Hotels & Professional Services Senior Staff Association & ORS -VS- Tourist Company of Nigeria Plc

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: JULY 16, 2018

SUIT NO. NICN/ABJ/50/2014

BETWEEN

Hotel and Personal Services Senior Staff Association
National Union of Hotels and Personal Services Workers – Appellants

AND

Tourist Company of Nigeria Plc – Respondents

REPRESENTATION

Omoniyi Akinmola, for the claimants.

Nathaniel Dibie, for the defendant.

JUDGMENT

This suit is a referral from the Honourable Minister of Labour and Productivity. The case was originally heard by the Honourable President of the Court (PNICN) until 6th November 2017 when the PNICN transferred it to this Court. The referral instrument from the Honourable Minister of Labour was communicated to the Chief Registrar of this Court (NIC) vide a letter dated 25th February 2014. By the referral instrument, this Court is being asked to determine the following issues in dispute:

Whether the termination of 400 workers by the Management due to the closure of business amounts to termination of employment or redundancy.
Whether the parties can invoke its section of their Collective Bargaining Agreement (CBA) to negotiate redundancy benefits.

Before now, the appellants as claimants had in 2009 vide Suit No. NIC/LA/24/2009 approached this Court to resolve as against the respondent issues as are in the present suit. In a ruling delivered on 4th April 2011 (see pages 328 to 332 of the case file), this Court ruled that the suit was premature as the processes of Part I of the Trade Disputes Act (TDA) Cap T8 LFN 2004 must first be exhausted before this Court can be approached in its appellate jurisdiction. The appellants accordingly approached the processes of Part I of the TDA in which the same issues referred to this Court were thus referred to the Industrial Arbitration Panel (IAP) for arbitration; and in an award dated 25th July 2013, the IAP made the following award:
…The Tribunal holds that the determination of contract of employment of 400 workers of the 2nd Party by the Management of the 2nd Party amounts to termination of appointment by notice, and not redundancy.
Consequently, the Tribunal refuses the claim of the 1st Party for the sum of N1,236,941,075.00 as outstanding redundancy benefits accruable to the 400 workers as it lacks merit.

By a letter to the Honourable Minister of Labour dated 9th September 2013, the 1st appellant objected to the IAP award on three main grounds, namely:

The alleged closing down of business was a fraud and misrepresentation to the 1st Party.
The conditions of service of the 1st Party, the collective bargaining handbook, were pleaded and items 53 of both handbooks provided for redundancy where there is voluntary and permanent loss of employment caused by excess of manpower or a contraction of available work.
The Tribunal failed to consider the inconsistencies and contradictions in the case presented by the 2nd Party before holding that the termination of the 1st Party amounts to termination of appointment by notice and not redundancy.

The appellants concluded the objection by indicating that they intend to file more grounds of objections upon the receipt of the record of proceedings of the IAP and consulting their counsel.

There is nothing on record to show that the 2nd appellant objected to the IAP award. Section 13(2)(c) of the Trade Disputes Act (TDA) Cap T8 LFN 2004, however, envisages that one or both of the parties may object to an IAP award. This provision is good enough to justify any of the parties objecting to an IAP award; and by which act to thus authenticate the jurisdiction of this Court over the matter.

By order of Court, the appellants were allowed to amend their notice of objection by filing additional grounds of objection. In consequence, the amended notice of objection consisting of 16 grounds running into 12 pages has the following grounds of objection each of which has its particulars:

The IAP erred in law in its decision that “the termination of Contract of employment of 400 workers of the 2nd Party by Management of the 2nd party amounts to termination of appointment by notice and not redundancy”.
The learned IAP erred in law when it failed to consider that the affected 400 workers terminated in one fell swoop on the 28th July 2009 amounts to redundancy.
The learned IAP was in error of law when it held that because 400 workers were terminated by notice, they are therefore not entitled to tor redundancy benefit or that their termination did not amount to redundancy.
The learned IAP was in error of law to hold that because there was nothing to show redundancy was declared therefore it does not occur in this case.
The learned member of IAP erred in law when it held that “there is no provision in the Labour Act or any other legislation for payment of redundancy allowance to workers whose employment were determined by notice of termination as in this case”.
The learned Tribunal erred in law when it held that “there was no agreement between the parties on payment of redundancy, but there was agreement evidenced by Annexure 1 that the issue of whether redundancy accrues shall be referred to an arbiter”.
The learned IAP was in error of law, when it suo motu raised the issue of termination by notice and based its decision on it without allowing the appellant to address it on it or afford them opportunity to have a say on it before basing its decision of no award on it.
The learned IAP erred in law when it refused to consider the issues of fraud of deception and misrepresentation raised against the respondent by the appellants before holding that the termination of contract of employment of 400 of its workers who are member of the appellants amounts to termination of appointment by notice and not redundancy.
The learned IAP was in error of law when it failed to consider the inconsistencies in the letter of 23rd June 2008 and the content of the alleged letter of termination issued to the 400 workers.
The learned IAP erred in law when it concluded that the appellants/objectors having collected gratuity, they are therefore not entitled to redundancy.
The learned member of the IAP creed in law when it failed to consider the issue of duress and undue influence pleaded by the appellants at paragraph 6 and 7 of page 431 of the Record of Appeal before holding at page 484 paragraph (c) of the Record of Appeal that because 400 workers have written in their letter of collection of gratuity, full and final entitlement against the 2nd party, they are therefore not entitled to redundancy benefit.
The IAP failed to consider the inconsistencies and contradictions in the case presented by the respondent before holding that the termination of the 400 members of the 1st Party amounts to termination of appointment by notice and not redundancy.
The learned IAP erred in law when it either misconceived and or ignored the terms of reference referred to it and went on to consider issues that were not referred to it or different from the ones referred to it or in dispute between the parties between the parties and led to miscarriage of justice and denial of fair hearing.
The learned trial IAP was in error of law when it did not consider the unfair labour and industrial relation practice of the respondent before making its no award decision.
The learned IAP erred in law when it failed to set aside the termination letters issued to the 400 workers when they are not in compliance with the law and the party’s condition of service.
The decision of no award is against the weight.

I must at once decry the copious additional grounds of objection/appeal filed by the appellants. They turn what ought to be a simple referral by the Honourable Minister of Labour to something akin to a strict appellate process applicable to our appellate Courts. In paragraph 35 of UTC Foods Plc v. NUFBTE unreported Suit No. NICN/ABJ/411/2016, the judgment of which was delivered on 5th December 2016, this Court decried the equation of a referral with the strict appellate process to say the Court of Appeal in these words:
A related issue is the appellant’s equation of this referral with a normal appeal (with all its trappings) that goes to the Court of Appeal. We need to stress that what is presently before us, although labelled an appeal under sections 7(4) and 8 of the NIC Act 2006 as well as implied as such under section 254C(4) of the 1999 Constitution, as amended, is actually a referral. It is not in the mould of the appeal that goes to the Court of Appeal. The use of the word ‘appeal’ is nothing more than an objection against the award or decision in issue, which this Court is asked to look into. For instance, section 254C(1)(l)(i) and (ii) of the 1999 Constitution, as amended, confers on this Court exclusive jurisdiction in civil causes and matters relating to appeals from the decisions of the Registrar of Trade Unions and decisions or recommendations of any administrative body or commission of enquiry arising from or connected with employment, labour, trade unions or industrial relations. It cannot by any stretch of imagination be said that this appeal equates with or approximates to an appeal to the Court of Appeal. Accordingly, the comparison between this Court and the Court of Appeal in terms of the judicial decisions cited by the appellant when it addressed the respondent’s issue (4) is essentially and not altogether necessary. Before the NIC Act 2006 was promulgated, the NIC under the repealed Part II of the TDA had the power to re-trial matters referred to it against the awards of the IAP. This is no longer the case today; even then, the Court’s mandate is delimited by the basis of the objection to the IAP award and terms of reference by the Minister. The argument of the appellant that the Minister’s referral instrument is only relevant to the extent that it ‘forwards’ the appellant’s Notice of Objection against the decision of the IAP to this Court for judicial consideration and determination, is to say it mildly an understatement; for if the appellant had challenged the substance/quality of the IAP award, then the terms of reference by the Minister become thereby absolutely necessary.

The IAP is first and foremost an arbitral body, not a court of law in the strict sense of the word. As an arbitral body it lacks the trappings of the Court as we know it. To reduce their award to one that elicits 16 grounds of objection with very copious particulars is to take referral process to an absurd length. The two issues this Court is asked to resolve are the same two issues that the IAP sought to resolve. And that is what this Court will also seek to presently resolve. Just as a claim is circumscribed by the reliefs claimed (see Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47), in a referral, the IAP and this Court are circumscribed by the terms of reference. Accordingly, arguments by the appellants such as those as to unfair labour practice are outside the remit of the IAP and this Court as far as the referral from the Honourable Minister of Labour is concerned.

The appellant’s unwieldy brief of argument (42 pages) was filed on 3rd February 2016 together with the Record of Appeal, while the respondent’s brief was filed on 1st February 2017. The appellants filed a reply on points of law on 15th June 2017.

The case of the appellants is that on 23rd June 2008, the respondent wrote a letter to the appellants intimating them of its intention to close down business at the Federal Palace Hotel, Victoria Island, where the appellants’ members were employed. See page 141 of the Record of Appeal (page 212 of the case file). A meeting was thus held where according to the appellants they (appellants) innocently agreed among other issues that workers will be terminated as a result of the contents of the letter of 23rd June 2008 and their terminal benefits shall be paid within a year after which their termination will follow. The evidence of the agreement given by the appellants is a communique at 142 of the Record of Appeal (pages 213 to 214 of the case file). It is the argument of the appellants that in paragraph 3 of the communique, it was agreed that the issue of whether redundancy benefit accrues or not as a result of the closure of business and the subsequent termination of 400 workers be referred to an arbiter for determination; that it was the refusal to allow an arbiter to be appointed that started the dispute leading to this appeal. The appellants also argued that in paragraph 4 of the communique, it was agreed that the present conditions of service shall continue to apply in relation to the terms of employment but that by the communique the workers will be terminated after one year as a result of the respondent alleged closing down business although the question whether the closure of business and subsequent termination amounts to redundancy or not was left to be resolved. The problem is that a communique is minutes of a meeting and so cannot approximate to a collective agreement. Not being an agreement, it cannot generate entitlements. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39 and PENGASSAN v. Mobil Nig. Unltd [2013] 32 NLLR (Pt. 92) 243 NIC. What this means is that the appellants cannot rely on the communique at page 142 of the Record of Appeal to prove any entitlement to them or their members.

To the appellants even when the respondent terminated the employment of the 400 workers on 28th July 2009, all attempts by the appellants to have the issue whether redundancy accrued as a result of the termination resolved were frustrated by the respondent. That the 400 workers upon being terminated were forced to sign a prepared receipt of gratuity wherein it was stated that notwithstanding anything in the communique, the collection of their gratuity is full and final payment of their entitlement from the respondent. That the workers protested but they were refused their gratuity until they sign the prepared receipt; and because they were financially pressed, they had to comply although they complained to their lawyer who then wrote to the respondent. Furthermore, that the appellants later discovered after the termination of the employment of the 400 workers that the respondent even when it wrote the letter of 23rd June 2008 never intended to close down the business; it only wanted to reorganize and cut down its business for which the 400 workers became excess manpower. That this fact was raised at the IAP and not denied by the respondent, but which the IAP did not properly consider. It is in consequence that the appellants are in this Court.

The appellants raised one issue for determination i.e. whether the IAP was right when it held that what happened to the 400 workers was not redundancy but termination of employment by notice. To the appellants this lone issue covers all the grounds of objection/appeal. The argument of the appellants is as follows: that the new and undenied facts amount to redundancy; 400 workers terminated in one fell swoop is redundancy; termination by notice is not one of the conditions or ingredients of occurrence of redundancy; redundancy need not be declared before a given termination could be called redundancy; there is agreement for payment of redundancy in the parties’ conditions of service and the law; the issue of termination by notice was raised suo motu by the IAP; termination by notice was not raised by the parties and, therefore, not an issue before the IAP; letter of termination by notice relied upon by the IAP is based on deception, misrepresentation, fraud and falsehood on which the IAP cannot rely; the respondent was out to deceive and did deceive the appellants in its letter of 23rd June 2008; the letter of termination by notice relied upon by the IAP is irrelevant to the situation and circumstances of this dispute and so the IAP decision based on it is perverse; the content of the said termination letter is not consistent with the letter of the respondent at page 141 (page 212 of the case file) and the agreement reached thereafter at page 142 of the Record of Appeal (pages 213 to 214 of the case file); gratuity is different from redundancy and so the IAP was wrong to have relied on payment of gratuity to hold that redundancy did not occur in the circumstance of this case; the receipt of collection of gratuity relied upon by the IAP was a product of fraud of duress and undue influence; the IAP read evidence of payment redundancy into the receipt of gratuity which was not contained therein and based on it held that the receipt of payment gratuity denied the 400 workers redundancy benefit; the case of the respondent is unreliable and full of contradictions and so the IAP was wrong to have relied on it; the behaviour of the respondent is an unfair labour and industrial relation and practice; issue sent to IAP is different from what it decided; respondent did not comply with statutory provision; decision of no award is against the weight of evidence; and the appellants (400 workers) are entitled to redundancy benefit.

Aside from the argument of the appellants being repetitive in a number of respects, some were outrightly ridiculous and out of place. I already indicated that the argument as to unfair labour practice is outside of the remit of this referral. I also indicated that a communique cannot generate any entitlement as the appellants argue in this case. Relying on the communique to prove fraud or misrepresentation is outrightly uncalled for and just not tenable. The appellants accused the IAP of relying on contradictions by the respondent. But it does appear that the appellants are guilty of same charge. They argued that they later discovered after the termination of the employment of the 400 workers that the respondent even when it wrote the letter of 23rd June 2008 (at page 141 of the Record of Appeal and page 212 of the case file) never intended to close down the business; it only wanted to reorganize and cut down its business for which the 400 workers became excess manpower. Closing down a business and cutting it down, how different is this really?

The respondent in their brief of argument submitted two issues for determination, namely:
Whether the appellants’ members can maintain an action for claim of terminal benefit in the nature of redundancy after accepting the terms of their terminal benefit in full and final settlement of their entitlement against the respondent.
Whether or not the termination of the appointment of the appellants’ members with the respondent following the closure of its business amounts to redundancy benefits for the appellants’ members.

In urging the Court to dismiss the appeal of the appellants, the respondent argued that the appellants’ members’ were duly terminated; that redundancy allowances are only payable to workers whose employment are terminated on ground of redundancy although in the instant case, the termination was not as result of redundancy but by notice of termination; and having accepted terminal benefits in full and final settlement of their entitlements despite and notwithstanding any other rights in the communique, the appellants’ members cannot be heard to approbate and reprobate or argue that they are still entitled to any benefit arising from a concluded contract.

The case of the appellants as I can see it is that the 400 workers who are their members and whose employment was termination even though they collected terminal benefits are all entitled to be paid redundancy. I asked the counsel to the appellants in open Court to show me what instrument entitles the 400 workers to both gratuity and redundancy. I was shown none. The counsel to the appellants searched through the Senior Staff Employees Handbook and General Conditions of Service at pages 83 to 145 of the case file and the Junior Staff Employee’s Handbook and General Conditions of Service at pages 146 to 211 of the case file but could show the Court none. The point is that even if the termination of 400 workers in one fell swoop suggests redundancy, the law is that an employee cannot claim for redundancy (on the one hand) and retirement/terminal benefits (on the other hand). In Stephen Ayaogu & ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017 this is what this Court said:

By Isheno v. Julius Berger Nig. Plc [2003] 14 NWLR (Pt. 840) 289, redundancy is a form unique only to its procedure whereby an employee is quickly and lawfully relieved of his post. Such type of removal from office does not carry along with it any other benefits except those benefits enumerated by the terms of contract to be payable to an employee and declared redundant. The case went on that no employee is entitle to both retirement and redundancy benefits as retirement and declaration of redundancy cannot happen simultaneously. And by PAN v. Oje [1997] 11 NWLR (Pt. 530) 625 CA, redundancy benefits do not include gratuity benefits. That the conditions applicable to redundancy are quite distinct from those applicable to retirement or other conventional modes of relieving an employee from active service, such as termination, resignation or dismissal. The claimants were paid gratuity, contract completion bonus, allowance in lieu of notice, ex gratis and medical for July 09 upon their disengagement by the 2nd defendants as “full and final entitlement”. Given the authorities just cited (Isheno v. Julius Berger Nig. Plc and PAN v. Oje), the claimants cannot after being paid these sums turn around and claim redundancy.

See also Shell Pet. Dev. Co. (Nig.) Ltd v. Nwawka [2003] 6 NWLR (Pt. 815) 184, Nigerian Society of Engineers v. Mrs. Bimbo Ozah [2015] 64 NLLR Pt. 225 1 at 34 – 35, which cited with approval the case of PAN v. Oje, Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39 and James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which delivered on 12th July 2016.

Of course, there are establishments in terms of their conditions of service who allow the claim for redundancy as well as other benefits; in such a case, the conditions of service or contract documents clearly state so. This was the case in Madam Oyesola Ogunleye v. Sterling Bank Plc unreported Suit No. NICN/LA/430/2014, the judgment of which was delivered on 24th May 2018, where clause 13.3.2(1) of the employee handbook states that the payment of monetary compensation for redundancy is exclusive of all other entitlements that may be applicable under the Separation Benefits Scheme (if the employee is eligible). Since the appellants’ counsel could not point to any instrument wherein the 400 workers termination can claim for redundancy and gratuity at one and the same time, their claim in that regard must fail. And this remains so even if in fact their case was one of redundancy.

There is the issue that the 400 workers were paid in full and final settlement of their entitlements. At pages 144 to 315 and 421 to 493 of the case file would be found copies of the termination letters of the workers terminated. In each, the worker was paid one month’s salary in lieu of notice; and each recipient endorsed receiving the document. At pages 334 to 419 and 494 to 498 of the case file are documents titled “Terminal Benefits Agreement” wherein each of the 400 workers signed and endorsed. The one at page 334 of the case file, for instance, states thus:

I confirm that I have read and understand the Communique dated 30 July 2008, attached hereto. Despite and notwithstanding the rights that I have in terms of the Communique, I confirm that the above sum N4733507.47 only represents my full and final entitlement against the Tourist Company of Nigeria Plc, my employer.

The other documents are similarly worded in terms of the payment being full and final entitlement, the only difference being the sum paid to each worker, which varies according to the worker it relates to. The argument of counsel to the appellants is that the workers were either tricked or coerced into signing these documents; and that once this fact was realized, counsel wrote to the respondent to complain. The law is that documents (as the best form of evidence) speak for themselves; nothing is to be read into, nothing is to be added. See Ebem & anor v. Nseyen [2016] LPELR-40122(CA). And in Ogbeide v. Osifo [2009] 3 NWLR (Pt. 1022) 423 at 441 and Babatunde v. Model Industries Nig. Ltd [2004] 9 NWLR (Pt. 879) 614 at 627, where it was held inter alia that documentary evidence is the yard stick or hanger by which to assess the veracity of oral testimony or its credibility.

Now, there is nothing in these terminal benefits agreements indicating that any of the 400 workers was compelled, forced or tricked into signing. Once an employee collects terminal benefits and signs that he/she receives same as “full and final entitlement” or in “full and final settlement of entitlements”, this Court has always held same to be valid; and we have had instances where the employee not satisfied with what he was paid indicated in handwriting that he is receiving the sum paid in protest thus reserving the right to contest the sum paid. In Pekun Oyeleke v. Mobil Producing Nigeria Unlimited unreported Suit No. NICN/LA/44/2016, the ruling of which was delivered on 16th November 2016, this Court held thus at paragraphs 10 to 12:
Exhibit MP1 is an indemnity certificate signed by the claimant on 2nd May 2014. So it must be the document that the claimant stated he asked for time to study. In it, the claimant signed for the receipt of the sum of N218,316,709.67 being his “full and final entitlements from MPN” and then acknowledged and agreed that the net balance noted in the document is in full and final settlement of all claims, contractual, statutory or otherwise, that he may have against MPN or any of its affiliated companies or their respective shareholders, officers, employees or agents. Exhibit MP2 is another indemnity certificate signed by the claimant on 20th October 2014 in receipt of the sum of N24,234,010.80 being the claimant’s full and final entitlements from MPN. It is also similarly worded as Exhibit MP1. These are the documents that the claimant states that he was unduly influenced to sign. Paragraph 22 of the statement of facts/claim does not in any way suggest that the claimant was under any compulsion or influence to sign. The claimant did not plead in any paragraph of his statement of facts that he was so compelled. Instead, the pleading is that he asked for time to study the document and he was given the time. If the claimant had pleaded that he was forced or unduly influenced to sign Exhibits MP1 and MP2 (documents, if I may note, the claimant pleaded but did not even frontload), there would have been a cause of action or a reasonable cause of action as to make this case competent. The failure to this on the part of the claimant means that this case is incompetent for want of a cause of action or a reasonable cause of action. I so find and hold. It is in this sense that the defendant raised the issue of waiver on the part of the claimant. Joan U. Ezomo v. George B. L. Oyakhire [1985] LPELR-1216(SC), citing R. Priori & ors v. Muraino B. O. Elemo & ors [1983] 1 SC 13 held that “the concept of waiver…is that a person who is under no legal disability and having full knowledge of his rights or interests, conferred upon him by law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted the exercise of those rights or that he has been denied the enjoyment of those interests”. In the instant case, the claimant intentionally signed Exhibits MP1 and MP2. He did not plead any legal disability; he did not plead any facts of coercion or undue influence; from his pleadings, he asked for time to consider Exhibits MP1 and MP2 before signing and was given the time; and before signing Exhibits MP1 and MP 2, he had ample opportunity to complain as per the Petroleum (Drilling and Production) (Amendment) Regulations 1988 but he did not. By Prince Olufemi Fasade & ors v. Prince Iyiola Babalola & anor [2003] LPELR-1243(SC); [2003] 11 NWLR (Pt. 830) 26; [2003] 4 SC (Pt. I) 157, a person who fails to take the bull by the horns on his rights cannot be heard to complain thereafter that he was denied the advantage of benefitting from those benefits and rights; such a person is presumed to have waived those rights and he is estopped from later trying to take advantage of what he has voluntarily waived. This is what the claimant just did in the instant case; and I so find and hold.

In Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC, something similar was the issue. The defendant in that case had argued that the claimant waived his right to performance bonus for the year 2009 when he voluntarily signed the release and discharge certificate. The release and discharge certificate in issue had this provision:

I forever waive, absolve, indemnify and hold the company, its directors, managers, servants, employees and agents harmless from and against any and all claims, proceedings, costs, liabilities and expenses of whatever nature, which may be suffered or incurred by, or made against the company as a result of acts performed by me in the course of my employment and hereby declare, voluntarily and in good faith, that the company does not owe me any further compensations.

While signing the said release and discharge certificate, the claimant specifically and in his handwriting endorsed an exception in the following words –

Exceptions: I do not make any commitments that are not already valid from the terms of my contract.

I have an unpaid expense claim and a phone allowance not paid.

This Court held that having to endorse this exception on the release and discharge certificate means that there is no talk of the claimant waiving his right to the bonus, and that the claimant thereby signed under protest indicating he had reservation as to the contents of the said release and discharge certificate. This Court accordingly held that the claimant did not waive his right regarding the payment of the said performance bonus for the year 2009.

…there is no such qualification by the claimant as to suggest that he had reservations with what he was signing or with what he signed. I am satisfied that the claimant signed Exhibits MP1 and MP2 freely and of his own volition. He cannot now turn around and claim that he was unduly influenced to sign them. That argument is at best an afterthought…

Now, none of the 400 workers in the instant suit signed the terminal benefit agreement in protest by indicating on the face of the agreement that he signs under protest or that he contests the sum paid as was the case in Kurt Severinsen. The argument of counsel to the appellants is that the receipt or collection of gratuity relied upon by the IAP is a product of duress, fraud and undue influence. The evidence of all of this is once again the communique and the letters counsel wrote to the respondent complaining, which are at pages 215 to 217 of the case file. These counsel letters rely heavily on the communique and the fact that the 400 workers were induced to sign the terminal benefits agreements by the respondent. Like I pointed out earlier, none of the 400 workers indicated on any of the terminal benefits agreements that he/she is signing under protest as was the case in Kurt Severinsen. I accordingly have difficulty agreeing with the appellants that they were compelled or tricked to sign the terminal benefits agreements.

In holding that duress or undue influence has not been shown to this Court in terms of the 400 workers signing for their respective terminal benefits, I must then draw attention to a number of case law authorities which hold that the receipt of terminal benefits is a bar to any complaint that the contract of employment was not properly determined. See, for instance, Julius Berger (Nig.) Plc v. Nwagwu [2006] 12 NWLR (Pt. 995) 518 CA, which held that where an employee receives his terminal benefits after his employment is brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined because the acceptance of payment by the employee renders the determination mutual. See also Morohunfola v. Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 SC, John Holt Ventures Ltd v. Oputa [1996] 9 NWLR (Pt. 470) 101 CA, Iloabachie v. Phillips [2002] 14 NWLR (Pt. 787) 264 CA and Umoh v. ITGC [2004] 4 NWLR (Pt. 703) 281 CA, which held that where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract was not validly and properly determined.

On the whole, I see no merit whatsoever in the appellants’ case. It fails and is hereby dismissed. The IAP award of “no award” is hereby confirmed as per section 8(a) of the NIC Act 2006.