the defendant believe that they are not entitled to any further entitlements in the first instance again; as such there is no need in bothering itself/herself about any figure presented by the claimants at all. To the defendant then, the claimants’ claim in the first instance is frivolous and gold-digging and an empty one. That by presenting a different figure, it then means that the defendant has accepted or conceded that the claimants are truly entitled to the said claims but only disputing the correctness of the claims. On issue 2 i.e. whether the defendant is entitled to its counterclaim against the claimants’ act of vandalization/stealing of goods, machines, parts and equipments belonging to the defendant, the defendant submitted and urged the Court to so hold that the defendant is very much entitled to its claim against the claimants as per its counterclaim. To the defendant, in its statement of defence to the main suit at paragraphs 12 – 29, it had really elaborated/explained and showed how the claimants and other disengaged staff looted, vandalized and stole its properties. That the defendant equally exhibited photographs of some of the machines vandalized and cannibalized by the claimants and their cohorts in the exhibits attached to its statement of defence to the main suit. The defendant then submitted that it should be awarded its counterclaim against the claimants. That paragraph 4 of the claimants’ statement of defence to the counterclaim agreed that there was truly the issue of pilfering, cannibalization and stealing of the defendant’s equipment and machines in the workshop. Also that paragraph 7 of the same statement of their defence also agreed that there were protest that took place in March 2008 and another one in October 2008.They acknowledged and admitted the one of March 2008, and were silent on that of October 2008, which was carried out by the claimants and their members. Regarding issue 3 i.e. whether the claimants are still entitled to any claims at all against the defendants, (i) after they have collected their entitlements and (ii) when the defendant has raised the issue of theft/vandalization of its machines/equipment/properties against them in its counterclaim, the defendant answered in the negative and urged the Court to so hold. That looking at all defendants’ submission so far, it is evidently clean (sic) that the claimants are only gold-diggers and want to reap where they did not sow and as a result their claims should be thrown out and same dismissed with substantial cost to the defendant, as same is frivolous, vexatious and abuse of the court processes. That the defendant has already shown/discussed at length in its above submission and through documentary evidence that the claimants have been paid their entitlements through various cheques paid and acknowledged by the claimants and also in respect of its counterclaim, has proved same through the various photographs exhibited/attached to its statement of defence to the main suit. In conclusion, the defendant urged the Court to dismiss this suit in its entirety with heavy and substantial cost to the defendant and grant the defendant’s counterclaim and its prayers/reliefs therein. CLAIMANTS’ REPLY ON POINTS OF LAW TO DEFENDANT’S SUBMISSIONS To the claimants, having perused the final written address of the defendant dated, filed and served on 28th January 2015, the defendant did not raise any legal issue that requires their response. However, the claimants drew the attention of the Court to paragraph 2.1 (page 2) where the defendant “denied ever being a signatory to the Memorandum of Agreement between Management of Shipping, Shipping Agencies, Clearing and Forwarding Employers Association and Maritime Workers Union of Nigeria Shipping Branch”. It is the claimants’ submission that this denial is an afterthought and should be discountenanced. That there is nowhere in the defendant’s statement of defence where it pleaded its non-membership of the Employers’ Association. That the claimants pleaded emphatically in paragraph 8 of the statement of facts, paragraph 11 of 1st claimant’s statement on oath and paragraph 8 of the 3rd claimant’s statement on oath that the defendant is a part of the said Employers’ Association. The claimants then submitted that an address, no matter how brilliantly written, cannot take the place of evidence, relying on Salzgitter Stahlgmbh v. Tunji Dosunmu Industries Ltd [2010] All FWLR (Pt. 529 1024 at 1044 where the Supreme Court stated that “Counsel’s address cannot, however brilliant and logical constitute evidence in a matter, so any submission on facts not pleaded goes to no issue”. The claimants accordingly urged the Court to disregard the said submission of the defendant’s counsel. In conclusion, the claimants submitted that in a civil matter such as this, the claim is decided based on the preponderance of evidence and balance of probability. They urged the Court to enter judgment in their favour as prayed in the Complaint Form and the statement of facts. CLAIMANTS’ SUBMISSIONS IN OPPOSITION TO THE DEFENDANT’S COUNTERCLAIM The claimants made a separate presentation in opposition to the defendant’s counterclaim. To the claimants, in the statement of defence against the counterclaim, they denied the bogus claim of the defendant and called it an afterthought calculated to frighten the claimants from pursuing their legitimate terminal benefits. That they stated emphatically that they were not involved in any riot, destruction or vandalization of the defendant’s equipment. Rather, the claimants put their lives on the line as a human shield when members of the Dockworkers Union embarked on a violent protest against the defendant. That this fact was acknowledged and appreciated by the defendant’s Executive Chairman. That the same lady in 2010, in an interview with The Guardian Newspaper of August 11, 2010, confirmed and corroborated the averments of the claimants in their statement of defence to the counterclaim, referring the Court to the publication. The claimants continued that some of their members (about nine) were unlawfully arrested, detained and charged to court on a trumped up charge of destroying the defendant’s property. The charge was designed to get rid of the claimants. That the defendant’s staff did not attend the Court’s proceedings for even one day. The charge was consequently struck out for want of diligent prosecution. The question then is: why did the defendant who claims to have lost such a colossal sum of money fail or neglect to attend Court proceedings to prove the allegation? That it is apposite to draw the Court’s attention to the discrepancy between the value of the allegedly vandalized properties stated in the charge sheet and the present claim. In this counterclaim, the defendant puts the value as N1,000,000,000.00 while in the charge sheet it said it was N700,000,000.00. No explanation is offered by the defendant for the discrepancy, referring the Court to the charge sheet. The claimants then framed three issues for the determination in the defendant’s counterclaim, which are as follows – 1. Whether this Court has the jurisdiction to hear and determine the counterclaim of the defendant. 2. Whether the defendant has discharged the burden of proof to entitle it to the sum of N1,000,000,000.00 or any sum at all. 3. Whether, assuming without conceding that the claimants were involved in the alleged riots and vandalization, the defendant has not condoned and forgiven the claimants of the alleged misconducts. Regarding issue 1, the claimants submitted that this Court lacks the jurisdiction to entertain the counterclaim of the defendant for the following reasons – (i) The counterclaim of the defendant is statute-barred. (ii) The counterclaim of the defendant is not a labour related claim and is outside the jurisdiction conferred upon this Court by all the relevant statutes and the Constitution of the Federal Republic of Nigeria (as altered). That it is trite law that an action is said to be statute-barred where the action is taken out or filed after or outside the specified limit allowed under the law. Whether an action is statute-barred is determined by looking at the originating process alleging when the wrong was committed which gave the claimant a cause of action and by comparing that date with the date on which the originating process was filed, referring to Adejumo v. Olawaiye [2014] All FWLR (Pt. 743) 1910 at 1934. That a perusal of the counterclaim filed by the defendant in this matter shows that the defendant’s counterclaim is based on the claimants’ alleged acts of rioting and vandalization which allegedly took place on 17th October 2008. By the defendant’s own pleading, its cause of action accrued on the said 17th October 2008. The counterclaim was filed on the 31st October 2014. Between the date of accrual of cause of action and the date of filing of the counterclaim, there is a period of six years and fourteen days. That the counterclaim of the defendant is of the nature of a tort in civil law. Section 8(4) of the Limitation Law of Lagos State, 2005 provides that – Subject to the provisions of section 9 of this Law, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Section 9 provides specifically for claims in negligence, nuisance or breach of duty. The claimants’ submission is that the counterclaim of the defendant is statute-barred and should be dismissed. That in Muazzam v. Bichi [2010] 12 NWLR (Pt. 1209) 516 the Court held that “The issue of Statute of Limitation touches on the jurisdiction of the Court to adjudicate over a case”. The Court further stated that “When an action is statute-barred, no amount of resort to its merit can resuscitate or sustain it”. That the issue of jurisdiction is trite and well founded. In the locus classicus case of Madukolu v. Nkemdilim [1962] 1 ANNLR (Pt. 4) 587, the factors that ground jurisdiction were stated as – i. The court must be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another. ii. The subject matter of the case must be within the Court’s jurisdiction and there must not be any feature in the case which prevents the Court from exercising jurisdiction. iii. The case before the Court must be initiated by due process of law and upon fulfillment of any condition precedent to exercise of jurisdiction. That the relevant criterium of the three criteria mentioned above is the second one. In Hassan v. Aliyu [2010] All FWLR (Pt. 539) 1007 SC, the Court held that “Where an action is statute-barred, the Court lacks jurisdiction to hear same”; and in Muazzam v. Bichi (supra) at page 516, the Court held that – Where a defendant raises a defence that the Plaintiff’s action is statute-barred and the defence is sustained by the trial court, the proper order to make is an order of dismissal of the Plaintiff’s action and not merely strike out. The claimants continued that the defendant’s counterclaim is not a labour related claim. That the fact that the alleged riots and vandalization purportedly happened in a workshop does not confer jurisdiction on this Court. The alleged cause of action does not come within the purview of the National Industrial Court Act, the Trade Disputes Act, the 1999 Constitution (as amended) and other relevant statutes. In this context, the counterclaim of the defendant is akin to libel actions founded on defamatory letters of termination. To the claimants, this ground of objection, being a jurisdictional issue, can be raised at any point even on appeal. The claimants then urged the Court to decline jurisdiction and dismiss the counterclaim of the defendant. On issue 2 i.e. whether the defendant has discharged the burden of proof on him in respect of the counterclaim, the claimants submitted that the defendant has failed woefully to discharge the onus placed on him by law to prove the counterclaim of One Billion Naira. That the defendant’s counterclaim is of the nature of special damages. The law is elementary that special damages must be specifically pleaded and strictly proved. The defendant has the burden to particularize his claims and support same by credible evidence. See Johnson v. Mobil Producing (Nig.) Ltd [2010] All FWLR (Pt. 530) 1337 at 1372 and N.M.A v. M.M.A. Inc. [2008] All FWLR (Pt. 446) 1916 at 1953 – 1955. That the defendant’s counterclaim lacks particulars and specifics. The basis of the claim for One Billion Naira is neither demonstrated in the pleadings nor substantiated by any documentary evidence. The defendant failed and neglected to provide receipts, invoices or other relevant documents to buttress the claim. It is simply bogus. The claimants then submitted that the Court should not rely on the mere ipse dixit of the defendant. Furthermore, that the failure of the defendant to call expert witnesses who are professional valuers is fatal to the defendant’s claim. The defendant’s witness is said to be its Human Resources Manager. The professional discipline of the lady witness is unknown. There is nothing in her statement on oath that shows any expertise in property and assets valuation. The name or nature of the machines or equipments allegedly vandalized are not disclosed. The alleged values are not particularized. In a claim of this nature, strict proof is mandatory. It must be backed up by concrete evidence, referring to Arisons v. Military Governor, Ogun State [2009] All FWLR (Pt. 496) 1819 at 1837 – 1854. The claimants also observed that in a claim of this magnitude that is based on rioting, vandalization, etc, there is no police report to show that this matter was ever reported to the appropriate authority. The claimants then urged the Court to dismiss the defendant’s counterclaim with substantial costs. Regarding issue 3 on “condonation and forgiveness”, for the sake of argument, the claimants asserted (without conceding) that even if they were involved in the alleged rioting and vandalization, the conduct of the defendant’s management showed that the defendant, having become aware of the alleged misconduct of the claimants, condoned and forgave the misconduct. That the claimants were not dismissed but only terminated with some terminal benefits though the defendant still owes them other severance entitlements. The letters of termination state that the reason for termination is the re-organization of the defendant company. To the claimants, this supports the submission that the defendant must have condoned whatever misconduct was alleged against the claimants (which misconduct the claimants vehemently deny). In conclusion, the claimants urged the Court to dismiss the defendant’s counterclaim with substantial costs as same is an afterthought, vindictive, unsubstantiated, incompetent and misconceived. DEFENDANT’S REPLY TO THE CLAIMANTS’ SUBMISSIONS AGAINST THE COUNTERCLAIM Having gone through and perused the claimants’ final written address in opposition to the defendant’s counterclaim, the defendant submitted that – (a) There was no time at all that the defendant’s Executive Chairman acknowledged and or appreciated any alleged outstanding performance of the claimants as being claimed by the claimants. (b) The Court has jurisdiction to entertain this suit as same is not yet statute-barred. (c) The counterclaim of the defendant is a labour related claim as the claimants are at the material times employees of the defendant. (d) This particular case was formerly instituted at the Lagos State High Court, Ikeja Judicial Division with Suit No: ID/2038/2009 and was pending in Court from that 2009 till late 2013, when the claimants withdrew same from the Court and instituted same at this present Court. (e) In calculating whether this case is statute-barred, regards have to be given to those period that this particular case spent at the High Court of Lagos State. (f) Therefore, if those periods are judicially recognized and taken into cognisance, then this particular case is not yet to be statute-barred. And so the Court still has jurisdiction to entertain same for adjudication. (g) Those period that the case was pending at the Lagos State High Court should not be against the defendant, as time should not be deemed to be running during the pendency of the said case at the High Court, Lagos State. (h) In Nigeria Ports Authority v. Abu Airadion Ajobi [2006] 9 MJSC 182, the Supreme Court held that where an employee is charged to Court the limitation period begins to run only after the Court’s decision. (i) Therefore, in applying same to the present case at hand, the limitation period will not run within those periods that this case was instituted and pending at the High Court of Lagos State (i.e. from November 2009 to June 2013). (j) The Supreme Court also confirmed this assertion in the case of Aremo II v. Adekanye [2004] 13 NWLR (Pt. 891) 572 at 593 – 594 per Edozie, JSC. On the issue whether the defendant has discharged the burden of proof on it in respect of the counterclaim, the defendant answered in the affirmative. That the defendant successfully showed, proved and discharged same to the Court through its statement of defence to the original suit filed by the claimants especially in paragraphs 22, 23, 24, 25, 26, 27, and 28; and that documentary and photographic evidence supporting the defendant’s counterclaim are already attached as exhibits to the defendant’s statement of defence. The defendant then submitted and restated that its counterclaim against the claimants is labour related, purposely because the claimants are as at the time of that particular event leading to the defendant’s counterclaim employees of the defendant’s company and the destruction of the defendant’s properties was done/carried out within the defendant’s company by the claimants. The defendant equally submitted that there was no time at all that the defendant condoned or forgave the misconduct of the claimants. That the defendant company management really condemned same and took serious steps against the claimants to show its displeasure and anger against all their (i.e. claimants’) actions. Based on the above submissions the defendant urged the Court to grant the defendant’s counterclaim as stated in paragraph 39 of its statement of defence dated 31st October 2014. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. In considering the merit of the case, I need to clarify a thing or two. In paragraph 4.5 of their final written address filed on 1st December 2014, the claimants talked of “the National Headquarters of the MWUN (Shipping/Courier Branch)”. I do not know what they mean by this. The MWUN is one union. As such, there can only be one National Headquarters of MWUN; all others would be branches or units. There cannot be a National Headquarters of a branch as the assertion of the claimants seem to suggest. Secondly, on the issue whether the defendant discharged the burden of proof on it in respect of its counterclaim, the defendant had answered in the affirmative submitting in the process that it successfully showed, proved and discharged same to the Court through its statement of defence to the original suit filed by the claimants. By this submission, the defendant appears to think that pleadings in the statement of defence is sufficient to prove a matter. Even the reference by the defendant to documentary and photographic evidence as supporting its counterclaim did not help matter as little was done by the defendant to establish the nexus between these pieces of evidence with the counterclaim. More on this will be said in due course. The issues before the Court are essentially two: whether the claimants can be said to have proved their claims; and for them to do so, they must show an entitlement to each of the claims. Secondly, whether the defendant has equally proved its counterclaim against the claimants. Before addressing these twin issues, I need to resolve the issue of the jurisdiction of this Court over the defendant’s counterclaim. The claimants had raised in two senses the issue of jurisdiction regarding the defendant’s counterclaim. In the first sense, the claimants argued that the counterclaim is statute-barred. In the second sense, the claimants argued that the counterclaim is not a labour related claim as to confer jurisdiction over it on this Court. To take the second jurisdictional issue first, note may be taken of Abomeli v. NRC [1995] 1 NWLR (Pt. 372) 451 CA, which held that an employee owes it a duty to his employer to protect its property or use same in such a way that no preventable loss would occur. That where he is tardy or there is lack of diligence in his approach to his duty or he is negligent and the master by the same suffers loss due to the unacceptable and untoward behavior of the employee, such employee is guilty of misconduct to which the appropriate disciplinary action can be taken against him. This Court under section 245C(1) of the 1999 Constitution, as amended, is given jurisdiction over all labour, employment, trade union, industrial relations, etc. causes and matters, and matters incidental thereto. The counterclaim of the defendant is a claim by an employer against its employees for the destruction of the employer’s goods, machines, plants and equipments while at work. This to my mind comes squarely within the jurisdiction of this Court under section 254C(1) of the 1999 Constitution, as amended; and I so find and hold. The other jurisdictional issue is whether the counterclaim is statute-barred. The argument of the claimants is that the cause of action arose on 17th October 2008 while the counterclaim was filed in this Court on 31st October 2014. In other words, the counterclaim was filed some six years and fourteen days after the cause of action arose. The defendant did not dispute this; its argument in the main, however, is simply that the case of the claimants had been filed at the Lagos State High Court before it was withdrawn and re-filed in this Court. As such that the period the case was filed at the Lagos State High Court must be factored in when determining the issue of the limitation law. I think that the defendant got it wrong here. First, that a matter filed in court before it was withdrawn and re-filed in the proper Court has not affected the running of time for purposes of the limitation law. See Ibidapo v. Lufthansa Airline [1997] 4 NWLR 124 SC, UTA French Airlines v. Williams [2000] 14 NWLR 271, Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012 and Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013. Secondly, the authorities are clear that causes of action added subsequently after a case has been filed are to be reckoned with as from the date they were filed, not as at the date the case was filed. See Alhaji M. Balogun v. Panalpina World Transport (Nig.) Ltd & anor [1999] 1 NWLR (Pt. 585) 66 at 77 – 84, Ashimiyu Oduola & ors v. Chief A. B. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 at 509, Mabro v. Eagle Star and British Dominions Insurance Company Ltd [1932] All ER Reprint 411 at 412 – 413, Life v. Peasley [1980] 1 All ER 623 at 640 – 643 and Hon. Peter Ekun & ors v. Akoko-Edo Local Government, Edo State & anor unreported Suit No. NIC/LA/34/2011, the ruling of which was delivered on July 9, 2013. For these reasons, I agree with the submission of the claimants that the defendant’s counterclaim is statute-barred; and I so find and hold. I now proceed to the merit of first the claimants’ case; but first, I must state that the claimants are not contesting the termination of their employment. The claimants are merely claiming for outstanding redundancy benefits, outstanding gratuity claims, ex-gratia payments, family medical, leave allowance for only one of the claimants (the 3rd) and outstanding one month salary in lieu of notice for again only one of the claimants being represented (Victor Ogbewi). Now the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employer. To establish their entitlement to the reliefs they claim, the claimants broadly and in very general terms placed reliance on a number of documents including minutes of meetings. Before addressing the relevance of the minutes of meetings as argued and relied upon by the claimants, I need to first point out that reliefs 1(i), (ii), (v) and (vi) are for outstanding sums as per the claims they relate to. Now a claim for an outstanding sum suggests a claim for a shortfall. So when a claimant makes a claim for such a shortfall, the expectation is that such a claimant would indicate the amount that has been paid before indicating the balance outstanding. In the instant case, the claimants did no such thing. On this score, it is difficult to determine the veracity of the claims of the claimants. I indicated earlier that the claimants relied heavily on the minutes of meetings they held with the defendant as the basis of their entitlements from the defendant. In that regard, the claimants had argued that detailed and accurate records of the said meetings were documented by way of minutes by the 3rd claimant who was the Secretary of the ENL Consortium Ltd unit of the MWUN, and that these minutes approximate to a binding collective agreement. But do they? This remains the question. The defendant on its part and in response had actually argued that even if there is a collective agreement in this matter, it is not binding on it as it is not a signatory to the collective agreement. Minutes of meetings cannot generate the kind of entitlement that the claimants plead here. Minutes of meetings do not approximate to a collective agreement. In PENGASSAN v. Mobil Nig. Unltd [2013] 32 NLLR (Pt. 92) 243 NIC, this Court had actually wondered aloud whether minutes of meetings including communiqués can approximate to a collective agreement and doubted it in the following words – …the appellant variously hinged its argument at both the IAP and this Court that the Collective Agreement it relies on is as contained in the minutes of the negotiation meetings held on November 29, 2006 and December 4 – 5, 2006 respectively. This raises the question whether minutes of a meeting can be a collective agreement. In this regard, the appellant, for instance, argued that a communiqué signed upholding the resolutions reached at the Collective Bargaining Agreement negotiation from October 10 to December 5, 2006 is tantamount to a collective agreement. That it is a matter of serious regret that the agreement contained therein was flagrantly repudiated by the MPN Labour Contractors Forum upon return from Abuja, on the instruction of the respondent. How minutes and communiqué of meetings can amount to collective agreement beats our imagination. In the instant case, therefore, for the claimants to hinge their claims on minutes of meetings is most unfortunate. I repeat, minutes of meetings cannot create entitlements in the manner canvassed by the claimants in this suit; and I so find and hold. This leaves out the Memorandum of Agreement Between Management of Shipping, Shipping Agencies, Clearing and Forwarding Employers’ Association and Maritime Workers Union of Nigeria Shipping Branch, and the Constitution of the National Joint Industrial Council for Maritime Workers Union of Nigeria Shipping/Courier Branch (Effective from 2004) and National Joint Industrial Council for Maritime Workers Union of Nigeria Shipping/Courier Branch Staff Conditions of Service (Effective from…). I agree with the claimants that an employer who belongs to the Employer variant of a trade union (i.e. the relevant Employers’ Association) would be bound by the collective agreement entered into by that Employers’ Association. The talk of the defendant not being a signatory to these documents (the Memorandum of Agreement and the Conditions of Service of the NJIC for MWUN) is idle and so must be discountenanced; and I so find and hold. The issue, however, is whether the claimants have sufficiently shown to this Court how these documents confer on them the entitlements they claim in this suit. I looked through the Memorandum of Agreement. It makes no provision for any entitlement as to redundancy, ex-gratia or family medical payments. It is the proposal for 2008 in-house negotiation written by the claimants to the defendant and dated 14th March 2008 that can be said to contain these heads of entitlements. A proposal in law cannot be binding in the manner canvassed by the claimants here; and this remains so even if the proposals were agreed to in the minutes of meetings frontloaded by the claimants in this suit. The Memorandum of Agreement, however, contains in clause 8 a provision for end of service gratuity which is to be calculated using a certain percentage of the basic salary of the employee in question and multiplied by the number of years of service. In the instant suit, the claimants did their own computation of what they are entitled to as gratuity using a basic salary that this Court was told how and where it comes from. The Conditions of Service of the NJIC for MWUN on its part only make broad and general provisions. For instance, as to end of service gratuity, it simply states in cause 27: “Will be paid in accordance with the NJIC Agreement”. As to gratuities on retirement, it simply states in clause 28: “Will be paid in accordance with the NJIC Agreement”. As for redundancy, it simply states, inter alia, in clause 29: “Will be paid in accordance with the NJIC Agreement”. Of course, the Court has not been shown how and where i.e. in what clause “the NJIC Agreement” grants an entitlement to the sums claimed. On the whole, I hold that the claimants have not proved their entitlement to the claims they make; and this includes the specific claims in reliefs 1(v) and (vi) as they relate to Essien Ubong (claiming for N36,216.00 as outstanding leave allowance) and Victor Ogbewi (claiming for N50,290.00 as outstanding one month salary in lieu of notice). In all of this, I note the following cases: first, Isheno v. Julius Berger Nig. Plc [2003] 14 NWLR (Pt. 840) 289, which, for instance, held that redundancy is a form unique only to its procedure whereby an employee is quickly and lawfully relieved of his post; such type of removal from office does not carry along with it any other benefits except those benefits enumerated by the terms of contract to be payable to an employee declared redundant. The case went on to hold that no employee is entitled to both retirement and redundancy benefits. For purposes of the instant case, the claimants have not shown to the Court how their terms of contract bestowed on them the entitlements they claim as redundancy. Secondly, by PAN v. Oje [1997] 11 NWLT (Pt. 530) 625 CA, ex-gratia is a term applied to anything accorded as a favour, as distinguished from that which may be demanded ex-debito, as a matter of right. It connotes something given out of grace, favour, indulgence or gratuitous. The case went on to hold that redundancy benefits do not include gratuity benefits. That the conditions applicable to redundancy are quite distinct from those applicable to retirement or other conventional modes of relieving an employee from active service, such as termination, resignation or dismissal. Once, the claimants in the instant suit failed to show how their contract of employment bestowed on them an entitlement to any ex-gratia payment. Thirdly, although Shell Pet. Dev. Co. (Nig.) Ltd v. Nwawka [2003] 6 NWLR (Pt. 815) 184 held that an employee has no general right not to be declared redundant beyond what his contract or a collective agreement provides, and that usually, but not invariably, the conditions on which an employee may be declared redundant are found not in the terms and conditions of service but in the collective agreement between the employer and its employees, the claimants in the instant case did not show to the Court how the collective agreements they frontloaded granted to them the entitlements they claim. For all these reasons, the claimants have failed to prove their case. Their case lacks merit and so is accordingly dismissed. I must emphasise here that throughout their written address, the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlements they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy; and cases can be lost just on that score. Although I earlier held the defendant’s counterclaim to be statute-barred, I need to also address the merit of the counterclaim just in case I am wrong in that holding. In proof of its counterclaim, the case of the defendant is that it elaborated in paragraphs 12 – 29 of its statement of defence how the claimants and other disengaged staff had looted, vandalized and stole its properties. As proof of all this, the defendant submitted that it exhibited photographs of some of the machines vandalized and cannibalized by the claimants and their cohorts in the exhibits attached to its statement of defence to the main suit. Now the pictures of the machines frontloaded by the defendant are just pictures of machines. The pictures do not even show that the machines are vandalized machines; they do not show any nexus to all the claimants or to any of them; they do not even show that the machines in question belong to the defendant as to entitle them to any proprietary interest in them. With all these flaws, how counsel to the defendant expects a verdict in terms of the defendant’s counterclaim beats my imagination. I have always complained of counsel filing for a counterclaim just for the fun of it. To make matters worse, the main counterclaim of the defendant as per the statement of defence is counterclaim a), which is for the “sum of N1,000,000,000.00 (One Billion Naira) being the estimated amount of the defendant/counterclaimant’s goods, machines, plants and equipments destroyed by the claimants and other disengaged staffs on the 17th October, 2008 and the stolen goods belonging to the defendant”. Two issues stem for this. First, in the evidencing statement on oath of the defendant’s witness, this claim is said to be for “the sum of N1,000,000,000.00” (in figures) but “One Million Naira” (in words). Now, in law, sums stated in words are to be preferred over sums stated in figures. What then do we have here, a conflict as to what the defendant is claiming as counterclaim. The lack of seriousness on the part of the defendant is also indicated in the claim for interest on the said main claim in that N1,000,000,000.00 indicated in figure is equally described as One Million Naira in words. The second issue is the question whether courts of law grant actual sums or estimated sums? The defendant wants this Court to grant it One Billion Naira, which sum is an estimate for the vandalization of some of its machines. Where on earth has this ever happened that a court of law awarded a verdict based on estimates? It is either the sum is actual and proved or it is not. The defendant variously accused the claimants of gold-digging in their claims. I really wonder what the defendant’s counterclaim is if it is not an instance of gold-digging. I repeat for the umpteenth time, having to counterclaim just for the fun of it is a disservice to advocacy and the legal profession. I agree with the claimants that even in terms of the counterclaim for One Billion Naira, the defendant needed to show how it arrived at the said sum; and this it did not do. In any event, in the letter of termination of appointment served on the claimants by the defendant, it is stated that the termination is due to the on-going reorganization in the company. The letter goes on to state that the Finance Department would pay salary up to the date of termination, leave pay entitlement on pro-rata basis (if applicable) and one month salary in lieu of notice. The letter continued that this payment “is in spite of your illegal participation in the wanton destruction of the company’s property on the 18th of October 2008 which consequently led to the disruption of the company’s legitimate activities and economic sabotage”. This to my mind approximates to condoning by the defendant whatever the claimants are said to have done. The law permits an employer to condone the wrongdoing of an employee; and where this happens, the employer cannot go back on it. See ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, which held that for wrong that requires dismissal, the employer may condone it by merely terminating the employment of the employee; and where this is done, the employer cannot subsequently dismiss the employee on account of that which has been condoned. And by Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487, an employer has the discretion to give a lesser punishment to an employee, but it has no discretion to give a higher punishment than that prescribed. In the instant case, the defendant, instead of punishing the claimants for their wrongdoing, elected to terminate and pay them what is due. The defendant cannot now turn round and claim for the destruction of its properties, the very act it has condoned. On the whole, the counterclaim of the defendant is baseless, lacks merit and so is hereby dismissed. For the avoidance of doubt, neither the claims of the claimants not the counterclaim of the defendant have been proved. Both claims lack merit and are accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip