IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: FEBRUARY 6, 2019
SUIT NO. NICN/LA/526/2013
BETWEEN
Lijoka Olaniyi Dennis & 1677 ors
Claimants
AND
1. First Franchise Service Ltd
2. Heritage Bank Ltd
Defendants
REPRESENTATION
Mrs B. C. Anyanwu, with John Nwokwu and Mrs O. E. Ariguzo, for the claimants, except the 6th, 87th, 88th, 104th, 492nd, 1206th, 1445th, 1622nd and 1623rd claimants.
K. T. Olawuni, with Miss E. M. Oliko and C. I. Ijeomah, for the defendants.
JUDGMENT
1. The claimants had filed this suit vide a complaint together with the accompanying originating processes on 30th September 2013. By an amended complaint and amended statement of facts filed on 26th April 2016, the claimants prayed for the following reliefs against the defendants:
(a) A declaration that the payment of only one year basic salary, transport allowance, Housing allowance and lunch subsidy to the claimants across board as gratuity by Enterprise Bank Ltd without compliance with the usual customary practice and procedure of the banking industry in the mode of computation and payment of gratuity amount to unfair labour practice.
(b) A declaration that the payment of only one year basic salary, transport allowance, Housing allowance and lunch subsidy to the claimants across board as gratuity by Enterprise Bank Ltd conflict with the agreement reached by Mainstreet Bank, the NUBIFIE, ASSBIFI, NLC and the Federal Ministry of Labour (a.k.a. “the Ministerial Agreement”) on mode of computation of gratuity and the agreement between the claimants union and Enterprise Bank Ltd dated 21st May 2013 to pay gratuity to the claimants in line with the aforesaid “Ministerial agreement”.
(c) A declaration that the claimants are entitled to be paid the amounts respectively listed against each of their names being and representing their gratuity benefit computed by using the right and lawful parameters in line with the usual customary practice and procedure of the banking industry, the Enterprise Bank Ltd’s usual practice/policy on payment of gratuity and the agreement reached by Mainstreet Bank, the NUBIFIE, ASSBIFI, NLC and the Federal Ministry of Labour, which govern payment of gratuity to the claimants to wit… [the names of the claimants and what each is claiming as due gratuity are then listed out].
(d) An order mandating the 2nd defendant to pay to the claimants respectively the amount hereinafter specified against each of the their names in the table below being the outstanding difference of what is due to them as gratuity benefit calculated in line with the usual customary practice and procedure for computation and payment of gratuity in the banking industry, the Enterprise Bank Ltd’s usual practice/policy prior to its closure and the agreement reached by Mainstreet Bank, NUBIFIE, ASSBIFI, NLC and the Federal Ministry of Labour totaling the sum of N2,752,670,671.57 to wit… [the names of the claimants and what each is claiming as outstanding difference of gratuity benefit are then listed out].
(e) Interest on the total sum judgment sum being N2,752,670671.57 [now N2,738,121,700.37: Two Billion, Seven Hundred and Thirty-Eight Million, One Hundred and Twenty-One Thousand, Seven Hundred Naira, Thirty-Seven Kobo] at the rate of 21% per annum from the date of this suit until judgment is delivered, thereafter, interest at the rate of 10% per annum until judgment sum is liquidated.
2. The defendants filed their statement of defence, which was severally amended with the last amended statement of defence being filed on 22nd June 2018. The claimants also filed an amended reply to the defendant’s statement of defence also on 22nd June 2018. Given the several amendments made by parties to their pleadings, the extant pleadings before the Court on the basis of which trial was conducted in this suit are: (i) the claimants’ amended statement of facts dated and filed on 26th April 2016; (ii) the 1st and 2nd defendants’ further amended statement of defence filed on 22nd June 2018; and (iii) the amended claimants’ reply to the 1st and 2nd defendants’ statement of defence filed on 22nd June 2018.
3. At the trial, Mr Odiaka Nwanji, claimant number 592, testified for the claimants as CW and tendered Exhibits C1 to C12. For the defendants, Mr Kingsley Akujuobi, a Human Resources Manager with the 1st defendant, testified as DW. DW informed the Court that the documents the defendants intended to tender have already been tendered by the claimants; as such the defendants will no longer tender any document. The defendants thus relied on the documents tendered by the claimant but objected to the admissibility of Exhibits C10 and C10(a) as well as C11 and C3 intimating that they shall give the reason for the objection in their final written address. At the close of trial, parties filed their respective final written addresses. The defendants’ final written address was filed on 5th November 2018, while the claimants’ was filed on 23rd November 2018. The defendants’ reply on points of law was filed on 28th November 2018.
THE CLAIMANTS’ CASE
4. The claimants were employed by the 1st defendant at various times and deployed to work at Enterprise Bank Ltd as contract staff before it was dissolved by order of Court made on 26th August 2015. At all material time to this suit, the claimants’ employment was controlled by Enterprise Bank Ltd and it was also Enterprise Bank that determined and paid the claimants their remuneration including the inadequate gratuity payment paid to the claimants. It is also the case of the claimants that the sole business of the 1st defendant was to serve as the claimants’ employer and that the management and staff of Enterprise Bank Ltd managed the affairs of the 1st defendant and the 1st defendant had no separate business address than that of Enterprise Bank Ltd and same applies to the current 2nd defendant. It is also the claimants’ case that when in September 2012 the management of Enterprise Bank decided to outsource the claimants’ employment without terminating the claimants’ employment and paying them their terminal benefits, the claimants protested through the domestic branch of their union via a peaceful picketing which resulted into an agreement between the claimants through their union and Enterprise Bank Ltd that Enterprise Bank Ltd shall suspend the transfer of the claimants to the outsourcing companies pending the outcome of a then on going negotiation between Mainstreet Bank, NUBIFIE, ASSBIFI, NLC, and the Federal Ministry of Labour on the issue of terminal benefit to be paid to the workers of Mainstreet Bank as a result of a similar re-organization of staff made by that bank. The said agreement is Exhibit C2. That subsequently in March 2013, the said Mainstreet Bank, NUBIFIE, ASSBIFI, NLC, and the Federal Ministry of Labour reached an agreement that 100% gratuity should be paid to the affected employees of Mainstreet Bank including those that are less than 5 years in service, which shall consist of the following components: basic salary, transport allowance, housing allowance and lunch subsidy (Exhibit C3).
5. That subsequent to the above stated agreement, the claimants through the domestic branch of their union and Enterprise Bank Ltd entered into another agreement (Exhibit 4) that Enterprise Bank Ltd shall pay gratuity to the claimants as their terminal benefits in line with the components/terms agreed by Mainstreet Bank, NUBIFI, ASSBIFI, NLC, and the Federal Ministry of Labour in Exhibit C3 before their employment can be outsourced. That after the said agreement, Enterprise Bank Ltd credited their respective accounts with sums of money calculated as their one year basic salary, transport allowance, housing allowance and lunch subsidy without due regard to the respective number of years each of them served. That this payment was claimed by the bank to be the claimants’ gratuity. It is further the case of the claimants that Enterprise Bank Ltd did not comply with Exhibit C4 as the payment was not in line with the terms of Exhibit C3. It is equally the case of the claimants that Enterprise Bank Ltd did not comply with its policy and usual practice on payment of gratuity in paying the claimants the purported gratuity. That by Exhibit C3, Enterprise Bank policy and usual practice and customary practice on payment of gratuity within the banking industry, gratuity is calculated based on the number of years served, which Enterprise Bank Ltd failed to do. That the respective amounts paid to them by Enterprise Bank Ltd does not represent their due gratuity. The claimants then prayed the Court to make an order mandating the defendants to pay them the outstanding balance of their gratuity.
THE DEFENDANTS’ CASE
6. To the defendants, by various letters of employment (Exhibit C1) issued to some of the claimants between 2006 and 2012 and the claimants’ unqualified acceptance of the terms as contained therein, the claimants became employees of the 1st defendant. That the Court should note that subsequent references to ‘the claimants’ as employees of the 1st defendant refers to the claimants whose letters of employment issued by the 1st defendant are before this Court. Following their employment, the said claimants were seconded to the defunct Spring Bank Plc and thereafter to the defunct Enterprise Bank Ltd (EBL) in various capacities as tellers, security personnel, dispatch riders, drivers, technicians, sales associates and office assistants. That it is noteworthy that the claimants were neither considered to be permanent staff nor contract staff of EBL and were at all material times to this suit, staff of the 1st defendant. That EBL did not enter into any employer/employee relationship with the claimants either jointly and/or severally and none exists for all intents and purposes. That the claimants’ employment with the 1st defendant was governed by the terms and conditions of service as contained in their aforesaid employment letters which provided that either party had the right to terminate their employer/employee relationship by 1 (one) month’s notice or payment of 1 (one) month’s salary in lieu of notice.
7. That sometime in 2012, the claimants embarked on a protest against the purported move by the management of EBL and the 1st defendant to transfer their employment to other outsourcing companies without the consent of the claimants and allegedly without paying the claimants their terminal benefits. The claimants picketed EBL’s premises on 5th October 2012 thereby disrupting the activities at the bank. As a result of the disorder caused by the activities of the claimants, EBL was constrained to execute an agreement dated 8th October 2012 (Exhibit C2) wherein it was agreed that the said transfer would be suspended pending the determination of all issues regarding terminal benefits being negotiated between the then Mainstreet Bank, the National Union of Banks, Insurance and Financial Institutions (NUBIFIE), Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), the Nigerian Labour Congress (NLC) and the Federal Ministry of Labour and Productivity. On 5th March 2013, the Federal Ministry of Labour, NUBIFI, ASSBIFI, and Mainstreet Bank entered into an agreement (the Ministerial Agreement – Exhibit C3) wherein it was stated that the bank i.e. Mainstreet Bank shall pay 100% gratuity to both exited and exiting staff (including those that are less than 5 years in service of defunct Afribank less liabilities and previous payments, using (i) basic salary (ii) transport allowance (iii) housing allowance and (iv) lunch subsidy, as the components of payment of the said gratuity. On 21st May 2013, EBL was again constrained to enter into another agreement with the Domestic Union Chairman of the 1st defendant (Exhibit C4) wherein it was agreed that EBL would pay gratuity to the 1st defendant’s staff in accordance with the components agreed to in the Ministerial Agreement.
8. That it is the claimants’ claim that EBL credited their bank accounts with sums of money calculated as their 1 (one) year basic salary, transport allowance, housing allowance and lunch subsidy and this was paid across board without due regard to their respective number of years of service contrary to the terms as contained in Exhibits C3 and C4 and differing from the customary practices of the bank. The claimants contend that based on customary and industry practices, gratuity is calculated by multiplying a person’s benefits by the number of years of service, hence the claim for the remainder of their gratuity. It is the position of the defendants that the bank i.e. EBL at the time, now the 2nd defendant having taken EBL’s place in this action is not bound by the terms of the agreement (Exhibit C4) or any of the aforementioned agreements (Exhibits C2 and C3) being Collective Bargaining Agreements and the claimants not being a party to the said agreements cannot seek to enforce same. More so, the claimants’ letters of employment did not provide for any variation of the terms and/or incorporation of collateral agreements, including the collective agreements sought to be enforced. It is also the position of the defendants that assuming but not conceding that the bank was bound by the said agreements, the bank has fully complied with the terms of the agreements as the claimants were paid their gratuity using the components stated in Exhibit C4. It is on the basis of all of this that the defendants state that the claimants are not entitled to any of the reliefs sought in this suit.
THE SUBMISSIONS OF THE DEFENDANTS
9. The defendants’s submissions are principally that this suit is incompetent and the claimants’ claims are largely unsubstantiated, baseless, unmeritorious and ought to be dismissed in their entirety by this Court. The claimants’ counsel had during trial intimated to the Court that some of the claimants had indicated that they were no longer interested in continuing their claims against the defendants. Accordingly, the claimants’ counsel announced appearance for all the claimants save the following claimants: the 6th, 87th, 88th, 104th, 492nd, 1145th, 1206th, 1445th, 1600th, 1622nd and 1623rd claimants. The defendant in that regard prayed the Court to strike out the claims of the 6th, 87th, 88th, 104th, 492nd, 1145th, 1206th, 1445th, 1600th, 1622nd and 1623rd claimants as well as the claims of other claimants who have discontinued their claims as may be mentioned in the claimants’ final written address.
10. In analyzing the evidence of the claimants, the defendants submitted that in his statement on oath deposed to on 26th April 2016, CW maintained that the claimants were employees of the 1st defendant; and yet in another breath stated that upon the claimants’ deployment to EBL (2nd defendant), they became employees of the bank as their employment was purportedly controlled by the bank. That CW also stated that the computation of terminal benefits as claimed by the claimants in the amended statement of facts was derived and computed in accordance with the terms of Exhibits C3 and C4 and the bank’s customary bank practice, which cumulative sum being claimed, amounts to N2,752,670,671.57. However, that CW during examination-in-chief, failed to show the basis upon which the claimants computed the breakdown of the allowances and entitlements as claimed. That CW was unable to provide documentation in support of the computation done and failed to establish the customary practices in the banking industry which is the basis for the claimants’ claim that gratuity is calculated by multiplying a person’s total entitlements by the number of years of service. Also, that during cross-examination, CW confirmed that the claimants’ employer as specified and contained in the letters of employment (Exhibit C1) was the 1st defendant. CW also confirmed that no letter(s) of employment was (were) issued by the 2nd defendant to any of the claimants at any point in time. That when questioned as to the existence of any document setting out the exact emoluments and the breakdown into different components as claimed namely; basic salary, transport allowance, housing allowance and lunch subsidy, in respect of each claimant i.e. a document that contains the specific figures which formed the basis of the claimants’ calculations CW confirmed that there was no document spelling out such before this Court. That CW relied on his bank statement of account (Exhibits C10 and C10A) to show that the 2nd defendant paid his entitlements. However, during cross-examination CW confirmed that except for Exhibits C10 and C10A, none of the other claimants’ bank statements of account were before the Court.
11. At the trial of this suit, counsel for the defendants had indicated that the defendants had objections to the admissibility of certain documents tendered by the claimants. The documents are Exhibits C3, C10, C10A and C11. However, they dropped the idea of objecting to the admissibility of Exhibits C3 and C11 as indicated at the trial of this suit. The present objection is, therefore, only in respect of Exhibits C10 and C10A i.e. the statement of account and online printout of the statement of account of the 592nd claimant who testified as CW on the ground that the admission of both documents as evidence would contravene the provisions of sections 84, 89(h) and 90(1)(e) of the Evidence Act 2011. That Exhibits C10 and C10A are computer generated documents, which by section 84(4) of the Evidence Act ought to be accompanied by certificates verifying the state of the computer in which they were stored, processed and printed from, before the said documents can be admitted in evidence. To the defendants, the failure of the claimants to satisfy the aforementioned provisions of the law before tendering Exhibits C10 and C10A renders the said documents inadmissible in law relying on UBN Plc v. Agbontaen & anor [2018] LPELR44160(CA), Jubril v. FRN [2018] LPELR-43993(CA), Kubor v. Dickson [2012] LPELR-981(SC); [2013] 4 NWLR (Pt. 1345) 534 at 577 – 578, Omisore v. Aregbesola [2015] LPELR 24803(SC) and MD Zahiru Islam v. FRN [2018] LPELR-44529(CA). That the defendants are not unmindful of the fact that these documents have already been admitted in evidence by this Court and were relied on by the claimants. However, that it is trite that documents already admitted in evidence during trial may be expunged and rejected by the Court where it is shown that such a document was wrongly admitted in evidence, relying on Mohammed v. The State [2010] LPELR-9019(CA). On the strength of the foregoing judicial and statutory authorities, the defendants submitted that Exhibits C10 and C10A are inadmissible in law, urging the Court to reject and expunge these documents from the record.
12. The defendants then submitted the following three issues for determination:
(1) Whether this suit as presently constituted ought to be dismissed by this Honourable Court for being incompetent.
(2) Whether this suit as presently constituted discloses a reasonable cause of action against the 2nd defendant.
(3) Whether having regard to the pleadings filed and evidence led at trial, the claimants have successfully proved that they are entitled to the reliefs sought in this suit.
13. Regarding issue (1), the defendants submitted that it is the law that a claimant’s claim should determine the nature of the suit and a fortiori its competence, citing WAEC v. Akinkunmi [2008] LPELR-3468(SC). That a perusal of the claimants’ Amended General From of Complaint and statement of facts particularly the reliefs sought shows that the crux of the claimants’ claim is the remainder of their gratuities in the sum of N2,752,670,671.57. That the claimants have based their claims on Exhibits C2, C3 and C4, which documents are Collective Bargaining Agreements. That it is settled law that for any proceeding and/or decision taken by a court to be valid, there must be no feature of the case which prevents the court from exercising its jurisdiction over same; also, any defect on competence is fatal, citing Madukolu v. Nkemdilim [1962] 2 SCNLR 341. That it is the defendants’ contention that the claimants’ claims in this suit are solely based on the interpretation and enforcement of Exhibits C2, C3 and C4, which are classified as Collective Bargaining Agreements. That it is the law that such agreements are unenforceable in law as the claimants are not a party to them, neither did they furnish consideration for them, nor did they place before the Court any proof that they are members of unions that signed these agreements. The defendants then submitted that these are features render this suit incompetent thus preventing this Court from exercising its jurisdiction over this suit. That it is the law that the competence of a suit depends on the issues raised, the reliefs sought and the applicable laws, citing Faleke v. INEC [2016] 18 NWLR (Pt. 1543) 61 at 145. That the courts have over the years pronounced that collective agreements lack a binding nature and are unenforceable; they do not equate to the status of a contract in law and cannot create legal relations as between the parties to it, citing Osoh v. Unity Bank [2013] 9 NWLR (Pt. 1358) 1 at 29 and Nwajagu v. British American Insurance Company Ltd [2000] LPELR-10776(CA).
14. That this principle of law is not absolute. Where the terms of the collective agreement have been incorporated into the contracts of employments of the employees, it is the law that legal relations will arise between the parties, citing UBN v. Eket [1993] 4 NWLR (Pt. 287) 288 and Osoh v. Unity Bank (supra). Also, that this Court has held in Aghata Onuorah v. Access Bank [2015] 55 NLLR (Pt. 186) 17 that actual proof of membership of a trade union is the key to recovery under a collective agreement and proof in this regard must be by direct documentary evidence. Thus, that the law as it stands is that for a claimant to seek benefit under a collective agreement, he must show that (i) the said agreement was incorporated into his terms of employment (ii) that he is a member of the trade union involved. That in the instant case, it is evident that there was no incorporation (express or implied) of the terms of Exhibits C2, C3 and C4 into the contracts of employment of the claimants i.e. Exhibit C1. That the claimants did not even allude to this fact in their pleadings neither did they produce any evidence in this regard during trial. That the claimants seem to contend that as purported members of the NUBIFI they are automatically entitled to benefit from the terms of the agreement reached by the unions. That this contention is unsubstantiated. That while, it true that a trade union can negotiate on behalf of its members in respect of their terms or conditions of employment, it does not mean that the members are automatically entitled to gain from the collective agreement without the said agreement being incorporated into the contracts of employment of the employees/union members, citing Osoh v. Unity Bank (supra).
15. On the issue of membership, that it is the claimants’ claim that they are entitled to gratuity based on the terms of Exhibit C3, which the bank by Exhibits C2 and C4 agreed to comply with. That the relevant unions in these agreements are the NUBIFIE and the domestic union of the 1st defendant (the actual counter-party to Exhibits C2 and C4). The defendants then submitted that the claimants have failed to lead documentary evidence to show proof of their membership of either of these unions. That the claimants have not put forward any identity cards showing their membership of these unions neither have they shown evidence of payment of any membership dues of any kind to these unions. That there is no document before this Court that lists the names of any or all of the 1678 claimants in this suit as members of either or both of these unions. The defendants, therefore, submitted that in light of the absence of proof of membership of these unions, the claimants cannot validly seek benefit under Exhibits C2, C3 and C4, urging the Court to so hold.
16. In addition, that the claimants were not parties to any of the agreements and neither the claimants nor the unions provided any consideration in respect of these collective agreements. That the doctrine of privity of contract connotes that a stranger to a contract cannot seek to claim rights under the said contract neither can he made liable for any obligations arising under the contract. That it is also trite that where one of the parties to an agreement fails to receive the benefits or valuable consideration in the contract, the agreement will be deemed to have failed, citing Shuuia v. Chad Basin DA [1991] 7 NWLR (Pt. 205) 550 at 562 and A.G. Federation v. AIC Ltd [2000] 10 NWLR (Pt. 675) 293 at 311. In light of the above, the defendants submitted that there is no basis for the claimants to seek benefits under Exhibits C2, C3 and C4 having failed to show (i) that these agreements were incorporated their terms of employment; (ii) that they are members of the NUBIFI and/or the domestic union of the 1st defendant; (iii) that they were parties to or furnished consideration for these agreements. The defendants, therefore, submitted that for this reason this suit as presently constituted (having been hinged on Exhibits C2, C3 and C4) is incompetent and ought to be dismissed in its entirety by this Court.
17. On issue (2) i.e. whether the suit discloses a reasonable cause of action against the 2nd defendant, the defendants submitted that it is settled that a court does not exercise jurisdiction over an action where no reasonable cause is disclosed against a defendant; and in determining whether a suit discloses a reasonable cause of action, the court will necessarily examine the statement of claim, citing 7-UP Bottling Company v. Abiola & Sons [2001] 13 NWLR (Pt. 730) 469 at 495 and FRN & ors v. Abacha & ors [2014] LPELR-22355(CA). That the claimants have alleged that by virtue of their secondment to the defunct Spring Bank Plc and EBL, they became staff of the bank i.e. now the 2nd defendant. They also claim that because the 2nd defendant paid their salaries, the 2nd defendant controlled their employment and as such was their employer. That this is the basis for the claim against the 2nd defendant. That it is trite that an employer-employee relationship exists where the worker is employed under a contract of employment i.e. a contract of service, citing Ngun v. Mobil Producing Nigeria Unlimited [2013] LPELR-20197(CA). Thus, for the claimants to establish the employer-employee relationship which they claim exists between them and the 2nd defendant, the claimants ought to provide evidence of employment contracts to show that they are/were indeed employees of the 2nd defendant. It is the defendants’ position that there is no contract of employment between the 2nd defendant and the claimants whatsoever. Interestingly, that during trial, the claimants failed to produce any contract(s) of employment in this regard. That when asked during cross-examination about the identity of the claimants’ employer, CW confirmed the defendants’ position when he stated thus: “The name of my employer on the letter of employment is the 1st Defendant”. That it is obvious that the claimants’ contention that they were in the employment of the 2nd defendant is a feeble attempt at imposing an employer-employee relationship where none really exists. On whether the deployment of the claimants to the 2nd defendant created an employer-employee relationship between the parties, that it is the law that deployment alone does not impute the existence of an employment relationship between the host company and the secondee(s), relying on Alexander Okoh & ors v. University of Lagos & anor [2010] LPELR-4719(CA) where the appellants who were deployed to the Respondents as supernumerary policemen by their substantive employer, Lagos State Police Command, subsequently had their employment terminated. The Court of Appeal, whilst pronouncing on the appellants’ entitlement to the their claims for gratuities, pensions and allowances, held that:
The Appellants were only deployed to do a work for the Respondents on a temporary basis. They were simply on an assignment. They were appointed by the Police and deployed to the Respondents establishment. They were not entitled to any pension or gratuity…The nature of their job as Supernumerary Police Officers vis-a-vis the Respondents was a “deployment” or “posting” that was needed to fill a particular vacuum, but does not connote an employment of a permanent nature that attracts pension and gratuity.
18. The defendants then submitted that the content of Exhibits C2, C8 and C8B lend credence to the fact that the claimants, although deployed to 2nd defendant, were at all material times, recognised as the staff of the 1st defendant. Paragraph 1 of Exhibit C2 reads as follows: “Following the industrial action embarked on in the Bank’s premises on 5th October, 2012 by staff of First Spring Franchise Services Limited (FSFS) to register their protest over their non-agreement on their entitlement, a meeting was convened by the Area Commander, Zone A of the Nigerian Police Force in his office at Campbell Street, Lagos on 5th October, 2012”. Thus, that in the absence of any documentary evidence to the contrary, the claimants’ contention that they were in the employment of the 2nd defendant by virtue of their deployment to the bank is baseless.
19. The defendants went on that the claimants have also alluded that even in the absence of a contract of employment issued by the 2nd defendant to them, the fact that the 2nd defendant paid the remuneration of the claimants deployed to the bank creates/indicates an employer employee relationship between the said claimants and the 2nd defendant. To the defendants, this contention is self-serving and grossly unfounded to say the least. That the claimants are aware that the payment of the remuneration by the 2nd defendant was done purely for convenience and nothing more. In any event, that it is settled law that the payment of remuneration to a secondee does not automatically create an employer-employee relationship between the host company and such secondee, citing Udegbunam v. FCDA [1996] 5 NWLR (Pt. 449) 526 at 541 where it was held that: “The mere fact of payment of salary of a member of staff or worker is not evidence that such a worker or member of staff is one’s employee”. The defendants, therefore, submitted that the claimants have failed to establish the alleged existence of an employer-employee relationship between the 2nd defendant and them and as such, the claimants have failed to establish a reasonable cause of action against the 2nd defendant. The defendants consequently submitted that having shown that the claimants’ case as presently constituted discloses no reasonable cause of action against the 2nd defendant, this Court has no jurisdiction to entertain same, citing J & J Techno Nigeria Ltd v. Yubah H. Quality Services Ltd [2015] 8 NWLR (Pt. 1460) 1 at 22 and Order 30 Rule 18 of the Rules of this Court. The defendants then urged the Court to strike out the 2nd defendant’s name from this suit and/or dismiss in its entirety the claimants’ case against the 2nd defendant.
20. Issue (3) is whether the claimants have successfully proved that they are entitled to the reliefs sought in this suit. To the defendants, although the claimants are seeking 5 (five) reliefs, their main relief is the remainder of their gratuities in the sum of N2,752,670,671.57. That it is trite that a claim for gratuity is a claim for special damages and as such, the claimants are required to specifically plead and prove same. citing 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). That it is also settled law that entitlement to and payment of gratuity is determined by the terms of employment/conditions of service that regulate a claimant’s employment, relying on NEPA v. Adeyemi [2007] 3 NWLR (Pt. 1021) 315 at 337. That it follows, therefore, that in order to prove entitlement to a claim for gratuity, a claimant must show:
• That he/she is an employee of the defendant(s).
• The specific policy/conditions of service (which forms part of the claimant’s terms of employment) or industry/customary practice (adopted by the employer) that provides for payment of gratuity and how same is to be computed and/or arrived at.
• The document that indicates the claimant’s remuneration (and the components thereof) in exact figures which is the basis upon which the gratuity is to be calculated.
The defendants referred to Igwilo v. Central Bank of Nigeria [2000] 9 NWLR (Pt. 672) and Saka & ors v. Global Soap & Detergent Industry Ltd [2017] LPELR-42009(CA); and then submitted that in the instant case, the claimants have to prove the above points especially the industry practice which they have so heavily relied on as the basis for the claim of the purported remainder of their gratuity.
21. The defendants then proceeded to address the aforementioned points seriatim. On the question of the employment of the claimants with the defendants, the defendants submitted that the crux of the claimants’ case is that although they were employed by the 1st defendant, upon their deployment to the 2nd defendant (EBL at the time), they became employees of the bank as a consequence of which they are entitled to the gratuity benefits of the bank. The defendants then adopted all the arguments they proffered in respect of their issue (2) as if same were set out here seriatim. Further to this, the defendants submitted that the claimants failed to prove the existence of an employer-employee relationship between them and the 2nd defendant. Thus, the claimants cannot seek to take any benefit from the 2nd defendant.
22. On claimants’ assertion that they were ALL employed by the 1st defendant, the defendants submitted that the claimants failed to prove this averment. That the defendants in paragraph 2 of their further amended statement of defence denied this averment and put the claimants to the strictest proof thereof. That it is a trite principle of evidence that a party who asserts a particular fact must prove same and proof is by production of cogent and credible evidence. That it is also settled law that that where an averment is denied and a party has been put to the strictest proof of same, such averment must be proved. Consequently, failure of the party to prove said averment means that the averment is deemed abandoned, referring to New Nigerian Bank Plc v. Imonike [2002] FWLR (Pt. 1118) 1406 at 1427, Obmiami Brick & Stone Nig. Ltd v. ACB Ltd [1992] 3 NWLR (Pt. 229) 260, Omoboriowo v. Ajasin [1984] 1 SCNLR 108 and Takuma & anor. v. Liman & ors [2009[ LPELR-5000(CA). That an employer-employee relationship exists where the worker is employed under a contract of employment/service, citing Ngun v. Mobil Producing Nigeria Unlimited (supra). Thus, the claimants are expected to provide evidence of employment contracts to show that they are indeed employees of the 1st defendant. That the claimants at the trial of this suit were able to prove that some of them were employees of the 1st defendant by tendering their letters of employment (Exhibit C1). However, they could not adduce evidence to show that the rest of the claimants were in the employ of the 1st defendant. The defendants then listed out in paragraph 7.32 of their final written address the claimants whose employment letters were not tendered; and submitted that that the claimants whose letters of employment were not tendered should not and cannot be regarded as employees of the 1st defendant as they failed to provide evidence of their employment contracts. That their failure to pass this first hurdle is fatal to their case. The defendants further submitted that in the absence of their employment letters, the aforementioned claimants do not have the locus standi to maintain their claims against the defendants. The defendants consequently urged the Court to strike out the claims of the said claimants.
23. As for the question of policy/conditions of service/customary or industry practice, the defendants submitted that it is the law that an employer-employee relationship is governed by the terms and conditions contained in the contract of employment executed between the parties, citing Olaniyan & ors v. Unilag & anor [1985] LPELR-2565(SC) and UBN v. Edit [1993] 4 NWLR (Pt. 287) 288. Thus, that it is irrefutable that the employment of the claimants were/are governed by the terms as contained in Exhibit C1. Also, that whether an employee is eligible for pension and gratuity can be decided “only by reference to the conditions of service”, citing NEPA v. Adeyemi (supra). That the defendants in their further amended statement of defence clearly stated that the 1st defendant does not have a gratuity policy and did not have one at all times material to this suit, a fact confirmed by DW in his testimony. Interestingly, that the claimants did not deny this fact neither did they lead any evidence to the contrary. Instead, the claimants have placed reliance on Exhibits C2, C3 and C4 which are collective bargaining agreements, as the basis for their claim that they are entitled to the gratuity benefits as claimed. That it must be noted that the said documents do not in any manner constitute the policy of either the 1st defendant and/or the 2nd defendant. To the defendants, the courts have over the years pronounced that collective agreements lack a binding nature and are unenforceable. The defendants then adopted their arguments in respect of issue (1) as if same were reproduced here seriatim. That in the unlikely event that this Court is not inclined to agree with their arguments on this point, it is the position of the defendants that assuming but not conceding that Exhibits C2, C3 and C4 are binding on them, the defendants (particularly the 2nd defendant) has complied fully with the terms of these agreements.
24. That by Exhibit C4, the bank agreed (albeit under duress) that “The bank shall pay gratuity to FSFS staff in accordance with the components agreed in the Ministerial Agreement which shall comprise of salary, transport allowance, housing allowance and lunch subsidy”. Clearly, that the only part of Exhibit C3 which the EBL agreed to comply with is the components for the payment of gratuity and nothing more. No other part or term of Exhibit C3 was incorporated into Exhibit C4 save the prescribed components. That a perusal of the amended statement of facts will reveal that the claimants themselves admitted that the defendants paid them their gratuity using the exact components as stated in Exhibits C3 and C4. What more do the claimants want?
25. That the claimants contend that the phrase ‘100% gratuity’ in a clause in Exhibit C3 that states that “the Bank shall pay 100% gratuity to both exited and existing staff (including those that are less than 5 years in service) of defunct Afribank less liabilities and previous payments” means that the defendants in computing gratuities ought to multiply the claimants’ benefits by the number of years that they served as employees of the 1st defendant. To the defendants, contrary to this contention, there is no provision in Exhibit C3 (or C4) that indicates this multiplication method nor defines the phrase ‘100% gratuity’ to mean multiplication of benefits by number of years of service. That 100% means ‘complete’ or ‘entire’. The defendants submitted, therefore, that ‘100% gratuity’ means ‘complete gratuity’ NOT ‘multiply benefits by number of years of service’. That the defendants are, therefore, at a loss as to how the claimants came up with their position especially as they have not led any evidence in support of same. That it is important to remind the claimants that the ‘100% gratuity’ clause was not even incorporated in Exhibit C4 (and the bank was not under any obligation whatsoever to comply with same), only the components for payment of gratuity were incorporated. Nevertheless, the defendants in good faith complied with this provision by paying the claimants complete/100% gratuity. Hence, the claimants who had not worked with the 1st defendant for up to 5 years were also paid gratuity using the prescribed components when ordinarily they ought not to have been paid.
26. Still on this multiplier method issue, the claimants had relied on the ‘customary practice and procedure in the banking industry’ as well as the policy of EBL. To the defendants, Union Bank of Nigeria Ltd v. Ifeatu Augustine Nwoye [1996] LPELR-SC.51/1993 held that “It has long been established through several decisions that whoever alleges banking custom must prove it”. That in the instant case, the claimants failed to lead evidence to prove this alleged customary practice. That counsel for the claimants at the trial even alluded (when questioned by the Court in this regard) that the claimants may abandon their reliance on customary practice. The defendants then submitted that the failure to prove customary practice is fatal to the case of the claimants on this point, urging the Court to so hold.
27. The claimants also relied on Exhibit C12, which is EBL’s staff handbook, as constituting the bank’s gratuity policy (which embodies the multiplier method). To the defendants, it has been established that the claimants were not staff of EBL (the 2nd defendant) and were never regarded as such. That it is, therefore, quite surprising that the claimants knowing this, are seeking to rely on Exhibit C12 which has no bearing or applicability to their employment contracts with the 1st defendant. That assuming but not conceding that Exhibit C12 is applicable to the claimants, the document does not contain the multiplier method requirement. Rather, Exhibit C12 refers to another policy document containing the method for calculation of gratuity, which the claimants have failed to provide. Item C titled “Gratuity Scheme” at page 87 of Exhibit C12 reads: “…Gratuity entitlement shall be calculated in line with approved existing policy”. That the claimants failed to call any current or exited staff of the bank to testify that the bank pays gratuity using the multiplier method. That the claimants did not also bring any document before this Court evidencing payment of gratuity by the bank to an exited staff using the multiplier method. The defendants are, therefore, again perplexed as to how the claimants have come up with this multiplier method contention as a basis for their claim for the remainder of gratuity. That the defendants fully complied with Exhibits C3 and C4 (even in the absence of an obligation to do so) and the claimants’ claim as presently constituted is simply a gold digging exercise founded on the claimants’ misplaced sense of entitlement and aimed at extorting billions of Naira from the defendants.
28. On this point, that the defendants have demonstrated that (a) the 1st defendant has no gratuity policy; (b) the claimants cannot seek benefit under Exhibits C2, C3 and C4 being collective bargaining agreements; (c) the defendants in any event have fully complied with the terms of Exhibits C3 and C4; (d) the claimants have not led evidence to prove the customary practice which is the basis of their claim that gratuity is calculated using multiplier method; (e) Exhibit C12 does not apply to the claimants as they are not staff of EBL; and (f) there is no basis for the claimants’ claim for the remainder of gratuity. The defendants consequently submitted that the claimants’ case ought to fail on these scores, urging the Court to so hold.
29. Regarding the question of the documents forming the basis for computation of gratuities, it is the claimants’ case that gratuity is calculated by multiplying a person’s benefits by the number of years of service. That riding on this premise (albeit faulty), the claimants have in their amended statement of facts set out figures against each claimant’s name representing the components of each claimant’s remuneration and indicated figures which the claimants believe is the remainder of their gratuities. However, that there is no reference to any document where the breakdown of each of the claimants’ remuneration components is clearly stated which forms the basis for the figures claimants have produced. That the claimants have essentially done computations of the sums without adducing any reasonable or relevant evidence to show their entitlement to the sums thereof or the basis/parameters for such computation. Thus, that it comes as no surprise that CW during his testimony failed to provide a proper answer when questioned as to the parameters used for computing the alleged sums. He merely stated that “Yes, in our pleadings and statement on oath we showed how we arrived at the respective sums we pray for”. However, that an examination of the pleadings of the claimants would reveal that no such parameters were supplied to show how the claimants arrived at the computation of the gratuities being sought. For instance, that for the 592nd claimant, it was merely pleaded as follows:
The 592nd claimant is entitled to the sum of N2,126,416.14 as his gratuity instead of the sum of N322,999.92 paid to him by Enterprise Bank Ltd. The 592nd claimant therefore claims the difference in his due gratuity Benefit and amount paid by the Enterprise Bank Ltd in the sum of N1,803,416.22 still with the defendants.
Basis for computation
(a) Length of Service: 6 years and 7 months
• Basic Salary = N99,999.96
• Transport allowance = N33,000.00
• Housing Allowance and = N150,000.00
• Lunch subsidy = N39,999.96
Total = N322,999.92
Multiplied by the number of years served =
N322,999.92 x 6 years and 7 months = N2,126,416.14
a. Correct gratuity is N2,126,416.14
b. Correct gratuity less amount paid by defendants = N2,126, 416.14 – N322,999.92 = N1,803,416.22
30. To the defendants, the claimants failed to explain how N322,999.92 x 6 years and 7 months came to N2,126,416.14. That how does one type 6 years and 7 months on a calculator? What exact formula was used for this calculation? What document contains this formula? How did the claimants arrive at all the figures stated as basic, transport, housing and lunch? That the claimants failed to lead evidence to show all these. That in Valentine Chiazor v. Union Bank unreported NICN/LA/122/2014 delivered on 12th July 2016, this Court held that: “The claimant did not refer to the court the particular provision of Exhibit C11 which provides the formula for calculating gratuity and how he arrived at the sum of N17,236,800.00 as gratuity. Courts are adjudicators not investigators…Since it has not been shown to this court how the claimant arrived at the sum of N17,236,800.00 as gratuity, relief (d) cannot be granted. It is accordingly refused”. The defendants, therefore, submitted that in the absence of clear basis and formula for the figures contained in the amended statement of facts, the claimants are not entitled to payment of these sums, urging the Court to so hold.
31. The defendants went on that it is important to state that for the components of remuneration, CW attempted to wriggle out of this situation by relying on Exhibit C5 as the document containing a breakdown of his remuneration. It is important to note that Exhibit C5 is a letter of employment from XL HR Outsourcing Limited to CW. Indeed, that the figures in Exhibit C5 tally with the figures set out against CW’s name in the statement of facts. However, that the employer of CW that he is claiming his gratuity from in this suit is the 1st defendant and not XL HR Outsourcing Limited. The defendants, therefore, consider it odd that CW has based his claim (as the 592nd claimant in this suit) on an employment letter that was not issued by the 1st defendant. The defendants consequently submitted that this attempt by CW is unsustainable in law, urging the Court to so hold.
32. That in the very unlikely event that the Court is inclined to allow the claimants rely on Exhibit C5 as the basis for CW’s claim, the defendants submitted that the claimants have at best only been able to make a claim for CW (i.e. the 592nd claimant) out of the 1678 claimants in this suit. Nevertheless, that there is still no proof of the multiplier formula alleged by the claimants; as such, although there is a document purporting to support the figures for each component of CW’s remuneration, it is the position of the defendants that they have paid CW what is due to him based on Exhibits C3 and C4 as is evidenced in CW’s bank statement of accounts (Exhibits C10 and C10A). Thus, there is no remainder gratuity to be paid to CW as the 592nd claimant. That there is no other document before this Court that sets out the breakdown of the remuneration in respect of the other claimants. Exhibit C1 does not contain this information and the claimants failed to put in any other document in this regard in evidence. The attempt on the part of the claimants to simply plead the alleged amount of monies they claim as their entitlement without adducing any evidence at trial to show how such figures were computed is tantamount to “conjuring up figures out of thin air”. The defendants then submitted that on this basis the claims set up on behalf of all the other claimants must fail. That it would be remiss not to point out that it is only the 592nd claimant that was called as a witness to attempt to prove his case (albeit unsuccessfully). None of the other claimants was called as witnesses to specifically establish his/her claim. The defendants then submitted that the failure to call the other claimants as witnesses to specifically establish their respective claims to the reliefs sought is fatal to their case. That the claims of the said claimants should, therefore, be discountenanced/dismissed.
33. In light of the foregoing, that it is clear that the claimants are not entitled to the reliefs being sought in this suit. With specific reference to the reliefs sought, for relief (1), the defendants have demonstrated above that the claimants have failed to prove the ‘customary practice and procedure of the banking industry’. For relief (2), the defendants have shown that the payment of only one year basic salary, transport allowance, housing allowance and lunch subsidy is in complete compliance with the Ministerial Agreement (i.e. Exhibit C3). In any event, that the Ministerial Agreement is not enforceable against the defendants and the defendants are/were under no obligation in law to comply with same but did so in good faith. For reliefs (3) and (4), the defendants have demonstrated that the claimants are not entitled to be paid sum of N2,752,670,671.57 or any other sum having failed to show the specific policy of EBL or the customary practice which is the basis for their claim and having failed to show the basis for the computation of this figure. For relief (5), the claimants cannot be entitled to payment of interest having failed to establish their entitlement to the main claims. Consequently, the defendants urged the Court to resolve the 3 (three) issues they raised in their favour and hold that the claimants are not entitled to any of the reliefs being sought in their amended statement of facts dated 26th April 2016 as they have failed to discharge the burden of proving their entitlement to the claims.
THE SUBMISSIONS OF THE CLAIMANTS
34. As a preliminary issue, the claimants’ counsel intimated that at various times during proceedings in this suit, the following claimants notified counsel of their intention to withdraw from this suit. They are the persons listed as claimants numbers 6, 87, 88, 104, 492, 1206, 1445, 1622 and 1623. The claimants’ counsel accordingly urged the Court to strike out the names of these persons from this suit as claimants and every relief relating to them.
35. The claimants submitted the following issues for determination:
(1) Whether the claimants can base their claims on Exhibits C2, C3 and C4, which are collective agreements.
(2) Whether the claimants’ suit discloses any cause of action against the 2nd defendant.
(3) Whether by Exhibits C3 and C4, payment of gratuity to the claimants ought to be calculated based on their respective total number of years of service by means of multiplication.
(4) Whether the claimants are entitled to the reliefs sought, particularly, whether the claimants are entitled to be paid the outstanding balance of their gratuity.
36. For issue (1), the claimants submitted that this Court has in a plethora of its decisions held that in labour relations an entitlement is shown either by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the parties or the conditions of service governing the relationship between the employer and its employees, referring to Dandson O. Obi v. Access Bank Plc unreported Suit No. NICN/LA/406/2013, the judgment of which was delivered on 16th July 2018, available at the NICN judgment portal www.nicn.gov.ng. That it is, therefore, beyond argument that a claim for gratuity payment can be based on collective agreements as done by the claimants.
37. On the enforceability of collective agreements and the jurisdiction of this Court, the claimants submitted that section 254C(1)(j) of the 1999 Constitution vests on this Court the jurisdiction to determine any question relating to the interpretation and application of any collective agreement. Also that section 7(1)(c)(i) vests on this Court the jurisdiction to determine any question as to the interpretation of any collective agreement and this Court has been exercising the above stated jurisdiction as can be seen in a plethora of its previous decisions, referring to Nigerian Employment and Labour Relations Law and Practice by Chioma Kanu Agomo at page 296 where the learned erudite author clearly stated the following:
Section 7(1) of the NIC Act provides that the Court shall have and exercise exclusive jurisdiction relating to the determination of any question as to the interpretation of any collective agreement. The Court has exercised this jurisdiction from its inception under the Trade Disputes Act and has continued to do so effectively even under the National Industrial Court Act. Issues dealt with include; method of calculating retiring benefits and the guidelines to interpretation of collective agreements, ascertainment of intention of parties to the agreement…the NIC has also had to entertain whether the terms of collective agreement can be extended to non parties to the agreement…An interpretation once made becomes binding and has the effect of incorporating the agreement into the individual contracts of employment of the workers so affected.
38. That it is important to point out here that section 254C(1)(j) of the 1999 Constitution has further expanded the jurisdiction of this Court to application of collective agreements. Hence this Court no longer has only interpretative jurisdiction over collective agreements as it was under the NIC Act 2006; the Court is now vested with the jurisdiction to apply collective agreements by the Constitution, citing Chiazor v. UBN (unreported) NICN/LA/122/2014 delivered on 12th July 2016. That the argument of the defendants that because the claimants’ claims are based on collective agreements which they termed unenforceable, that this Court has no jurisdiction is completely faulty. That the cause of action in Osoh v. Unity Bank heavily relied on by them arose in 1994 long before the Third Alteration Act 2010 and is clearly distinguishable from the present case. The state of the law at the time the cause of action in the Osoh arose is different from the current state of the law upon which the present case is to be decided. The claimants then urged the Court to disregard the argument of the defendants and hold that the claimants’ Exhibits C2, C3 and C4 are enforceable and as such this Court has jurisdiction over the claimants’ claim.
39. On privity of contract and the claimants’ membership of NUBIFI, the claimants submitted that this Court has in its previous decisions aptly held that non-signatories to collective agreements can seek its interpretation/enforcement once sufficient nexus is shown between such claimants and the collective agreement, citing John Ovoh v. Nigerian Dredging and Marine Ltd DJNIC (1978-2006) 516 at page 518, where this Court held that a member of a trade union that is party to a collective agreement can seek for the interpretation of the collective agreement. That membership of the trade union is, therefore, sufficient nexus to warrant beneficiaries of the collective to wit; members of the trade union to seek the interpretation/application of the collective agreement. That the claimants have stated both in their pleadings and evidence that they are dues paying members of the domestic unit of the National Union of Banks, Insurance and Financial Institutions (NUBIFIE) that entered into the collective agreements (Exhibits C2 and C4), which facts were not denied by the defendants. That the agreements were entered into and for the benefit of the claimants, hence the claimants are the beneficiaries of Exhibits C2 and C4. That it is equally important to point out that NUBIFIE is the trade union organizing junior staff of banks, insurance and other financial institutions. That the claimants have also stated in their pleadings that they served as junior administrative personnel in Enterprise Bank Ltd and their duties include serving as messengers, clerical staff, dispatch riders, drivers, security officers, etc. That this fact was clearly admitted by the defendants in both their pleadings and evidence. To the claimants, membership of junior staff to a trade union is automatic and junior employees are deemed members of a trade union organizing their industry until they individually and in writing opt not to be, referring to NUPENG v. MWUN [2015] 61 NLLR (Pt. 214) 404 at 421, Samson Akindoyin v. UBN [2015] 62 NLLR (Pt. 217) 259 at 293 to 294, Aghata Onuorah v. Access Bank Plc unreported Suit No. NICN/ABJ/30/2011 delivered on 15th December 2014 and Chiazor v. UBN (supra). That from these decisions, it is clear that the claimants’ membership of NUBIFIE is deemed in law since they are all junior employees of the defendants as can be seen in both their pleadings and evidence where they have stated clearly that they are junior staff and occupy positions of drivers, clerical staff, dispatch riders, security personnel, etc; a fact that was unequivocally admitted by the defendants in paragraph 5(vi) of their amended statement of defence. That the claimants equally stated in both their pleadings and evidence that they belong to the domestic unit of NUBIFIE in the 1st defendant. That no further proof of their membership to NUBIFIE is required. That the argument of the defendants that the claimants failed to prove their membership of NUBIFIE is therefore faulty. That the claimants are not senior staff who need to strictly prove membership of a trade union. That the claimants will only be required in law to prove their non-membership of NUBIFIE should that be their contention which is not in the present case, urging the Court to so hold. Again, that being automatic members of NUBIFIE, the incorporation of Exhibits C2 and C4 into their contracts of employment is implied.
40. Issue (2) is whether the claimants’ suit discloses any cause of action against the 2nd defendant. The defendants had challenged the jurisdiction of this Court to entertain this suit against the 2nd defendant on the ground that no cause of action was disclosed against it and prayed the Court to strike out the 2nd defendant’s name from the suit or dismiss same. To the claimants, the law is settled that it is the claimants’ pleadings that determine jurisdiction, referring to CBN v. Okojie [2015] 14 NWLR (Pt. 1479) 231 at 252. It is the claimants’ case that they were employed by the 1st defendant and seconded to the 2nd defendant to work as its contract staff. That all through their employment, their services were rendered to the 2nd defendant, who controlled their employment, determined and paid them their remunerations including the inadequate gratuity paid to the claimants. That the 1st defendant was a subsidiary of EBL before banks were directed to divest their interests from non-banking subsidiaries by the Central Bank of Nigeria, (the reason why EBL outsourced the claimants services and transferred them to outsource companies which resulted to the facts that gave rise to the cause of action in this suit), referring to Exhibit C11. The claimants further testified that the business of the 1st defendant was just to serve as their employer and the 1st defendant has no separate office from EBL and that the management and staff of EBL managed the affairs of the 1st defendant. That when the management of EBL decided to outsource their employment, their union entered into Exhibit C4 that EBL shall pay gratuity to the claimants before their employment could be transferred to three named outsource companies. The parties and signatories to Exhibit C2 (which gave rise to Exhibit C4) and Exhibit C4 are EBL and the domestic unit of NUBIFIE in the 1st defendant. That by order of Court made on 26th August 2015 (Exhibit C9), all the assets and liabilities of EBL were transferred to the 2nd defendant.
41. The claimants continued that since trial in this case has already been concluded and the defendants equally prayed for a dismissal of the suit against the 2nd defendant, it is important to highlight the defendant’s case as it affects this issue. That the defendants on their own admitted that the claimants were employed by the 1st defendant and deployed to the defunct Spring Bank Plc to work as tellers, office assistants etc. That the defendants also did not deny the fact that when the banking license of Spring Bank was revoked, the claimants services were continued with EBL (a bridge bank that came on board as a result of the nationalization of Spring Bank). They equally did not deny that the claimants rendered their services to EBL and that EBL paid them their remunerations, including the inadequate gratuity that was paid to them. Rather, the defendants contended that employer-employee relationship can only exist where a worker is employed under a contract of employment and stated that there is no contract of employment between the claimants and the 2nd defendant. To the claimants, a perusal of these facts clearly reveal that a triangular employment relationship existed between the claimants, the 1st defendant and EBL now 2nd defendant. That this Court has in a plethora of its previous decisions in circumstances such as the present case established the principle of co-employer/constructive employer, referring to Ayaogo v. M.P.N Unlimited & anor [2013] 30 NLLR (Pt. 85) 95 at 115 to 120, PENGASSAN v. Mobil Producing Nigeria Unltd [2013] 20 NLLR (Part 92) 243 at 322 and Oyetayo v. Zenith Bank Plc [2012] 29 NLLR (Pt. 84) 370 at 421 to 422.
42. To the claimants, the facts presented in this case are that the 1st defendant, then a subsidiary of EBL employed the claimants and issued them with employment letters, it then deployed them to work for the 2nd defendant (then EBL). That the only business of the 1st defendant was to serve as the claimants’ employer. That the 1st defendant has no separate office or management from the 2nd defendant. This fact of the 1st defendant not having a separate office from that of EBL was clearly admitted by the defendants. The defendants, however, denied that the sole business of the 1st defendant was to serve as claimants employer and stated that they would rely on the 1st defendants Memorandum and Articles of Association which they failed to produce during trial. The claimants further contended that EBL paid the claimants’ remunerations, controlled their services and when it decided to outsource their employment (following a directive of CBN that banks should divest from non-banking subsidiaries), EBL entered into collective bargaining with the claimants’ union wherein they negotiated the terminal benefit (gratuity) to be paid to the claimants which gave rise to Exhibits C2 and C4. EBL (not the 1st defendant) equally paid the claimants the gratuity which the claimants contend is inadequate. The claimants then submitted that the facts of this case clearly show that the employment relationship between the claimants and 1st defendant is a sham orchestrated to relieve EBL (now 2nd defendant ) of his employment responsibilities to the claimants, urging the Court to rely on the above stated cases and hold the claimants have established a cause of action against the 2nd defendant.
43. Issue (3) is whether by Exhibits C3 and C4, payment of gratuity to the claimants ought to be calculated based on their respective total number of years of service by means of multiplication. Referring to Dandson O. Obi v. Access Bank Plc (supra), the claimants submitted that their case is that they are entitled to the various sums stated in their statement of facts to be the outstanding balance of their gratuity from the defendants. That payment of gratuity to them ought to be calculated based on their respective number of years of service by multiplying the sums due to them as their respective basic salary, Housing allowance, transport allowance and lunch subsidy with their respective number of years of service. To prove this claim of entitlement, the claimants relied on Exhibits C2, C3 and C4. That when in September 2012 the management of Enterprise Bank decided to outsource the claimants’ employment without terminating the claimants’ employment and paying them their terminal benefits, the claimants protested through the domestic branch of their union via a peaceful picketing which resulted in an agreement between the claimants through their union and Enterprise Bank Ltd that Enterprise Bank Ltd shall suspend the transfer of the claimants to the outsourcing companies pending the outcome of a then ongoing negotiation between Mainstreet Bank, NUBIFIE, ASSBIFI, NLC, and the Federal Ministry of Labour on the issue of terminal benefits to be paid to the workers of Mainstreet Bank as a result of a similar reorganization of staff made by that bank. The said agreement is Exhibit C2. That subsequently in March 2013, the said Mainstreet Bank, NUBIFIE, ASSBIFI, NLC, and the Federal Ministry of Labour reached an agreement that 100% gratuity should be paid to the affected employees of Mainstreet bank including those that are less than 5 years in service which shall consist of the following components: basic salary, transport allowance, housing allowance and lunch subsidy (Exhibit C3). That subsequent to this stated agreement, the claimants through the domestic branch of their union and Enterprise Bank Ltd entered into another agreement (Exhibit C4) that Enterprise bank Ltd shall pay gratuity to the claimants as their terminal benefits in line with the components/terms agreed by Mainstreet Bank, NUBIFIE, ASSBIFI, NLC, and the Federal Ministry of Labour in Exhibit C3 before their employment can be outsourced. That it is not in dispute that Enterprise Bank Ltd (now 2nd defendant freely entered into an agreement (Exhibit C4) with the claimants’ union. That the law is trite that parties are bound by the terms of the agreement they freely entered into, citing Lagos State Government v. Toluwase [2013] 1 NWLR (Pt. 1336) 555 at 572 and 580 and West African Off Shore Ltd v. Ariri [2015] 18 NWLR (Pt. 1490) 177.
44. To the claimants, Enterprise Bank Ltd (now 2nd defendant), having entered into agreement (Exhibit C4) with the claimants’ union to pay the claimants gratuity in line with the terms and components contained in Exhibit C3, is under obligation to comply with the terms of Exhibit C3 in computing the claimants’ gratuity and the claimants are, therefore, entitled to be paid in line with Exhibits C3 and C4. That the terms provided in Exhibit C3 for payment of gratuity is as follows:
the bank shall pay 100% gratuity to both exited and existing staff (including those that are less than 5 years in service)…
Gratuity components consist of the following; basic salary, transport allowance, Housing allowance and lunch subsidy.
That the law is settled that the Court has a duty to interpret and enforce the terms of contract voluntarily entered into by parties and the cardinal principle of construction of a document such as Exhibit C3 is for the Court to give an interpretation that is consistent with the object of the entire document, referring to Lagos State Government v. Toluwase (supra) at 572. That the object of Exhibit C3 is payment of 100% gratuity by using the above listed components. That Enterprise Bank Ltd (Hereinafter referred to as EBL) and the claimants’ union via Exhibit C4 entered into an agreement that EBL shall pay to the claimants gratuity in line with Exhibit C3 and the said Exhibit specifically mentioned 100% gratuity.
45. It is thus the case of the claimants that after the said agreement in Exhibit C4, Enterprise Bank Ltd (now the 2nd defendant) credited their respective accounts with sums of money calculated as their one year basic salary, transport allowance, housing allowance and lunch subsidy without due regard to the respective number of years each of them served. That this payment was claimed by the bank to be the claimants’ gratuity/end of service benefit. That the defendants did not controvert this fact but merely stated in both their pleadings and evidence that they complied with both Exhibits C2, C3 and C4 and that the said agreements are collective agreements which are not enforceable and even if they are, that the defendants complied with both Exhibit C3 and C4 (paras. 20 of the amended statement of defence and 17 to 18 of their statement on oath).
46. The claimants went on that the first pertinent issue for this Court to determine is whether the payment of one year basic salary, transport allowance, housing allowance and lunch subsidy paid to the claimants across board by EBL (now 2nd defendant) amounts to payment of gratuity or 100% gratuity as required in Exhibit C3 and C4. That the Blacks Law Dictionary 9th Edition at page 770 on definition of gratuity referred to the definition of bounty and at page 211 of the said dictionary, gratuity/bounty is defined as follows: “3 the portion of a salvage award exceeding what the salvor would be entitled to on the basis of quantum meruit – also termed gratuity”. That from this definition, it is clear that the word gratuity presupposes payment over what the employee is ordinarily entitled to i.e. a generous benefit. That the object of Exhibit C3 is for the bank to pay 100% gratuity. What then is 100% gratuity or what is gratuity as intended by the parties in Exhibit C4? That the term 100% means full, complete and total. It, therefore, means that the intention of the parties at the time Exhibit C4 was made is for that EBL (now the 2nd defendant) to pay full gratuity to the claimants. Consequently, to give effect to the intention of the parties to pay gratuity or 100% gratuity to the claimants as required by Exhibits C3 and C4, the policy/usual practice of EBL, which is in line with the customary practice of computing gratuity within the banking industry, must be inferred. This is because the law is trite that construction of contracts of employment or agreements embodying conditions of service as Exhibits C3 and C4 depends on the intention of the parties revealed in express or implied terms of the agreement, referring to Amodu v. Amode [1990] 5 NWLR (Pt. 150) at 356 SC. That courts of law are, therefore, enjoined in law to give effect to an interpretation which is consistent with the object of the entire agreement, referring to Lagos State Government v. Toluwase [2013] 1 NWLR (Pt. 1336) 555 at 572.
47. It is the claimants’ case that the usual practice and policy of EBL in the computation of gratuity payment to its employees, which is in line with the usual practice of computation of gratuity within the banking industry, is that gratuity is calculated based on the number of years served by multiplication, referring to Exhibit C12 at page 87 (Enterprise Bank’s Employee Handbook) where it is specifically provided as follows:
“any employee who has served for five years and above, who is retiring, or leaves service for reasons other than dismissal on account of fraud, miss-conduct or any criminal offence shall receive a gratuity based on total years of service. Gratuity shall be calculated in line with approved policy”.
That it is equally the case of the claimants that the gratuity scheme contained in Article 3.11.18(c) at page 87 of Exhibit C12 is EBL’s approved policy on gratuity. The claimants also referred the Court to the evidence of the DW under cross-examination where he specifically stated the following: “the gratuity the claimants are complaining about was paid by Enterprise Bank. The claimants were paid gratuity in line with existing policy of Enterprise Bank”. That it is pertinent to note that the defendants did not deny that EBL’s policy on payment of gratuity is contained in Exhibit C12 but rather their contention is that the claimants were not employees of EBL but that of the 1st defendant and as such are not entitled to benefit under Exhibit C12. That the defendants having admitted that EBL’s policy (now the 2nd defendant) on payment of gratuity is contained in Exhibit C12 and is based on the number of years served which the claimants contend is in line with the usual practice within the banking industry, payment of gratuity to the claimants ought to be calculated based on each claimant’s total number of years of service.
48. It is the case of the claimants that after the said agreement in Exhibit C4, Enterprise Bank Ltd credited their respective accounts with sums of money calculated as their one year basic salary, transport allowance, housing allowance and lunch subsidy without due regard to the respective number of years each of them served. That this payment was claimed by the bank to be the claimants’ gratuity. That the defendants on their own both in their final address and evidence admitted that they paid the claimants as gratuity, their respective one year basic salary, housing allowance, transport allowance and lunch subsidy (irrespective of each claimant’s total number of years of service). They further stated that what they paid the claimants was 100% gratuity and that they also paid those that were less than 5 years in service in line with Exhibit C3. To the claimants, the pertinent question to answer then is, if the defendants did not base the computation of the gratuity paid to the claimants on their respective total number of years of service, how then did they comply with Exhibit C12/the EBL’s usual practice in payment of gratuity (which the claimants have stated is in line with the usual customary practice of gratuity payment)? In other words, how then did the defendants (in particular the 2nd defendant) pay full gratuity to the claimants? The claimant then submitted that ordinarily, going by the simple definition of gratuity as shown earlier, which means bounty, an award exceeding what an employee is ordinarily entitled to on quantum meruit, payment of one year basic salary, transport allowance, housing allowance and lunch subsidy to all the claimants across board cannot by any stretch of imagination be full gratuity; more so when the policy of EBL and its usual practice, which is in line with the customary practice of computation and payment of gratuity in the banking industry, is that computation and payment of gratuity is based on the total number of years of service. How then can one base such payment on the total number of years of service of each employee without a multiplier? That the cardinal principle of construction of any document embodying agreement between parties such as Exhibits C4 and C3 is for the Court to give an interpretation which is consistent with the object of the entire document so as to ascertain the intention of the parties, referring to Lagos State Government v, Toluwase (supra) 572. Interestingly, that the defendants both in their pleading and evidence in Court did not at any time deny the fact that gratuity is calculated based on the total number of years served by multiplication. That it is an elementary principle of law that facts in pleading and evidence not denied by the opposing party are deemed to have been admitted and admitted facts need no further proof, referring to NBA v. Mabawonku [2013] 15 NWLR (Pt. 1378) 603 at 620.
49. The claimants continued that the defendants as an after thought argued that Exhibit C12 does not contain the multiplier method used by the claimants and that the said exhibit referred to another policy document containing the method of calculation of gratuity. Could that then be the policy of the bank which DW claimed under cross-examination that they paid the claimants in line with? That it is important to point out here that the defendants at page 29 of their final address mischievously misquoted the provision of Article 3.11.18(c) at page 87 of Exhibit C12 with the intention to deceive this Court. The said provision says: “…Gratuity shall be calculated in line with approved policy”. And not that “…gratuity entitlement shall be calculated in line with approved existing policy” as quoted by the defendant. That Exhibit C12 did not mention “existing policy” and it is the claimants’ case that Exhibit C12 contains the entire policy of EBL (now the 2nd defendant) on gratuity. That the said policy on gratuity contained in Exhibit C12 is the bank’s approved policy and it contains the method of calculation of gratuity which it stated to be based on total number of years of service. That Article 3.11.18(c) of Exhibit C12 does not refer to any other document on gratuity policy outside Exhibit C12. Hence the claimants contend that the only way to base calculation on the total number of years of service is by multiplication. The claimants urged the Court to note that if the word “total” was omitted, then it could suggest that the method of calculation is not contained in the policy suggestive of another policy outside Exhibit C12 but that is not the case here. That the word total is used here meaning a multiplication by the total number of years of service.
50. The claimants proceeded that if the defendants are now saying that there is another “existing policy” outside Exhibit C12, which they claim they paid the claimants in line with, the onus shifts on them to prove it by producing the said policy. That this is premised on the law that burden of proof in civil cases is not static but shifts from one party to the other and always rest on the party who would lose if no further evidence is adduced, referring to Ayorinde v. Sogunro [2012] 1 NWLR (Pt. 1312) 460 at 482. The claimant then submitted that having shown that computation of gratuity is based on the total number of years of service by means of multiplication, the burden of proof has shifted to the defendants to rebut same which they have completely failed to do. In any case, that it is the claimants’ case that no other policy on gratuity exist outside Exhibit C12. However, that should the Court believe the defendants that such document exist, then the defendants have the onus to produce it, referring to Ikhuemeso v. Daar Communications Plc [2016] 64 NLLR (Pt. 227) 406 at 433; and that law is settled that evidence which could be and is not produced, would if produced be unfavourable to the person who withholds it, referring to section 149 of the Evidence Act 2011 and urging the Court to so hold.
51. On the contention of the defendants that the claimants are employees of the 1st defendant and cannot seek benefit under Exhibit C12, the claimants submitted that they are not unmindful of the fact of the disguised employment relationship between them and the 2nd defendant. That is why their union in the first place entered into Exhibits C2 and C4 with the 2nd defendant. However, that the law is clear as shown under issue 2 above, that looking at the facts and the surrounding circumstance of the claimants, the 1st and 2nd defendants’ relationship, a co-employer status is established between the 1st and the 2nd defendant. It, therefore, means that in the absence of an express stipulation in Exhibit C4 on how the gratuity to be paid to the claimants should be calculated, reliance must be placed on Exhibit C12 in the interest of justice and equity and to avoid unfair labour practice, urging the Court to so hold.
52. Issue (4) is whether the claimants are entitled to the reliefs sought, particularly the outstanding balance of their gratuity. To the claimants, their reliefs are essentially for declarations that the one year basic salary, transport allowance, housing allowance and lunch subsidy paid to them across board by EBL without taking into consideration the number of years each of them served conflict with banking industry customary practice, EBL’S policy on payment of gratuity and Exhibits C3 and C4; and that the said payment amount to unfair labour practice. Consequently, the claimants computed what their respective due gratuity benefits are by using the amounts each of them were being paid under the components outlined in Exhibit C4 and multiplied them by their respective number of years of service, referring to paragraph 21 of the claimants’ amended statement of facts and the claimants’ witness statement on oath where the claimants graphically by mathematical calculation showed how each of them arrived at what they claim. The claimants then adopted their arguments under issues (1), (2) and (3). In particular, the claimants submitted that at pages 6 to 1274 of their witness statement they clearly showed by mathematical calculation, how each of them arrived at their respective claim. Using the 592nd claimant’s case as an example to illustrate the basis of the claimants’ claim, the said claimant who was the claimants’ sole witness testified at pages 510 and 511 of the claimants’ statement on oath that he is entitled to the sum of N2,126,416.14 as his due gratuity instead of N322,999.92 paid to him by EBL and consequently claimed the difference. To show the basis for his claim, the 592nd claimant stated that his:
length of service was 6 years and 7 months
basic salary was N99,999.96
Transport allowance was N33,000.00
Housing allowance was N150,000.00
Lunch subsidy was N39,999.96
Total = N322,999.92
Multiplied by the number of years served = N322,999.92 x 6 years and 7 months = N2,126,416.14
That his correct gratuity is N2,126,416.14
That his correct gratuity less the amount paid to him by EBL is N2,126,416.14 – N322,999.92 = N1,803,416.22, which is the claim of this claimant.
That it is important to point out that the 592nd claimant got what he claims to be his gratuity entitlement for the 7 months (added to his 6 years of service) simply on a pro rata basis and the same method was used by all the other claimants.
53. That the claimants tendered as exhibit the 592nd claimant’s statement of account (Exhibits C10 and C10a), which showed that the amount credited into his account by EBL on 18th January 2013 and 31st May 2013 as end of service benefit which corresponds with the total amount he claimed was paid to him as gratuity by EBL, who used the components contained in Exhibits C3 and C4 in paying the them the purported gratuity though of only one year, a fact clearly admitted by the defendants. That the claimants testified that they were never given pay-slips as salaries were simply credited into their accounts. Also not given to them is a document showing the breakdown of what was paid to them or their entitlement. That the claimants further testified using the 592nd claimant’s claim as a test case/example that what was paid to him was similar to the breakdown of his entitlement as shown in Exhibit C5. That CW testified that what applied to him applied to all the other claimants. The claimants then stressed that the employment relationship between them, the outsource companies and EBL is one of a triangular employment relationship orchestrated to disguise the real employer, EBL, and shield it from employment responsibilities towards the claimants. That the defendants did not deny each claimant’s claim of the amount paid to each of them by the 2nd defendant as gratuity/end of service benefit. That it is trite law that facts pleaded if not denied are deemed to have been admitted, referring to Zenith Bank Plc v. Ekereuwem [2012] 4 NWLR (Pt. 1290) 207 at 232. The claimants equally referred to Exhibit C5a also issued to 183 claimants, urging the Court to compare it with his claims as contained at page 189 of the claimants’ statement on oath and find that there is a link between the claimants’ remuneration while under the 1st defendant/and EBL’s employment and the outsource companies. That this Court by virtue of section 167 of the Evidence Act is empowered to presume the existence of any fact which it deems likely to have happened with regard to private business (among others) in their relationship to facts of a particular case, referring to Astral Contracting Services Ltd, Chevron Nigeria Ltd v. NUPENG [2013] 31 NLLR (Pt. 88) 137 at 158-159, where this Court in finding that though privity rule prescribe that one cannot benefit or suffer from a contract one is not party to, the rule is not absolute but admits of exceptions and in that case, found that there is a link between a service contract entered into by the 1st and 2nd claimants (the 1st claimant being a labour service provider, Outsource company, to the 2nd claimant) and a collective agreement entered into by 1st claimant and NUPENG and branches of contract labour employees. The claimants then urged the Court to determine the rights and wrong of the present case so as to achieve substantial justice and prevent unfair labour practice, looking beyond the different names that both the 1st defendant and the Outsource companies are called because the end user of the claimants’ services was EBL now the 2nd defendant who it has been clearly admitted paid them their remuneration. Also that the Court should hold that the claimants can rely on Exhibit C5 and C5a to prove the breakdown of their claims as well as rely on section 167 of the Evidence Act 2011 to presume that common cause of business was followed by EBL in maintaining the remuneration of all the other claimants received in the 1st defendant with the Outsource companies. In any case, that the defendants have clearly admitted that the amount it paid to each of the claimants as end of service benefits represent their respective one year basic salary, housing allowance, transport allowance and lunch subsidy including that of the 592nd claimant. That the defendants did not equally deny both in their pleadings and evidence that the amounts the claimants stated that it paid them as gratuity was what they paid. The claimants then asked what further proof is required, citing Zenith Bank Plc v. Ekereuwem (supra) at 232 as to admitted facts.
54. The claimants further submitted that the law is trite that a claimant must not personally give evidence to establish his case. That the evidence of the 592nd claimant who testified on behalf of the claimants is sufficient to establish the claimants’ case; therefore, the argument of the defendants that only the 592nd claimant proved his case is misconceived, citing Zenith Bank Plc v. Ekereuwem (supra) at 234 where it was clearly held by the Court of Appeal that a party is not bound to call any particular witness or any number of witnesses in proving his case.
55. Furthermore, that assuming without conceding that the claimants are still required to prove by further documentary evidence the breakdown of their basic salary, housing allowance, transport allowance and lunch subsidy, this Court as a special Court is enjoined by law to do substantial justice and to avoid strict legalism and technicalities that will defeat justice and purpose of establishing this Court. Hence, this Court is empowered to be flexible in its proceedings and to depart from the Evidence Act were the interest of justice so demand, referring to Okpeta v. Niger Dock Nig. Plc [2013] 30 NLLR (Pt. 86) 304 at 331-332 and section 12 of the National Industrial Court (NIC) Act 2006; and that on this premise, the Court should rely on the evidence of the CW that they were never given pay slips or any document to show the breakdown of their remunerations and what they were paid as end of service benefit/gratuity by the defendants and hold that the claimants cannot produce what they were not given/what they don’t have. That this Honourable Court in Ogunyale & ors v. Globacom [2013] 30 NLLR (Pt. 85) 50 at 89 condemned and held the practice of not issuing pay slips to workers as unfair labour practice. That the defendants should not be allowed to benefit from their wrong doing.
56. The defendants had argued that Exhibits C10 and C10a are not admissible in evidence being computer generated documents. To the claimants, Exhibit C10 is a document given to the witness by the bank itself as his statement of account with it. The witness did not generate it by himself from any computer to require compliance with section 4 of the Evidence Act. That the Court should examine Exhibit C10 and see that it is duly stamped by the bank, signed and dated by the staff that issued it and hold that it does not require compliance with section 84 of the Evidence Act. That Exhibit C10a is the online version of Exhibit C10 printed by the witness simply to assist the Court in clarifying any issue/entry that is not legible to the Court in Exhibit C10. That this Court is enjoined in law to be flexible in its proceedings and to depart from the Evidence Act where justice requires so as to achieve substantial justice, referring to section 12 of the NIC Act 2006, urging the Court to hold that both exhibits are admissible.
57. Furthermore, that the claimants showed that Exhibit C12 on EBL’s (now the 2nd defendant’s) gratuity scheme provides that gratuity is based on the total number of years of service. That the defendants have admitted that they paid to all the claimants their respective one basic salary, transport allowance, housing allowance and lunch subsidy as their gratuity which they contend is in compliance with Exhibits C3 and C4. This payment was certainly not based on each claimants total number of years of service as required by Exhibit C12, which the claimants have said is in line with the Banking industry customary practice. The claimants referred to Exhibit C1 (being the claimants’ letters of employment with the 1st defendant, which shows the date each claimant was employed and that their number of years of service varies). That having shown that gratuity payment under EBL’s policy (now the 2nd defendant) is calculated based on the total number of years of service, the payment by the 2nd defendant of one year basic salary, transport allowance, housing allowance and lunch subsidy to the claimants across board irrespective of their varying number of years of service, conflict with Exhibit C12. That the claimants have calculated what they claim to be their due entitlement as gratuity based on their respective total number of years of service by multiplying what each of them was paid as gratuity/end of service benefit by the defendants with their respective total number of years of service, which they contend is in line with EBL’s usual practice and policy contained in Exhibit C12 being the approved policy of EBL. That the onus shifts to the defendants to prove that the multiplier method used by the claimants is wrong; it is not for them to say that the claimants did not produce the 2nd defendant’s approved policy when the claimants are saying that EBL’s approved policy is Exhibit C12. If any other approved policy exists which is at variance with the method used by the claimants, the onus lies on the defendants to produce the so called approved policy to contradict the claimants.
58. The claimants went on that assuming without conceding that Exhibit C12 refers to any other document containing approved policy, the Court should be mindful of the amorphous nature of the relationship between the claimants and EBL (now the 2nd defendant) and find that if there is any such approved policy (which the defendants claim they paid the claimants under) that is at variance with the method used by the claimants, same is especially within the knowledge of the 2nd defendant and the burden of proving that approved policy is on the 2nd defendant by virtue of section 140 of the Evidence Act 2011, urging the Court to so hold.
59. The defendants had contended that when banks were directed by CBN to divest from non-banking subsidiaries, the claimants became redundant and their secondment to Spring Bank Plc was deemed determined in law. They further claimed that the 1st defendant consequently terminated the claimants’ employment and the claimants were paid one month basic salary in lieu of notice and other disengagement benefits. That the claimants denied that their employment was terminated by the 1st defendant and further denied that they were paid any one month salary in lieu of notice nor were they paid any disengagement benefit but rather testified that their employment was forcefully transferred by the 2nd defendant to outsource companies without compliance with the Labour Act 2004. That the defendants apart from asserting that the claimants’ employment were terminated and that they were paid the said salary in lieu of notice and other disengagement benefits, did not adduce any documentary evidence to proof this fact in the face of claimants’ denial. That the law is clear that he who asserts a state of facts has the burden to prove same, referring to section 131(1) of the Evidence Act 2011. That the burden of proving that the claimants’ employments were terminated by the 1st defendant and that they were paid salary in lieu of notice and other disengagement benefits lies on the defendants, which they have failed to prove, referring to Ogunyale & ors v. Globacom (supra) at page 89, where this Court held the practice of not issuing termination letter to workers before their employment is outsourced amount to unfair labour practice. The claimants then urged the Court to in the interest of justice note the above stated acts of the defendants to wit: non issuance of pay-slips and any document showing the breakdown of what the claimants were paid by the 2nd defendant as end of service benefit, the non issuance of termination letters and non payment of salaries in lieu of notice to the claimants before forcefully transferring their services to outsource companies which are all unfair labour practices and hold that the defendants cannot be allowed to benefit from all these their wrongs.
60. The defendants had also contended that the claimants listed at page 25 of their final address did not produce their letters of employment and as such lack the locus standi to maintain this action against the defendants. To the claimants, claimants numbers 177, 215, 306 and 358 included in the defendants’ list have their letters of employment before the Court, referring to pages 226, 264, 353 and 405 respectively of Exhibit C. Furthermore, that the argument of the defendants is misconceived and canvassed without due regard to the case presented by the claimants. That the claimants case is not for wrongful termination of employment which they have the onus to place before the Court their contract of employment, referring to Osoh v CBN [2013] 35 NLLR (Pt. 103) 1 at 29 and Faturori v. University of Lagos [2016] 65 NLLR (Pt. 233) 783 at 816. That their case is that of breach of a collective agreement, which they have produced before the Court. That assuming without conceding that the letters of employment is required to prove the issue in controversy, that the contention of the defendants that they denied that the listed claimants were not employed by the 1st defendant is completely false, referring to the defendants’ amended statement of defence, which has no paragraph that contains any specific denial of the fact of these claimants’ employment with the 1st defendant. That the law is that a general traverse amounts to no denial at all and a statement of defence must be read together in order to ascertain whether there has been sufficient traverse of the facts in the statement of claim, referring to Oparaji v. Ahihia [2012] 4 NWLR (Pt. 1290) 266 at 269 and Emodi v. Emodi [2015] 2 NWLR (Pt. 1443) 323 at 344. The claimants then urged the Court to examine paragraph 5(i)(iii) and (iv) of the defendants’ amended statement of defence to see that the defendants expressly in those paragraphs admitted that the claimants were employed by the 1st defendant and that employment letters were issued to them. The claimants then asked what further proof is required of them in the face of this unequivocal admission. That having admitted that all the claimants were employed by the 1st defendant who issued them employment letters, the defendants cannot now be allowed to state that the listed claimants did not prove their employment relationship with the 1st defendant and as such lack the locus to bring this action, urging the Court to so hold. The claimants concluded by urging the Court to grant their reliefs.
THE DEFENDANTS’ REPLY ON POINTS OF LAW
61. The defendants reacted on points of law in terms of the issues raised by the claimants. On the claimants’ issues (1), the sum total of the arguments of the claimants is that collective agreements are enforceable given section 254C(1)(j) of the 1999 Constitution and section 7(1) of the National Industrial Court (NIC) Act 2006 where this Court has the jurisdiction to determine any question as to the interpretation and application of any collective agreements. Also that because the claimants served as junior administrative employees in EBL, their membership of NUBIFIE as junior staff is automatic and as dues paying members of the National Union of Banks, Insurance and Financial Institutions Employees (NUBIFIE), they are entitled to benefit under the said collective agreements (Exhibits C2 and C3). To the defendants, it is trite that he who asserts must prove; and the burden of proof in civil matters is on the party who asserts a fact to prove same and the standard of proof required is on a preponderance of evidence and balance of probabilities, citing Onwugbelu v. Mezebuo & ors [2013] LPELR-20401(CA). That the claimants who claimed to be junior staff of EBL and, therefore, automatic members of the NUBIFIE had the onus of proving the existence of a contract of employment between the claimants and EBL/the 2nd defendant through cogent and admissible evidence to entitle them to benefit from Exhibits C3, the Ministerial Agreement entered into between the then Mainstreet Bank, NUBIFIE, Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), the Nigerian Labour Congress (NLC) and the Federal Ministry of Productivity. However, that the documentary evidence placed before this Court by the claimants did not show any contract of employment between the claimants and the 2nd defendant which is a financial institution but only showed an employer-employee relationship between the claimants and the 1st defendant; and this is despite the claimants’ claim that they are members of NUBIFIE.
62. That as the name connotes, NUBIFIE is a trade union made up of employees of Banks, Insurance Companies and Financial Institutions; therefore it presupposes that any party claiming any benefit under any agreement entered into by the said trade union must first of all show that it is an employee of a bank, insurance company or financial institution. However, that the 1st defendant which is the claimants’ employer as evidenced by the several documents placed before this Court by the claimants is neither a bank, an insurance company nor financial institution. Furthermore, that it is the law that before a collective agreement can be enforceable, it must be incorporated into the contract of employment of the individual employee who seeks to rely on it in claim of a right thereunder; otherwise the claim cannot stand, referring to Salami v. Union Bank of Nigeria Plc [2010] LPELR-8975(CA). Thus, that as the law stands, before a claimant can seek a benefit under a collective agreement, he must show that the said agreement was incorporated into his terms of employment and that he is a member of the trade union involved. That a court is not entitled to look outside the contract of service as to the terms and conditions. These must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract as the case may be. That a court has no jurisdiction to interpret or construe contractual documents more favourably to a party outside the terms and conditions provided in the documents. Parties are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship. The Court is bound by the original terms of the contract and will interpret them in the interest of justice, citing Adegbite v. College of Medicine University of Lagos [1973] 5 SC 149, International Drilling Co. Ltd v. Ajijala [1976] 2 SC 115, Idoniboye Obu v. NNPC [2003] 2 NWLR (Pt. 805) 589 and Fakuade v. OAUTH Management Complex [1993] 5 NWLR (Pt. 291) 47. That it is evident that there was no incorporation either express or implied, of the terms of Exhibits C2, C3 and C4 into the contracts of employment of the claimants as evidenced by Exhibit C1. That the claimants also failed to furnish the Court with any other shred of evidence from which the incorporation of the terms contained in Exhibits C2, C3, and C4 can be interpreted or inferred from.
63. Furthermore, the claimants had argued that they are due paying members of NUBIFIE. To the defendants, the said fact was neither pleaded nor was any evidence adduced such as receipts evidencing payment of dues or deductions from the claimants’ salaries for payment of the union dues. That it is trite that argument of counsel, no matter how brilliant cannot take the place of evidence, referring to Oduwole v. David West [2010] All FWLR (Pt. 532) SC 1643, Agbamu v. Ami [2004] 5 NWLR (Pt. 867) 571, Neka BBB Manufacturing Co. Ltd v. ACB Ltd [2004] 2 NWLR (Pt. 858) 521 and Daramola v. AG, Ondo State [2000] 7 NWLR (Pt. 655) 440. On how membership of a trade union is proved, the defendants referred to Chiazor v. UBN (unreported) NICN/LA/122/2014. That the claimants having failed to plead and adduce evidence to show that they are dues paying members of NUBIFIE cannot now surreptitiously introduce same into their written address as they have done. It is also the defendants’ submission that the current state of the law on collective agreements as espoused by the Supreme Court in Osoh v. Unity Bank [2013] 9 NWLR (Pt. 1358) 1 at 29 is that collective agreements are not legally binding and cannot create any legal obligations unless the collective agreement has been incorporated into the employee’s contract of employment. That it is also important to note that the Supreme Court which is the apex Court has not overruled itself on this point nor is there any subsequent decision of the Supreme Court which runs contrary to this position. Accordingly, that having failed to show any employer-employee relationship with the 2nd defendant and any resultant connection with NUBIFIE and having also failed to show the incorporation of Exhibits C2, C3 and C4 into their contracts of employment, the claimants cannot claim any benefit under the said collective agreements and Exhibits C2, C3 and C4 cannot be enforced against the 2nd defendant in favour of the claimants. That the defendants are, therefore, not bound by the said agreements.
64. For the claimants’ issue (2), the crux of the claimants’ argument is that a triangular employment relationship existed between the claimants, the 1st defendant and the 2nd defendant and that to this extent, the claimants have a cause of action against the 2nd defendant. To the defendants, it is trite that where an action is founded on contract, a plaintiff must give sufficient particulars in his pleading to enable the contract to be identified. If this is not done, then the statement of claim has not disclosed a cause of action. That in an action for a benefit under a contract of employment or wrongful dismissal, it is necessary therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial judge. That without the contract and its particulars being pleaded by the plaintiff, no evidence of the terms of the contract which has been breached would be admissible at the trial; and this will be fatal to the action since it will lack foundation, citing Bruce v. Odham Press Ltd [1936] 1 All ER 287 at 294, Shell BP Petroleum Development Co. of Nigeria Ltd. & 5 ors v. M.S. Onasanya [1976] 1 All NLR (Pt. 1) 425 at 429 and Akinola & ors v. Lafarge Cement Wapco Nigeria Plc [2015] LPELR-24630(CA). Furthermore, that argument of counsel cannot replace evidence, referring to Oduwole v. David West [2010] All FWLR (Pt. 532) 1643 SC. That the argument of triangular employment ought to have been pleaded by the claimants and cogent evidence should have been led to substantiate this point. That this is not covered by the pleadings and evidence, hence counsel cannot surreptitiously sneak it in during final address.
65. Additionally, that in PENGASSAN v. Mobil Producing Nigeria Unltd [2013] 20 NLLR (Pt. 92) 243 at 322, which the claimants relied upon, this Court did not hold that a triangular employment automatically exists in all cases of this nature as the claimants seem to suggest. That this Court held that the determination of the existence of a triangular employment relationship depends on the circumstance of each case. On the strength of this decision and the facts and circumstances of this case, the defendants submitted that no triangular employment relationship existed between the claimants and the defendants as there is nothing before this Court showing the existence of a contract between the claimants and the 2nd defendant or any evidence showing that there were direct negotiations between the claimants and the 2nd defendant as at the time the contract of employment between the claimants (whose letters of employment were furnished before this Court) and the 1st defendant was entered into. That it is also important to note that the claimants, who claimed that the 1st defendant was a subsidiary of EBL, which fact was strongly disputed by the defendants in their further amended statement of defence (paragraph 3), had the onus of proving the subsidiary relationship between the 1st defendant and EBL as alleged; something they failed to do. That in the absence of any contract of employment between the claimants and the defendant, it follows that the claimants have failed to disclose any reasonable cause of action against the 2nd defendant, and their claims against the 2nd defendant must necessarily fail.
66. Regarding the claimants’ issue (3), the claimants had argued that parties are bound by the terms of the agreement they freely entered into and that Enterprise Bank Ltd (now the 2nd defendant) having entered into the agreement, Exhibit C4 to pay the claimants’ gratuity in line with the terms of Exhibit C3, the 2nd defendant is bound to comply with the agreement. To the defendants, it is not in doubt that a collective agreement being a gentleman’s agreement cannot ground a cause of action unless and until incorporated into the contract of employment or adopted as the terms of employment, citing ACB v. Nwodika (1996) 4 NWLR (Pt. 443) 470 at 484, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 726 at 741, NAB v. Shuaibu [1991] 4 NWLR (Pt. 180) 450 at 459, UBN v. Edet [1993] 4 NWLR (Pt. 287) 288 and Oguejiofor v. Siemens Ltd [2008] 2 NWLR (Pt. 1071) 283 at 297-298. That the claimants who claimed entitlements under Exhibit C4 failed to produce any letter or employment showing the incorporation of same into their conditions of employment; they also failed to show how the 100% gratuity used in Exhibit C3 will be calculated or lead evidence to prove the multiplier method according to the “customary practice and procedure in the banking industry” as they asserted; and they failed to provide any documentary evidence as the basis for the computation of figures which they purported to represent their remuneration components. The defendant referred to Dandson O. Obi v. Access Bank (unreported) Suit No. NICN/LN406/2013, where this Court held as follows:
The rule is that evidence of customary practice (or usage and practice) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in Queen v. Chief Ozogula [1962] WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors [1968] 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt. 388) 142 at 165 and Orlu v. Gogo-Abite [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify.
67. The claimants had argued that the defendants did not deny that EBL’s policy is contained in Exhibit C12. Your Lordship, the relevant part of the claimants’ amended statement of facts where EBL’s policy was referred to was in paragraph 18 where the claimants stated as follows: “The Claimants state that aside from being the customary practice of gratuity within the banking industry, computation of gratuity based on the total number of years served was the policy and usual practice of Enterprise Bank Ltd prior to its closure and Enterprise Bank Ltd.’s refusal to apply this practice in computing and paying the Claimants their gratuity is discriminatory”. To the defendants, it is important to note that in the said amended statement of fact, no particular reference was made to Exhibit C12 or the policy of EBL being contained in Exhibit C12. However, that the assertion of the claimants as contained in the said paragraph was specifically and particularly traversed by the defendants contrary to the argument of the claimants, referring to paragraphs 23 of the defendants’ further amended statement of defence where the defendants stated as follows:
Further to the above and in specific denial of the averments contained in paragraphs 16, 17, 18, 19, 20 and 21 of the Statement of Facts, the Defendants aver that there is no contractual and/or legal basis upon which the Claimants can claim additional payments for gratuity against them and/or base their computation thereon. The Defendants shall contend at the trial of this suit that the Claimants have not shown how they came about the figures and purported computation done in paragraph 21 of the Statement of Facts.
68. The claimants had also argued that under Exhibit C12 gratuity should be calculated in line with approved policy. To the defendants, apart from the fact that the claimants failed to furnish the Court with any evidence establishing an employer-employee relation between the claimants and the 2nd defendants, the claimants who wish to rely on Exhibit C12 in the calculation of their gratuity have failed to show the Court what the approved policy of the 2nd defendant with respect to calculation of gratuity is.
69. For the claimants’ issues (4), the defendant reiterated their arguments on the other issues; and then submitted that having failed to prove the existence of a contract of employment with the 2nd defendant, having failed to prove membership of NUBIFIE and the incorporation of Exhibits C2, C3 and C4 in their contracts of employment and also having failed to prove the multiplier method according to the “customary practice and procedure in the banking industry” as they asserted and the documentary evidence which formed the basis of the figures which they purported to represent their remuneration components or the “approved policy” as provided in Exhibit C12, the claimants cannot be entitled to the reliefs sought in their claim. The claimants had argued that the defendants did not deny each claimant’s claim of the amount paid to each of them as gratuity/end of service benefit, hence no further proof was required. They also argued that the defendants did not specifically traverse the employment of the claimants in its statement of defence. To the defendants, it is the position of the law that if a party who claims a relief has not made out his claim at least on a prima facie basis there is no duty on the other party to lead any evidence in rebuttal or to disprove anything and the failure to do so would not translate automatically to a grant of the claim of the party making the claim and such a claim must be dismissed despite the absence of evidence from the other party, citing Jolayemi v. Alaoye [2004] 12 NWLR (Pt. 887) 322 and Michael v. Access Bank of Nigeria Plc [2017] LPELR-41981(CA).
70. That it is also the law that to constitute a proper traverse of the case of a party, it is not necessary for the other party to specifically deny, controvert or contest every paragraph of the party’s averment of fact. What is essential is that the case put forward by that other party conflicts in material particulars with the case put forward by the party and thus puts material averments in issue, citing Ajao v. Alao [1986] 5 NWLR (Pt. 45) 802 and Eze v. Okoloagu [2010] 3 NWLR (Pt. 1180) 183. That a perusal of the entire further amended statement of defence and the reply to the defence to the counterclaim will show that in paragraph 2 of the further amended statement of defence, the defendants denied the assertion of the claimants that the claimants are employees of the 1st defendant. Furthermore, that the case put forward by the defendants conflicts in all materials particular with the case put forward by the claimant and puts all the claimant averments in issue. Furthermore, that the assertion of the claimants on the amount paid to the claimants which they argued that the defendants did not deny was in fact specifically traversed in paragraphs 23 and 28 of the defendants’ further amended statement of defence. In any event, that the amount which the claimants said was paid by EBL as gratuity is contained in the purported computation in paragraph 21 of the statement of facts and this amount including the entire computation was specifically traversed as has been shown above.
71. The defendants went on that it is a legal requirement that special damages must be both specifically pleaded and particularized and strictly proved and a trial court cannot make its individual assessment but must act strictly on the evidence before it, referring to Alhaji Otaru & Sons Ltd v. Idiris & anor [1999] 6 NWLR (Pt. 606) 330. That it is the responsibility of the plaintiff at the trial to give sufficient particulars of his claim for special damages for the purpose of enabling the court to calculate, citing Benin Rubber Producers Ltd v. Ojo [1997] 9 NWLR (Pt.521) 388. That claims for gratuity and pension are special damages which are required by law to be strictly proved; and the eligibility of an employee for pension and gratuity can only be decided by reference to the conditions of service, referring NEPA v. Adeyemi [2007] 3 NWLR (Pt. 1021) 315 at 337. It is the defendants’ submission that in view of the fact that the claimants are all claiming different sums as their gratuity, the claimants failed to tender any form of documentary evidence showing the computation of the claimants’ remuneration and its components which they claimed. That Exhibit C1 which the claimants relied on does not contain this information. The defendants then urged the Court to dismiss the claimants’ case in its entirety with substantial costs.
COURT’S DECISION
72. I have carefully considered the processes filed and the submissions of the parties. The claimants’ counsel had intimated the Court that the following claimants indicated their intention to withdraw from this suit, namely: the 6th, 87th, 88th, 104th, 492nd, 1206th, 1445th, 1622nd and 1623rd claimants. The claimants’ counsel then urged the Court to strike out the names of these persons from this suit as claimants and every relief relating to them. The defendants had also made the same prayer in their final written address. In consequence, the names of the 6th, 87th, 88th, 104th, 492nd, 1206th, 1445th, 1622nd and 1623rd claimants and every relief relating to them are hereby struck out. I so order.
73. At the trial of this suit, counsel for the defendants had indicated that the defendants had objections to the admissibility of certain documents tendered by the claimants and would give their reasons in their final written address. The documents are Exhibits C3, C10, C10A and C11. However, when the defendants’ final written address was filed, counsel to the defendant dropped the idea of objecting to the admissibility of Exhibits C3 and C11. The defendants, however, objected to Exhibits C10 and C10A i.e. the statement of account and online printout of the statement of account of Odiaka Jude Nwanji, the 592nd claimant, who testified as CW. The ground of the objection is that the admission of both documents contravenes sections 84, 89(h) and 90(1)(e) of the Evidence Act 2011 given that the documents are computer generated documents, which by section 84(4) of the Evidence Act ought to be accompanied by certificates verifying the state of the computer in which they were stored, processed and printed from, before the said documents can be admitted in evidence. In reaction, the claimants prayed the Court to examine Exhibit C10 and see that it is duly stamped by the bank, signed and dated by the staff that issued it and hold that it does not require compliance with section 84 of the Evidence Act. That Exhibit C10a is the online version of Exhibit C10 printed by the witness simply to assist the Court in clarifying any issue/entry that is not legible to the Court in Exhibit C10. That this Court is enjoined in law to be flexible in its proceedings and to depart from the Evidence Act where justice requires so as to achieve substantial justice, referring to section 12 of the NIC Act 2006, urging the Court to hold that both exhibits are admissible. Exhibit C10 is the statement of account of Odiaka Jude Nwanji, the 592nd claimant, who testified as CW and covers the period 1st November 2006 to 31st July 2013. It is stamped and endorsed by Enterprise Bank with the date 27th April 2015 written on it. Given section 12 of the NIC Act 2006, which enjoins that this Court may depart from the Evidence Act when the interest of justice demands, I am satisfied as to the admissibility of Exhibits C10 and C10(a) and so uphold same. I so hold.
74. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47: “A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same”. The claimants’ case is a claim for outstanding i.e. the balance of gratuity not paid to them. They acknowledged that gratuity was paid to them, only that what was paid was incomplete. They seek the balance. This effectively makes their case one of a claim for special damages. The defendants deny liability. They argue as an alternative argument that even if there is liability to pay, the claimants have not satisfactorily proved their claim for the specific amounts indicated given the standard of proof required for proof of special damages. The authorities are clear on this. For instance, His Lordship Rhodes-Vivour, JSC in NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) puts the law thus:
…Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with General damages. They are exceptional and so must be claimed specially and proved strictly…
…To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the court.
75. 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), a more apposite case, puts the law in tis words:
The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.
76. And in this Court, we have in a number of cases laid down what a claimant must prove in other to be entitled to monetary claims in the nature of special damages. For instance, in Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, this Court held thus:
…the rule is that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Here, the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 – 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).
See also Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017.
77. These authorities show that the claimants in the instant case must prove two things if they are to succeed: one, that they have an entitlement to the sums they respectively claim; and two, how they came about the quantum of the sums of money they respectively claim. In terms of the first requirement, CW in his testimony under cross-examination testified that they are asking of the balance of their gratuity and they base their claims on Exhibits C3 and C4 as well as pages 86 and 87 of Exhibit C12. Exhibit C3, otherwise called the Ministerial Agreement, is the “Agreement Reached at the end of the Negotiation by the Federal Ministry of Labour and Productivity Between National Union of Banks, Insurance & Financial Institutions (NUBIFIE), Association of Senior Staff of Banks, Insurance & Financial Institutions (ASSBIFI) and Mainstreet Bank Limited on March 5, 2013 at the Office of the Honourable Minister of Labour & Productivity, Abuja”. Exhibit C4 is an Agreement between Enterprise Bank and FSFS (Domestic Union), “FSFS” being the 1st defendant, and is dated 21st May 2013. And Exhibit C12 is the Policy Manual of Enterprise Bank.
78. A look at Exhibit C4 will show that it is hinged on Exhibit C3 in terms of the payment of gratuity. I need to clarify an argument of the defendants here. The defendant had argued that for relief (b), they have shown that the payment of only one year basic salary, transport allowance, housing allowance and lunch subsidy is in complete compliance with the Ministerial Agreement i.e. Exhibit C3. In any event, that the Ministerial Agreement is not enforceable against them and they are/were under no obligation in law to comply with same but did so in good faith. The point is that an employer cannot rely on a collective agreement for one thing and turn around and deny its applicability for other things. In CCB (Nig) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114, for instance, it was held that an employer who dismisses his employee under the provisions of a collective agreement between itself and its employee’s trade union cannot thereafter contend that the collective agreement does not contain the terms and conditions of the employee’s service. The defendants cannot state that they paid one year basic salary, transport allowance, housing allowance and lunch subsidy as gratuity as enjoined by Exhibit C3 and then our around and say that they are not bound by Exhibit C3. This cannot be; and I so find and hold.
79. One of the planks upon which the defendants placed their defence is that Exhibits C3 and C4, as collective agreements, are not binding on them relying on the doctrine of privity of contract and the fact that the claimants did not prove their membership of NUBIFIE. I have already held that they cannot make payment on the said collective agreements and then turn around and say that the collective agreements are not binding on them. Before addressing the argument of the defendants here, I need to first clarify a slant in the claimants’ reaction to the argument of the defendants.
80. Reacting on the issue of privity of contract and the claimants’ membership of NUBIFIE, the claimants had submitted that this Court has in its previous decisions aptly held that non-signatories to collective agreements can seek its interpretation/enforcement once sufficient nexus is shown between such claimants and the collective agreement, citing John Ovoh v. Nigerian Dredging and Marine Ltd DJNIC (1978-2006) 516 at page 518, where this Court held that a member of a trade union that is party to a collective agreement can seek for the interpretation of the collective agreement. To the claimants, membership of the trade union is, therefore, sufficient nexus to warrant beneficiaries of the collective agreement i.e. members of the trade union to seek the interpretation/application of the collective agreement. Here, the claimants are mixing up issues; and even at that they only stated part of the rule.
81. To start with, what was in issue before the Court was the interpretation of a collective agreement under section 15 of the then Trade Disputes Act (TDA) 1990. In that law, section 15 was specific that only parties to a collective agreement or the Minister of Labour can seek for the interpretation of a collective agreement under that section. Secondly, this Court has explained the ambit of the rule itself. To this Court, to activate the interpretation jurisdiction of the NIC for the purpose of interpreting a collective agreement, there must be a sufficient nexus between the applicant and the collective agreement in question. It is not enough that the applicant benefits from the collective agreement without more. That to be so entitled, there has to be proof that the beneficiary is a member of the signatory trade union to the collective agreement. Thus where a trade union may not want to come to court on behalf of its aggrieved members regarding the interpretation of a collective agreement, the said members may apply directly to the NIC and will be accorded recognition upon proof of membership of the union that signed the collective agreement and the reluctance of the union to approach the court on their behalf. See Itodo and ors v. Chevron Texaco Nigeria [2005] 2 NLLR (Pt. 5) 200 especially at pp. 221 – 223, National Union of Hotel and Personal Services Workers v. Palisco Nigeria Limited and anor. unreported Suit No. NIC/15/2000 decided on April 27, 2006 and National Union of Hotels and Personal Service Workers v. Whassan Eurest (Nigeria) Ltd [2005] 2 NLLR {Pt. 4) 145 especially at p. 154. In Itodo, the Court was specific in stating thus: “While it is true that it is not in all cases that a union or association may want to come to court on behalf of its members, the aggrieved workers here would still need to show membership of the said union or association and the reluctance of the union or association to come to court for us to accord them recognition and hence a hearing”.
82. From the pronouncements of this Court, the rule thus becomes that in terms of the interpretation jurisdiction of this Court over collective agreements, it is the parties to the collective agreement (often a trade union and an employer/employer union) or the Minister of Labour that can activate the interpretation jurisdiction of this Court. An individual can only activate the interpretation jurisdiction of this Court over a collective agreement only when the trade union party of the individual is reluctant to come to court on behalf of the individual, and the said reluctance must be shown or proved to this Court. And this is in addition to the fact that the individual must first show membership of the reluctant trade union.
83. In the instant case, the claimants did not bring their case for interpretation of the collective agreements they exhibit under the current equivalents of section 15 of the 1990 TDA (both under the present TDA or even section 254C(1) of the 1999 Constitution). Secondly, even as the claimants seek the interpretation and hence application of the collective agreements they exhibited in this case, they are here in their individual capacities. Their trade union is not a party to this suit. The claimants did not show or prove to this Court that their trade union was reluctant to come to court on their behalf. The claimants’ pleadings show clearly that their trade union was neck deep in the negotiations that led to the instant case. Yet they came to this Court in their individual capacities, leaving out their trade union. The claimants came to this Court as 1678 claimants (including the nine already struck out) and knew very well that once their trade union, which ought to be the driver of this suit, is brought to the fore, they will have to answer to this Court why they are activating the original jurisdiction of the Court and not going through the processes of Part I of the TDA before coming to this Court in its appellate jurisdiction. The claimants played smart, thinking that thereby they could sidetrack the processes of the TDA by coming directly to this Court. Unfortunately, they only succeeded in shooting themselves in the foot; for now, they have to contend with the issue of the competence of the suit itself and hence the jurisdiction of the Court over the suit as filed, something that the defendants raised although not in this very context. The claimants’ counsel’s penchant for sidetracking the processes of Part I of the TDA is not restricted to this case. This Court had cause to raise concern over same in Akeem Lawal & ors v. The Honourable Minister of Transport & ors unreported Suit no. NICN/LA/177/2016, the ruling of which was delivered on 14th December 2017, where the three claimants on record sued for themselves and as representing 1,686 other tally clerks and onboard security men (unit of dockworkers) leaving out their trade union, the Maritime Workers Union of Nigeria (MWUN), which they agreed negotiated on their behalf the issues at stake. The instant case is a 2013 case. The time spent in activating the original jurisdiction of this Court when the appropriate thing to do was to have activated the processes of Part I of the TDA is judicial time not well utilized. Even the referral of this case to the Alternative Dispute Resolution (ADR) Centre of this Court at the Court’s sitting of 7th June 2016 was unsuccessful as reported at the Court’s sitting of 27th October 2016.
84. I now turn to the defendant’s argument as to the non-applicability of the collective agreements. The defendants’ counsel had contended that the current state of the law on collective agreements as espoused by the Supreme Court in Akauve Moses Osoh & ors v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1 at 29 is that collective agreements are not legally binding and cannot create any legal obligations unless the collective agreement has been incorporated into the employee’s contract of employment. This argument of the defendants’ counsel reveals the uncritical citation and application of case law by counsel, and hence reading case law authorities out of context. The point I seek to make here is that the cause of action in Osoh arose in 1994, when the action was filed at the High Court of Edo State, Benin long before the Third Alteration to the 1999 Constitution came into being. The law is that “the law in force at the time of cause of action arose governs determination of the suit”. See Isaac Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495; [2011] 3 SCNJ 166; [2011] All FWLR (Pt. 575) 208 and Keystone Bank Limited v. Mr. Olukayode Abiodun Oyewale [2014] LPELR-23612(CA). As at 1994, when the cause of action arose in Osoh, there was no provision of law that permits the interpretation and application of collective agreements as we have under section 254C(1) of the 1999 Constitution. Whatever it was in 1994, section 254C(1) of the 1999 Constitution as inserted by the Third Alteration to the 1999 Constitution has altered that position; as such, Osoh as cited and applied by the defendant’s counsel is distinguishable. The point is that section 254C(1) cannot authorize this Court to interpret and apply collective agreements if the intention is not that collective agreements are thereby binding and enforceable. Interpretation (“the action of explaining the meaning of something” by the New Oxford American Dictionary) implies a declaration of rights; and application (“the action of putting something into operation” by the New Oxford American Dictionary) implies that the interpretation would be binding and enforceable. What all of this means is that the argument of the defendants as to collective agreements being gentleman’s agreements cannot stand the current constitutional ethos of section 254C(1) in terms of the mandate granted this Court to interpret and apply them. It must also be appreciated that the rule which saw collective agreements as gentleman’s agreements is a common law rule, which is rigid and had worked hardship in the world of work. It is this rigidity of the rule and the hardship it worked in the world of work that led to the present constitutional provision allowing this Court to interpret and apply collective agreements. No other court in Nigeria is given this mandate.
85. I need to stress a thing or two here: first, the hallmark of the Third Alteration to the 1999 Constitution is the creation of a new labour jurisprudence, one that seeks to check the rigidity and harshness of the common law; and with it came a new thrust for this Court; and this leads to a second point i.e. in labour/employment relations substance is preferred over form principally because of the stronger bargaining power of the employer over the employee. Globally, therefore, this is recognized in terms of the true essence of labour/industrial courts. For instance, in India, the very essence of an Industrial or Labour or Employment Court was succinctly captured by the instructive and incisive holding of their Supreme Court in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329 in this words:
The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.
This Court in Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC noted and applied this very essence.
86. The English courts on their part only recently in Uber B.V. (UBV) & ors v. Yaseen Aslam & ors [2018] EWCA Civ 2748 (19 December 2018), which at paragraph 48 quoted and applied the UK Supreme Court decision in Autoclenz Ltd v. Belcher [2011] UKSC 41; [2011] ICR 1157, noted the fact of industrial or employment judges being industrially informed: “Employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing”; and in paragraph 49 advised “[employment] tribunals to be ‘realistic and worldly wise’ in this type of case when considering whether the terms of a written contract reflect the real terms of the bargain between the parties; and…should take a ‘sensible and robust view of these matters in order to prevent form undermining substance’”. And in Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018, this Court quoted with approval Arturo Bronstein who in International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pp. 1 – 2 said thus:
…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.
87. The claimants in the instant case are junior staff and so their trade union is NUBIFIE. The rule advanced by the defendants that membership of the trade union has to be proved before the claimants can rely on the collective agreements applies only when the claimants are senior staff given that membership of senior staff unions is not presumed; it has to be actual (the staff in question must in fact opt in individually and in writing). See Mrs Bessie Udhedhe Ozughalu & anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018. For junior staff such as the claimants in the instant case, membership of trade unions is based on eligibility unless of course the staff in question actually opts out; and this must be individually and in writing. See NUSDE v. SEWUN [2013] 35 NLLR (Pt. 106) 606 NIC, Mr Eyiaromi Christopher Oladele & ors v. The Attorney-General, Lagos State & ors unreported Suit No. NICN/LA/102/2013, the judgment of which was delivered on 6th June 2017 and Bethel Ezego & ors v. National Union of Food, Beverage and Tobacco Employees (NUFBTE) & anor unreported Suit No. NICN/LA/221/2017, the judgment of which was delivered on 16th July 2018. The 2nd defendant’s trajectory (from Afribank to Mainstreet Bank to Enterprise Bank to Heritage Bank) is common knowledge. Consequently, the applicability of Exhibits C2, C3 and C4 (the collective agreements) to the claimants is not in doubt contrary to the submissions of the defendants. Arguments by the defendants as to non-incorporation of the collective agreements into the contracts of employment of the claimants go to no issue as same argument has previously been discountenanced by this Court given the new dispensation of the of Third Alteration to the 1999 Constitution. See Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12 July 2016.
88. For clarity, and at the risk of repetition, this is what this Court held in Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc:
…the defendant placed heavy reliance on Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares [2012] 11 NWLR (Pt. 1312) 550, and submitted that the case is on all fours with the instant case; as such this Court under the doctrine of judicial precedent is bound by it, urging the Court to accordingly hold that the alleged collective agreement was not incorporated into the claimant’s contract of service and as such not binding on the defendant. There is something lazy about the analysis of the defendant’s counsel and his call on this Court to abide by Soares, a case that started at the High Court of Lagos State in 1993 with the judgment delivered on 22nd January 1999, way before the current constitutional dispensation came into being. So when Soares came up before the Lagos State High Court, the cause of action arose long before the Third Alteration to the 1999 Constitution was promulgated. In fact, all the other cases cited and relied upon by the defendant are cases the causes of action of which arose long before the coming into effect of the Third Alteration to the 1999 Constitution. The state of the law under which Soares and the other cases were decided is certainly different from that under which the instant case is to be decided. The law as to the applicability of collective agreements in, say, 1993 when Soares was filed is certainly not the same with the law in that regard today under the Third Alteration to the 1999 Constitution. Today, under section 254C(1)(j)(i), this Court has jurisdiction in terms of the interpretation and application of any collective agreement. It is needless that a Court has jurisdiction to interpret and apply a collective agreement if the intendment of the law maker is not that the collective agreement is to be binding as such. It should be noted that under section 7(1)(c)(i) of the NIC Act 2006, the jurisdiction of this Court was only in terms of interpretation of collective agreements; the issue of application was not included therein. So when the Third Alteration to the 1999 Constitution added application of collective agreement to the fray, this must mean that the law maker deliberately intended collective agreements to be enforceable and binding.
In any event, the rule which held collective agreements not to be binding or to be binding in honour only (the argument of the defendant) is a common law rule. There is no gainsaying that this common law rule is not only rigid but harsh. Legal policy teaches that the rigidity and harshness of the common law is always ameliorated by the rules or principles of equity. In this regard, section 13 of the NIC Act permits this Court to administer law and equity concurrently; but where there is any conflict or variance between the rules of equity and the rules of common law, the rules of equity shall prevail. See section 15 of the NIC Act 2006. Incidentally, in the instant case, this harsh common law rule is not even being ameliorated by the principles of equity but by the Constitution itself. This is the state of the law under which the instant case is to be decided. Accordingly, Soares is distinguishable from the instant case in terms of the state of the law under which the matter at hand calls for determination in this Court.
I have no hesitation, therefore, in holding that the claimants can rely on the collective agreements they tender, the argument of the defendants to the contrary hereby rejected.
89. To the claimants, therefore, their reliefs are essentially for declarations that the one year basic salary, transport allowance, housing allowance and lunch subsidy paid to them across board by EBL without taking into consideration the number of years each of them served conflict with banking industry customary practice, EBL’S policy on payment of gratuity and Exhibits C3 and C4; and that the said payment amount to unfair labour practice. In the main, the claimants relied on clause 1 at page 2 of Exhibit C3, clauses 1 and 3 at the second page of Exhibit C4, and clause 3.11.18 at pages 86 to 87 of Exhibit C12. In answer to the argument by the defendants that the claimants did not prove their claim as to banking industry customary practice, the claimants referred to Exhibit C12.
90. It is necessary to quote verbatim the provisions relied upon by the claimants. The first is the said clause 1 of Exhibit C3, which states thus:
That the Bank shall pay 100% Gratuity to both exited and existing staff (including those that are less than 5 years in services) of defunct Afribank less liabilities and previous payments.
Gratuity components consist of the following:
• Basic Salary
• Transport allowance
• Housing allowance, and
• Lunch subsidy
91. The second are clauses 1 and 3 of Exhibit C4, which provide as follows:
1. The Bank shall pay gratuity to FSFS staff in accordance with the gratuity components agreed in the Ministerial Agreement which shall comprise of Basic salary, Transport allowance, housing allowance and lunch subsidy.
3. The payment of gratuity shall be in full and final settlement and in line with the Ministerial Agreement provided however that the Bank shall be obliged to abide by any further directive that may be agreed by all stakeholders that signed the Ministerial Agreement.
92. The third is clause 3.11.18 of Exhibit C12, the relevant part of which at page 87 is the provision on gratuity scheme which comes as type (c) under “Types of Benefits”. It provides thus:
Any Employee who has served for five years and above, who is retiring, (or leaves service for reasons other than dismissal on account of fraud, miss-conduct or any criminal offence) shall receive gratuity based on total years of service. Gratuity entitlement shall be calculated in line with approved policy.
Any employee who resigns in order to avoid dismissal shall not be entitled to gratuity.
93. The reference to these provisions by the claimants signifies that the claimants have proved the first component of the two conditions they have to meet when making claims of the sort in the instant case i.e. showing an entitlement by reference to the instrument or law that grants it. Even here, the defendants responded that they paid the claimants all that is due to them, citing clause 1 of Exhibit C3, which states “that the Bank shall pay 100% Gratuity to both exited and existing staff (including those that are less than 5 years in services) of defunct Afribank less liabilities and previous payments”. To the defendants, the one year basic salary, transport allowance, housing allowance and lunch subsidy paid to each claimant by the defendants satisfies clause 1 of Exhibit C3. Like the defendants submitted, the phrase “100% gratuity” used in clause 1 of Exhibit C3 means full or complete gratuity. The point of divergence between the claimants and the defendants, however, lies as to what constitutes full or complete gratuity. While the defendants said it is simply one year’s pay of basic salary, transport allowance, housing allowance and lunch subsidy, the claimants insist that it is one year’s pay of basic salary, transport allowance, housing allowance and lunch subsidy multiplied by the number of years served by each claimant in accordance with clause 3.11.18 of Exhibit C12.
94. It is thus in proof of the second requirement i.e. how they came about the quantum of the sums they claim, that the claimants computed what they think is respectively due to each of them as gratuity benefit by using the amounts each of them was paid as each claimant’s basic salary, transport allowance, housing allowance and lunch subsidy. A fundamental issue arises here. Clause 1 of Exhibit C4 provides that the Bank shall pay gratuity to FSFS staff in accordance with the gratuity components agreed in the Ministerial Agreement which shall comprise of Basic salary, Transport allowance, housing allowance and lunch subsidy. Clause 3 of same Exhibit C4 then provides that the payment of the said gratuity shall be in full and final settlement once it is in line with the Ministerial Agreement. The Ministerial Agreement is Exhibit C3, which as already indicated, provides in clause 1 “that the Bank shall pay 100% Gratuity to both exited and existing staff (including those that are less than 5 years in services) of defunct Afribank less liabilities and previous payments”. When clause 1 of Exhibit C3 talked of “100% gratuity”, did it imply one year pay of basic salary, transport allowance, housing allowance and lunch subsidy since these are the components it talks of, or did it mean one year pay of these components multiplied by the number of years served by each claimant?
95. The claimants argue that it must be read to mean one year pay of the laid down components multiplied by the number of years served by each claimant relying on clause 3.11.18 of Exhibit C12. Clause 3.11.18 of Exhibit C12 apples only to staff who served for five years and above. Clause 1 of Exhibit C3 on the other applies even to staff who did not serve up to five years. Clause 3 of Exhibit C4 then provides that once gratuity is paid in accordance with Exhibit C3, it becomes full and final settlement i.e. final and binding. This Court holds that payment in full and final settlement extinguishes any further liability on the party of the paying party. See Hotel and Personal Services Senior Staff Association & anor v. Tourist Company of Nigeria Plc unreported Suit no. NICN/ABJ/50/2014, the judgment of which was delivered on 16th July 2018. The fact that any payment under Exhibit C3, as Exhibit C4 provides, extinguishes any further liability as to payment of gratuity means that recourse to Exhibit C12 cannot be made at all. All parties know of the existence of Exhibit C12 when Exhibits C3 and C4 were entered into. So it cannot be that they intended that the payment of gratuity would be on the basis of a multiplication by the number of years served. The very fact that Exhibits C3 and C4 were entered into means that all the parties saw Exhibit C12 as inapplicable even though they left the leeway for any further directive in clause 3 of Exhibit C4. I, therefore, agree with the defendants that “100% gratuity” did not imply any multiplication by the number of years served by each claimant; and I so hold.
96. Even if this interpretation is incorrect, there is the problem of the factual details required to ground the claims of the claimants, which like I indicated earlier are claims for special damages. Exhibit C12, upon which the claimants relied, talks of years of service. There is no proof before the Court what each claimant’s years of service is. There is also no proof of what each of the claimant’s basic salary, transport allowance, housing allowance and lunch subsidy is since it is on these that the sums arrived at by the claimants can be said to have been proved to the satisfaction of this Court. This is the sense in which the defendants argued that the claimants have not shown how they came by the sums they respectively claim. On this score, I agree with the defendants and so hold that the claimants did not prove their case.
96. On the whole, and for the reasons given, the claimants’ case fails and so is hereby dismissed.
97 Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
