NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION v. BUREAU OF PUBLIC ENTERPRISES
(2019)LCN/13663(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of July, 2019
CA/A/193/2017
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION Appellant(s)
AND
BUREAU OF PUBLIC ENTERPRISES Respondent(s)
RATIO
WHETHER OR NOT THE TRIAL COURT MUST PRONOUNCE ON ALL ISSUES PROPERLY PLACED BEFORE THEM FOR DETERMINATION IN ORDER
In Brawal Shipping v Onwadike Co (2000) 6 SCNJ 508 at 522 the apex Court held that ?it is no longer in doubt that this Court demands of and admonishes the lower Courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases including Oyediran v Anise (1970) 1 All NLR 313 at 317, Ojogbue v Nnubia (1972) 6 SC 27, Atanda v Ajani (1989) 3 NWLR (Pt. 111) 511 at 539, Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150-152, Titiloye v Olupo (1991) 7 NWLR (Pt. 205) 519 at 529 and Katto v CBN (1991) 9 NWLR (Pt. 241) 126 at 149. Failure to do so may lead to miscarriage of justice and certainly would have that result if the issues not pronounced upon are crucial. Consequently there could be avoidable delay since it may become necessary to send the case back to the lower Court for those issues to be resolved. The obvious exceptions are when an order of retrial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action as the case may be.? See also 7up Bottling Co. Ltd. v Abiola & Sons Bottling Co. Ltd (2001) 6 SCNJ 18 at 49 where the Supreme Court emphasised that ?where, however an intermediate Court rests its decision on one of the issues, it should also express its views and pronounce on the other issues identified for its determination. PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/193/2017 was commenced 3-1-2017 when the appellant herein filed a notice of appeal against the judgment of the National Industrial Court of Nigeria delivered on 8-12-2016 in Suit No. NICN/LA/324/2014 by B.A. Adejumo, President National Industrial Court of Nigeria.
The notice of appeal contains 2 grounds of appeal.
The parties herein filed, exchanged and adopted the following briefs- appellant?s brief and respondent?s brief.
The appellant?s brief raised two issues for determination as follows-
1. Whether in the circumstance, a registered Trade Union Registered under the Act, still needs to tender the membership labour handbook/conditions of service before being entitled to a liquidated sum in a collective agreement agreed by parties. (Distilled from ground one).
2. Whether in the circumstances not tendering of letter of appointment and the conditions of service of individuals members of the Registered Trade Union, under the Act in a case of a collective bargaining for a liquidated sum agreed by parties during
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privatization of the Federal Government is fatal to the case (Distilled from ground two).
The respondent?s brief raised one issue for determination as follows- Whether the Learned trial Judge was right in law in dismissing the appellant?s claim for want of proof.
The respondent?s brief raised and argued a notice of preliminary objection on the grounds that-
a. This Honourable Court lacks the jurisdiction to entertain the Appeal.
b. The Grounds of Appeal are incompetent.
c. There is no valid record of Appeal transmitted to this Honourable Court.
d. The Appellant?s Brief of Argument is grossly incompetent, largely unintelligible and ought to be struck out.
Let me determine this objection before I delve into the merits of the issues raised for the determination of this appeal if need be.
I have considered the arguments on the grounds of this objection. I agree with the submission of Learned Counsel for the respondent that the grounds of this appeal do not raise questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (The 1999
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Constitution).
The said grounds of appeal read thusly-
?GROUNDS OF APPEAL
The learned Trial Judge erred in Law for stating that A Registered Trade Union, Registered under the Act, still needs to tender the members Labour Handbook/Conditions of serviced before being entitled to a liquidated sum in a collective agreement agreed by parties.
The learned Trial Judge erred in Law for stating that not tendering letter of appointment and the conditions of service of individual members of a Registered Trade Union, under the Act in a case of a collective bargaining for a liquidated sum agreed by parties during privatization of the Federal Government is fatal to the case.
PARTICULARS
The Learned Judge acknowledged that the Appellants are Registered Trade Union under the Act, recognized under the Trade Union Act, the 1999 Constitution and the ILO Convention 98 and yet could not order the payment of the Appellants liquidated sum based on not tendering members conditions of service.
The Learned Judge acknowledged that the Appellant are formal staffs of the workers of the privitalized Nigerian Hotels who
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came under their Trade Union Umbrella and yet stated that individual members? contract of service must be tendered to be entitled to a liquidated sum agreed by parties before the privatization of Nigerian Hotel by the Respondent.
The Learned Judge acknowledged the right of the Union to represent its members in any collective agreement, as confer in Section 40 of the 1999 Constitution and yet went ahead to rule that individual members? must present their names and conditions of service before being entitled to a liquidated sum agreed on their behalf by their Union with the Respondent.?
It is glaring that these grounds of appeal do not complain of any violation of any of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. An appeal on those grounds against the decision of the National Industrial Court cannot be brought as of right. An appeal against the decision of the National Industrial Court of Nigeria (NICN) can lie as of right only on grounds that raise issues of fundamental rights as contained in Chapter IV of the 1999 Constitution. This is so by virtue of S.243(2) which provides that-
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?An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.?
As rightly submitted by Learned Counsel for the respondent, the appellant did not first obtain the leave of Court to file this appeal. There is nothing in the record of this appeal that shows or suggests that the appellant obtained leave of Court to bring this appeal. As it is, the appeal is incompetent. It is hereby struck out.
I have considered the complain of Learned Counsel for the respondent that the record of this appeal do not contain the records of the proceedings of the trial Court, which contain the testimony of all the witnesses adopting their witness statements on oath as their testimonies in examination in chief, the record of admission of documentary evidence and the testimonies of the witnesses under cross examination.
The testimonies of the witnesses under cross examination are summarily restated in the judgement of the trial Court. The judgment also
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states the documents admitted in evidence as exhibits. Copies of all the documents including the witness statements on oath of all the witnesses are in the record of this appeal as the documents that accompanied the pleadings. The actual copies admitted in evidence are not in the record of this appeal. The testimonies of the witnesses and the exhibits were copiously referred to and heavily relied on in the judgment of the trial Court.
It is beyond argument that the testimonies of all the witnesses and the exhibits not included in the record of this appeal are relevant parts of the record of this appeal. Their omission from the record of this appeal renders the record of this appeal incomplete and disables the ability of this Court to properly and effectively assess the correctness of the trial Court?s findings of facts and other decisions on the basis of the said omitted testimonies and exhibits. An assessment or review of the decision of the trial Court by this Court without the opportunity to read the trial Court?s record of the said testimonies and the exhibits would be rendered suspect if not speculative. As it is, this appeal is ex debito
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justitiae vitiated. It is hereby struck out.
The preliminary objection having been upheld on the above two grounds, there is no need to consider the other grounds of objection. Having held that this appeal is incompetent, there would have been no need determining the merit of the appeal. But since this Court is a penultimate Court, I will proceed to determine the merit of this appeal, so that if the apex Court, in case of an appeal to it from our decision, overrules our decision striking out the appeal for incompetence, it can consider our decision on the merit of the appeal. In Brawal Shipping v Onwadike Co (2000) 6 SCNJ 508 at 522 the apex Court held that ?it is no longer in doubt that this Court demands of and admonishes the lower Courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases including Oyediran v Anise (1970) 1 All NLR 313 at 317, Ojogbue v Nnubia (1972) 6 SC 27, Atanda v Ajani (1989) 3
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NWLR (Pt. 111) 511 at 539, Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150-152, Titiloye v Olupo (1991) 7 NWLR (Pt. 205) 519 at 529 and Katto v CBN (1991) 9 NWLR (Pt. 241) 126 at 149. Failure to do so may lead to miscarriage of justice and certainly would have that result if the issues not pronounced upon are crucial. Consequently there could be avoidable delay since it may become necessary to send the case back to the lower Court for those issues to be resolved. The obvious exceptions are when an order of retrial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action as the case may be.? See also 7up Bottling Co. Ltd. v Abiola & Sons Bottling Co. Ltd (2001) 6 SCNJ 18 at 49 where the Supreme Court emphasised that ?where, however an intermediate Court rests its decision on one of the issues, it should also express its views and pronounce on the other issues identified for its determination. Even where the intermediate Court is of the settled view that the sole issue on which its decision is anchored will be upheld, it is
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prudent to express an alternative view.?
I will determine together the two issues raised for determination in the appellant?s brief.
The suit leading to this appeal arose from the failure of the parties herein to agree on the total sum of money due and payable as arrears of salaries and retirement benefits to the over 800 members of the appellant, employees of privatized Nigerian Hotels Ltd Group comprising, Ikoyi Hotels, Kano Central Hotel Ltd, Caterers Court Hotel, Bristol Hotel and Workers of all the Federal Government Special Guest Houses located across the country.
The appellant in paragraph 10 to 24 of its statement of fact averred thusly-
?10. That in view of the judgment reached in Suit FHC/CS/598/2000 that the privatization should go on, the Defendant directed the management to compute the entire staff entitlements, inclusive of the following as contained in the privatization handbook:
i. Senior Staff Provident Fund (A & B) /JS/S
ii. Long Service Award
iii. National Housing Fund
iv. Severance Package
v. Gratuity
vi. Social Security
vii. Training Converted to Cash
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viii. Retirement
ix. Pension
Which the management computed to a total sum of N2.8 Billion
11. That as computed in Paragraph 8, the details were submitted to the Defendant for onward approval and payment.
12. That instead of the payment of N2,772,092,861 the Defendant immediately went and consulted a private consultancy firm, with a view to compute the same issue, and the private consultant came up with N570 Million as the total entitlement of the entire workforce of over 800 men and women.
13. That the Defendant instead of harmonizing the figure with the management, instead insisted to pay the N570 million and this was how we went to Court for the 2nd time in suit NO.FHC/L/CS/882/2003.
14. That the Defendant agreed and accepted in view of the pending Suit in FHC/L/CS/882/2003, that the computed N570 MILLION by the consultants was far too small, but the Defendant insisted that Suit in Court has to be withdrawn before parties can meet and later the Suit was withdrawn as advised and solicited by the Defendant to enable parties negotiate the sum in line with the Handbook.
15. That the Defendant after we withdrew the Suit, never agreed
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again for harmonization of the amount but went ahead to pay the N570 MILLION to us, but divided us into 2 Batches and paid the N570 Million into what they called Rationalization of the 1st Batch in 2002 and another Batch in 2003.
16. That since that 2003 that the so called Rationalization was paid to the 2nd Batch, we have waited in vain for the Harmonization of the computation and payment of the balance to no avail.
17. That after a lot of consultations and meetings with the Defendant, within these years, which the Defendant reneged to pay, we petitioned the National Assembly over our plight through letter dated 25/11/2009.
18. That in view of that petition to the House of Representatives, the House sat on the 25th day of November, 2010 and the House in paragraph 6 House Order of the day, directed the committee on public petitions to look into the matter, through House order of the day dated 25/11/2010.
19. That the National Assembly through a letter dated 28th February 2011 invited the Defendant and parties met under the committee on public petition of the House and parties further agreed before the Honourable House to harmonize the amount
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after parties agreed that the money paid was not up to the entitlement.
20. That the House Ruled and advised that the Defendant should meet with us, with a view to reviewing our entitlement in line with existing regulation on privatization, letter to that effect is dated 28/02/11.
21. That despite the Order of the House of Representatives that parties should meet to Harmonize the amount to be paid, the Defendant bluntly refused, which has lead to untold suffering, of which, most members have died of frustration and Hypertension related sickness.
22. That in view of the adamant stand and blunt refusal of the Defendant to pay us, we contacted our Solicitor, Arua, Arua & Partners, who wrote a letter, dated 24/09/12 to further remind the Defendant of the House of Assembly Resolution/Directive.
23. That despite the letter in paragraph 22, from our Solicitors to the Defendant, the Defendant neglected to act or call for a round table conference, so we further mandated our Solicitors to issue the Defendant Pre-action Notice through a letter dated 31st of March 2014.
24. That the attitude of the Defendant have created stress, frustration
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which has lead to death of many of us and others still at the verge of death due to frustration after serving our dear nation without blemish for decades.?
The respondent in paragraphs 7 to 25 of its statement of defence averred thusly-
?7. That the Defendant admits paragraph 10 of the Statement of fact only to the extent that the Defendant caused a reassessment and re-computation of the entitlement of the Plaintiff?s members who are employee?s of the Nigerian Hotels Ltd (NHL) and hereby denies every other allegation of fact contained in the said paragraph as they contained tissues of wilful falsehood concocted by the Plaintiff. In further response to the said paragraph, the Defendant hereby avers as follows:
a. That given the situation of the various Hotels under the Nigeria Hotels Limited (NHL) at the time the Defendant took over, the management and board recommended that 50% (i.e half) of the staff strength of the Nigeria Hotel Ltd. (NHL) Staff be rationalized/retired as a result of over ? staffing which made it difficult for payment of staff salaries.
b. That the members of the Plaintiff affected in the
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rationalized/retirement exercise conducted by the Defendant were 315 (Three Hundred and Fifteen) in number. These 315 staff of Nigeria Hotel Limited (NHL) were paid the sum of N312.7 Million benefits and entitlements in April, 2002 and with the payment, they were disengaged from the employment of Nigeria Hotel Limited (NHL).
c. The Defendant also paid in March, 2002, the sum of N13,608,983.00 (Thirteen Million, Six Hundred and Eight Thousand, Nine Hundred and Eighty Three Naira) to the members of the Plaintiff as salary arrears which they were owed before the Defendant came in to execute the privatization mandate.
d. That when the remaining/existing staff of Nigeria Hotel Limited (NHL) saw the attractive benefits which their rationalized/retired counterparts received they opted to be rationalized so as to have their terminal benefits computed and paid to them just like the earlier rationalized/retired staff.
e. The Defendant allowed the Plaintiff to compute the final terminal benefits of the remaining/existing staff of Nigeria Hotel Limited (NHL).
f. The Plaintiff did the computation and brought an overestimated and inflated amount for the
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remaining 349 (Three Hundred and Forty Nine) employees of Nigeria Hotel Limited (NHL) at the time to the tune of N777,458,555. The Plaintiff also computed the sum of N68,735,915.00 for the retired/rationalized staff whose names were omitted when they were paid during the previous rationalized/retirement exercise as averred in paragraph 7 (b).
g. That upon submission of the aforementioned inflated computation to the Defendant; the Defendant observed that the Plaintiffs were laying claims to entitlements not included in their conditions of service at employment.
h. The defendant also observed that the figures in the inflated computation were arrived at based on mere conjecture as G9 Hospitality Consortium, the firm engaged by the Plaintiff in computation of their terminal benefits, clearly stated in their reports (Section v. thereof) that they suffered from limitation of accurate staff data, hence they worked on mere assumptions and arrived at a result. The said document is relied upon by the Plaintiffs as Exhibit B.
i. The Plaintiffs also wanted to be paid severance allowances which the Defendant after a meeting with the Plaintiff told them
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clearly they were not entitled to since Nigeria Hotel Limited (NHL) was not a going concern at the time. The Defendant stated that it was from the sale of the assets of the Nigeria Hotel Limited (NHL) that the Defendant could pay the members of the Plaintiff and also offset their liabilities.
j. The Defendant was however desirous of doing justice to the Plaintiffs, and to ensure that the Plaintiff members were paid their due entitlements the Defendant engaged a private consultant to look into the figures as computed by the Plaintiff in line with the relevant conditions of service with a view to verifying and adopting same or where there are discrepancies, come up with the actual figures the plaintiff were entitled to.
8. That the aforesaid verification exercise was done in two phases.
a. The 1st phase was for the existing staff of Nigeria Hotel Limited (NHL).
b. The 2nd phase was for the Nigeria Hotel Limited Staff rationalized/retired in 2002 whose benefit were wrongly computed or names omitted.
9. That after the verification exercise conducted by the consultant engaged by the Defendant, the following amount was found to be in excess
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of the actual entitlements of the members of the Plaintiff.
a. For the 1st phase which was the existing staff of Nigeria Hotel Limited, a variance of N186,986,296 was discovered to be in excess.
b. While for the second phase which was for the rationalized/retired staff of 2002 whose computation was wrongly done or names omitted, a variance of N382,000 was found.
10. The Defendant then adopted the recommendation of the consultant with the revised figured as follows;
a. Current/existing staff of Nigeria Hotel Limited (NHL) of N590,472,259.79.
b. Rationalized/retired staff of Nigeria Hotel Limited N68,352,912.
11. The Defendant avers that the Plaintiff members paid under this second bulk payment exercise is tabulated as follows;
S/N STAFF NO. OF STAFF AMOUNT
1. Management 116 N344,165,704.94
2. Head office of junior 34 N32,430,438.27
3. Training School 10 N10,953,540.31
4. Okoyi, Hotel Junior Staff 124 N140,241,923.30
5. Kano Central Hotel Junior 65 N62,680,651.97
6. Retired/Rationalized Staff 84 N68,352,912.00
Total N658,852,171.79
12. The Defendant hereby states that the above total sum
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of N658,852,171.79 was paid to the plaintiff?s members and they signed off these monies as their full and terminal benefits and entitlements.
13. The Defendant hereby avers that the computation of the various amounts was done and paid to the plaintiff?s members at the time and they gratefully collected same. That even when there was disagreements, the plaintiff and the defendant held several round table meetings and issues were amicably settled hence the payments.
14. That the defendant admits paragraph 11 of the statement of fact to the extent that the plaintiff sued the defendant in suit No: FHC/L/CS/882/2003 and denies every other allegation of fact contained in the said paragraph as same is an admixture of falsehood.
15. That the allegation of fact contained in paragraph 12 of the statement of fact is false and hereby denied. In response to the fact therein contained in the said paragraph the defendant hereby states that when the plaintiff filed suit No: FHC/L/CS/822/2003, the 1st batch of the plaintiffs? members who were rationalized/retired (315 in number) had been paid their full and final terminal benefits/entitlements
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amounting to N312.7 Million Naira in the year 2002 and therefore it is untrue to say that all the staff of the NHL which the defendant inherited during privatization were altogether paid the sum of N570 Million by the defendant in 2003. In further response to the said paragraph the defendant hereby avers that it was only a few retired/rationalized members of the plaintiff (84 in number) whose payment were wrongly computed or names omitted in 2002 that were included in the staff computation done in 2003 as shown in the table in paragraph 11 above.
16. The defendant avers that the plaintiff?s suit in FHC/L/CS/882/2003 was withdrawn by the plaintiff so as to go into negotiation with the defendant and the negotiation did not take place which resulted in the payments of all concerned their due benefits with nothing left to litigate.
17. The Defendant denies paragraph 13 of the statement of fact. In further response to the said paragraph the defendant hereby adopts paragraph 11 and 16 above of this statement of defence.
18. The defendant avers that during negotiations with the plaintiffs they were told that the following benefits and
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entitlements did not accrue to them and reasons were adequately made available to the members of the plaintiff. The benefits are:
a. Long service award ? the plaintiff through their leaders during discussion with the defendant were told categorically that their claim to be entitled to long service award was wrong them because NHL was bankrupt before it was privatized.
b. Annual Increment ? the defendant showed the plaintiff the National Council on Privatization earlier policy Instrument directing Managers of enterprises including the management of NHL to desist from engaging new staff, carrying out any promotion exercise, reviewing extant conditions of service, signing any new major contract etc. The plaintiff feigned ignorance of the policy.
c. Severance Pay ? Severance pay was not included in the Nigeria Hotel Limited (NHL) conditions of service and this account for the reason it was not part of the entitlements of the plaintiff.
19. That the Defendant admits paragraph 14 only to the extent that entitlements was paid the plaintiffs in 2003 and denies that any balance was left unpaid by the Defendant. The Defendant states
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that the plaintiffs were fully paid their full and final terminal benefits and there was no balance of N2,772,092,861 or any other amount of money whatsoever that was left unpaid. In further response to the said paragraph 14 of the Statement of fact, the Defendant states as follows;
a. That what was paid to the members of the plaintiff includes:
i. For rationalized/retired staff N312.7 million Naira paid in April 2002
ii. N13,608,983 Million which was paid as salary arrears of staff paid in March 2002
iii. For existing/current staff N590,472,259.79 Million
iv. Rationalized/Retired staff whose computation was wrongly done or omitted were paid N68,352,912.
b. The Defendant states that in addition it paid the following sums of money as tabulated below to members of the plaintiff:
i. Junior Staff (Head Office) ? N361,681,93
ii. Management Staff (Head Office) ? N615,419.83
iii. Executives ? N168,080.39
iv. Junior Staff (Ikoyi Hotels) ? N1,340,927.28
v. Management Staff (Ikoyi Hotels) – N352,831.60
Total = N2,838,841.03
CASUAL/SECURITY STAFF
vi. Major Security (Head Office)
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? N88,733.33.00
vii. Practical Concept (Ikoyi Hotel) ? N238,000.00
viii. Causal Staff ? N759,565.00
Total = N1,068,293.33
Grand Total = N3,925,234.36
20. That the Defendant also paid to the plaintiff members as services charge for the month of February and March, 2003 in the manner tabulated below:
February March
i. Junior staff (Head N166,323.48 N198,144.91 Office)
ii. Management N76,938.80 N137,037.96
iii. Executive N14,969.37 N25,000.00
iv. Junior Staff (Ikoyi N300,342.43) N490,510.35
Total N1,412,249.30
21. That the aforesaid amounts were paid to the Plaintiff by the Defendant as entitlements pursuant to the privatization exercise conducted by the Defendant.
22. The Defendant shall at trial rely on the payment slips and the sign off schedule of the Plaintiff members to show that the Plaintiffs collected their full and final entitlements.
23. The Defendant states that as part of the liabilities of the Plaintiff, the Defendant paid to the National Social Insurance Trust Fund (NSITF), the sum of N1,858,083 as due deductions contributed monthly by the staff of Nigeria Hotel
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Limited but which the Plaintiff failed to remit up till the time of privatization.
24. The defendant states that union dues estimated at 1.8 million at time was paid to the plaintiff.
25. That with specific reference to paragraph 15 of statement of facts, the defendant hereby states that there was no agreement reached with plaintiff that was reneged. That the defendant paid all the entitlements to the plaintiff members with nothing left to litigate upon.?
The trial Court held inter alia that- ?Besides, by the nature of the reliefs claimed in this case, it is clear that they relate to a liquidated sum. In Maja v. Samouris (2002) LPELR ? 1824 (SC) 21 ? 22, the Supreme Court defined liquidated sum in the following words:
A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to
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be ?liquidated? or made clear?.
(Underlined for emphasis)
My observation all along, as could be deciphered above, is that it is almost impossible, if not totally impossible, to calculate by an arithmetical formula, how the claimant arrived at the total sum being claimed. This assuredly becomes so when the base figures of the total number of employees involved and what each is to earn were not provided, as the claimant merely said they were over 800, and it was equally not proved in Court that the lists contained in appendixes 2 & 3 of Exhibit CW11 ? CW11 ? 71 were those of the employees in issue, not to talk of the omission of serial numbers in each of all the lists. Therefore, the case fails woefully the tests of how to claim liquidated sums. Having come to this juncture, it is apposite to hold that this issue is resolved in favour of the defendant and against the claimant; and I so hold. The implication of the holding is that, the claimant is not entitled to the judgment of this Court; and I equally so hold. Having held thus, it follows that, it is no longer necessary to consider the issues of general and specific
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damages and the issue of 20% pre-judgment interest contained in issues 4 and 5 as adopted for this case. The claimant?s case is therefore lacking in merits and is hereby dismissed in its entirety.
No cost is awarded.?
The part of the judgment complained against by the appellant in this appeal reads thusly- ?There is also the third argument of counsel under this issue. This relates to not tendering letters of appointment and the conditions of service of the employees in issue. Counsel to the defendant has made heavy weather of this. I have checked the Statement of Defence and discovered that issue was therein raised. Thus, issue was joined on this fact, while the claimant said its staffers affected were over 800, the defendant averred that they were not up to 800- see paragraph 2 of the Statement of Defence. The defendant also joined issue on the fact that its own separate calculation took into consideration the Conditions of Service of the employees in tune with the guidelines of the Bureau of Public Enterprises ? see paragraph 4 of the Statement of Defence. The defendant also averred that the claimant was laying claims to
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what they were not entitled to and that it deliberately inflated the figure presented, and that the claimant?s consultant, admittedly, did not use accurate data in its calculation- see paragraph 7(f) ? (i) of the Statement of Defence. Evidence was also led to these effects in the Written Dispositions of Razaq Adedigba: (Exhibit DWA ? DWA7) and the Further Written Disposition on oath (Exhibit DWB ? DWB1), the witness of the defendant.
When issues were joined on these aspects of the case, it is expected that the claimant would bring all related documents before the Court. In fact, since there is a disagreement on the total number of employees involved, it follows that their letters of appointment be adduced in evidence to show the true number. It would appear that that is the most sensible way to settle that score. It is also expected that since the defendant put the fact of the condition of service in issue, the claimant would do well to tender same. Though, it is not the law, as argued by the defendant?s counsel that letters of appointment be tendered in all situations ? see NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS V. AYANFALU (2006) LPELR ? 5960 (CA) PP. 28 ? 29,
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PARAS. G ? G and OKOEBOR V. POLICE COUNCIL (2003) LPELR ? 2458 (SC) P. 37, PARAS. A ? B, but as indicated in the above authorities, letters of appointment would be necessary where they are central to the determination of the case. I therefore hold that in the instant case, that letters of appointment and the conditions of service are necessary documents. Hence, this issue is resolved in favour of the defendant and against the claimant. Their absence is therefore fatal to this case.?
Learned Counsel for the appellant argued that the appellant?s computation was done in line with subheads prescribed by the Privatization Handbook (3rd edition), that the appellant based on these subheads, in line with the Privatization guidelines, handed over the final computation of their benefits to the Respondent who did not even call for any harmonization of the figures with the appellant, but went and consulted a consultant who, without any input of the appellant arrived at N570 million as the final benefits of over 800 staff of the appellant Registered Union, which was paid to
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members of the appellant, that the appellant therefore came to Court to claim the balance of N2,202,092,861 and the interest therein, that the consultant never complied with the subheads in line with the Privatization handbook 3rd edition and that their membership was not known by the consultant, that the Labour Handbook and Conditions of Service of members of the appellant is not relevant in a collective bargaining before Privatization, that where parties negotiate on behalf of a Trade Union (registered or even unregistered) then every Labour hand book and condition of service is set aside, whether the organization has a statutory flavour or not, that it is the negotiating power of parties that becomes binding as collective agreement, that the Government having prescribed the 3rd edition of Privatization guideline as the Modus Operandi, the agreement of any individual employee, under Privatization in the Appellant?s offices became null and void; the day the circular Memo to privatise Nigerian Hotels Groups was circulated, that the idea of Privatization by the Federal Government of Nigerian has set aside every staff Labour handbook, senior or junior,
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that the Respondent cannot go ahead to pay N570 Million without taking cognizance of the number of the Appellant and the Privatization handbook, that the Court is therefore enjoined to give effect to the language of the statute and the collective agreement of parties, that the Respondent abandoned the procedure set out by 3rd edition of Privatization guideline and brought in a consultant who never took cognizance of the procedure or number of staff to arrive at a figure and such inconsistency in privatization must be set aside.
Learned Counsel for the respondent argued that the appellants appear to claim that the privatization handbook constitutes collective agreement between the Respondent and the various workers union whose enterprises were privatized, that this is clearly erroneous in that there can be no collective agreement without collective bargaining, that if that constituted collective agreement why was it necessary for the appellant to seek to negotiate with the Respondent the entitlement of their staff who had left the employment, that by no stretch of imagination can a privatization handbook given to the Respondent by the Federal Government
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of Nigeria to guide it in the discharge of its functions constitute a contractual document between the Appellant and the Respondent, that it is therefore erroneous of the appellant to assume that because they brought the instant suit as a trade union there is no onus cast on them to prove the entitlement of each of their members to the moneys claimed on their behalf, that one piece of evidence that is unchallenged by the Appellant is that the workers have been paid of their due entitlements by the Respondent following the takeover of moribund Hotels by privatization as part of the reform programme of the Federal Government of Nigeria, that it is settled law that a worker who has been paid his benefits can no longer challenge their computation, that the Appellant in the instant case are relying on Bureau of Public Enterprises (BPE) handbook on privatization for their claim, that the document does not constitute the condition of service between the Appellant and the Respondent, that neither the Bureau of Public Enterprises (BPE) handbook nor the letters of complaints written to the National Assembly, namely, the House of Representatives Committee on Public
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Petitions and all the documents tendered by the Appellant do not substantiate the claim for monetary compensation as claimed by the appellants, that the Appellants placed reliance on a computation of figures made at their instance by their consultants, that the contents of that document shows that it was not based on the staff conditions of service, the absence of which the consultants pointed out in their report as a handicap, that in the absence of the conditions of service, the Appellants or staff entitlement cannot be found or predicated on the BPE privatization handbook, that the PW1 from his evidence does not know the number of workers for whom they are making the claims, that he does not know when they were paid their entitlement and how much they were paid, that again, the categories of staff i.e. their number, ranks and wages they were earning at the time of the disengagement were not made known to the Court, that the Appellants failed to establish their entitlement to their claims in this suit and the learned trial judge was right in dismissing the Appellants claims, that the Appellants are claiming for the sum of Two Billion, Two Hundred and Two
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Million, Ninety-Two Thousand, Eight Hundred Naira as their outstanding balance, that the Appellants did not tell the Court what this balance represents, that there is no pleading or evidence to substantiate this claim.
Let me now determine the merits of the above arguments. The N2,202,092,861.00 claimed for by the appellant is described in its statement of fact as the outstanding balance of the larger sum of N2,772,092,801 described in the statement of fact as the entire staff entitlements including the following contained in the privatization handbook:-
“A) Six months pay in lieu of Notice
B) Senior Staff Provident Fund (A & B) / JS/S
C) Long Service Award
D) National Housing Fund
E) Severance Package
F) Gratuity
G) Social Security
H) Training Converted to Cash
I) Retirement
J) Pension.”
?
This larger sum is what the management of the privatized hotels together with the appellant computed as what is due and payable to the staff and employees of those hotels which staff and employees are the members of the appellant and on whose behalf the appellant acted in the computation of the larger sum
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and has been acting in engaging the respondent in various ways to pay the said larger sum.
It is clear from the statement of fact that the appellant is claiming for the money not as its own, but as the emoluments due to its members as staff or employees of the privatized hotels. It is therefore merely acting on behalf of the owners of the said money.
There is no doubt that the appellant is engaged in collective bargaining with the respondent for the payment of money to it for its members. The bargaining is collective in the sense that it is bargaining for its members collectively and not individually.
The respondent did not agree with the figure computed by the appellant which figure is stated in paragraphs 18 to 25 of the statement of defence already reproduced in pages 12 to 22 of this judgment. The respondent paid the appellant 570 million as what is due and payable to its member as employees of those hotels.
The appellant brought the suit at the trial Court claiming that they were entitled to be paid the total sum of N2,772,092.861 and that the respondent having paid 570 million naira, the respondent was bound to pay it the sum of
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N2,202,092.861 as the unpaid remainder of the sum of N2,772,092.86.
It is significant that the appellant averred in paragraphs 17 to 23 its statement of fact that the refusal of the respondent to agree with the appellant on the amount payable generated all the circumstances that culminated in it filing a suit in Court. The appellant having failed to secure the agreement of the respondent to pay the sum claimed for by the appellant or to a harmonisation of their two figures, claimed for an order of the trial Court that the respondent pay the amount of N2,772,092,861.00 or the balance after deducting the 570 million naira already paid to it.
It is glaring from its statement of fact that the only basis for its claim is that the amount was what it collectively agreed with the Management of the Hotels as what is due and payable as entitlements to all its members and the respondent has refused their demand to harmonise that figure with the 570 million naira the respondent computed as their entitlement.
?
To justify its claim that the 570 million paid to it for its members by the respondent did not fully satisfy or liquidate the total entitlements of its
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members, the appellant must demonstrate by credible evidence that 570 million naira could not have fully paid the members their entitlements. To be able to do so, it must produce a list of all its members that it is making this claim for and documentary evidence that they are employees of the privatised hotels, the names and exact number of them that were paid their entitlements from the 570 million naira and evidence that they signed for their entitlements, it must show the names of those that were not paid their entitlements, it must show the detailed particulars of the entitlements paid out from the 570 million naira and the detailed particulars of the entitlements not yet paid to each of its member. The evidence elicited by the appellant did not prove these facts.
It is the letters of appointment of each employee, the conditions of service of the Hotel that employed him and the Privatisation Handbook (3rd Edition) that would show what each employee is entitled to. The Court cannot award the amount claimed by the appellant on the assumption that those documents were considered by the appellant and the management of each privatised hotel in computing
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the amount claimed for. The award can only be made on the basis of credible evidence of what each employee is entitled to.
It cannot be reasonable for the Court to order the payment of entitlements to unidentified persons, or to persons who have not been shown to be employees of the privatised hotels and who have not been shown to be entitled to such payment. The appellant failed to prove their case at the trial Court.
In the light of the foregoing, I resolve issues Nos. 1 and 2 in favour of the respondent. On the whole, this appeal fails as it lacks merit. The judgment of the National Industrial Court of Nigeria in Suit No. NICN/LA/324/2014 delivered on 8-12-2016 by B.A. Adejumo President National Industrial Court of Nigeria (NICN) is hereby affirmed and upheld.
Having already held that this appeal is incompetent, it is hereby struck out.
I make no order as to costs
ABDU ABOKI, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: My learned brother EMMANUEL AKOMAYE AGIM, JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
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Appearances:
Godwin Ugwu, Esq.For Appellant(s)
Chukwudi Adiukwu, Esq.For Respondent(s)
Appearances
Godwin Ugwu, Esq.For Appellant
AND
Chukwudi Adiukwu, Esq.For Respondent
