MR. EMEKA BEN OBIEJEMBA -VS- TECON OIL SERVICES LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: FEBRUARY 18, 2019 Suit No: NICN/YEN/90/2016

BETWEEN:

EMEKA BEN OBIEJEMBA CLAIMANT

AND

TECON OIL SERVICES LIMITED .DEFENDANT

REPRESENTATION

Betty Utoboh Esq for the Claimant.

Chukwu Martin Esq for the Defendant.

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant commenced this action by a Complaint dated and filed on the 13^th day of May, 2016. His claims are as set out on the face of his originating processes, to wit:

The sum of N30, 126, 923.00 (Thirty Million, One Hundred and Twenty Six Thousand, Nine Hundred and Twenty Three Naira) being total sum due to Claimant as retirement benefit.

Monthly salary at the rate of N450,000.00 (Four Hundred and Fifty Thousand Naira) from 1^st March 2015 till Claimant’s retirement benefits are paid as provided for in Clause 33 of Conditions of Service for Senior Staff applicable to Claimant.

The sum of N5, 000,000.00 (Five Million Naira) as general damages.

Interest on the judgment sum or any part thereof at the rate of 20% per annum from the date of filing of this suit up to the date of judgment and post judgment interest at the rate of 10% per annum until the judgment sum is fully paid.

Accompanying the Complaint were the necessary documents required by the Rules of this Court in proof of the claims which includes Witness Statements on Oath, List of Documents to be relied upon in the cause of trial and other accompanying processes.

The Defendant, by a Motion on Notice for extension of time dated 13^th day of November, 2017 and filed on the 15^th day of November, 2017; caused a Memorandum of Appearance dated the 15^th day of November, 2017 to be entered on its behalf by the Law Firm of Aguma & Co. Also filed were the Statement of Defence, Witnesses Statement on Oath and other accompanying processes. The Defendants’ Application for Extension of Time, which was not opposed, was moved and granted on the 16^th of November, 2017; deeming all the Defendants’ processes as properly filed and served.

Trial commenced on the 14^th day of March, 2018 wherein the Claimant appeared as the sole witness in the proof of his claim testifying as CW1. He was cross-examined on the same date. In proof of his claims, CW1 tendered 15 EXHIBITS marked as EXHIBITS CW1 001 – CW1 015).

The Defendant opened their defence on the 4^th day of June, 2018, and called one witness – one Chief Johnny Olisakwe Maduafokwa, the International Director of the Defendant company – who testified as DW1. He was also cross-examined on his evidence by the Claimant’s Counsel on the same date. In its defence, 5 EXHIBITS were tendered through DW1, which were admitted into evidence and marked as EXHIBITS DW1 001 – DW1 005, and consequently the Defendant closed its case.

This Court thereafter ordered Parties to file their Written Addresses, which were filed and same adopted on the 11^th day of December, 2018.

CLAIMANT’S CASE IN BRIEF

The case of the Claimant, by his Written Deposition, is that he was formally the Head of Finance, Administration and Planning (Western Operations) of the Defendant company, a position he held until his retirement in March, 2015. By virtue of his position, his condition for service was regulated by the Defendant’s Condition for Service for Senior Staff 2010 – 2012 (EXHIBIT CW1 003), which also provided for his retirement benefits. Claimant averred that by the combined effect of Exhibits CW1-003, CCW1-004 and CW1-005, he became entitled to the benefits conferred to his position/status upon retirement from the Defendant company to the tune of Thirty Million, One Hundred and Twenty Six Thousand, Nine Hundred and Twenty Three Naira (N36, 126, 923.00).

One month after his retirement (April, 2015), the Claimant averred that he wrote to the Defendant requesting for his retirement benefits but was paid Six Million Naira (N6,000,000.00) only on the 12^th of May, 2015 as his entitlement. The Claimant contends that the Defendant is still indebted to him and he has written severally to the Defendant to remind him of the indebtedness. When he discovered that the payments were not forthcoming, he instructed his lawyers to write a letter of demand to the Defendants. He further states that by virtue of Clause 33 of EXHIBIT CW1-003, he is still entitled to his monthly salary of Four Hundred and Fifty Thousand Naira (N450,000.00) until his full retirement benefits are paid.

The Claimant concluded by stating that the Defendant’s continued failure, refusal and or neglect to pay him his retirement benefits is wrongful as it has caused him serious loss, depression and damages.

Upon receipt of the Defendant’s Statement of Defence, the Claimant did file and serve a Reply to the Statement of Defence dated 30^th day of November, 2017, wherein he stated that he was employed by the Defendant as a senior staff and retired as a senior staff. He also stated that the Defendant also paid him allowances and benefits in line with EXHIBIT CW1 003. In further denial of the testimony of the Defendant’s Witness in his Statement on Oath, the Claimant averred that there was never any mutual agreement between the Defendant and himself on the issue of terminal benefits. The Claimant admitted to being paid the sum of Nine Million Naira (N9,000,000.00) as Ex Gracia payment and part of his gratuity, respectively. He reiterates that he is still entitled to his monthly salary of Four Hundred and Fifty Thousand Naira (N450,000.00) as long as the Defendant fails and or refuses to pay him his retirement benefits.

When placed under cross examination, the Claimant stood by his written testimony and stated that he was a party to EXHIBIT CW1-003 and that the Defendant did not pay him his retirement benefits in line with the condition of service (EXHIBIT CW1-003). That despite his retirement, he still carried out some jobs for the CEO of the Defendant.

THE CASE OF THE DEFENDANTS

DW1, in his Written Deposition on Oath, averred that the Claimant was never a senior staff of the Defendant Company but was employed as a management staff, wherein he worked throughout his tenure of employment with the Defendant. The Claimant’s position did not entitle him to the benefits of a senior staff as contained in EXHIBIT CW1-003. DW1 averred that the Claimant’s position as a Management Staff of the Defendant Company was the condition upon which he was made a member of the Management Team that negotiated and executed EXHIBIT CW1-003.

DW1 further averred EXHIBITS CW1-004 and CW1-005 were reached as a resolution to an industrial action embarked by members of NUPENG and PENGASSAN, Tecon branch in 2004 and was not intended to be an addendum to every agreement between the Defendant Company and the respective unions or their members and was not intended to co-opt non-members into the union.

It was also the testimony of DW1 that the terminal benefits due and payable to retiring Managers is Nine Million Naira (N9,000,000.00) and that the Claimant was aware of that position having attended series of meetings the Defendant held to that effect. He denied that the Claimant had been carrying out some jobs for the CEO after his retirement and was not entitled to any monthly salary especially as the Claimant’s terms, condition and mode of payment of terminal benefit were discussed and agreed upon by the Claimant and the Defendant. He therefore asked the Court to dismiss the suit for being vexatious and malicious.

Under cross examination, DW1 stated that he works in the Port-Harcourt branch of the Defendant company but was familiar with the structure of the Warri branch of the company where the Claimant worked when he was a staff. He contended that the Retirement Clause on EXHIBIT CW1 003 applied generally to Union members and was not applicable to the Claimant who was a Manager and not a senior staff. DW1 admitted under oath that the exhibits tendered and admitted by the Defendant were addressed to the Bank and not to the Claimant. The contents of Exhibit CW1 004 are not within his knowledge, as he was only seeing them for the first time in Court. The court ordered parties to file their written addresses after the close of their respective cases.

THE SUBMISSIONS OF THE DEFENDANTS

Learned Counsel on behalf of the Defendant formulated three (3) issues for determination to wit:

Whether Exhibit CW1 003 and Exhibit CW1 004 creates any legally enforceable contractual obligation between the Claimant and the Defendant.

Whether the Claimant can benefit and/or make a claim under Exhibit CW1 003.

iii. Whether the Claimant (sic) services were retained after the termination of his employment.

In arguing its issue one, Learned Counsel to the Defendant argued that it is important to examine the status and nature of Exhibits CCW1 003 and CW1 004 since it forms the crux of the Claimant’s case. Counsel submitted that while Exhibit CW1 003 is a collective agreement, Exhibit CW1 004 is a communique. On the authority of OSOH & 40 ORS v UNITY BANK PLC (2013) 2-3 SC (PT.1) PG 1, a collective agreement as well as a communique cannot be called a legally binding and enforceable agreement where same had not been expressly incorporated in the contract of employment of the employee. He argued further that the contract of service and/or letter of employment is the legally known evidence of the relationship between an employer and the employee. Learned Counsel submits that since EXHIBITS CW1 003 and CW1 004 were not incorporated into CW1 001, which is the Claimant’s Letter of Employment as required by law, and since there is no evidence before this Court showing the express confirmation of the Defendant that the Claimant would benefit from the said EXHIBIT CW1 003 and CW1 004, the Court cannot go about looking for evidence to determine the complaint of the Claimant. He cited the case of ANAJA v UBA PLC (2011) 15 NWLR (PT.1270) PG.377 AT 392, PARA H.

Counsel maintained that EXHIBIT CW1 004 is a communique which is borne out of a meeting between the Defendant and the members of PENGASSAN in January 23, 2004 aimed at forestalling a strike action at the time. Both EXHIBITS CW1 003 and CW1 004 are gentleman’s agreements and were never made and or incorporated in the Claimant’s contract of employment. They are therefore unenforceable against the Defendant towards the Claimant. Counsel relied on the case of NIGERIAN SOCIETY OF ENGINEERS v OGAR (2015) 6 NWLR (PT.1454) PG.76 AT 94, PARA. A.

He submits finally on this issue that EXHIBIT CW1 003 does not govern and or regulate the contract of employment of Claimant and all the employees of the Defendant, in general.

In arguing issue two, Learned Counsel submits that the Claimant is not a member of PENGASSAN but a management staff of the Defendant company during his service of employment with the Defendant. Counsel contends that Section 3(3) of the Trade Union Act precludes a management staff of any organization from being a member of a Trade Union or holding such office in the Trade Union which will lead to a conflict of his loyalties to either the Union or the management of that organization. The Claimant was a member of the management team of the Defendant that executed EXHIBIT CW1 003.

Counsel maintained that EXHIBIT CW1 003 was contrived solely for the benefit of members of PENGASSAN who are under the employment of the Defendant consequently, the Claimant has no locus standi to bring the instant action on EXHIBIT CW1 003 because he was not a member of PENGASSAN and cannot claim to be a party to the collective agreement. Counsel relied on the case of NNB PLC v EGUN (2001) 7 NWLR (PT.711) PG.1 AT 18-19, PARAS G-A.

On his last issue, Learned Counsel reiterated his earlier position that the extent of the relationship between an employer and his employee is as contained in the contract of service/letter of employment. He said that the Claimant’s letter of employment (CW1 001) is the only document which binds his relationship with the Defendants and upon the Claimant’s retirement via EXHIBIT CW1 002, the said relationship was terminated. According to Learned Counsel, in the absence of a subsequent letter of appointment or engagement employing his services again by the Defendant, there is nothing to show the Court to ascertain the Claimant’s claim of a subsequent request to continue rendering services for the Defendant.

Counsel submits that EXHIBIT CW1 008 (A – F) does not state who the maker of the document was since it was not emanating from a telecommunication provider. He contends that nowhere on the face of the Exhibits did it show an express instruction from the Defendant to the Claimant requesting for his services after his retirement. Counsel urged the Court to dismiss the suit with cost.

SUBMISSION OF THE CLAIMANT

On his part, the Claimant, in his Final Written Address, raised two (2) issues for determination by this court:

Whether in the course of the Claimant’s employment in the Defendant, the terms and conditions of employment set out in Exhibits CW1 003 and CW1 004 became applicable to the Claimant

If issue 1 is answered in the affirmative, whether the Claimant is entitled to judgment as per his reliefs.

In his argument on the first issue, the Claimant’s Counsel submitted that there is no dispute that the Claimant was an employee of the Defendant until he received Exhibit CW1 002 from the Defendant dated 2^nd March, 2015. He argued that Defendant agreed to apply to the Claimant and other senior staff of the Defendant, a negotiated conditions of service as evidenced in Exhibits CW1 003 and CW1 004.

Learned Counsel reiterated that the Claimant was a senior staff and in fact a signatory to Exhibits CW1 003 and CW1 004, and therefore was a privy to the terms and conditions of Exhibit CW1 003. He contended that by the evidence of the Claimant, the Defendant had applied the terms of the said Exhibit CW1 003 to the Claimant on several occasions and denies ever conceding to a mutual agreement between the Defendant and himself (the Claimant). Counsel stood his grounds as to the non-existence of any mutual agreement between the Parties stating further that no evidence was led to confirm the assertion of the Defendant that there existed such agreement. In any event, he argued that since Parties have joined issues as to the applicability of Exhibits CW1 003 and CW1 004 to the Claimant, this Court should decide the case based on the evidence before it. In support of his arguments Counsel cited the case of A.C.B. PLC v. NWODIKA (1996) 4 NWLR (PT.443) PG.470 AT 484, PARAS G-H, amongst others.

Learned Counsel, on the second issue, maintained that the Claimant has satisfied the Court, by his evidence that he is entitled to the reliefs he seeks from this Court. In his submission, Counsel relied particularly on Clauses 24, 33, 34.1 of Exhibit CW1 003 to hold that the Defendant had previously acted in line with the provisions of the said Exhibit towards the Claimant and ought to abide by the provisions thereof in paying the Claimant his entitlements. Counsel further submits that having kept silent in the face of Exhibits CW1 009, CW1 012 and CW1 013 demanding payments for his entitlements, the Defendant admitted the Claimant’s claims and are thus, liable.

In all, Learned Counsel to the Claimant submitted that the claims of the Claimant are meritorious having proved on the preponderance of evidence that Exhibits CW1 003 and CW1 004 became applicable to the Claimant in the course of the Claimant’s employment with the Defendant and as such the claims should be granted.

COURT’S DECISION

Upon a careful analysis of the evidence before me and the submissions made by Counsel on behalf of the respective Parties whom they represent, I am compelled to raise a lone issue for determination, which I believe incorporates the issues raised by the Parties in their Final Written Arguments. The sole issue for determination is:

Whether the terms and conditions of EXHIBITS CW1 003 and CW1 004 are applicable to the Claimant to entitle him to the benefits therein contained and ultimately to the reliefs sought from this Court.

I entirely agree with the argument of Learned Counsel to the Defendant that the gamut of this suit revolve around the applicability or otherwise of EXHIBITS CW1 003 and CW1 004, to the Claimant herein.

I commend the respective Learned Counsel to the Parties for their astuteness and dexterity in putting forward their arguments as per their final addresses before this Court. However, it is a solemn principle of the law that cases are normally not decided on addresses but on credible evidence, as no amount of brilliance in a final address can make up for the lack of evidence to prove and establish or otherwise disprove and demolish points in issue. See NIGER CONSTRUCTION LTD v OKUGBENI (1987) 4 NWLR (PT.67) PG.787; OLAGUNJU v ADESOYE & ANOR (2009) 9 NWLR (PT.1146) PG.225; UBN PLC & ANOR v AYODARE & SONS (NIG.) LTD & ANOR (2007) 13 NWLR (PT.1052) PG.567. In other words, address by Counsel cannot substitute for legal evidence, which are laid bare before the Court and upon which the Court relies to determine the issues before it.

Issues were joined by both Parties as to the applicability of EXHIBITS CW1 003 to the Claimant. It is trite law that Parties and by extension the Court are bound by their pleadings. The Court must therefore be on alert so as not to deviate from the case made by each Party in the pleadings otherwise, it will unknowingly be making for Parties an entirely new case. EXHIBITS CW1 003 and CW1 004 speak for themselves and require no oral evidence to add to or subtract from or vary the contents of the documents. SECTION 128 of the EVIDENCE ACT, 2011 is of the moment.

I have taking solemn efforts to digest the contents of both EXHIBITS CW1 003 and CW1 004. The “INTRODUCTION” paragraph of EXHIBIT CW1 003 is clear and unambiguous, and provides the answer as to the Parties to which it applies. I will reproduce the parts relevant to this judgment. The third paragraph state as follows:

“This Agreement is made on the 8^th day of April, 2011 between PETROLUEM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA (PENGASSAN) TECON BRANCH (hereinafter call the Association) and TECON OIL SERVICES NIGERIA LIMITED (hereinafter called The Company)”

Furthermore, Clause 3 of Exhibit CW1 003 suggests that the Agreement binds the company (Defendant) and “all regular employees of the Company who are members of the association” (PENGASSAN in this material particular).

It flows therefore that EXHIBIT CW1 003 is specific on the category of persons who can benefit from it. Of course the law is long settled that Parties are bound by the terms of their agreement, and the Court cannot read into such agreement a term with the Parties did not, or intend, to enter into. Also, an Agreement is binding only on the Parties thereto and not on Third Parties even if it is made for his benefit. AGBAREH & ANOR v MIMRA & ORS (2008) LPELR-43211 (CA); ASONIBARE v MAMODU & ANR (2013) LPELR-22192 (CA). The Parties to Exhibit CW1 003 are the Defendant and the Petroleum & Natural Gas Senior Staff Association of Nigeria (PENGASSAN), and the senior staff referred to therein are the senior staff of the Defendant company who are members of PENGASSAN.

The question of whether or not the Claimant was a senior staff or management staff of the Defendant company is of no moment with regard to the applicability of Exhibit CW1 003. Instead, in resolving the impasse between the Parties herein this suit, it is pertinent to answer the question whether Exhibit CW1 003 was intended to include the Claimant or if indeed he belonged to such persons recognized under the Agreement so as to entitle him to the benefits contained therein, especially the calculation of his terminal benefits.

I have taken an eagle-eyed look at the evidence before this Court, it was the evidence of Claimant in his own words that:

“Management staff in TECON Oil Services are unionist. I am not a member of PENGASSAN. I don’t associate with PENGASSAN because of my position as the Head of Administration.”

It was the Claimant’s further evidence that this action was instituted not as a representative of PENGASSAN but solely for himself. The Claimant, however, did not lead any evidence before this Court with respect to the Union to which he belonged and or whether such Union was recognized by the Defendant under Exhibit CW1 003. His evidence that he was not a member of PENGASSAN is in consonance with the evidence of DW1 who maintained at all material times that the Claimant was not a member of PENGASSAN but a Management staff. This, to my mind is an admission on the part of the Claimant. It is an elementary principle of law that facts admitted does not require any other form of prove as Parties are already settled on the agreed position. The consequent result of that admission therefore is that the terms and conditions espoused in Exhibit CW1 003 does not apply to the Claimant.

I do not find favour in the contention of the Claimant that he can benefit from the EXHIBIT CW1 003 because he was a Party to the Agreement. For all intent and purposes, there were only two Parties to EXHIBIT CW1 003; to wit: TECON Oil Services Nigeria Limited (the Defendant) and PENGASSAN, TECON Branch. From the evidence before this Court, the Claimant’s role in the Agreement was defined. The Claimant executed the said Agreement as part of a team who represented the Management of TECON Oil Services Nigeria Limited. The Claimant cannot now switch sides in the circumstance and claim to be a member of PENGASSAN as that would amount to approbating and reprobating, especially as he has confirmed by his evidence that he was not a member of PENGASSAN while his employment was subsisting in the Defendant company. He cannot choose, at this point, the part to belong.

Exhibit CW1 004 and CW1 005, on the other hand, are both Communiques that seem, in my humble view, to convey the decisions reached by the constituted committees. The Parties to those communiques, which is very visible to the eyes, are the representatives of PENGASSAN, NUPENG and the Management of TECON Oil Services Limited, which the Claimant represented on both occasions.

I will now comment on the legality or otherwise of Exhibits CW1 003, CW1 004 and CW1 005, which are all Collective Agreements. The term “Collective Agreement” is statutorily defined in Section 47(1) of the Trade Disputes Act 1990, as follows:-

“1. Any agreement in writing for the settlement of disputes and relating to the terms of employment and physical conditions of work concluded between: (a) An employer, a group of employers and one or more organizations representatives of employers, on the one hand; and (b) One or more trade unions or organizations representing workers or duly appointed representative of any body of workers on the other hand.”

Collective agreements are known to cover many different kinds of agreements on topics and matters that are not really amenable to be described as contracts and they are not legally binding, not having created legal relations. So that the phrase “collective agreement” is not in every case synonymous with the words “contract”. See OSOH & ORS v UNITY BANK PLC (2013) 9 NWLR (PT.1358) PG.1

It is clear from relevant case laws that a collective agreement would be binding as between the Parties thereto where it is incorporated or embodied into the conditions or contract of service, otherwise, they are not enforceable. The enforcement of such agreement is by negotiation between the Parties to the agreement. ONYEUKWU v FIRST BANK OF NIGERIA (2015) LPELR-24672 (CA)

The case laws are however silent on the method by which the incorporation or embodiment should be made. The Court must therefore search for a clear language of incorporation, and in its absence, the real intention of the Parties. It thus becomes the duty of the Court to determine if the Parties really intend that the contract of service and the collective agreement should be read together.

The Learned Counsel to the Claimant have argued that the Defendant had previously used the Collective Agreement (Exhibit CW1 003) in computing some of the Allowances of the Claimant as contained in Exhibits CW1 015 (A-E) (Claimant’s Pay Slips) wherein the Claimant’s leave and out of station allowances were calculated. He submits that there was an implied incorporation of the terms of Exhibit CW1 003 into Exhibit CW1 001 (letter of appointment).

In my modest but well-founded view, the case of A.C.B. PLC. V. NWODIKA relied upon by Learned Counsel does not certainly help his argument on behalf of the Claimant. This is so because the sine qua non, that is, the fixed position under established case law is that for the collective agreement to be binding, Parties must express their agreement in a form which is sufficiently certain for the Courts to enforce. See ABALOGU v SPDC (NIG.) LTD (2003) 13 NWLR (PT.837) PG.308; ONYEUKWU v FIRST BANK OF NIGERIA (supra). Counsel must observe that in NWODIKA’s case, this position was proffered also that before Parties can be bound by the terms of a collective agreement, such terms must be expressly adopted either in the letter of appointment or in a subsequent communication varying the terms of employment. None of these conditions existed in this instant case, as far as the evidence of the Claimant was concerned.

The communique of January 23, 2004 (Exhibit CW1 004) predates the Exhibit CW1 003 and cannot ordinarily be said to convey a subsequent communication from the Claimant’s letter of appointment (CW1 001). Exhibit CW1 005, referred to the payment of terminal benefits to employees who were leaving the Defendant Company for the reasons stated therein up to the 31^st day of October 2012.

The basic fact, however, is that the Claimant cannot claim to be a party to either Exhibits CW1 003, CW1 004 or CW1 005 as no privity of contract is established between him and the Defendant by virtue of those Agreements. In any event, he had the privilege of having his name and signature imprinted in the said Exhibits because of his position as one of the members of the Defendant Management’s team who executed the Agreements.

And even if it is assumed that the Claimant is a Party to the Agreements, the basic requirement under time-honoured case laws is that, there must be a legal nexus between the conditions of service and the term of a collective agreement. This legal nexus, in my opinion, is the incorporation of the relevant terms of the collective agreement into the conditions of service of the Claimant. In the instant case, none of the Clauses of the Collective Agreements were clearly incorporated in the Claimant’s Letter of Appointment (Exhibit CW1 001). Obviously, from the evidence of the Defendant, it is clear that the Claimant was paid his terminal benefits based on certain factors including years of service, salary, ex-gratia, etc.

DW1 had led evidence to the effect that Exhibits CW1 004 and CW1 005 were resolutions reached by the Defendant on striking union members of PENGASSAN and NUPENG and incidentally, the Claimant was one of the representatives of the Defendant at the various meetings of the Defendant with the Union Leaders. I am of the opinion and I hold that, it is crystal clear that it was not the intention of the Defendant and its employees, one of which was the Claimant, that Exhibits CW1 003, CW1 004 or CW1 005 and CW1 001; be read together.

In any event, Clause 9 at page 7, which deals with Duration of Agreement of the said Exhibit CW1 003 stipulates that:

“The terms and conditions of this Agreement shall be valid for a period of twenty-four (24) months (i.e. two years) from November 1, 2010 to October 31^st 2012, subject to Clauses 3 and 5 above. (It shall remain in force until such time when a new Agreement is concluded).

However, at any time after twenty-one (21) months, either party may give to the other three (3) months’ notice in writing of its intention to resume negotiations to draw up a new Agreement. Such notice shall be accompanied by a proposal for negotiation. Both parties shall endeavour to conclude negotiations on a new Collective Agreement before the expiration of the existing Agreement. But in the event that negotiations are not concluded before its expiration, the existing Agreement shall continue to remain in force until a new Agreement is concluded. However, the new Agreement shall take effect from the expiring date of this Agreement.”

By this Clause, the so called Conditions of Service for Senior Staff 2010-2012 (Exhibit CW1 003) between Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) TECON Branch and TECON Oil Services Nigeria Limited, which had the lifespan of 2 years, is now extinct. It no longer has any life or force in it. It automatically came to an end by effluxion of time, and there is no evidence that the condition for its continued existence (which is, the negotiation for a new collective agreement) was commenced or has been concluded by the Parties. See the case of AREWA TEXTILES PLC v SAMUEL & ORS (2013) LPELR-23507 (CA) per ORJI-ABADUA JCA.

Now let me comment on the Claimant’s contention that he is entitled to his basic pay because he continued to render services for the Defendant after his retirement. He had tendered Exhibit CW1 008 (A-F) in prove of this claim. It is my honest but candid view that the Claimant cannot claim to have continued to work for the Defendant after he tendered his retirement letter on the premise that the CEO of the Defendant continued to engage his services.

The contract between the Claimant and the Defendant was duly terminated upon the service of Exhibit CW1 002 and acknowledgment via Exhibit CW1 009 by the Claimant on the Defendant. On the face of Exhibit CW1 008 (A-F), the chat was between the Claimant and an unidentified person. The Exhibit is not sufficient to show that a new contract of service was negotiated between the Claimant and the Defendant to warrant the payment of monthly salaries as claimed by the Claimant. If the Claimant had carried out any duty whatsoever, he did so on his own freewill, without pressure from anyone, and cannot turnaround now to ask this Court to compel the Defendant to pay him for the alleged services he rendered.

The summation of all the above is that the Claimant is entitled only to the amount computed by the Defendant as his retirement benefits and not on the calculation as agitated by him in tune with Exhibits CW1 003, as the said Exhibit do not apply to him.

Consequently, the issue is resolved against the Claimant. The case of the Claimant is hereby dismissed. I declined to award any cost.

I so hold.

Judgement is hereby entered accordingly.

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE