NIGERIAN BREWERIES PLC v. MAURICE IKYARKYASE & ORS (2015)

NIGERIAN BREWERIES PLC v. MAURICE IKYARKYASE & ORS

(2015)LCN/7821(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of March, 2015

CA/K/115/2011

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER IT IS PERMISSIBLE TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION FROM A GROUND A GROUND OF APPEAL

Now, it is settled law that the Courts frown at a proliferation of issues for determination in an appeal Thus, it is not permissible to formulate more than one issue for determination from a ground of appeal – Eke Vs Ogbonda (2006) 18 NWLR (Pt 1012) 506, Thomas Vs Aderinokun (2008) 16 NWLR (Pt.1112) 184 and Ogbe Vs Asade (2009) 18 NWLR (Pt 1172) 106. It is also not permissible to formulate issues for determination in excess of the grounds of appeal; in other words the number of the issues for determination must not exceed the number of the grounds of appeal filed – Amodu Vs Commandant, Police College Maiduguri (2009) 15 NWLR (Pt 1163) 75, Pharma Deko Plc Vs Nigeria Social Insurance Trust Funds Management Board (2011) 5 NWLR (pt 1241) 431 and Durbar Hotel Plc Vs Ityough (2011) 9 NWLR (Pt 1251) 41. Having held that only two of the grounds of appeal contained in the further amended notice of appeal of the Appellants were viable, i.e. the first ground, which is the omnibus ground and the fourth ground, the four issues for determination formulated by the Counsel to the Appellant cannot all be competent. It is elementary that issues for determination in an appeal must be distilled from, related to and be founded on the grounds of appeal contained in the notice of appeal and must deal with matters which ate a direct challenge to the decision of the lower Court. Any issue for determination formulated outside the grounds of appeal and which does not deal with matters directly challenging the decision of the lower Court is of no use in an appeal and it will irrelevant and be struck out – Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt.1284) 254 and Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: LAWS OF PLEADINGS; WHETHER THERE IS DISPUTE ON A FACT THAT IS AGREED ON

It is an elementary principle of the law of pleadings that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant and is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, Akande Vs Adisa (2012) 15 NWLR (Pt.1324) 538, Ignobis Hotels Ltd Vs Bentec Electrical Ltd (2015) 1 NWLR (Pt 1441) 504. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: PLEADINGS; WHETHER PLEADINGS CAN AMOUNT TO EVIDENCE AND THE EFFECT OF THE FAILURE OF A PARTY TO PROVE THE AVERMENTS IN HIS PLEADINGS

It is trite that pleadings do not amount to and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them – Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (Pt 1071) 283 and Nika Shipping Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Dingyadi Vs Wamako (2008) 17 NWLR (Pt 1116) 395. Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged and the oral evidence of the claimant is deemed sufficient proof of his case – Asika Vs Atuanya (2008) 17 NWLR (Pt 1117) 484. Also, the effect of the Appellant’s failure to call evidence in defense of the claims against it at the trial is that it is presumed to have admitted the case made against it by the Respondents -Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONTRACT: TERMS OF CONTRACT; WHETHER PARTIES ARE BOUND BY THE TERMS AND CONDITIONS IN THE CONTRACT AND THE DUTY OF THE COURT TO CONFINE ITSELF TO THE PLAIN WORDS IN THE INTERPRETATION OF THE CONTRACT

It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd, (2012) 17 NWLR (Pt 1323) 1, Lagos State Government Vs Toluwase (2013) 1 NWLR ((Pt 1336) 555. A Court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful and if any question should arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. It is not the business of the Court to rewrite a contract for the parties and it should thus not add to or subtract from or import any provision into the contract – Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt 928) 547, BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt 1332) 209, Daspan Vs Mangu Local Government Council (2013) 2 NWLR (Pt 1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt 1349) 1. Thus, in deciding whether the Respondents were entitled to the redundancy benefits as claimed, the lower Court was enjoined to look to and confine itself to the plain words and meaning derived from the Appellant’s Employees’ Handbook and from the two collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 2001, Exhibits 1, 4a and 4b, irrespective of whether the Appellant led evidence or not – Central Bank of Nigeria Vs Archibong (2001) 10 NWLR (Pt 721) 492, Ibama Vs Shell Petroleum Development Co. (Nig) Ltd (2005) 17 NWLR (Pt 954) 364, Momoh Vs Central Bank of Nigeria (2007) 14 NWLR (Pt 1055) 504. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURTS; DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE LED BY THE PARTIES AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE BEFORE ARRIVING AT ITS DECISION

Now, it is elementary that the primary duty and responsibility of a trial Court before whom parties have adduced evidence, be it oral evidence or affidavit evidence, is to evaluate the evidence led by the parties and ascribe probative to the evidence before arriving at its decision. This is so even where only one of the parties leads evidence, the lower Court still has a duty to evaluate the evidence led by that party to see whether it meets the requirements necessary for the party to succeed – Okoye Vs Center Point Merchant Bank Ltd (2008) All FWLR (Pt 441) 810, Enugu State University of Science and Technology Vs Institute of Journalism Management and Education Ltd (2010) 11 NWLR (Pt 1205) 297, Francis Vs Citec International Estate Ltd (2010) 16 NWLR (Pt 1219) 243, Ahmed Vs Central Bank of Nigeria (2013) 11 NWLR (Pt 1365) 352. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

NIGERIAN BREWERIES PLC Appellant(s)

AND

MAURICE IKYARKYASE & 63 OTHERS Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/127/2004 delivered by Honorable Justice Hanatu A. L. Balogun on the 5th of June, 2007. The action in the lower Court was commenced by the Respondents, as plaintiffs, against the Appellant, as defendant, and their claims by an amended statement of claim dated the 3rd of April, 2006 were for:
i. A declaration that the outplacement exercise of the Defendant is redundancy exercise which entitles each of the Plaintiffs to the payment of redundancy benefits in pursuance of Article 27 of the Defendant’s Employees’ Handbook.
ii. A declaration that the Plaintiffs’ right to the payment of their gratuity and redundancy benefits is separate and distinct under the Defendant’s Employees Handbook and in pursuance of Section 20 of the Labour Act, 1990 and that the said rights are not in the alternative to each other.
iii. A declaration that the ex-gratia payment by the Defendant to each of the Plaintiffs was not payment in satisfaction of the Plaintiff’s

rights to payment of redundancy benefits.
iv. An order for the Defendant to pay to the Plaintiffs redundancy benefits in pursuance of Article 27 of the Defendant’s Employees’ Handbook and the collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 200l.
v. An order for the Defendant to pay to the Plaintiffs who were outplaced in the year 2000 their one month’s salary in lieu of notice.
vi. Interest at the rate of 10% on the judgment sum from the date of judgment until same is settled.

The case of the Respondents on the pleadings was that they were employees of the Appellant at the Appellant’s Kaduna Office and they were each issued a copy of the Appellant’s Employees’ Handbook at the time of employment containing the terms and conditions of their employment and the rules and regulations on general matters and that the terms and conditions in the Employees’ Handbook constituted a binding contract between each of them and the Appellant. It was their case that by the contents of the Employees’ Handbook, the recognized modes of cessation of employment were resignation, termination,

summary dismissal, retirement and redundancy and that sometime in 2000 and 2001, the Appellant carried out a re-organization, restructuring and re-engineering of its business processes and procedures which necessitated their being laid off by the Appellant in an exercise called “outplacement exercise”. It was their case that for all intents and purposes the said ” outplacement exercise” was really a redundancy exercise pursuant to the provisions of Section 20 (3) of the Labour Act and that at the time of their ” outplacement ” each of them had been in the employment of the Appellant for over five years and they were thus all qualified for payment of gratuity upon their leaving the services of the Appellant and that this right to payment of gratuity had accrued before their ” outplacement ” and was different and separate from their right to payment of redundancy benefits under the provisions of the Labour Act and not in the alternative.

It was the case of the Respondents that by an agreement between the National Union of Food, Beverage and Tobacco Employees and the Management of the Appellant on the 2nd and 3rd of May, 2000 and 10th of September,

2001, they were entitled, pursuant to the “outplacement exercise”, to be paid (i) all employees’ normal entitlements as negotiated by NJIC; (i) ex-gratia payment of 26 weeks pay for every year of completed service or annual basic salary X number of years to clock compulsory retirement age of sixty years, whichever is lower; and (iii) three months salary in lieu of notice. It was their case that the ex-gratia payment was a gratuitous payment and was not made in pursuance of any legal obligation of the Appellant to them of to satisfy any of their legal rights and that their normal benefits upon the cessation of their employments included gratuity, pension, redundancy benefits, three months’ salary in lieu of notice and other monthly entitlements and that the ex-grata payment was not meant to replace their normal benefits. It was their case that those of them who were out placed by the Appellant in 2000 were paid two months’ salary in lieu of notice instead of three months’ salary in lieu and their rights to redundancy benefits were recognized and agreed upon in Article 27 of the Employees’ Handbook and in the collective agreement between the National Union of

Food, Beverage and Tobacco Employees and the Management of the Appellant dated the 2nd and 3rd of May, 2000 and 10th of September, 2001. The Respondents pleaded a schedule showing the computation of the entitlements due to each of them.
?
The case of the Appellant before the lower Court in its amended statement of defence dated the 8th of May, 2006 was that it fully involved the National Union of Food, Beverage and Tobacco Employees in the restructuring exercise it carried out in 2000/2001 which led to a reduction in the number of its employees and that agreements were reached between them and the Union on the 2nd and 3rd of May, 2000 and 10th of September, 2001 on the severance payments to be made to the out placed employees. It was its case that the redundancy benefits of its employees were set out in a collective agreement dated the 13th of January, 2000 and their service gratuity (or, gratuity benefit) in force as 2000/2001 was contained in another Union/Management agreement executed on the 16th of January, 2000 and that the service gratuity was higher than the redundancy benefits and that they used the agreement dated the 16th of January, 2000 in

calculating the service gratuity paid to each of the out Placed employees.
?
It was the case of the Appellant that under the contract of employment of the Respondents as contained in the Employees’ Handbook, payment of redundancy benefits as stated therein was made subject to any existing Union/Management agreement in force at the material time and that the Union/Management agreement in force as at 2000/2001 was the collective agreement dated the 13rd of January, 2000 and wherein it was stated that redundancy benefits and gratuity benefits were mutually exclusive and its ex-employees were entitled to be either of them, but not both and that the agreement was made pursuant to Article 27 of the Employees’ Handbook. It was its case that by the Union/Management agreement dated the 16th of January, 2000, and wherein the service gratuity paid to the retired employees was negotiated and agreed, it was agreed that it was the service gratuity, which was higher, that was to be paid to the employees instead of the redundancy benefits under the collective agreement of 13th of January, 2000 and that no other payment was thereafter required to be made to the Respondents

under the agreement and that it paid each of the Respondents the service gratuity as negotiated and calculated and is thus not owing any of the Respondents anything. It was its case that the lower Court lacked the requisite jurisdiction to entertain the matter since the issues arising there from involved the interpretation of collective agreements.

The matter went to trial and in the course of which the first Respondent testified as the sole witness for the Respondents and he tendered the Appellant’s Employees Handbook as Exhibit 1, the letters of employment of each of the Respondents as a bunch marked Exhibit 2, the copy of a speech read by the Brewery Manager of the Appellant explaining the purport of the ex-gratia payments made to them as Exhibit 3, the collective agreements between the National Union of Food, Beverage and Tobacco Employees and the Management of the Appellant dated the 2nd and 3rd of May, 2000 and 10th of September, 2001 as Exhibits 4a and 4b, and the schedule showing the calculation of the sums due to each Respondent as Exhibit 5. The Appellant did not call any witness and it did not tender any document.
?
At the conclusion of the

trial and after hearing the oral submissions of Counsel to the parties, the lower Court entered judgment granting all the claims of the Respondents.
The lower Court stated in the judgment thus:
“Having considered the evidence of PW1 which was in line with the statement of claim as well as the fact that it was unchallenged, I hold that the evidence is credible and I am obliged to act on same. I have also seen that Paragraphs 1, 2, 3, 4, 5, 11, 12, 13, l4, 15, 16 and 17 of the statement of claim are unchallenged. By virtue of the case of OMPADEC Vs DALEK supra, they are deemed admitted.
It must be noted that the PW1 was not challenged with respect to his evidence as to their entitlements under ex 1 or 4a and 4b nor was their computation as shown in ex 5 challenged. In fact none of the documents tendered were challenged. In effect, the Plaintiffs claims were unchallenged.
With regards to the averment on jurisdiction, while learned Counsel to the Plaintiffs made a submission that this Court had jurisdiction to hear this case, the learned S.A.N. for the Defendant left the matter to the Court’s discretion.
I have seen the Trade Dispute’s Act

and the case of NNB Plc Vs Osoh & Ors supra and it is clear to me that this matter does not come within the contemplation of a Trade Disputes Act as it is not a dispute between employer and employees but a claim for benefit from a former staff. In the circumstance this Court has jurisdiction to handle same.
On the whole, I hold that the Plaintiffs have proved their case on a preponderance of evidence. Judgment is accordingly entered for the Plaintiffs as Per their Statement of Claim.” (see page 122 of the records)

The Appellant was dissatisfied with the judgment and it caused its Counsel to appeal against it. Counsel to the Appellant filed a further amended notice of appeal dated the 10th of August, 2013 on the 17th of October, 2013 and this was sequel to the leave granted to the Appellant by this Court to further amend its notice of appeal on the 10th of October, 2013. The further amended notice of appeal contained four grounds of appeal and these read thus:
“1. The judgment of the trial Court is erroneous and against the weight of evidence adduced at the trial.
2. The learned trial Judge erred in making findings that the

suit does not involve the interpretation of any collective agreement and that the suit merely involves the application of collective agreements and holding there from that she had jurisdiction to entertain the suit because:
a. The trial Judge misconstrued the provisions of Section 20 of the Trade Dispute Act Cap 432 Laws of Nigeria 1990 which precludes a Court, other than the National Industrial Court, from entertaining a suit that involves questions as the interpretation of a collective agreement;
b. Having regard to the pleadings of the parties there is dispute concerning the meaning, purport and legal effect of the provisions of the collective agreements and these necessitate the interpretation of the effects (legal or otherwise) of the collective agreements;
c. Before a Court will apply a statutory provision it must of necessity construe is provisions to ascertain their purport and meanings.
3. The learned trial Judge erred in granting the claims of the Respondents in spite of the apparent failure of the Respondents to specifically plead the several heads of claims of monies claimed by each

Respondent in the statement of claim as required by the Rules of Court i.e. Order 24 Rule 5 (1) of the Kaduna State High Court (Civil Procedure) Rules 1987.
4. The learned trial Judge erred in law in failing to make a finding on whether the Respondents have made out a good case meriting the grant of the reliefs sought by them whether or not the Appellant defended the case i.e. there was no finding that the Respondents have per se clearly disclosed and proved their case.”

This Court will resist the temptation to waste precious time decrying the crass inelegance displayed by Counsel to the Appellant in the drafting of the grounds of appeal. Now, one of the most firmly established principle of the appellate practice process is that the right of appeal conferred by the Constitution of the Federal Republic of Nigeria on a litigant does not donate an unlimited right to an appellant to raise all manners of grounds of appeal and thus, to be useful in an appeal, a ground of appeal must relate to and be directed at the core reasons giving by the lower Court for its decision; i.e., the ratio decidendi of the judgment, otherwise the ground of

appeal will be irrelevant, deemed to incompetent and liable to be struck out – Amuzie Vs Asonye (2011) 6 NWLR (Pt 1.242) 19, Wema Bank Plc Vs Brastem-Sterr (Nig) Ltd (2011) 6 NWLR (Pt 1242) 58, Okechukiwu Vs Independent National Electoral Commission (2014) 17 NWLR (Pt.1436) 255. Looking at the four grounds of appeal of the Appellant vis-a-vis the excerpts of the judgment of the lower Court reproduced above, it is obvious that the second and third grounds of appeal do not relate to nor are they directed at the reasons for the judgment. The reason why the lower Court stated that the claims of the Respondent were not within the contemplation of the Trade Disputes Act and why it decreed that it had jurisdiction to entertain the claims was because the dispute in the matter was not one between an employer and its employees but a claim for benefit from the former staff of an employer. This reason had nothing to do with the interpretation or non interpretation of collective agreements raised in the second ground of appeal. Also, the issue of nonspecific pleading of particulars of claims of each Respondent raised in ground three of the notice of appeal did not arise in

nor was it considered by the lower Court in the judgment appealed against. It is a stranger to the judgment and no leave of Court was obtained to raise it as a fresh issue. The second and third grounds of appeal contained in the amended notice of appeal of the Appellant are thus incompetent and are hereby struck out.
?
In adumbrating the complaints of the Appellant against the judgment of the lower Court, its Counsel filed an amended brief of arguments dated the 2nd day of May, 2014 on the 28th of October, 2014 and this was sequel to the leave granted to the Appellant by this Court on the 21st of October, 2014 to amend its brief of arguments. The Respondents had filed a brief of arguments dated the 22nd of November, 2011 to the original brief of arguments of the Appellant and their Counsel did not bother to carry out any consequential amendment to the brief of arguments after the Appellant filed its amended brief of arguments. At the hearing of the appeal, the Appellant and its Counsel were absent from Court, while some of the Respondents and their Counsel were in Court. The amended brief of arguments of the Appellant was deemed argued under the provisions

of Order 18 Rule (9) (4) of the Court of Appeal Rules 2011, and the Counsel to the Respondent relied on and adopted the Respondents’ brief of arguments.

In his brief of arguments, Counsel to the Appellant formulated four issues for determination in this appeal and these were:
i. Whether by the authority of the case of Akauve M. Osoh & Ors Vs Unity Bank Plc the Respondents in the manner they instituted this action and in the manner of their pleadings/evidence, etc, it can affirmatively be said that the Respondents have made out a clear case and established credible evidence that meets the requirements of statutory provisions, case law, procedure, etc that would merit a grant of the reliefs sought by them.
ii. Whether the Respondents have credibly discharged the duty placed on them to prove their case by credible evidence and on the balance of probability.
iii. Whether the terms/contents of an agreement (collective agreement) can ordinarily be applied without an initial determination/interpretation of its effects/purport both legal or otherwise.
iv. Whether a collective agreement per se (standing on

its own) without more, can be relied upon to secure the grant of a claim based on the collective agreement.

by the Counsel to the Appellant cannot all be competent.

It is elementary that issues for determination in an appeal must be distilled from, related to and be founded on the grounds of appeal contained in the notice of appeal and must deal with matters which ate a direct challenge to the decision of the lower Court. Any issue for determination formulated outside the grounds of appeal and which does not deal with matters directly challenging the decision of the lower Court is of no use in an appeal and it will irrelevant and be struck out – Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt.1284) 254 and Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478. Applying these principles to the four issues for determination formulated by the Appellant, it is obvious that only the second issue for determination flows from the two viable grounds of appeal of the Appellant. The third issue for determination is a subset of the second issue for determination while the first and fourth issues for determination do not arise from the two

grounds of appeal. The first and fourth issues for determination are irrelevant and are hereby struck out.

On his own part, Counsel to the Respondents formulated two issues for determination in this appeal and these were:
i. Whether the Respondents’ claims amounted to a trade dispute over which the High Court of Kaduna State has no jurisdiction to hear and determine.
ii. Whether the Respondents had proved their claims as required by law to warrant judgment in their favour.

While it cannot be contested that a respondent to an appeal, can formulate issues for determination in the appeal, the law is that such a respondent, where he has not cross-appealed or filed a respondent’s notice, cannot formulate issues outside the notice of appeal of the appellant Okechukwu Vs Independent National Electoral Commission (2014) 17 NWLR (Pt.1436) 255. The Respondents, in the instant case, neither cross-appealed nor filed a Respondent’s Notice, hence they cannot formulate issues for determination outside the two viable grounds of appeal of the Appellant. It is clear that the first issue for determination of the Respondents did not arise

from the said two grounds of appeal. It is thus incompetent and it is hereby struck out. This leaves only the second issue for determination of the Respondent and this issue is the same as the only competent issue for determination of the Appellant. Thus, effectively there is only one issue for determination in this appeal and it is whether the Respondents have credibly discharged the duty placed on them to prove their case by cogent and plausible evidence to entitle them to the judgment entered in their favour by the lower Court.

It must be stated at the onset that it was an agreed fact between the parties on their pleadings before the lower Court that the employment of the Respondents and their terminal entitlements were governed by the Appellant’s Employees Handbook and by specific collective agreements negotiated between the National Union of Food, Beverage and Tobacco Employees and the Management of the Appellant. The Respondents pleaded two of such collective agreements dated the 2nd and 3rd of May,2000 and 10th of September, 2001. The Appellant admitted these two agreements and it pleaded two additional collective agreements dated the 13th of

January, 2000 and the 16th of January, 2000. It is an elementary principle of the law of pleadings that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant and is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, Akande Vs Adisa (2012) 15 NWLR (Pt.1324) 538, Ignobis Hotels Ltd Vs Bentec Electrical Ltd (2015) 1 NWLR (Pt 1441) 504.
Therefore, in considering the arguments of the parties in this appeal on the sole issue for determination, this Court will discountenance the arguments of the Counsel to the Appellant in his brief of arguments which suggest that the Respondents could not rely on the collective agreements dated the 2nd and 3rd of May, 2000 and 10th of September, 2001 because they did not prove that the agreements were incorporated into their terms and conditions of employment and for not showing that the agreements

were deposited with the Minister of Labour under Section 42 of the Trade Disputes Act.
These arguments had been overtaken by the admissions in pleadings of the parties.

This Court will only consider the relevant arguments in the Appellant’s brief of arguments on the issue for determination. Counsel to the Appellant stated that a declaratory action is discretionary in that by such action a plaintiff prays the Court to declare an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim and that a person claiming such right must show the existence of a legal right subsisting and in future and that the right is contested and that what would entitle a plaintiff to a declaration is a claim which a Court is prepared to recognise and if validly made, it is prepared to give legal consequences to and he referred to cases of Adigun Vs A-G, Oyo State (No 1) (1987) 1 NWLR (Pt.53) 678 and Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1781) 362, amongst others.
Counsel stated that the burden of establishing a case based on declaration rests more on the plaintiff whose evidence must be credible, convincing,

positive, affirmative and unequivocal in support of his case and such evidence must be in accordance with his pleadings and he referred to the cases of Kodilinye Vs Odu (1935) 2 NAIA 335 and Owoade Vs Omitola (1988) 7 NWLR (Pt.77) 413.

Counsel said that the success or failure of the plaintiff’s claim depends on the nature and quality of his evidence and he cannot rely on the weakness of the defendant’s case as sufficient impetus to secure the grant of his claims and it is not the duty of a defendant to fill in the gaps for a plaintiff and he referred to the cases of CPC Vs INEC (2011) 12 SCNJ 644 and Agip Vs Agip (2010) 1 SCNJ 1. Counsel stated that in order for a. Court to competently grunt the reliefs sought by a plaintiff, the plaintiff must ab initio establish a good case and he referred to the case of Morohunfola Vs Kwara State College of Technology (1990) 7 SCNJ 51. Counsel concluded that the learned trial Judge was wrong in granting the claims of the Respondents as they failed to adequately disclose a good cause of action by failing to prove on the preponderance of probability that the evidence led by them could sufficiently ground the grant of

their claims.

In response, Counsel to the Respondents stated that a meticulous look at the pleadings of the parties before the lower Court shows that the Appellant did not challenge or contest the material averments in many of the paragraphs of the amended statement of claim and that the law, on the authority of OMPADEC Vs Dalek (Nig) Ltd (2003) All FWLR (Pt 140) 1749, is that those paragraphs of the amended statement of claim were rightly deemed admitted by the lower Court.
Counsel stated that, additionally, the Appellant abandoned its pleadings in the lower Court and did not call any evidence to prove the averments therein and that the testimony of the sole plaintiff witness and the exhibits tendered by him as Exhibits 1, 2, 3, 4a, 4b and 5 were not challenged by the Appellant and that in such circumstances all that was required of the Respondents to prove their claim was mere minimal evidence and not prove on the balance of probability because there is nothing on the proverbial imaginary scale in favour of the Appellant to be considered and he refered to Nzeribe Vs Dave Engineering Co Ltd (1,994) 9 SCNJ 161.
Counsel urge this Court, in the

circumstances, to hold that the Respondents had established their claims at the trial Court and that they were entitled to the judgment entered in their favour.

As stated earlier, the Appellant did not lead any evidence in support of its pleadings. It is trite that pleadings do not amount to and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them – Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (Pt 1071) 283 and Nika Shipping Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Dingyadi Vs Wamako (2008) 17 NWLR (Pt 1116) 395. Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged and the oral evidence of the claimant is deemed sufficient proof of his case – Asika Vs Atuanya (2008) 17 NWLR (Pt 1117) 484. Also, the effect of the Appellant’s failure to call evidence in defense of the claims against it at the trial is

that it is presumed to have admitted the case made against it by the Respondents -Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316.

This, however, should not translate to automatic victory for the Respondents. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claimant to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt 960) 160 and Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218. This is particularly more so, as in the instant case, where a claimant seeks declaratory reliefs because declaratory reliefs are not granted either based on admissions or default of defence – Akaninwo Vs Nsirim (2008) 9 NWLR (Pt.1093) 439 and Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. It must be sated that in view of the failure of the Appellant to lead evidence, the onus on the Respondents would be discharged on minimal evidence as there is no evidence to put on the other side of the

imaginary scale – Adewuyi Vs Odukiwe (2005) 14 NWLR (Pt 945) 473. The question that arises in this appeal therefore is whether the Respondents led sufficient minimal evidence in support of their claims to warrant the judgment entered in their favour by the lower Court.

It is commonsensical that the standard of what will amount to minimal evidence to discharge the burden of proof on a claimant whose claims remained unchallenged cannot be general, but must depend on the peculiar facts of each case and the cause of action of the claimant. The claims of the Respondents in the instance case was for their redundancy benefits and the claims were, according to their pleadings, predicated on the contents of Article 27 of the Defendant’s Employees’ Handbook and of the two collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 2001. It was the case of the Respondents that these documents contained the terms and conditions of their respective employments with the Appellant. The sole plaintiff witness tendered the Employees’ Handbook and the two collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 2001 as

Exhibits l, 4a and 4b respectively.

Local Government Council (2013) 2 NWLR (Pt 1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt 1349) 1. Thus, in deciding whether the Respondents were entitled to the redundancy benefits as claimed, the lower Court was enjoined to look to and confine itself to the plain words and meaning derived from the Appellant’s Employees’ Handbook and from the two collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 2001, Exhibits 1, 4a and 4b, irrespective of whether the Appellant led evidence or not – Central Bank of Nigeria Vs Archibong (2001) 10 NWLR (Pt 721) 492, Ibama Vs Shell Petroleum Development Co. (Nig) Ltd (2005) 17 NWLR (Pt 954) 364, Momoh Vs Central Bank of Nigeria (2007) 14 NWLR (Pt 1055) 504.

meets the requirements necessary for the party to succeed – Okoye Vs Center Point Merchant Bank Ltd (2008) All FWLR (Pt 441) 810, Enugu State University of Science and Technology Vs Institute of Journalism Management and Education Ltd (2010) 11 NWLR (Pt 1205) 297, Francis Vs Citec International Estate Ltd (2010) 16 NWLR (Pt 1219) 243, Ahmed Vs Central Bank of Nigeria (2013) 11 NWLR (Pt 1365) 352.The lower Court, in the instant case, was thus obligated to evaluate the evidence led by the sole plaintiff witness on behalf of the Respondents and in the course of which it was its duty to interpret the documents tendered, particularly Exhibits 1, 4a and 4b, and upon which the Respondents predicated their claims, to see if they indeed grounded the claims of the Respondents for redundancy benefits before granting the claims. It is obvious from a reading of the judgment, portion of which is reproduced above, that the lower Court did not evaluate the evidence of the witness and did not interpret the documents tendered before finding for and granting the claims of the Respondent. This was an unfortunate dereliction of duty on the part of the lower Court. However, since

the issue concerns documentary evidence and the documents are already in evidence, this Court is in as good a position as the lower court to interpret the documents and see if they supported the claims of the Respondents – Ebba Vs Ogodo (1984) 1 SCNLR 372, Ogundepo Vs Olumesan (2011) 18 NWLR (Pt.1278) 54.

It is Article 27 of the Employees’ Handbook, Exhibit 1, that deals with redundancy and the relevant portion dealing with redundancy benefits reads thus:
“… Employees whose appointments are terminated on grounds of redundancy will be paid redundancy benefits as per the existing Management/Union Agreement on redundancy in force at the time.
They will also be paid salary in lieu of notice in accordance with their contract of employment, and any outstanding leave.”

Exhibit 4a, the Management/Union collective agreement dated 2nd/3rd of May, 2000 stated on its face that it was in respect of the outplacement exercise for the year 2000 and it contained thus:
“Management briefed the National Union on the on-going restructuring exercise embarked upon by the Company and confirmed as follows:

a. Allemployees to be outplaced will receive their normal entitlements as negotiated by the NJIC.
b. All employees to be outplaced would be paid an outplacement package, i.e. ex-gratia of 26 (twenty six) weeks pay for every year of completed service, OR
c. Annual basic salary X number of years to clock compulsory retirement age of 60 years, whichever is lower.
d. Total number of non-management employees to be affected shall be about 500 (six hundred).”

Exhibit 4b, the Management/Union collective agreement dated 10th of September 2001 stated on its face that it was in respect of the outplacement exercise for the year 2001 and it contained thus:
“Management briefed the Union on the Company’s plan to carry out an outplacement exercise due to re-organization and restructuring/re-engineering of its business processes and procedures to reposition the Company to face challenges of globalization. It further confirmed to the Union that the main driver for the year 2001 outplacement exercise is the Company’s divestment from the carbonated drinks business in order to focus its activities on the brewed products

sector where its major shareholder, Heineken, has world class core competencies.
Both parties agreed as follows:
1. Total number of non-management employees to be affected is about 230.
2. Every non-management staff affected/outplaced shall be paid ex-gratia of twenty-six (25) weeks pay for each completed year of service OR annual basic salary multiplied by the number of years left to clock retirement age – whichever is lower.
3. The ex-gratia payment as defined in (2) above shall be in addition to each non-management staffs entitlements under the existing National Joint Industrial Council (NJIC) agreement in the trade group with respect to redundancy exercise.
4. Three (3) months salary shall be paid to each affected non-management staff in lieu of notice provided the staff has not qualified for retirement by age. However, if the staff concerned qualifies for retirement by reason of age, he shall be paid six (6) months basic salary in lieu of notice.
5. Medical services, under the Company’s current medical scheme, will be extended to each outplaced staff and dependants registered under the

scheme during the relevant notice period.
6. Company’s free issue of products will be extended to the staff based on current entitlement during the relevant notice period.
7. The outplacement exercise shall be carried out on or before Friday, 14th of September, 2001.”

It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt.937) 631, Egwunewu Vs Egeagwu (2007) 6 NWLR (Pt 1031) 431. Additionally, common sense must be used in the interpretation of words in a document and a meaning more in accord with reason must be adopted.

Looking at the two collective agreements, it is clear that Exhibit 4a deals with the about six hundred non-management staff affected by the outplacement exercise carried out in 2000 while Exhibit 4b deals with the about two hundred and thirty non-management staff

affected in 2001 exercise. They do not deal with this same set of non-management staff. It was the case of the Respondents in the lower Court that they were all part of those affected by the year 2000 exercise, and hence they were covered by Exhibit 4a and not by Exhibit 4b. Therefore, the Respondents were not entitled to be paid three months’ salary n lieu of notice as provided for in Exhibit 4b.
The Respondents’ fifth claim in this suit for payment of one month’s salary in lieu of notice, as an addition to the two months’ salary they had already been paid, in the belief that were also entitled to the three months’ salary in lieu of notice stated in Exhibit 4b, is thus not sustainable on the documents they tendered in support of their claims and must fail.

More importantly, the Employees’ Handbook, Exhibit 1, spoke about payment of redundancy benefits to members of staff whose employment are determined on the ground of redundancy by the Appellant. It is not in doubt that the outplacement exercises carried out by the Appellant in 2000 and 2007 were, in effect, redundancy exercises and that those affected thereby were entitled to payment of

redundancy benefits. It is correct that Exhibit 1 did not state the manner of calculation of the redundancy benefits, but tied the calculation to the existing Management/Union Agreement on redundancy in force at the time. Article 26 of the Employees’ Handbook, Exhibit 1, also spoke about payment of gratuity to employees who had served in the employment of the Appellant for over five years and it was the unchallenged case of the Respondents that each of them had served the Appellant for over five years as at the time the outplacement exercise of 2000 took place. They were all thus entitled to be paid gratuity, apart from the redundancy benefits. It is correct that Article 26 also tied the calculation of gratuity to the existing Management/Union Agreement on redundancy in force at the time.

It is common sense to assume that the said redundancy and gratuity benefits payable to the Respondents constituted all or part of the “normal benefits as negotiated by the National Joint Industrial Council (NJIC)” which Exhibit 4a said must be paid to all affected employees. Exhibit 4a further states that the said “normal benefits as negotiated by the National Joint

Industrial Council (NJIC)” are in addition to agreed ex-gratia payments to be made. In other words, the ex-gratia payments were different from the redundancy and gratuity benefits payable to the Respondents. It is correct that Exhibit 4a did not spell out the details of the said “normal benefits” and the words “as negotiated by the National Joint Industrial Council (NJIC)” presuppose the existence of another collective agreement on the negotiated benefits. The Appellant did plead the existence of two other collective agreements which it said were dated the 13th of January, 2000 and on the 16th of January, 2000 on the negotiated benefits but did not tender any of them.

The Respondents sought for an order of the lower Court directing the Appellant to pay to them their redundancy benefits in pursuance to Article 27 of the Appellant’s Employees’ Handbook and the collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 2007 and they wanted the payments to be made in accordance with their computation tendered as Exhibit 5. The Respondents admitted in Exhibit 5 that each of them was given an ex-gratia payment and that each of the

Respondents was paid some further sums by the Appellant which they designated in the computation as gratuity. The computation showed a further sum due to each of the Respondents as redundancy benefits under the column “Redundancy Benefit Due”. Exhibit 5 was tendered without any objection from the Counsel to the Appellant at the trial and neither was the witness who tendered same cross-examined thereon. The law is that where an adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence – Oforlete Vs State (2000) 12 NWLR (Pt 681) 415, Chukwu Vs State (2013) 4 NWLR (Pt.1343) 1 and State Vs Rabiu (2013) 8 NWLR (Pt 1357) 585. The Appellant did not also lead any evidence to challenge the computation in Exhibit 5 and/or the designation given to sums already paid to the Respondents. The effect of the attitude of the Appellant is that they admitted the computation and the designation of the monies paid and the redundancy benefits said to be due to each Respondent in the computation as representing the true calculation of the “normal benefits as negotiated by the National Joint

Industrial Council (NJIC)” referred to in Exhibit 4a. The Respondents are thus entitled to the redundancy benefits said to be due in favour of each of them in Exhibit 5.

On the evaluation of the evidence led by the Respondent, this Court must say that it has not been given any reason to tamper with the final decision of the lower Court in this matter, save for the portion granting the fifth claim of the Respondents. In conclusion, this Court finds a little merit in this appeal and it is allowed in part and dismissed in the larger part. The judgment of the High Court of Kaduna State in Suit No KDH /KAD/127/2004 delivered by Honorable Justice Hanatu A. L. Balogun on the 5th of June, 2007 is affirmed, save for the portion granting the fifth claim of the Respondents. For the avoidance of doubt, it is hereby ordered as follows:
i. It is hereby declared that the outplacement exercises carried out by the Appellant in the year 2000 was a redundancy exercise which entitled each of the Respondents to the payment of redundancy benefits in pursuance of Article 27 of the Defendant’s Employees’ Handbook.
ii. It is hereby declared that the

Respondents’ right to the payment of their gratuity and redundancy benefits is separate and distinct under the Defendant’s Employees Handbook and that the said rights are not in the alternative to each other.
iii. It is hereby declared that the ex-gratia payment made by the Appellant to each of the Respondents was not payment in satisfaction of the Respondents’ rights to payment of redundancy benefits.
iv. The Appellant is hereby ordered to pay to each Respondents the amount stated against his name under the column “Redundancy Benefits Due” in the computation tendered as Exhibit 5 as his redundancy benefits as provided for in Article 27 of the Defendant’s Employees’ Handbook and the collective agreements dated the 2nd and 3rd day of May, 2000 and 10th of September, 2001, Exhibits 1, 4a and 4b.
v. The prayer for an order for the Appellant to pay to the Respondents who were outplaced in the year 2000 their one month’s salary in lieu of notice fails and it is hereby dismissed.
vi. Interest at the rate of 10% per annum is awarded on the redundancy benefits due to each of the Respondents from the date of

judgment in the lower Court, i.e. the 5th of June, 2007 until same is settled.
The parties shall bear their respective costs of the appeal. These shall be the orders of this Court.

UWANI MUSA ABBA AJI, J.C.A.:I read in draft the leading judgment of my learned brother, Habeeb A.O. Abiru, JCA, just delivered. I agree with the reasoning and conclusions arrived at by my learned brother that the appeal has merit save for relief 5 granted by the lower Court in favour of the Respondents which is hereby set aside. The appeal therefore succeeds in part.
I also agree with the reasoning and conclusions reached by my learned brother that the cross-appeal lacks merit and it is also dismissed by me. I also endorsed the consequential orders as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.:I read before now the judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA just delivered.
I agree with the reasoning of my learned brother, which I adopt as mine. The appeal is therefore allowed in part and I abide by the consequential orders.

Appearances:

T. Aluko-Olokun with him, Simon NnadiFor Appellant(s)

F. E. AuduFor Respondent(s)

Appearances

T. Aluko-Olokun with him, Simon NnadiFor Appellant

AND

F. E. AuduFor Respondent