ADAMU-ALAMBA JOSEPH & 24ORS VS NIGERIA LNG LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP,

Hon. Justice B.A. Adejumo, OFR

President

Date: 24^TH JANUARY, 2019 SUIT NOs: NICN/ABJ/92/2014

NICN/ABJ/93/2014

NICN/ABJ/94/2014

BETWEEN:

ADAMU-ALAMBA JOSEPH
BERKELY MARGARET
BESTMAN EBIANGA
EKWEGH CHINYERE
ESHIET EMMANUEL
ETOH PATRICK
FATUKASI OLU ————CLAIMANTS
LEMBOYE TAJUDEEN
MUNIRU ASHIFATU GBOLAGADE
OGUNBIYI TOPE EMMANUEL
OKPO-ENE LUCY
OKUNADE ADEGBOYEGA BABATUNDE
OLOJO PATIENCE
OLUFEMI IBITOLA OMOLABAKE
ONWUCHEKWA ELIZABETH IFEANYICHUKWU
OYEWUMI KAMALDEEN
SEIGBEIN MATHEW
SELE VICTOR OSARUMWENSE
SOWEMIMO OLUSOLA
STEPHEN ABABIO
UJOMU REGINA
WOLLY SHUAIB
WORGU ALL-WELL
YAKUBU FATIMA
GADU ILLIYASU

CLAIMANTS

AND

NIGERIA LNG LIMITED

DEFENDANT

REPRESENTATION:

JUDGMENT

The above suits, i.e. Suit No: NICN/ABJ/92/2014; NICN/ABJ/93/2014 and NICN/ABJ/94/2014, were consolidated by the order of this Honourable Court dated 24/11/2014.

Claimants in Suit No: NICN/ABJ/92/2014 sought before this Court as follows:

A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced by the Defendant Company are entitled to parity of treatment with all other direct staff of NLNG under the Conditions of service applicable up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired.
A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced and approved by the Defendant Company are entitled to have their VSS package calculated on the basis of the 10% salary increment (in the monthly Basic Salary/Annual Basic Salary) and the Conditions of Service applicable to all direct employees of Nigeria LNG as at 1^st July 2013, since they remained staff of the Company up to and including 31^st July 2013 when they physically exited the Company and up till October 2013 when their pay in lieu of notice expired.
Order directing the Defendant Company (i.e. NLNG Management) to recalculate the VSS package/benefits of each of the Claimants on the basis of the 10% salary (monthly Basic Salary/Annual Basic Salary) increment which came into effect in the Company on 31^st July 2013 and the Condition of Service brought about by the Collective Bargaining Agreement concluded between PENGASSAN and NLNG on 15^th July 2013 and pay to each of the Claimants the deference between the amount already paid and the amount due to each of them based on the current Conditions of Service and the 10% increment which came into effect on 1^st July 2013.

The Claimants in Suit No: NICN/ABJ/93/2014 prayed the Court for the following reliefs:

A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced by the defendant company are entitled to parity treatment with all the other direct staff of NLNG under the conditions of service applicable in the company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired.
A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced and approved by the defendant company are entitled to have their VSS package calculated on the basis of the 10% salary increment (in the monthly basic salary/annual basic salary) and the conditions of service applicable to all direct employees of Nigeria LNG as at 31^st July 2013, since they remained staff of the company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October when their pay in lieu of notice expired.
A declaration that the defendant having not made age an exception and having not rejected the application of claimants herein, they are entitled to receive the VSS package in full irrespective of the fact that they were close to their normal retirement age at the time their VSS application was approved and without prejudice to their entitlements as normal retirees of the Defendant
Order directing the Defendant Company (i.e. NLNG Management) to recalculate the VSS package/benefits of each of the claimants on the basis of the 10% Salary (Monthly Basis Salary/Annual Basic Salary) increment which came into effect in the Company on 1^st July 2013 and the Conditions of Service brought about by the Collective Bargaining Agreement concluded between PENDASSAN and NLNG on 15^th July 2013 and pay to each of the Claimants the difference between the amount already paid and the amount already paid and the amount due to each of them based on the new Conditions of Service and the 10% salary increment which came into effect on 1^st July 2013.

The claimants in Suit No: NICN/ABJ/94/2014 prayed the Court for the following:

A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced by the defendant Company are entitled to parity of treatment with all the other direct staff of NLNG under the Conditions of Service applicable in the Company as at 1^st July 2013 since they remained staff of the Company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired.
A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced and approved by the defendant company are entitled to have their VSS package calculated on the basis of the 10% salary increment (in the Monthly Basic Salary/Annual Basic Salary) and the Conditions of Service applicable to all direct employees of Nigeria LNG as at 1^st July 2013, since they remained staff of the Company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired.
A declaration that the 1^st, 3^rd, 4^th and 5^th Claimants herein who were below the age of 45 years but had served the defendant for more than 10 years are entitled to the full benefits of the VSS package as the Conditions of minimum wage or minimum length of service are applicable in the alternative.
A declaration that the 2^nd Claimant herein who was aged 55 years but had served NLNG for 9 years and 10 months at the time the 2013 VSS was approved is entitled to the full benefits of the VSS package as the Conditions of minimum age or minimum length of service is applicable in the alternative.
An Order directing the Defendant Company (i.e. NLNG management) to recalculate the VSS package/benefits of each of the Claimants on the basis of the 10% salary (monthly Basic Salary/Annual Basic Salary) increment which came effect in the company on 1^st July 2013 and the conditions of Service brought about by the Collective Bargaining Agreement concluded between PENGASSAN and NLNG on 15^th July 2013 and pay to each of the Claimants the difference between the amount already paid and the amount due to each of them based on the new Conditions of Service and the 10% salary increment which both came into effect on 1^st July 2013.

The general form of complaints were accompanied with the claimants’ list of witness, witness statement on Oath and list of documents to be relied upon by the claimants.

The defendant filed its Statement of Defence to the suits and issues were thereafter joined and the matter proceeded to trial.

The gravamen of the claimants’ case is in relation to the implementation of the Voluntary Severance Scheme (herein after referred to as the VSS) put in place by the defendant in May 2013. This and some other reasons contained in the claimants’ claims prompted the claimants to file the instant suit in this Honourable Court to seek redress.

At the hearing of this suit, the claimants called three witnesses and tendered series of documents which were admitted in evidence and were accordingly marked as exhibits.

The claimants’ witnesses were duly cross-examined by the defendant’s counsel and the claimants closed their case.

After the close of the case for the claimants, the defendant opened its case and called two witnesses. The defendant’s witnesses tendered only one document which was admitted in evidence and was marked as exhibit.

The following documents were tendered by the parties:

The internal electronic mail broadcast of the VSS- Exhibit CW1BB-BB3
Executive Summary of 2013 Collective Bargaining Agreement as negotiated by PENGASSAN dated July 15 2013- Exhibit CW1CC-CC14.
Claimants Solicitors letter dated 4/12/2013- Exhibit CW1DD1-DD10
Defendant’s Reply letter dated 17/12/2017- Exhibit CW1EE-EE1.
The 2013 Collective Bargaining Agreement- Exhibit CW1FF-FF3.
The 2011 Collective Bargaining Agreement dated July 8, 2011- Exhibit CW1GG1-GG2.
Document dated 26/07/2013 Ref: NLNG/HRE/00264 – Exhibit CW1HH1.
Document dated 26/07/2013 Ref: NLNG/HRE/00144 – Exhibit CW1HH2.
Document dated 26/07/2013 Ref: NLNG/HRE/00092 – Exhibit CW1HH3
The release letter dated 28/07 2013-Exhibit CW2I.
The letter dated 26/07/2013 captioned Employee Voluntary Severance Scheme-Exhibit CW2K.
The various Release Statement addressed to the Claimants-Exhibits CW2L, CW2M, CW2N, CW2P, CW2Q, CW2R, CW2S and CW2T.
Print out of email chart dated May 21, 2013 to May 24, 2013- Exhibit CW3D-D2
Print out of email dated July 24, 2013- Exhibit CW3E1-E4
NLNG Internal Memorandum dated July 25, 2013- Exhibit CW3F1-F3
Petition Memorandum dated 27^th July 2013 – Exhibit CW3G1-G3
Internal Memorandum dated July 31^st 2013 – Exhibit CW3H1-H2
Petition dated 14^th August 2013 – Exhibit CWJ1-J3
NLNG email dated 5/11/2013 with letter dated 17/10/2013 – Exhibit CW3K1-K2
NLNG Release letter dated 26 /7/2013- Exhibit CW3/CRE
Release letter dated 26/7/2013 – Exhibit CW3/CRE2
Bundle of documents all captioned Employee VSS signed by Yahya Lawal- Exhibit CR3/CRE3-24
Bundle of documents (19 in number) all captioned “Released Statement”- Exhibit CW3/CRE25-43.

The only document tendered by the defendant which was admitted in evidence was the Minutes of the NLNG Board of Directors dated 19^th July, 2013 held at the Company’s London liaison office and was marked as Exhibit DW1D1-DW1D35.

The defendant witnesses were duly cross-examined and the matter was adjourned for adoption of parties’ final written addresses.

Counsel for the parties filed their respective final written addresses which they adopted as their legal argument in support of their cases.

The defendant’s written address was dated 15^th day of August, 2018 and filed on 17^th August, 2018. The defendant’s final written address was settled by ‘Kunle Ayorinde, Esq., of Abiodun Layonu & Co., Wesley House, 3rd Floor, 21/22 Marina, Lagos State.

The claimants’ written address was dated 25^th September, 2018 and was filed on 26^th September, 2018. The said claimants’ final written address was settled by Adewunmi Adebayo, Esq., of Adetola-Kazeem Legal Practice, 33A Mabinuori Dawodu Street, Gbagada Phase 1 Estate, Lagos State.

The defendant’s Counsel’s Reply on Points of Law to the Claimants’ Counsel final written address was dated 8^th October, 2018 and filed on the same date. The said reply was settled by Shehu Popoola-Taiwo, Esq., of Abiodun Layonu & Co., Wesley House, 3rd Floor, 21/22 Marina, Lagos State.

Counsel for the parties adopted their respective written addresses and this matter was adjourned for judgment.

I will now summarize the arguments and submissions made by the counsel for the parties in their respective final written addresses. I will start with the written address of the defendant.

The defendant’s counsel started his submission by stating the brief facts which he considered to be uncontested by the parties. The facts according to counsel are that the claimants were former staff of the defendant whose employment with the defendant were severed through the Voluntary Severance Scheme (VSS). Also that the claimants were members of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN).

The claimants participated in the VSS which opened on 20^th May 2013 and closed on 14^th June, 2013 following the Defendant’s Board approval on 9^th May 2013. The implementation of the VSS involves the calculation of the severance package entitlements of the participants or volunteers to the scheme.

According to the defendant, application for participation in the VSS and staff entitlements were calculated based on the 2011 Conditions of Service, that is, the 2011 Collective Bargaining Agreement dated 8/7/2011.

However, on 12^th July, 2013 the defendant and PENGASSAN duly executed a Collective Bargaining Agreement which was to take effect from 1^st July 2013, but the last Collective Bargaining Agreement in operation was the 2011 Collective Bargaining Agreement. So, the main issue in controversy between the claimants and the defendant is the formula for the calculation of the claimants’ entitlements following the VSS.

The claimants claim is that their severance package or pay off entitlements following their participation in the VSS must be based on the July 2013 Collective Bargaining Agreement and not the 2011 Collective Bargaining Agreement, whilst the defendant’s case on the other hand is that the Claimants’ pay off entitlements should be calculated based on the 2011 Collective Bargaining Agreement and not the July 2013 Collective Bargaining Agreement.

Defendant’s Counsel distilled two (2) issues for determination thus:

Whether or not the Claimants are entitled to a calculation of their severance package or pay-off entitlements based on the 2011 Conditions of Service (2011 Collective Bargaining Agreement) or the 2013 Collective Bargaining Agreement?
Whether or not the Claimants are entitled to take benefit of the July 2013 Collective Bargaining Agreement in the Circumstances of this case?

Counsel argued the above two issues together and stated that the claimants were well aware of their pay-out entitlements before applying for the VSS scheme that closed on 14/6/2013 in view of EXH. CW1BB-BB3, that is the Internal Electronic Mail dated 9/5/2013, where it was clearly stated that “To facilitate my decision making, is it possible to know my potential pay-out” to which the answer was “yes, please refer to the VSS calculator on the website”.

Counsel further submitted that one of the Claimants’ witnesses, Mrs. Gloria IKpeme, was even a signatory to the 2011 Collective Bargaining Agreement admitted as EXH. CW1DD-DD2.

It is the position of defendant’s counsel that the claimants admitted that there was a 2011 Collective Bargaining Agreement dully signed by the parties before the VSS Scheme that opened on 20/05/2013 and closed on 14/6 2013. He therefore submitted that in view of the above, it is established that there was a subsisting agreement to calculate the claimants’ pay-out entitlements before the July 2013 Collective Bargaining Agreement came into operation.

He argued that the implication of the above, which was clearly admitted by the claimants’ witnesses under cross-examination, is that the calculation can only be done based on the existing conditions of service at the time which was the 2011 Collective Bargaining Agreement. Counsel cited the case of INIAMA V. AKPABIO (2008) 17 NWLR PT.1116 P. 225 @ 334 PARAGRAPHS G-H to support his argument that an admission against interest is the best evidence in law.

Counsel further cited the case of FRANCIS ADESINA AYANWALE V. OLUMUYIWA OLUMIDE ODESAMI (2011) 18 NWLR PT. 1278 P.328 @ 340 PARAGRAPH H to support his position that parties are bound by their respective pleadings. Counsel also further relied on the case of CHIEF S. O. AGBAREH & ANOR V. DR, ANTHONY MIMRA & 2 ORS (2008) 2 NWLR PT. 1071 P. 378 @ 410 – 411 PARAGRAPHS H-B to support his position that no amount of oral evidence can change, amend or alter the contents of a document.

Counsel urged the Court to give effect to the whole Content of EXH. CW1BB-BB3 where it was clearly stated that the VSS is a special, one-off scheme. He further stressed the importance of EXH. CW1BB-BB3 which specifically confirmed that the VSS scheme opened on 20/5/2013 and closed on 14/6/2013 and that any participant is free to withdraw. He submitted that the above position was admitted by the Claimants’ witnesses under cross-examination.

Citing the case of ANASON V. FARMS LIMITED V. NAL MERCHANT BANK (1994) 3 NWLR PT. 331 P. 241 @ 254 PARAGRAPHS A-B, counsel posited that the scenario presented in this case by the claimants could be viewed as an attempt by the claimants to outsmart the defendant, which the law will not allow.

Counsel posited that the fact that the Claimants exited the Defendant’s company on 26^th July 2013 could not be an opportunity to use the July 2013 Agreement to calculate a new pay-out entitlements because the participants of the VSS scheme that opened on 20/5/2013 and closed 14/6/2013 had already known their pay-out entitlements.

On the impact of the Defendant’s Board meeting held at London on 18^th and 19^th July 2013, it is the contention of the Defendant’s counsel that from EXH. CW1BB – BB3, it was categorically stated that application for VSS was not automatic but subject to the Defendant’s approval. He referred to paragraph 16 of EXH. CW1BB-BB3 where it was stated that “final approval is at management discretion”.

Counsel further stated that it was clarified by the defendant that it was the Collective Bargaining Agreement in operation at the time of the application for the Scheme that would be used for the purpose of calculating the pay-off entitlements. Counsel referred to paragraph 17.0 under the heading “VOLUNTARY SERVERANCE SCHEME IMPLEMENTATION STRATEGY – BOARD PAPER 29/2013, particularly paragraph 3 at page 20 of the Defendant’s Minutes of Board Meeting held in London on 18^th and 19^th 2013 where the Defendant resolved and clarified that “the condition of service at the time of application, for which the window closed on 14^th June 2013, will apply, as it was on that basis that the volunteers calculated their terminal benefits and being satisfied, submitted their applications”.

Counsel further submitted that participants to the VSS Scheme were at liberty to withdraw from the Scheme until payment was eventually made. Counsel contended that the uncontroverted evidence before the Court discloses that some applicants withdrew from the Scheme without any coercion from the defendant but the claimants refused, wilfully, to exercise their option to withdraw from the scheme. Counsel submitted further that withdrawal from the Scheme was not in any way prejudicial as the withdrawing persons seamlessly continue in the employment of the defendant on the agreed terms and conditions as per the employment contracts. He drew the attention of the Court to the fact that it is not all persons that participated in the VSS Scheme and who received due payment complained or filed the instant suits as claimants. He argued that granting the prayers of the claimants in these suits will open a flood gates of claims against the defendant by other participants in the scheme who, till date, did not file any claim for additional payments.

It is the position of the defendant’s Counsel that when the Claimants received their pay-off entitlements but had a rethink and began to press for additional payments having become aware of the 2013 Collective Bargaining Agreement, the defendant had in good faith asked the claimants to return the pay-off entitlements received and resume their employment positions but they vehemently refused. Counsel referred to letter dated17/12/2013 admitted in evidence and marked as EXH. CW1EE-EE1.

Counsel further argued that the issue of salaries are quite different from the issue of severance package. He posited that when the claimants voluntarily accepted to exit the defendant’s company vide their respective letter in May 2013, the only option left to the Defendant was to calculate the Claimants’ respective severance packages at the prevailing conditions of service as at the time of the close of nomination on 14/6/2013 and not otherwise.

Counsel posited that it was the case of the Claimants that the calculation of their pay-off entitlements based on 2011 Collective Bargaining Agreement was fraught with errors and as such, all participants to the VSS including the Claimants were to receive their pay-off entitlements based on the 2013 Collective Bargaining Agreement in operation at the material time and that was why the claimants in their reliefs are asking for the re-calculation of their entitlements.

Counsel urged this Court to resolve the issues distilled above in favour of the Defendant and dismiss the claimants’ case as being frivolous and unmeritorious.

The Claimants’ Counsel on his part listed issues to be resolved by this Court as follows:

Whether the Claimants’ severance benefits ought to be computed on the basis of the 2011 Conditions of Service or that of the 2013 Condition of Service that came into force from 1^st July 2013?
When were the Claimants deemed to have ceased to be employees of the Defendant in this case?
Whether the Claimants are entitled to the 10% salary increase that became effect and applicable to all direct staff of the defendant from 1^st July 2013?
Whether the Defendant’s Board decision of 19/07/2013 to determine the Claimants’ employment on the VSS Scheme and apply retrospectively an outdated conditions of service is justified in law?
Whether the Defendant is wholly discharged and immuned from any claim from the claimants in this suit on the basis of the Released Statement duly signed by all the claimants?

Claimants’ counsel submission on the issues he listed as being in dispute are as follows:

On the applicable Condition of Service:

Counsel argued that the case of the claimants is anchored on their conviction that they were underpaid in their respective severance benefits in the course of the defendant’s implementation of the VSS in 2013 which they all participated. He drew the attention of this Court to the Electronic Mail Broadcast on the VSS tendered in evidence as EXH. CW1BB-BB3. He argued that a careful look at EXH. CW1BB-BB3 would clearly show that it is not a conclusive document. He hinged his argument on question 18 in the “frequently asked question” where it was stated in response to the question “Do I automatically qualify after application” that “all applications are subject to management approval”.

Counsel further submitted that from EXH. CW1BB-BB3 it is clear that the timeframe between 20^th May to 14^th June 2013 only relates to the period for “self-nomination” and “expression of interest”. He posited that EXH. CW1BB-BB3 do not become operative and enforceable until it was approved for implementation by the defendant on 19/7/2013 as shown in EXH. DW1D1-D35. Citing the case of ZAKHEM V. NNAJI (2006) NSCQR VOL. 26 PAGE 314 AND BILANTE V. NDIC (2011) NSCQR VOL. 46 PAGE 1002, counsel argued that a binding contract cannot be said to have crystalized in the absence of a valid acceptance to the offer.

It is counsel’s argument that the defendant did not approve for implementation the 2013 VSS while the said 2011 Conditions of Service was in force and before a new Condition of Service came into force on 1^st July 2013. He argued that the Defendant’s Board decision was only made on 19^th July 2013. Counsel further argued that the Defendant’s contentions in this case lacks potency or merit and ought to be rejected completely.

On the issue of whether the claimants remained employees of the Defendant till 31^st October:

Citing the case of OSU V. PEUGEOT AUTOMOBILE NIG. LTD (2001) 13 NWLR PT. 731 P. 627, to support his argument that the Court of Appeal when faced with similar scenario as the present case held that the appellant was in the service of the Defendant. He argued that the evidence of the Defendant’s witnesses under cross-examination were direct on the issue of the 2013 Conditions of Service

Relying on the case of GAJI V. PAYE (2003) 8 NWLR PT. 823 P. 583 @ 611 PARAGRAPH A-B, counsel further argued that the evidence elicited under cross-examination of the defendant’s witnesses and which supports the Claimants’ pleading are germane and relevant to the just determination of the issues in controversy in this case.

Counsel posited that the present case, aside the fact that the 2013 Condition of Service came into force from 1^st of July 2013 when the claimants were all still actively in the employment of the defendant, there was no indication that EXH. CW1FF-FF3 was going to apply to only a selected members of staff of the defendant. He posited that the evidence of DW1 and DW2 before the Court confirmed that the same new 2013 Conditions of Service and the 10% salary increment had indeed been implemented and applied to all the other staff of the defendant from1st July 2013.

Counsel submitted that EXH.1BB-BB3 makes provision for 3 months’ salary in lieu of notice tagged as “Notice Pay-3MBS” which is the entitlements of the claimants to an equivalent of salary for the months of August, September and October 2013 when the claimants are deemed to be in the employment of the defendant. Counsel relied on the case of ASINOBI V. NIGERIAN BREWERIES PLC. (2010) 21 NLLR PT. 60 P. 489 (NIC) @ 519-520 G-A to support his position.

On Claimants’ entitlement to 10/% Salary increase from 1/7/2013:

Counsel submitted that going by the Defendant’s witness admission that the upward salary adjustment and the new 2013 conditions of service were implemented in the month of august 2013, which was still within the period that the claimants were deemed to be in the employment of the defendant, the claimants are therefore entitled to the same benefits since they remained in the defendant’s employment up till 31^st October 2013. He further referred to the case of OSU V. PEUGEOT AUTOMOBILE NIG. LTD (SUPRA) on this point.

Counsel argued that the defendant had implemented and applied the new 2013 Conditions of Service and the 10% salary increase to all staff who are on its pay-roll as at 1^st July 2013 except for the claimants and as such it would amount to a case of discrimination and unfair labour practice to deny the claimants their legitimate benefits under the 2013 conditions of service and the 10% salary increase that took effect from 1^st July 2013 simply on the basis of their expression of interest to participate in the VSS, an interest that was not granted until the 19^th July 2013 and communicated to the claimants on 26^th July 2013.

It is the position of counsel that the failure of the defendant to approve and implement the VSS when the 2011 Conditions of Service was in force and before coming into effect of the 2013 Conditions of Service has rendered the hitherto 2011 Condition of Service ineffective to the VSS. He posited that the 2011 Condition of Service is like a repealed law which no longer has a force or life in it from 1^st July 2013. Counsel cited the case of UGWU V. ARARUME (2007) ALL FWLR PT. 377 P. 807 @ 920 PARAGRAPH B to support his position

On the Defendant’s Board decision of 19/07/2013:

Counsel submitted that the defendant’s management decision of 19/7/2013 to apply the 2011 Condition of Service in retrospect has no basis in law. Citing the case of BENUE CEMENT COMPANY PLC. V. AGER (2010) 21 NNLR PT. 59 P. 256 @ 273 D to support his argument that termination of employment cannot be in retrospect. He posited that the defendant cannot determine the claimants’ employment on the basis of a stale or outdated Conditions of Service.

Relying on the case of HPSSSA V. CAPITAL HOTEL LTD (SUPRA), counsel argued that any employer of labour has a duty to act within the confines of the law in its dealings with its employees and any act of arbitrariness in this regard will amount to an unfair labour practice. He submitted that for the disengagement of the claimants from the defendant’s employment to be valid, the extant 2013 Condition of Service in force as at the time of severing the claimants’ employment must of necessity apply holistically in all that has to do with such disengagement which include the claimants’ severance benefits in this case.

It is the position of learned claimants’ counsel that EXH. CW1BB – BB3, i.e. the VSS mail broadcast, did not make mention of any particular year as to the applicable Conditions of Service to be used in the implementation of the VSS.

Counsel submitted that the defendant knew ab initio that it was embarking on an illegality which it now wants this Honourable Court to ratify. He urged this Court not to give-in to the ploy of the defendant in this case.

On the release Statement:

Counsel submitted that the release statement the claimants were made to sign at the point of their respective exit from the defendant’s company cannot be a shield to the claims before this Court because the reliefs in this suit relates to the legitimate entitlement of the claimants/employees who have worked for their severance benefit. Citing the case of JULIUS BERGER (NIG.) PLC V. NWAGWU (2006) 12 NWLR PT.995 P. 518 (2006) LPELR – 8223, counsel submitted that severance benefit is not such that can be contracted out or waived or even taken away by force. Counsel further referred to the case of UGBECHE V. NNPC (2016) LPELR- 420333 (CA).

Counsel submitted that any form of underpayment or failure to make appropriate assessment and due payment or the use of arbitrary and outdated condition of service in computing the severance benefit of the employees as in this case will amount to a breach of the constitutional rights of the claimants and ought to be condemned by this Honourable Court.

On address of Counsel for the defendant:

Counsel argued, citing the case of OSIGWE V. NWIHIM (1995) 3 NWLR PT. 386 P. 752, that the law is settled that address of counsel no matter how beautiful cannot take the place of evidence before the Court. He submitted, among other things, that the defendant’s counsel submissions in his written address in respect of the applicability of the 2011 Collective Bargaining Agreement to the VSS is an attempt to rewrite the facts in this case. He argued that these supposition and submissions are not premised on the real facts and evidence in this case.

Counsel cited the case of OGUNSANYA V. THE STATE (2011) LPELR – 2349 (SC) to support his argument that the attempt by the Defendant’s counsel to re-write the facts and evidence in this suit ought to be rejected by this Court because such is not acceptable in law. Counsel further argued that the cases of INIAMA V. AKPABIO, AYANWALE V. ODESANYA AND AGBAREH V. MIMRA cited in paragraphs 3.7 to 3.9 by the Defense counsel represent the principle of law upon which they are cited but that the cases are not relevant to the issues in dispute in this case. He submitted that the cases are therefore of no moment to the issues in dispute in this case. He further cited the case of DANKWAMBO V. ABUBAKAR & ORS (2015) LPELR – 25716 (SC) to buttress his position.

On Three (3) Consolidated Suits and the requirement of Separate Decisions:

Counsel cited the case of IGBINOVIA & ANOR V. OTOTE (2018) LPELR – 44151 (CA), per Oniyangi, JCA, to support his submission on the position of the law in respect of judgment on consolidated suits.

In respect of SUIT NO. NICN/ABJ/92/2014, counsel submitted that the suit is applicable to all the Claimants in the three suits as shown in reliefs 1, 2 and the last relief in all the three consolidated suits because the reliefs are basically premised on severance benefits accruable to all the claimants on the basis of 2013 Condition of Service and the 10% salary increase that took effect from 1/7/2013 which was applied to all direct staff of the Defendant.

In respect of SUIT NO: NICN/ABJ/93/2014, counsel posited that the suit is applicable to the claimants who in particular are close to their retirement age and whose severance benefits were neither calculated on the basis of the 2011 conditions of service nor the 2013 condition of service. He argued that the defendant simply decided to cut down the severance package of claimants in this class on the basis that they were ordinarily close to their retirement age and would not have been paid to them under the VSS at the point of their retirement.

In respect of SUIT NO: NICN/ABJ/94/2014, counsel argued that this suit is in respect of the claimants who were denied full benefits of the VSS on the 2013 Condition of Service particularly in respect of the Defendant’s application of the age and length of service jointly instead of the condition being in the alternative. More so, that the new condition of service had made the category of claimants eligible to gratuity which was not under the old 2011 conditions of service. He argued that the computation of severance benefits for this class of Claimants on a significant element of the VSS relating to gratuity (formally known as parting gift under the 201 conditions of service) was denied.

Counsel urged this Honourable Court to enter judgment in favour of the claimants on the basis of each of the respective reliefs as contained on the complaints and statement of facts in the consolidated suits.

In response to the Claimants’ Counsel written address, the Defendant’s counsel filed a reply on points of law in which he raised two issues for determination thus:

Whether or not the claimants are entitled to a calculation of their severance package or pay off entitlements based on the 2011 conditions of Service (2011 Collective Bargaining Agreement) or the 2013 Collective Bargaining Agreement.
Whether or not the claimants are entitled to take benefit of the July, 2013 Collective Bargaining Agreement in the circumstances of this case.

In addressing the above issues, counsel argued, inter alia, that even if the VSS is not regarded as a conclusive document/contract on its own, the claimants were well aware of the fact that the approval of their VSS application was subject to the decision of the Management Board of the Defendant who through their decision of 19/07/2013, resolved that the 2011 Condition of Service will apply in respect of the severance package of the claimants and not the one of 2013. According to counsel, the implication of this is that the approval of the claimants’ VSS applications was conditioned on the fact that the applicable condition of service will be that of 2011 and not that of 2013. He posited that the instant case is distinguishable from the cases of ZAKHEM V. NNAJI (2006) NSCQR VOL. 26 P. 314 and BILANTE V. NDIC (2011)NSCQR VOL. 46 P. 1002; (2011) 15 NWLR (PT.)12 70 P. 407 cited by the Claimants’ counsel.

Counsel posited that the passage of the resolution of the Defendant’s Management Board on 19/07/2013, a valid retrospective contract crystalized between the claimants and the defendant and as such, the case of OSU V. PEUGEOT AUTOMOBILE NIG. LTD (2001)13 NWLR PT. 731 P. 627 cited by the claimants’ counsel in his final written address is not applicable in this case. He submitted that the claimants are estopped from making their present claims having accepted their respective severance packages based on the 2011 Conditions of Service without claiming or obtaining any further benefits or accepting the severance package earlier paid to them which was done without duress, undue influence, fraud or misrepresentation.

Counsel argued further in response to paragraph 4. 17 of the claimants’ final written address that a contract can apply in retrospect once there is a meeting of minds of the parties. He submitted that the facts before the Court show that there was an unequivocal intention and understanding on the part of the claimants that their severance benefits would be calculated on the basis the 2011 Conditions of Service. He submitted that the case of BENUE CEMENT COMPANY PLC V. AGER (2010) 21 NNLR PT. 59 P. 256 @ 273 is of no moment as the issue in contention is not whether or not the termination of employment of the Claimants should apply in retrospect but rather the implied agreement between parties that the applicable Conditions of Service should be that of 2011 and not that of 2013.

I have considered the processes filed and exchanged by the parties. I have also given adequate thoughts to the arguments canvassed on behalf of the parties as well as statutory and judicial authorities to which the attention of this Honourable Court have been drawn.

I will at this juncture proceed to determine the substance of the instant suit. In determining this suit I have carefully studied the issues formulated by counsel for the parties in their respective written addresses. In my humble view, central to the dispute between the parties to this suit is the applicability of the 2011 or 2013 Collective Bargaining Agreements in calculating the retirement benefits of the claimants in view of the Voluntary Severance Scheme (VSS) announced by the defendant and in respect of which the claimants participated.

The facts that could be deduced from the facts and evidence presented before the Court by parties in this suit is that the Voluntary Severance Scheme was introduced by the Defendant in 2013 and the Claimants herein participated, voluntarily, in the scheme. The contention now is whether or not the 2013 Collective Bargaining Agreement reached between PENGASSAN and the Defendant on 12^th July 2013 was to be used to calculate the benefits and entitlements that is accruable to the claimants in this suit.

It is a fact before this Court that participation in the VSS was voluntary. It is also in evidence that some staff of the defendant who participated in the VSS later withdrew from the scheme and were re-integrated into the defendant’s company without any form of intimidation, inducement, persuasion or deceit. Let me also mention that it is not in contention that the claimants have been paid their severance allowances and benefits based on 2011 Collective Bargaining Agreement.

The claimants’ main contention now is that their severance packages and allowances are to be calculated based on the 2013 Collective Bargaining Agreement.

SUIT NO: NICN/ABJ/92/2014

The first in the reliefs of the Claimants in this suit is for “a declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced by the Defendant Company are entitled to parity of treatment with all other direct staff of NLNG under the Conditions of service applicable up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired”.

To determine whether or not the claimants are entitled to this relief, it would be necessary to consider the facts, evidence and submissions adduced by parties in this case.

A careful perusal of EXH. CWBB-CWBB3 i.e. the Electronic Mail Broadcast, the VSS is said to be “a system where employees willingly/voluntarily elect to leave the employment of Company subject to the approval of the Company”

In this same EXH. CWBB-CWBB3, it was stated that “applications can be withdrawn up till the close of business on Friday 14^th June 2013 by sending an email to VSS. Centre@ning.com. No request to withdraw applications will be entertained after this time”.

It is not in doubt from EXH. CWBB-CWBB3 that the approval for the VSS scheme is subject to Management approval.

From all available facts and evidence placed before the Court in this case, it is clear that the operating Collective Bargaining Agreement was that of 2011. The 2013 Collective Bargaining Agreement was not in existence as the time the VSS was announced. More importantly, by virtue of EXH. CWBB-CWBB3 applicants for the VSS are well aware that the approval for the VSS is subject to Management approval.

It is instructive to note that after the approval of the VSS by the Management of the Defendant Company, the claimants have been paid the allowances and benefits based on the 2011 Collective Bargaining Agreement.

In my view, the claimants are well aware of the terms of the contracts they were entering into before they applied. More so that the claimants were aware that the Board approval for the VSS which was communicated to them in July 2013 was that the VSS will be calculated based on 2011 Collective Bargaining Agreement and never complained until their payments have been made by the defendant.

Of interest is EXH. CW3L i.e. letter captioned “RE: 2013 NLNG VOLUNTARY SEVERANCE SCHEME” dated 17^th October 2013 which was signed on behalf of the Managing Director/CEO by Babs Omotowa which read thus:

“On behalf of the Board of Directors, Nigeria LNG Limited (NLNG), I write in response to your letter dated August 14 2013 in which you averred that the mode of implementation of the Voluntary Severance Scheme (VSS) exercise by NLNG Management was at variance with the Board Approved terms and conditions.

The Board, having taken a thorough look at the issues raised in your petition vis-à-vis the implementation of the approved VSS Exercise by Management, has concluded that there was no anomaly as alleged in your petition. Thus, the NLNG Board of Directors has adjudged the VSS Exercise as being duly implemented and concluded in accordance with the mandate of the Board.

Having said this, the Board has further directed that it be communicated to your good selves that in the likelihood that you are not pleased with the terms and conditions that governed the VSS Exercise or its implementation, that you are welcome to return to Nigeria LNG Limited to resume your employment.

For the avoidance of doubt however, kindly be informed that in the event that you wish to return to the Company’s employment, you shall be required to refund in full the severance package and entitlements given to you upon your initial application and acceptance under the VSS Exercise.

Thus, be guided accordingly”.

From the above quoted letter and also from the minutes of Board meeting held in London on 18^th and 19^th July, 2013, the position of the Defendant was never in doubt in respect of which Condition of Service will be used in calculating the VSS allowances and benefits. The claimants were expected to either accept the terms or reject same by refunding the money paid to them and return to the Defendant Company.

In view of all of the above, it is my position that the claimants have not adduced sufficient evidence to establish that they are entitled to parity of treatment with all other direct staff of NLNG under the Conditions of service applicable up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired and I so hold. The first relief is hereby refused.

In the same token and in view of my position and reasoning in respect of relief 1 above, I hereby refuse to grant the second relief for “declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced and approved by the Defendant Company are entitled to have their VSS package calculated on the basis of the 10% salary increment (in the monthly Basic Salary/Annual Basic Salary) and the Conditions of Service applicable to all direct employees of Nigeria LNG as at 1^st July 2013, since they remained staff of the Company up to and including 31^st July 2013 when they physically exited the Company and up till October 2013 when their pay in lieu of notice expired” in the claimants claim due to insufficient and inconclusive evidence to support the claim.

In the same token I also refuse to grant the third relief praying for an “Order directing the Defendant Company (i.e. NLNG Management) to recalculate the VSS package/benefits of each of the Claimants on the basis of the 10% salary (monthly Basic Salary/Annual Basic Salary) increment which came into effect in the Company on 31^st July 2013 and the Condition of Service brought about by the Collective Bargaining Agreement concluded between PENGASSAN and NLNG on 15^th July, 2013 and pay to each of the Claimants the deference between the amount already paid and the amount due to each of them based on the current Conditions of Service and the 10% increment which came into effect on 1^st July 2013.

SUIT NO: NICN/ABJ/93/2014

The first relief in this suit seeking for “A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced by the defendant company are entitled to parity treatment with all the other direct staff of NLNG under the conditions of service applicable in the company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired” is akin to the first relief in SUIT NO: NICN/ABJ/92/2014.

In order not to be repetitive and the need to avoid dissipation of energy on the issues in respect of the relief, I adopt my position in respect of the first relief in Suit No: NICN/ABJ/92/2014 and I so hold.

In view of my position in this respect I refuse to grant the first relief herein in favour of the claimants.

In the same token and in view of EXH. CW3L i.e. letter captioned “RE: 2013 NLNG VOLUNTARY SEVERANCE SCHEME” dated 17^th October 2013 which was signed on behalf of the Managing Director/CEO by Babs Omotowa, reliefs 2, 3 and 4 seeking for: a declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced and approved by the defendant company are entitled to have their VSS package calculated on the basis of the 10% salary increment (in the monthly basic salary/annual basic salary) and the conditions of service applicable to all direct employees of Nigeria LNG as at 31^st July, 2013, since they remained staff of the company up to and including 31^st July, 2013 when they physically exited the Company and up till 31^st October when their pay in lieu of notice expired; A declaration that the defendant having not made age an exception and having not rejected the application of claimants herein, they are entitled to receive the VSS package in full irrespective of the fact that they were close to their normal retirement age at the time their VSS application was approved and without prejudice to their entitlements as normal retirees of the Defendant and Order directing the Defendant Company (i.e. NLNG Management) to recalculate the VSS package/benefits of each of the claimants on the basis of the 10% Salary (Monthly Basis Salary/Annual Basic Salary) increment which came into effect in the Company on 1^st July, 2013 and the Conditions of Service brought about by the Collective Bargaining Agreement concluded between PENGASSAN and NLNG on 15^th July, 2013 and pay to each of the Claimants the difference between the amount already paid and the amount due to each of them based on the new Conditions of Service and the 10% salary increment which came into effect on 1^st July 2013, respectively are equally refused.

SUIT NO: NICN/ABJ/94/2014

As I have earlier mentioned, there is no need for repetition and dissipation of energy in respect of the reliefs sought in this suit as they are very similar to those in respect of Suit Nos: NICN/ABJ/92/2014 and NICN/ABJ/93/2014 in respect of which I have explained and adopted a position. In view of the above, I also refuse to grant all the reliefs sought in this suit praying for:

A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced by the defendant Company are entitled to parity of treatment with all the other direct staff of NLNG under the Conditions of Service applicable in the Company as at 1^st July 2013 since they remained staff of the Company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired.
A declaration that the claimants herein as participants in the 2013 Voluntary Severance Scheme announced and approved by the defendant company are entitled to have their VSS package calculated on the basis of the 10% salary increment (in the Monthly Basic Salary/Annual Basic Salary) and the Conditions of Service applicable to all direct employees of Nigeria LNG as at 1^st July 2013, since they remained staff of the Company up to and including 31^st July 2013 when they physically exited the Company and up till 31^st October 2013 when their pay in lieu of notice expired.
A declaration that the 1^st, 3^rd, 4^th and 5^th Claimants herein who were below the age of 45 years but had served the defendant for more than 10 years are entitled to the full benefits of the VSS package as the Conditions of minimum wage or minimum length of service are applicable in the alternative.
A declaration that the 2^nd Claimant herein who was aged 55 years but had served NLNG for 9 years and 10 months at the time the 2013 VSS was approved is entitled to the full benefits of the VSS package as the Conditions of minimum age or minimum length of service is applicable in the alternative.
An Order directing the Defendant Company (i.e. NLNG management) to recalculate the VSS package/benefits of each of the Claimants on the basis of the 10% salary (monthly Basic Salary/Annual Basic Salary) increment which came into effect in the company on 1^st July 2013 and the conditions of Service brought about by the Collective Bargaining Agreement concluded between PENGASSAN and NLNG on 15^th July 2013 and pay to each of the Claimants the difference between the amount already paid and the amount due to each of them based on the new Conditions of Service and the 10% salary increment which both came into effect on 1^st July 2013.

Let me quickly mention, before I conclude this judgment that cases are won and lost based on facts and evidence adduced before a Court by parties to a case. A party seeking to get judgment of Court in its favour must produce and tender before Court hearing his matter credible, factual, convincing, substantiate and incontrovertible evidence to support his position. See the case of PRINCE HASSAN OYEDELE & ANOR V. BAALE SIDIKU BAMGBOYE JIMOH (2012) LPELR- 8536 (CA) where it was held that “the rule is always that he who asserts must prove. For without the cogent, credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour”. I further refer to the case of S. 135 of the Evidence Act and the case of ACHIBONG V. ITA (2004) 2 NWLR PT. 858 P. 590, per Mbaga, JCA.

Again, let me also quickly mention that a contractual relationship is established when all the elements of contract i.e. Offer, Consideration, Acceptance, Capacity to Contract and Intention to Create Legal Relations, are fulfilled. See the case of AKINYEMI V. ODU’A INV. CO. LTD (2012) 17 NWLR PT. 1329 P.209 @ 212 RATIO 1 @ P. 236 PARAGRAPHS A-B.

For the purposes of argument, the best argument the claimants can put up in this instance is that the defendant varied the terms of the contract by calculating their benefits and entitlements based on the 2011 Collective Bargaining Agreement, which at best will be a counter offer. In view of the argument, the claimants are expected by law to reject the offer by returning the money paid to them by the defendant, this the claimants failed to do. In the case of AKINYEMI V. ODU’A INV. CO. LTD (2012) 17 NWLR PT. 1329 P.209 @ 213 RATIO 3 @ P. 236 PARAGRAPHS A-B it was held that “the doctrine of a counter-offer in a contract postulates an outright rejection of the original offer by the offeror to the offeree. It indeed destroys that offer, making it non-existent, as it were, and not capable, any more, of any acceptance. It, in fact, tantamount to a new offer, which may not be acceptable to the new offeree”.

In the instant case, the claimants have the option of rejecting the terms of the contract by returning to the defendant company the payment of their allowances and benefits under the VSS exercise using the 2011 Collective Bargaining Agreement and return to work. Accepting the payment of the Defendant Company by the claimants is tantamount to accepting the terms of the VSS unconditionally. More so when the defendant duly informed the claimants of an option to return the money paid in furtherance of the VSS exercise with an option to resume back to work.

In view of all I have said above and in view of all the facts and evidence adduced by the parties in this case, it is my view, having given due consideration to the facts and arguments for and against this case by parties and having come to the conclusion that the case of the claimants in the consolidated case lacks merit, these suits are hereby dismissed in its entirety.

I make no order as to cost.

Judgment is entered accordingly.

…………..………………………………………

Hon. Justice B. A. Adejumo, OFR

President,

National Industrial Court of Nigeria