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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J.T Agbadu Fishim - Judge DATE: December 14, 2010 SUIT NO: NIC/ 18/2007 BETWEEN Hotel and Personal Service Senior Staff Association - Claimant AND 1. Tourist Company of Nigeria Plc 2. National Union of Hotels and Personal Services Workers - Respondents REPRESENTATION Niyi Akinmola, for the claimant A. Akpojaro, for the 1st respondent Sola Iji, for the 2nd respondent and with him are A.I Asemudara and Mrs. Olubunmi Ologundudu-Adewumi JUDGMENT This is an originating summons which was filed by the claimant against the 1st respondent on the 10th of April, 2007. Upon the application of the 2nd respondent and the order of this Court, the 2nd respondent was joined as a party to this suit: on 13th of May, 2008. Consequent upon the joinder and upon the application of the claimant, an amended originating summons dated 6th of June 2008 was filed and served on both the lst and 2nd respondents. The claimant's claims against the 1st respondent in its amended originating summons are as follows - (i) A declaration that the 1st respondent cannot unilaterally amend, alter and or review the conditions of service jointly agreed and entered into between it and the 1st respondent without consulting and agreeing with the claimant. (ii) A declaration that the purported amendment, alteration and or a review of Exhibit A tagged conditions of service and attached hereunder through a letter dated 16th of May, 2005 without consulting and agreeing with the claimant as stipulated in Exhibit A therein is illegal and a breach of agreement and therefore, null, void mid of no effect and also a breach of the rights of the claimant under the said Exhibit A. (iii) An order of Court setting aside the said letter dated 16th May, 2005 or any other letter or document as far as it concerns the claimant purporting to amend, alter and or review the said Exhibit A without consulting the claimant as agreed by the parties. (iv) An order of injunction restraining the respondent either by itself, agents, privies, servants or whatsoever from implementing the terms, contained in the letter of 16th May, 2005 and a further order of injunction restraining the 1st respondent from altering or amending Exhibit A hereunder attached jointly entered into with the claimant in 1995. (v) An order of Court that all the entitlements of the claimant's members as contained in Exhibit A he paid to them from May 2005 until Exhibit A is amended on the concurrence of the parties. (vi) And for such further or other orders as this Court may deem fit to make in the circumstances. The case of the claimant is that it (the claimant) is a legal entity and a representative of the senior staff of the 1st respondent who is the employer of the members of the claimant in its hotel at Federal Palace Motels, Victoria Island Lagos. That on the 22nd of June 1995, a contractual agreement (Exhibit A) titled, "Federal Palace Motels Victoria Island Lagos Senior Staff Employees Handbook and General Conditions of Service", was entered into between the claimant and the 1st respondent. That item 87 of Exhibit A tilled, "Duration of Agreement", states that "The duration of this agreement shall be for two years, effective from the date of signing and shall be in force until review is negotiated and agreed upon". That in compliance with and respect for this item 87 of Exhibit A, both the claimant and the 1st respondent agreed and reviewed some items of Exhibit A while those not reviewed remained in force on 13th December 1999, 22nd of July 2002 and on 8th December 2004. Also that item 13 remained un-reviewed and so was still in force. That to the surprise of the claimant, the 1st respondent unilaterally produced a letter dated 16lh May, 2005 purporting to review item 13 in disregard of item 87 and previous practices. The claimant then protested this unilateral and illegal attempted review or amendment to the said item 13 in disregard to item 87 but the 1st respondent did not yield hence the claimant Filed this suit seeking the interpretation of the said item 87. Filed along with the originating summons is a 22-paragraphed affidavit deposed to by Mr. Dele Dad a, Secretary of the claimant. The first respondent reacted by filling an eight-paragraphed counter-affidavit which was deposed to by Aherhe Akpojaro, a Legal Practitioner in the firm of the 1st respondent's counsel, in which he averred that the issue in question is beyond the interpretative jurisdiction of this court under section 7 of the NIC Act 2006 and section 15 of the Trade Disputes Act (TDA) Cap. 432 LFN 1990. The 2ml respondent also filed a 19-paragraphed counter-affidavit deposed to by Comrade Reginald Mbaka, Principal Assistant General Secretary of the 2nd respondent wherein he averred that there is no dispute on interpretation of the agreement between the claimant and the 1M respondent lo warrant any adjudication by this Court. And that contrary to the deposition in the affidavit in support of the originating summons (here is no dispute on the interpretation of the provisions of the Senior Staff Employees Handbook and General Conditions of Service i.e. Exhibit A in this matter. Based on the agreement of the parties, this Court directed that written addresses be filled. The claimant in its written address raised three issues for the determination by this Court, i) Whether item 87 of Exhibit A gave the 1st respondent any right to unilaterally alter, amend or review Exhibit A and particularly item 13 of Exhibit A without consultation and agreement with the claimants, (ii) Whether there is any claim by the claimant against the 2nd respondent or whether the 2nd respondent will be affected by the outcome of the suit of the claimant. (iii) Whether there is a privity of contract between the claimant, 1st respondent and the 2nd respondent as far as Exhibit A and the subject matter of this suit is concerned. On issue 1, the claimant submitted that there is no denial of the existence of Exhibit A. Thai there is also no denial of the fact that it is to be reviewed by both the claimant and the 1sl respondent every two years. It is also clear that it is through Exhibits B, C and D that Exhibit A can only be validly amended when both parties to the contract agree on its alteration. To the claimant, Exhibits B, C and D are evidence of compliance. That since the 1st respondent did not file a counter-affidavit to contradict its own depositions, the legal implication is (ha! the claimant's case is true and so accepted by the 1st respondent. That there is no doubt that Exhibit A was meant to bind both the claimant and the 1st respondent. That Exhibits B, C and I) are its evidence, and the law is that both the claimant and the 1st respondent are bound by the contents of Exhibit A, being an agreement voluntarily entered into between themselves, referring the court to Emmanuel O. Larmie & anor v. Data Processing Maintenance A Services (DPM) Ltd [2005] 12 SC (Pt. 1) 93 at 120 paras 25 - 35, also at 103 Ratio 20 and Race Auto Supply Company Ltd & ors v. Alhaja Fausat Akibu [2006] 6 SC at 19 paras 15 - 20. The claimant further quoted the provisions of item 87 for emphasis as follows – DURATION OF AGREEMENT. The duration of this agreement shall be tor TWO YEARS effective from the date of signing, and shall be in force until review is negotiated and agreed upon. To the claimant, the straight forward intent that can be gleaned from this item are that it shall be effective for two years from the date of signing and shall be in force until a review is negotiated and agreed upon. That from the above, it is the intention of both parties that there could only be a valid review only if it has been negotiated and agreed upon by both parties. That notwithstanding the two years duration, 'the 2nd (led) "shall be in force until reviewed has given an open or blanked length of time to it'. That even if the two years has passed, the provisions of the old agreement will still be effective until it is reviewed especially now that, in the instant case, the delay is because of disagreement. The claimant further submitted that the 1st respondent having not denied Exhibit A and the claimant's depositions, the 1M respondent has admitted same and this Court can conveniently act on it. The claimant also submitted that (lie alleged alteration of item 13 of Exhibit A through Exhibit F, by the IM respondent is illegal and invalid having not complied with item H7 and the known and gleaning tradition of amending it. That Exhibit E ought to be set aside and the parties returned to status quo. The claimant thus urged the court to set aside exhibit F only as it affects the claimant. The claimant submitted further that what is to be done in amending any provisions or items of Exhibit A is as clearly stated in item 87. That it is clear and unambiguous and urged the Court to so hold. That the duty of the Court is to pronounce on the intention of the parties which is clear on their written document like in this case, referring the Court to Adetoun Oladeji Nig. Ltd v. Nigerian Breweries Plc [2000] 1 SC (Pt. 11) 183 at 195 paras 10 - 40. The claimant also urged the Court to grant prayers i, ii, iii, iv and v and declare Exhibit E invalid having not complied with item 87 of Exhibit A. The claimant further pointed out that even though the 2nd respondent raised the issue of service charge in its counter-affidavit, that it is not its business what is payable to the claimant. That both organizations being distinct legal personality, at the very beginning negotiated their respective conditions of service for their members separately and not jointly and this includes service charge percentages with the 1st respondent as contained in Exhibit A attached to the claimant's originating summons in respect of the claimant's members and Exhibit A attached to the 2nd respondent's counter-affidavit for its members. That the 2nd respondent is not a privy or representative of the 1st respondent in this suit and that its service charge is different from the claimant's. That if it wants an increase, it could always make a demand for it and not to stand in the way of the claimant. The claimant also contended that service charge as slated in item 13 is a percentage on a month's sale and when the percentage is withdrawn the sharing formula is as agreed by the senior and junior staff associations with their employer and in this particular case, Grades 5 - 8 share 3 points i.e. Junior Staff and Grade 9 and above 4 points for the Senior Staff and this was what was agreed with the 1st respondent; and it was that of the claimant that is the subject matter of this suit, which the claimant is contending cannot be amended until negotiated and agreed upon by the parties as stated in item 87. And so it is wrong for the 2nd respondent to say that the claimant has no discretion or say when a change is to be effected on the points payable to the claimant. To the claimant, this is a misconception of item 87 of Exhibit A and an attempt by the 2nd respondent to stand in the. way of the claimant. That in Exhibit A attached to the 2nd respondent's counter-affidavit, item 13 therein shows what they negotiated and agreed with the 1st respondent as their service charge and so the 2nd respondent has no business in the case of the claimant. On this issue, the claimant submitted finally that Exhibit G is the analytical table to the effect of the unilateral amendment carried out by the 1stt respondent on the claimant. On the 2nd and 3rd issues, which the claimant argued together, the claimant submitted that a look at the claims of the claimant reveals that none is against the 2nd respondent. That aside from not mentioning its name, to avoid any remotest effect on it, the claimant stated specifically that all its claims are as they affect the claimants only. That in its amended originating summons, it is clear that the claimant has no case against the 2nd respondent and so the 2nd respondent's presence in this suit is an abuse of process of Court as it is a busy body in (he premises or corridor of this Court. That even in the 2nd respondent's counter-affidavit, it has no acceptable or ascertainable ground against the claimant. That the 2nd respondent is only trying to protect the 1st respondent. The claimant: then urged the Court to discountenance its counter-affidavit. To the claimant, the subject of this suit is Exhibit A (an agreement/document between the claimant and the 1st respondent) as it affects the claimant only. That it is die law that it is only the claimant and the 1st respondent that can sue or be sued on Exhibit A. That Exhibit E is not a contract but an invalid document that tries to alter or breach the provisions of Exhibit A and the request of the claimant to have it set aside carried the provision that it is only as it affects the claimant. And so it is no gain saying that the 2nd respondent is not material and legally disqualified to intervene in (his proceeding, referring the Court to United Bank for Africa Plc & anor v. Alhaji Rabangida Jargaba [2007] 5 SC I at 17 paras 10 - 35, NNPC v. AIC Ltd [2001] 49 WRN 140 at 156 -157 lines 40 and AG Federation v. I. G Ltd & ors [2000] 4 WRN 96 at 103 lines 30 - 35. The claimant then submitted that the 2nd respondent not being a party to Exhibit A, has no business in this suit. The claimant concluded its submissions by summarizing as follows - that its suit as can be seen from its processes is against the 1st respondent. That all (he processes were served on the 1st respondent who refused and or neglected to file any reply to the claimant's suit, which means it has admitted the claims of the claimant. That the claimant has proved its case in this suit by presenting Exhibits A, 15, C, D, E, F, G and asserting that the 1st respondent could not alter item 13 of Exhibit. A having failed to comply with item 87 of Exhibit A; and since this is not denied it is deemed correct that the 1st respondent cannot do so without agreeing with the claimant. That the claimant has no case against the 2nd respondent and it has no contract or agreement with it either. That the agreement sought to be interpreted in this suit is between the claimant and the 1st respondent. The 2nd respondent could, therefore, not sue or be sued on it as it has no interest in this case. It has no privity of contract and so its deposition in its counter-affidavit is irrelevant and ought to be discountenanced. That having shown that the 1st respondent could not alter item 13 unilaterally, the operating service charge formula is as contained in item 13 of Exhibit A and the claimant's members are entitled to receive their service charge pay of 4 points from May 2005 until it is altered by the agreement of both parties. That the 1st respondent should be restrained from breaching its own contract until it is altered by the agreement of the parties. That the claimant is entitled to judgment in this suit. The 1st respondent on its part raised six issues for determination as follows – i. Whether the suit, currently comprised is competent to invoke the Court's original jurisdiction, ii. Whether even if the question raised before (he Court and marked as 'a' in the originating summons is interpretative, whether those marked as 'b', 'c', and 'd', along with all the reliefs sought in the originating summons are interpretative reliefs. iii. Whether, if the suit: does not competently invoke the courts' original jurisdiction, the Court may dismiss the suit on this ground even, after its ruling by which it assumed original jurisdiction, iv. Whether the issues raised for the Court's determination arise or can be said to arise from the portion/provision of the agreement sought to be interpreted (item13 in Exhibit A). v. Whether the suit is one that could be commenced by originating summons. vi. Whether the claimant is not estopped from bringing its action after receiving payment for respective months, years on the basis of the distribution formula which it now contests in this suit. On issue I, the 1st respondent submitted that while section 15 of the TDA Cap. T8 LFN 2004 provides exhaustively the Court's jurisdiction to interprets awards either of the Industrial Arbitration Panel (IAP) or this Court, section 16 of the TDA 2004 concerns itself exhaustively with the Court's original jurisdiction to interpret agreements. That section 7 of the NIC Act 2006 adds only the following as the further documents that can be interpreted by this Court that is, terms of settlement, trade union constitution and no more. That this jurisdiction was expected to be limited and restrictive, until such a time as the National Assembly may extend the Court's jurisdiction. And that there is no evidence that the said jurisdiction has been extended by any Act of the National Assembly. That it is trite, therefore, that to invoke the Courts' jurisdiction, at best, the document sought to be interpreted must either be an award or collective agreement or terms of settlement and nothing else. That in the instant case (as confirmed by this Courts' ruling of 5th February, 2008, on the 1st respondents' preliminary objection), the only provision culled out for the Court's interpretative jurisdiction is item 13 of Exhibit A to the claimant's affidavit in support. That the kernel of the claimant's case is that the 1st respondent by Exhibit E purported to unilaterally amend the contract and thus from declarations sought in this suit, the cause of action arose exclusively from the said Exhibit E. That before the court may grant the reliefs sought by the claimant, the main question for the Court to determine, as the suit is currently expressed, is whether Exhibit E can be interpreted to be, or found to be, a unilateral amendment of Exhibit A. Also that in considering whether Exhibit E unilaterally amends Exhibit A, the Court will not be exercising, by law, its interpretative jurisdiction since the said Exhibit E is neither an award nor an agreement. The first respondent further contended that this Court's interpretative original jurisdiction has not been invoked by the claimant to interpret the said Exhibit E. The Courts' jurisdiction in this suit is simply sought to interpret item 13 of Exhibit A. That the law is trite that the Court's interpretative jurisdiction is solely a matter of law not of fact, and as such the Court cannot in exercise of its interpretative jurisdiction dabble into matters of facts, especially in a case such as this where the original jurisdiction of the court derives exclusively from its interpretative jurisdiction and no more. That for the claimant to succeed, the Court must make findings of fact, which it is without jurisdiction to make in a purely interpretative action. That what the interpretative jurisdiction allows the Court to do is to employ the several cannons of interpretation (literal rule, golden rule and mischief rule), to determine the intention of the parties to a contract, exclusively and exhaustively, from the words or group of words sought to be interpreted and that this is purely a matter of law. To the 1st respondent, the court does not interpret fact, the court makes findings of fact, just in the same way that the Court does not make findings of law hut merely interprets law, referring the Court to Ajayi v. MILAD, Ondo State [1997] 5 NWLR (Ft. 504) (page number was not supplied) where according to the 1st respondent the court held that - The duty of the Court is by no means to make laws but rather to declare the law. In declaring the law the Courts give the words used and employed in or by the law or statute their ordinary and natural meaning. The Court was also referred to Emesim v. Nwachukwu [1999] 6 NWLR (Pt. 605) 154 at 173 paras A - B and submitted that it is a legal absurdity and in fact without any bases in aw for one to claim that a Court of law interpret facts. The 1st respondent submitted that it is well settled that in exercising its interpretation jurisdiction, the Court cannot go beyond the document sought to be interpreted. It must limit itself to the document sought to be interpreted. That for the court to assume original jurisdiction simply because the word interpretation is in the prayers, will be contrary to the intent of the TDA or the NIC Act since every other trade dispute will be capable of being brought in for the Court to exercise original jurisdiction, simply by asking the Court to interpret the document. That this is not the intendment of the law. The 1st respondent then urged the Court to closely consider the originating summons and dismiss it: for incompetence on account of its submissions and order that the complaint should properly go through the laid down dispute resolution processes for trade dispute matters. And that this is definitely not an action for interpretation, it merely pretends to be one and so the Court is to work beyond mere form to determine the character of the application. On issue 2, the 1st respondent drew the Court's attention to the originating summons and pointed out that the only time the word "interpretation" as an operative word is used in the questions raised in the originating summons and lettered 'a' - 'd', is in the question lettered as 'a'. That there is no reference to interpretation in the questions referenced 'b' and 'c'. That they do not pretend to be questions of interpretation in any way, they are also not consequential questions or issues but fresh issues standing on their own. That the questions lettered as 'b' and 'c' are incompetent ab initio to raise the original interpretative jurisdiction of this court. That particularly 'b', that is, "whether letter of review dated the 16th May 2005 unilaterally made by the respondent is not null, void and of no effect" cannot be determined by the Court without the Court considering the letter (Exhibit B), which is not the subject of interpretation in this suit (but item 13 of Exhibit A) or without making a finding of fact as to whether the letter or the review was unilaterally made. The 1st respondent then submitted further that in so far as the Court is invited to make findings of fact outside the document, that is, before it: to interpret, the Court cannot be said to be exercising its interpretative jurisdiction in respect of item 13 in Exhibit A. As regards the question lettered as 'c' which is, "whether the claimant's right of fair hearing has not been breached in the letters of agreement, the 1st respondent's contention is that the court cannot make such an order without entering the field of facts to determine whether in fact a right of fair hearing has been breached. That a breach of collective agreement is a matter of fact, not of law and the Court cannot be called to interprets whether an act or group of acts is a breach in exercise of its interpretative jurisdiction in respect of the words or group of words in the portion of the document sought to be interpreted (item 13, Exhibit A) and so it is the 1st respondent's submission that the same argument for questions 'b' and 'c' applies to question 'd'. The 1st respondent also submitted that those questions and/or reliefs outside the determination of whether a party may unilaterally amend the contract cannot in law be brought under the purview of consequential reliefs. According to the 1st respondent, a consequential relief is a relief that follows as a consequence after the Court has determined all the substantive issues between the parties. That a consequential relief is not driven by its own separate group of evidence or facts but by evidence supporting the grant of the main relief. That in Awoniyi v. Reg. Trustees of AMORC [2000] 10 NWLR (Ft. 676) 522 at 545 para A - C, the Supreme Court held that: - The purpose of a consequential order is to give effect to (he decision or judgment of (he Court, but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit…… According to the 1st respondent, the main questions and/or reliefs before this Court is whether either party to an agreement may unilaterally amend it. That that is the issue before the Court for the court's interpretation. The 1st respondent then submitted that for the Court to exercise its interpretative jurisdiction on the question, the matters of whether it is actually being breached or amended are irrelevant and evidence of all that go to no issue and ought to be irrelevant and inadmissible. That a Court cannot make a consequential order on the basis of facts which are not in issue or relevant and thus inadmissible as regards the principal relief which is the interpretative relief of whether any party may unilaterally change the contract from the interpretation of item 13 in Exhibit A, referring to Awoniyi v. Reg. Trustees of AMORC (supra). The first respondent argued further that an interpretative relief is a restricted, special form of declarative relief and while largely it may be founded on facts, an interpretative relief is founded entirely on law. That the only time facts have any relevance in an interpretative action is only in so far as to show the mischief which the words in document seeks to correct. And this means that the only facts that are relevant for the purpose of interpretation are background facts i.e. facts prior to the making of the document. To the 1st respondent, the facts that the claimant had brought in this case are facts supposedly occurring after the entering of the agreement i.e. Exhibit A, and are thus irrelevant for the purpose of interpreting item 13 in the said Exhibit A. That Exhibit B, C, H, E, and G are thus inadmissible and should be rejected and all the depositions in the affidavit in support, save the one referring to Exhibit A should also be struck out. The 1st respondent then urged the court to hold that the reliefs sought for in this suit along with the questions lettered 'b' -'d' are not matters of interpretation and cannot be the basis for invoking the Courts' interpretative jurisdiction under section 16 of the TDA 2004 or section 7 of the NIC Act 2006. On issue 3, the 1st respondent submitted that the law is settled that the matter of jurisdiction or the absence thereof is fundamental to any suit. That where the court makes an order without jurisdiction such an order ought to be a nullity even though it still requires the judicial processes setting it aside. That the law is also settled that an order or judgment of court given without jurisdiction may be set aside by the same court that gave that order or a court of coordinate jurisdiction. There is, therefore, no requirement that such orders can only be set aside on appeal to a higher court referring the court to SkenConsult v. Ukev [1981] 1 SC 6, where the Supreme court stated the law as follows: That a court of coordinate jurisdiction and/or the same Court can overturn its previous decision where such decision is a nullity on account of lack of jurisdiction, the proceedings will be a nullity. This court was also referred to Oshatoba v. Olujintan [2000] 5 NWLR (PL. 655) 169 para A, where the Supreme Court held that where a case is heard and judgment is delivered by a court without jurisdiction, the proceedings will be a nullity. The 1st respondent then submitted that this court is without powers to exercise original jurisdiction in respect of this suit which merely disguises as an interpretative one but is in fact and in substance a trade dispute. On this issue, 1st respondent submitted further that even if the court could exercise original interpretative jurisdiction over item 13 in Exhibit A, it cannot exercise the same powers over Exhibit E as Exhibit E is neither an award nor a collective agreement, by the claimants own dispositions. That accordingly, any exercise of jurisdiction in respect thereof ought to be in law a nullity liable to be set aside by this court and, therefore, urged the court to decline jurisdiction in this suit and set its previous order dated 5lh day of February, 2008 aside. On issue 4, the 1st respondent submitted that it is trite law that in construing or interpreting the document, the Court is bound within the limit of the provisions of the said document, referring the Court to Mobil Oil (Nig) Ltd v. Fed. Board of Inland Revenue [1997] 3 SC 33 at 48 paras 25 - 30 and Emesin v. Nwachuk\vu [1999] 6 NWLR (Pt. 605) 154 para E. That in UTB Nig Ltd v. Ukpabia [2000] 8 NWLR (Pt. 670) 570 at 580 para E, the Court of Appeal held that: It is not proper to read into a statute what it does not expressly provide. A statute should he construed in its ordinary sense. Also that in Excel Plastic Ltd. ltd v. FBN Plc [2005] 11 NWER 59 at 84 - 85 paras E - C, the Court held that: Where the language of a statute or a document is plain and unambiguous it should be given its plain and ordinary meaning by the Court as well as the parties in the case and no person will be allowed to introduce extraneous words or meaning in the construction of such document which would give an entirely different complexity to the document. According to the 1st respondent, the Court's duty is to find out the meaning of the words in the document exclusively and submitted that in the instant case, the provision brought before this Court to be interpreted is item 13 in Exhibit A. The 1st respondent further submitted that by no stretch of interpretation can the question of amendment whether unilateral or joint be deemed to arise from the content of item 13 in Exhibit A. That the only question that can arise from item 13 is whether the ordinary meaning of the words are that junior staff should be on certain level as regards service charge while senior staff should be on a certain level. Also that the issue of amendment does not arise from and is not in any way collateral to the interpretation of item 13 in Exhibit A. The 1st respondent then urged the Court to hold that the cause of action that is claimed does not arise from the content of item 13 in Exhibit A. On issue 5, the 1st respondent submitted that, there are a lot of judicial authorities to the effect that a suit may only be commenced by originating summons when there is no serious disputation of facts. That where there is serious disputation of facts, the proper process ought to be by writ of summons and/or by complaint, referring to Olumide v. Ajayi [1997] 8 NWLR (Pt. 5 17) 433 esp. at A42 - 443 paras G - A where the Court held that: - Originating summons is prescribed and suitable for use in very limited circumstances...when a dispute involves more questions of construction of documents or statutes...However, originating summons should not be used where there is dispute of facts or the likelihood of such disputes. In other words it is not suitable for what may be termed 'hostile proceedings' in which facts are in dispute. That from the facts presented in this suit by the claimant and the 1st respondent, it is clear that they are inconsistent and conflicting and that the court must as a matter of law, make findings of facts after calling evidence and determining what evidence to believe and what not to believe; and so this is not the kind of matter that the claimant can bring by originating summons. The 1st respondent further submitted that this Court should decline jurisdiction in this case on the authority of the Supreme Court's decision in Madukolu v. Nkemdilim [1962] 2 SCLNR 34 I, which is to the effect that: the court may only exercise its jurisdiction after the following considerations have been met — i. Whether the court is properly constituted with respect to its membership; ii. Whether the subject mailer of the action is within its jurisdiction; iii. Whether the action is initialed by due process of law; and iv. Whether any condition precedent to the exercise of its jurisdiction has been fulfilled. Also referred to the court is AG. Federation v. Guardian Newspapers [1999] 9 NWLR (Pt. 619) 187. The 1st respondent then urged this Court to decline jurisdiction on the ground that the originating process required by law to invoke its jurisdiction is patently defective and incompetent. And in the alternative that the court should order the proper processes to be filed. On the 6th issue, the 1st respondent argued that the evidence before this Court is that the letter Exhibit E purported to demand the commencement of a new distribution of service charge to take effect from May 2005; and as deposed in its counter-affidavit to the effect that since then, the claimant's members have collected their service charge on the basis of a new formula for two whole years before filing this action. That even if the letter marked Exhibit E was a unilateral amendment (which is denied) the acceptance of the said service charge payments upon the new distribution formula makes the, amendment mutual by the conduct of the complainant, referring to Agoma v. Guinness Nig. Ltd [1995] 2 NWLR (Pt. 380) 672, where the Supreme Court held that: - Where an employee accepts or collect his entitlements...he cannot be heard to complain later that his contract of employment was not validly and properly determined. The employee can no longer maintain an action after collecting her benefits. The court was also referred to B. A. Morohunfola v. Kwara State College, of Technology' [1990) 4 NWLR (Pt. 145) 506 at 528 paras F - H, and Maiduguri Flour Mills Ltd v. Mallam Abba 1996] 9 NWLR (Pt. 473) 506. The 1st respondent finally submitted that having been in constant receipt of service charge payments on the bases of the new formula since 2005 (i.e. for four whole years) the claimant cannot turn around and challenge the said amendment which it has itself accepted by conduct i.e. by (accepting such payments) and is therefore estopped from so doing, and urged the Court to so hold. The 1st respondent finally urged the court to accede to its submissions and strike out the claimant's originating summons for being incompetent, and an abuse of the courts' process. The 2nd respondent in its brief of argument raised the following issues for determination. (i) Whether, by the provisions of article 13 of Exhibit 'A' to the amended originating summons, the 1M respondent regularly issued the letter dated 16th May 2005. (ii) Whether the discretion granted lo the 1st respondent by virtue of article 13 has been taken away by the provisions of article 87 of Exhibit A attached to the amended originating summons. (iii) Alternatively, if the answer to (2) above is 'yes' whether the claimant by refusing lo come to the negotiation table as indicated in their letter dated 12th of April 2005 attached lo the amended originating summons by merely setting out conditions, has not in law waived its rights thereby voluntarily assuming eventual risk, arising there from or estopped from complaining thereafter of not being allowed lo make input before Exhibit E was made. On issue 1, the 2nd respondent submitted that by careful reading of article 13 of Exhibit A to the amended originating summons it is very clear that the 1st respondent has powers to distribute a percentage of the service charge among its Nigerian workers generally and that the service charge will be paid to the employees at the existing rate. To the 2nd respondent this means that the rate of the service charge to which the Nigerian employees were entitled to had been in existence before the signing of Exhibit 'A' and so it was not a negotiated rate. And so the rate was not a product of the claimant's negotiation. That the quantum and rate of distribution is solely vested in the 1st respondent. So the letter dated I6lh of May 2005 was made in the light of the provisions of article 13 of Exhibit A. That the same was, therefore, regularly made to distribute the service charge. On issue 2, the 2nd respondent submitted that article 13 of Exhibit 'A' lo the amended originating summons clearly grants the 1st respondent the sole discretion of determining the quantum of rate of service charge distributable among its Nigerian workers. That article 13 is explicit, on this when it provides that: - The service charge is distributed on the basis of points system. Each job title has a certain number of points assigned to it. Employees will be informed of the number of points that their job qualifies them for when they are assigned the job". The Court was urged to take note of the specific use of the words "assigned" and "informed". To the 2nd respondent, the duty of assigning points to a job title is at the discretion of the 1st respondent. That it is also within the sole discretion of the 1st respondent to inform each Nigerian employee the points that their jobs qualify them for. That where the words used in a document are so clear, the Court should apply the principle of literal interpretation, referring the Court to Adebajo v. Adebajo [2006] 3 FWLR (Pt. 333) 5671 at 5692, where Akaahs, JCA quoted with approval Pats-Acholonu, JCA (as he then was) in the case of Green-Belt Refineries Ltd v. First Bank of Nig. Plc [1996] 6NWLR (Pt. 455) as follows: - The cardinal presumption in the interpretation of agreements is that the parties have intended what they have in fact written so that their words must be construed as they stand. That is to say, the meaning of the document or of a particular portion of it is to be sought in the document itself. One must, consider the meaning of the words used, not what may be guessed to be the intention of (he parties. The 2nd respondent submitted further that the discretion to inform is not joint, shared or collective with the Nigerian employees but solely at the discretion of the 1st respondent. That there is nothing in article 87 of Exhibit A that diminishes the discretion so granted. That if the intention of article 87 had been to limit the discretion it would have been clearly slated. 'That reading article 87 to cut down the discretion granted the 1st respondent by article 13 will, as the claimant is seeking, amount to rewriting the provisions of article 13 in the queerest form by this Court. Also that the provisions of article 87 are mainly to determine the duration of Exhibit 'A' and not specifically on the mode of amendment of any of the provisions of Exhibit 'A' and so the procedure of amendment of any agreement , is not a matter of presumption. The 2nd respondent then urged this Court to hold that the letter dated 16th of May 2005 was regularly made. On issue 3, the 2nd respondent submitted that in the event that issue no. 2 is answered in the affirmative, that is, that the 1st respondent's sole discretion in article 13 is taken away by article 87 of the Exhibit 'A' attached to the amended originating summons, then by virtue of the contents of the claimant's letter dated 12th April, 2005 attached to the amended originating summons, the claimant waived its right to negotiate. That from the tenor of the said letter it is clear that the claimant was invited to a meeting to discuss the issue of the service charge but refused to attend setting out series of conditions to be met "before any form of dialogue can be entertained between us and the management only in conjunction with our national office". That here, what the claimant did is a deliberate or intentional relinquishing of its "right" to dialogue on the issue of the service charge. And so to the 2nd respondent, the claimant disclaimed any form of dialogue because it was greatly profiling from the inequities in the distribution of the service charge before the issuance of the letter dated 16th of May 2005. As to whether there is any claim by the claimant against the 2nd respondent or whether the 2nd respondent will be affected by the outcome of this suit, the 2nd respondent answered in, the affirmative and further predicated its submission as follows : - (a) That the share or distribution or allocation of points in respect of service charge affects all Nigerian employees of the first respondent. And that article 13 of Exhibit 'A' attached to the amended origination summons, as well as article 13 of Exhibit 'A' attached to the 2nd respondent's counter-affidavit are ad idem on this issue. (b) That the letter dated 16th May 2005 relates generally to the Nigerian employees..."All Federal Palace Motels Associates". That the interest of the claimant and the 2nd respondent are inextricably linked to the letter or memo of 16th of May 2005. The 2nd respondent submitted further that the issue of privity of contract raised in this case is of no moment. That what is at stake here is the fact that if a decision is made on the status of the letter dated 16th of May 2005 with the 2nd respondent being aware of (he proceedings but chooses not to make any presentation it will be caught by silence. That estoppel by silence arises where a person, who by force of circumstances, is under a duly to another to speak refrains from doing so, thereby leads others to believe in the existence of a state of facts in reliance upon, acts to his prejudice, referring to Legal Dictionary by S. L. Salwan and U. Navanal at page 137. That Exhibit E attached to the amended originating summons is very clear. It applies to all cadres of Nigerian workers. That the interest of the claimant cannot be severed from those of the other staff. That reversion to status quo ante. in respect of the claimant will automatically be reactivated, thereby leading on the other hand to multiplicity of actions. To the 2nd respondent, it is the duty of this Court to avoid this ugly development and this is where the interest of the 2nd respondent lies. The 2nd respondent then urged this Court to hold that the 2nd respondent by affidavit evidence and by law has sufficient interest in the subject-matter of this action, which in fact is Exhibit 'E' and which is capable of being protected by this Court. The 2nd respondent then concluded that in the light of the affidavit evidence contained in the counter-affidavit dated 6th October, 2008 and the arguments canvassed, this Court should dismiss the claims of the claimant in its entirety and hold that Exhibit E was regularly made by the 1st respondent. The claimant decided to make its reply on points of law separately. In replying to the 1st respondent on points of law, the claimant first indicated that there are two paragraphs 7 in the 1st respondent's counter-affidavit and then submitted that the 1st paragraph 7 offends the provisions of the Evidence Act particularly sections 86 - 89. To the claimant, the deponent deposed as follows: 'that I am informed by senior counsel in the chambers of G. M. Ibru & co…. That 'senior counsel' is not the name of a person, and so senior counsel cannot be called as a witness should the need to do so arise. That anybody could be a senior counsel. That all senior lawyers in G. M. Ibru & co are senior counsel. That having failed to comply with section 89 of the Evidence Act, which makes it mandatory for any deponent to name his or her source of information if same is not within his knowledge and if he fails to do so, the said deposition or information becomes inadmissible. That the deponent in the 1st respondent's counter-affidavit has failed to do so. The claimant then urged the Court to strike it out. Furthermore, that the entire paragraph is either a conclusion, legal argument or prayers, and are not statement of facts as required by law as provided by section 86 and 87 of the Evidence Act, urging the court to strike it out. The claimant then referred to General & Aviation Services Ltd v. Captain Paul M. Thahal [2004] 6 MJSC 120 at 140 para A and Dr Oladipo Maja v. Mr. Coasta Samouris [2002] 15 WRN 69 at 91 lines 20 - 45. Reacting to the 1st respondent's submission on issue one, the claimant submitted that the 1st respondent is either misinterpreting the claimant's case or is intentionally trying to confuse and or mislead the Court. That a further look at the claimant's case, and the deposition of the 1st respondent, which is to the effect that it had not amended Exhibit E, means that all the issues raised by the 1st respondent arc an academic exercise, referring to AG Federation v. ANPP & ors [2000] I MJSC 1 at 18 - 19, 20, 28 -29 and 30. The claimant also insisted that contrary to the argument of the 1st respondent, the issue of interpretation of document is an issue of law and not of fact, referring the Court to Hon. Emmanuel Oseloka Araka v. Ambrose Nwankwo Ejeagwu [2000] 12 SC (Pt. 1) 99 at 133 para 40. That what this suit is all about is whether the P1 respondent can alter or amend any provisions or items of Exhibit A unilaterally or by Exhibit E which it unilaterally wrote;' and so going by the provisions of item 87 of the said Exhibit A, that issue did not require leading evidence. That the two documents are before the Court and all the Court needs to do is to look at the two documents and make its decision or conclusion. That the claimant did not ask the Court to go beyond the documents before it and so all other reliefs are consequential to the issue of interpretation. On the issue of jurisdiction raised again by the 1st respondent, the claimant argued that this is an abuse of judicial process as this Court had exhaustively considered the issue of jurisdiction and has ruled on it. And that as far as this same issue is concerned, the Court is Juntas officio. The 1st respondent can only raise it on appeal and not to reopen that issue again in this Court, referring to Milad, Benue State v. O.P. Ulegede & anor [2001] 9 - 10 SC 1 at p I 84- 185 paras 35 -40. In reply to issue two of the 1st respondent's argument, the claimant reiterated that all the issues in this suit are about interpretation of a document i.e. the interpretation of Exhibit A. and no more. And that the case of Awoniyi v. Reg. Trustees of AMORC, supra, is not applicable to the case of the 1st respondent but rather supports the case of the claimant. In replying on the 3rd issue in the 1st respondent's address, the claimant's position is that if the 1st respondent is not satisfied with the ruling of this Court, the proper thing to do was to proceed on appeal and not to re-canvass the issue in the address. The claimant also in reply to the 4th issue argued by the 1st respondent, submitted that the Court has power to declare void anything done outside Exhibit A that tends or attempts to alter it without compliance with item 87 of Exhibit A and so this Court should pronounce as nullity Exhibit E and proceed to grant other consequential reliefs sought by the claimant. That there is no need for oral evidence and so the best procedure is by originating summons, referring to Festus Keyamo v. House of Assembly, Lagos State & ors [2002] 12 SC (Pt. 1) 190. In reply on points of law to the 2nd respondent's submissions, the claimant argued that there is no uniform point system for all the employees. That each job title has certain number of points assigned to it. That the plank of article 13 is that 4 points for senior staff was what was agreed by the claimant and the 1st respondent. And by article 87, it shall be in force until another variation is arrived at; and until another variation is arrived at jointly, no party can unilaterally vary it. On the second issue, the claimant argued that by its constitution, it is only the National body that can carry out such negotiation on their behalf; so referring the 1st respondent to their National office is legal and proper. That it docs not amount to a waiver. That it was also a serious complaint of what the 1st respondent was trying to do, which is the unilateral variation of the agreement they validly entered into. And under the law the branch which is not a party to the original agreement cannot enter into a valid agreement hence it insisted on the involvement of their National office which is the proper and legal party to enter into negotiation with the 1st respondent; and so such cannot be regarded as a waiver of right. That as far as Exhibit A is concerned it does not concern the 2nd respondent as all its submissions on and presentations as far as Exhibit A is concerned amount to a busybody in the precincts of this suit. Finally the claimant submitted that it never sought the nullification of the letter dated 16th May 2005 as it concerns the 2nd respondent. And that the Court cannot act on the said teller as it concerns the 2nd respondent because no relief of such is before the court and, therefore, insist that the 2nd respondent is an unnecessary party in this suit, and ought to have since dropped out. The claimant then urged the Court to grant its claim. We have carefully considered all processes filed and the arguments canvassed by counsel in this matter. The thrust of the claimant's case as can be gleaned from the amended originating summons is for this court to determine whether the 1st respondent can unilaterally, without consulting with the claimant, alter, review and or amend the said conditions of service herein referred to as Exhibit A in which both parties jointly negotiated and entered into in 1995 and jointly reviewed in 1999, 2002 and 2004, with an expiration date of 2006 before another negotiation will be due. To the claimant, therefore, its case before this court is that the court is called upon to interpret a collective agreement i.e. item 13 of Exhibit A. To the respondents this is not a case of interpretation as according to them what the court is called upon to interpret is neither a collective agreement nor terms of settlement. And that the issue involves facts and triable issues, which would need to be proved by calling witnesses. The 1st respondent spent the whole time reopening the issue of jurisdiction which this court had considered and ruled upon in its ruling delivered on February 5, 2008. It is unfortunate that the 1st respondent instead of appealing that ruling would through the guise of defending the main action reopen issues that have been ruled upon. We agree with the claimant that this is an abuse of court process. If the 1st respondent has no defence to the action, all it can do is refrain from wasting the time and energy of the court. We shall not, therefore, indulge the 1st respondent with a consideration of its submissions on competence of the action and the jurisdiction of this court to hear and determine the matter at hand, that having been done on February 5, 2008 In any event, we agree with the claimant that the counter-affidavit of the 1st respondent cannot be admitted and considered given the inherent defect that it suffers in not disclosing who 'senior counsel' is. We now turn to the documents to be interpreted. The first is the collective agreement between the claimant and the 1st respondent, specifically item 13 of Exhibit A, which provides as follows — Service charge will be paid to employees at the existing rate according to the income received by the Motel. The Motel distributes service charge lo all NIGERIAN employees. The amount of the service charge will vary from month to month depending on the performance of the Hotel. As this amount is dependent on sales, the hotel will not guarantee any information amount, service charge ….will be on the 15th of the month or in the event of the 15th day of the month falling on weekend or on a holiday, payment shall be made on the first day preceding the holiday or the weekend. The service change is distributed on the basis of points system. Each job title has a certain number of points assigned to it. Employees will be informed of the number of points that their job qualifies them for when they are assigned the job. Service charge points are distributed as follows: Grade 5 - 8 - 3 points Grade 9 and above - 4 points The second issue to be interpreted is Article 87 of Exhibit A, which provides as follows: - The duration of this agreement shall be in force for two years, effective from the date of signing (which is 22nd June 1995) and shall be in force until a review is negotiated and agreed upon. It is trite that where there is an agreement regulating any arrangement between parties, the main duty of the court is to interpret the agreement and give effect to (he wishes of the parties as expressed in the document. See Eleme Petrochemicals Company Limited v. Dr Morah Chibuzor Emmanuel unreported Suit No. NIC/EN/94/2009 delivered on 21/10/2009. Also, the Supreme Court in Adedoyin Oladeji Nig. Ltd v. Nigerian Breweries Plc [2007] 3 MJSC 29 held per Tobi, JSC that - In the construction of documents, the question is not what the parties to the document may have intended lo do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr Nzeribe [1989] 4 NWLR (Pt. 118) 755. However, where the meaning of the words used is not clear, the court will fall back on the intention behind the words. This is to say that courts are enjoined to look at the words used in the document in order in ascertain the intention of the parties. It is clear from the wordings of item 13 of Exhibit A that the rate of distribution of service charge points is clearly spelt out. And this was agreed by both parties and according to the wordings of Article 87 this will remain so from the date of agreement which was 22nd June 1995 until same is reviewed by negotiation which must be agreed upon. A look at especially paragraphs 6, 7, 8, and 9 of the amended affidavit in support of the originating summons will reveal that the collective agreement was jointly reviewed in 1999, 2002 and 2004 of which the expiry date is 2006 before another negotiation will be due. See Exhibits B, C, and D. An evaluation of Exhibits B, C and D reveals that the said item 13 in the principal agreement was not reviewed and so the contents therein remain in force and effective till it is otherwise reviewed. We, therefore, hold that the said Exhibit E, which purportedly unilaterally reviewed item 13 in the principal agreement, is null and void because it is contrary to Article 87 of the collective agreement. We also agree with the claimants that the purported amendment, alteration and or review is unlawful. We, therefore, set aside the said letter Exhibit E dated 16th May 2005 and declare it null, void and of no effect because it is in breach of the rights of (he claimants under Exhibit A. We also order that all the entitlements of the claimants as contained in Exhibit A item 13 be paid to them from May, 2005 until Exhibit A is amended or negotiated by the parties. We make no order as to cost. Judgment is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J.T Agbadu-Fishim Judge Judge