IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
9TH DAY OF MARCH, 2023
SUIT NO: NICN/CA/21/2020
Asiya Effiom …………………………………………………………claimant
Biase Plantation Limited ……………………………………… defendant
1. Vide a general form of complaint dated the 10/06/2020 and filed on the same date, the claimant commenced this suit against the defendant praying for:-
a. The Claimant claims against the Defendant outstanding salary arrears at the rate of N51,000.00 per month from 21/3/2017 to 11/2/2019 totalling N1,224,000.00
b. The sum of N5,000,000.00 being terminal benefit of the Claimant.
c. N2 million being cost of litigation.
d. N10 million general damages.
e. An Order of Court directing the Defendant to re-instate the Claimant to his rightful position.”
2. The Defendant upon being served with the complaint filed its Statement of defence out of time on 25/9/2020. The statement of defence was regularised by an Order of this Honourable Court made on 2/11/2021. Again the defendant on 18/1/2022, was granted leave to amend its statement of defence, the defendant’s amended statement of defence was filed on 25/1/2022.
3. After joining issues, the Claimant on 2/11/2021, testified as CW1. CW1 after identifying his witness statement on oath adopted it as his evidence in this case. Documents were tendered in evidence through CW1 and they were marked as Exhibits C1 – C12. On 15/3/2021, the CW1 was cross-examined by the Defendant’s Counsel, thereafter he was discharged.
4. On 1/6/2021, one Stephen Ebong, the Head of Administration of the defendant, testified in defence of the defendant as DW1. DW1 identified his witness statement on oath and adopted same as his evidence in proof of the defence of the defendant. At the end of his evidence in chief, DW1 was cross-examined by Claimant’s Counsel.
THE CASE OF THE CLAIMANT:
5. The Claimant was employed by the defendant on 1/9/2013, as a supervisor on monthly salary in the sum of N25,000.00 (Twenty Five Thousand Nara), as per exhibit C1. The employment of the claimant was confirmed vide letter dated 29/1/2014, exhibit C2. Vide letter dated 21/3/2016, exhibit C9, the defendant increased the salary of the claimant from the sum of N25,000.00 (Twenty Five Thousand Naira) to the sum of N51,000.00 (Fifty One Thousand Naira).
6. It is the position of the claimant that the negotiated conditions of service for workers of Biase Plantations Ltd and Eyop Industries ltd and agreed between the Agriculture and Allied Employees union of Nigeria (AAEUN) and the management of Biase Plantation ltd and Eyop Industries ltd, exhibit C3, governed his employment. And vide exhibit C3, the conditions of service an employee charged with a criminal offence by the civil authority, shall be suspended from work and if discharged and acquitted, the decision of his re-engagement shall be at the discretion of the management. The claimant was on 21/3/2017 charged with offence of conspiracy, stealing and negligence. The claimant was dismissed from service without regard to the negotiated conditions of service governing his employment. The trial of the claimant spanned for a period of two years. The claimant through his lawyer wrote to the defendant demanding payment of salary.
THE CASE OF THE DEFENDANT.
7. The defendant admitted claimant being her former employee and the increment of claimant’s salary vide letter of 21/03/2017, exhibit C9. The terms and conditions of claimant’s employment are as contained in the claimant’s letter of employment exhibit C1 and not in any other document. And the said letter of employment did not make reference to the negotiated conditions of service of workers of the defendant and Eyop Industries ltd. By the terms and conditions of employment contained in the letter of employment an employee found to be dishonest or involved in any fraud or corrupt and immoral practice, insubordination and/or other major misconduct will be liable to instant dismissal.
8. The Defendant’s contention is that the Claimant’s dismissal was based on a Domestic Inquiry carried out by management of the Defendant for gross misconduct of the Claimant. The said dismissal had regards to the terms and conditions of service offered by the Defendant and accepted by the Claimant contained in the letter of employment and not the Negotiated conditions of Service.
9. In reply to the statement of defence the claimant averred that promotion is not freely given as alleged but by through hard work, brilliance and diligence. The defendant entered into agreement with Agriculture and Allied Employees Union of Nigeria (AAEUN) under negotiated conditions of service applicable to workers of Biase Plantations Ltd. And Eyop Industries Ltd on behalf of its employees. The dismissal of claimant was without regard to negotiated conditions of service.
THE SUBMISSION OF THE DEFENDANT.
10. Attah Ochinke, Esq; counsel for the defendant in adopting the final written address of the defendant informed the court that twin issues were formulated for determination. They are:-
1. Whether the claimant can rely on the negotiated conditions of service in pursuit of his case.
2. Whether having regards to his evidence, the claimant has proved his case to be entitled to the reliefs sought.
11. Issue one; Whether the claimant can rely on the negotiated conditions of service in pursuit of his case. In arguing this issue counsel submitted that having regards to the evidence of the parties, the Claimant cannot rely on the Negotiated Conditions of Service admitted as Exhibit C3 in pursuit of his claim. As the said Negotiated Conditions of Service as used in the instant case is no doubt an agreement between workers of the Defendant and Eyop Industries Ltd and The Agriculture and Allied Employees Union of Nigeria (AAEUN) and, the Management of the Defendant and Eyop Industries Ltd.
12. Counsel refers to paragraphs 5 & 6 of his Statement of facts, which stated that:
“5 The Claimant’s condition of service was governed by the negotiated conditions of service for workers agreed between the Negotiated Conditions of Service for Workers of Biase Plantations Ltd. and Eyop Industries Ltd. agreed between The Agriculture and Allied Employees Union of Nigeria (AAEUN) and the Management of Biase Plantations Ltd and Eyop Industries Ltd. the said condition of service is hereto pleaded.
“6 The Claimant states that under the above condition of service, any employee who is charged with a criminal offence by civil authority, the employee shall be suspended from duty and if discharged and acquitted, the decision of his re-engagement shall be at the discretion of the management. If the management decided not to re-engage him, the management shall pay him up to the date of discharged including his/her terminal benefit”.
13. It is the submission of counsel that from a careful reading of the averments of the Claimant as captured in paragraphs 5 and 6 of his Statement of Facts reproduced above, it would be clear that the crux of the Claimant’s suit is based on the Negotiated Conditions of Service for workers of Biase Plantation Ltd and Eyop Industries Ltd admitted as Exhibit C3. In support of this contention counsel relied on the case of OSOH V. UNITY BANK PLC (2013) 9 NWLR (PT. 1358) 1 PP. 29, PARAS. C-D; 38, PARAS. F-H, per Chukwuma-Eneh, J.S.C.
14. Counsel related the decision in OSOH V. UNITY BANK PLC (supra) to the instant case, and submitted that the term “Negotiated Conditions of Service” is the same with the term “collective agreement” between employers and employees. Counsel then asked the question ‘what then is the nature and status of Negotiated Conditions of Service/Collective Agreement as it relates to the instant suit?
15. On the nature and status of negotiated conditions of service/collective agreement, counsel relied on the case of NIGERIA SOCIETY OF ENGINEERS V. MRS BIMBO OZAH (PT 1454) 76 @ 94 PARAS C, per Ikyegh, J.C.A, where it was held that:
“Such collective agreement are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable…”
16. Counsel submitted that against the backdrop of the decision in NIGERIA SOCIETY OF ENGINEERS V. MRS BIMBO OZAH (supra), the Negotiated Conditions of Service/Collective Agreement heavily relied upon by the Claimant does not give him a right to litigate over alleged breach of same as conceived by the Claimant. Put differently, the Negotiated Conditions of Service/Collective Agreement does not form a basis for the relationship between employers and employees, in the instant case, the Claimant and the Defendant.
17. It is also submitted that in the light of the averment of the Claimant as stated at paragraphs 5 & 6 of his statement of Facts & the state of the Law as stated in the judicial decisions of the Supreme Court & the Court of Appeal in OSHO V. UNITY BANK PLC (SUPRA) and NIGERIA SOCIETY OF ENGINEERS VS. OZAH (SUPRA), the suit of the Claimant ought to be dismissed at this point for incompetence. However for whatever may be its worth, counsel posited:
What then is the basis of a relationship between the Claimant and the Defendant?
18. In answer to the above poser counsel submitted that the only document a Court looks at that regulates the relationship between an employer and his employee is the service agreement. In support of this submission counsel relied on the case of GBEDU V. ITIE (2020) 3 NWLR (PT 1710) 104 @ 126 PARAS F-H, per Rhodes-Vivour, J.S.C. held that:
“The relationship between an employer and his employee is regulated by the service agreement or the conditions of service. It follows that the only document which shows an employee’s conditions of service and which the court is enjoined to examine to determine the employee’s entitlements is the service agreement.
19. Counsel further refers to the case of ANAJA V. U.B.A. PLC (2011) 15 NWLR (PT 1270) 377 @ 392 PARAS H, where the Court of Appeal reiterated the Supreme Court position, per Yahaya, JCA, that:
“The relationship between an employer and his employee is generally to be found in the service agreement or letter of employment.”
20. Reference was also made to the case of U.B.N. PLC V. SOARES (2012) 11 NWLR (PT1312) 550 @ 568 PARAS A, where Okoro, J.C.A held that:
“Generally, the document which regulates the relationship between an employer and employee is the service agreement or the contract of service and not a collective agreement.”
21. Counsel submitted that in the application of the Supreme Court decision in GBEDU V. ITIE (supra), ANAJA V. U.B.A. PLC (supra) and U.B.N. PLC V. SOARES (supra), exhibit C1 which is the Letter of employment of the Claimant is clear and unambiguous as it outlines the terms of contract that ought to be binding on both the Claimant and the Defendant. For purposes of emphasis and ease of reference paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of Exhibit C1, were, reproduced in the final written address.
22. Counsel submitted that a community reading of Exhibit C1 which is the Claimant’s letter of employment or terms of service as the case may be, accepted by the Claimant is all encompassing. It clearly states all the terms and conditions needed in order for the said document to be binding on both the Claimant and the Defendant. The question at this stage therefore is when or at what point can a collective agreement be said to be binding. Counsel submitted that this issue was decided upon by the Court of Appeal Ilorin Division, in the case of TEXACO (NIG) PLC V. KEHINDE (2001) 6 NWLR (PT 708) 224 @ 239 PARAS G, per Onnoghen, J.C.A (as he then was) that:
“... where a collective agreement is incorporated or embodied into the conditions or contract of service, it will be binding on the parties. Otherwise, No.”
23. It is submitted that a careful perusal of Exhibit C1 does not envisage any incorporation of Exhibit C3. Put differently, Exhibit C1 did not in any breath adopt the negotiated conditions of service in order for it to be binding on the Claimant and the Defendant. Counsel urged the court to so find and hold and further hold that the said negotiated conditions of service relied upon by the Claimant cannot form the basis of his suit as stated in paragraph 5 & 6 of his Statement of Facts. Counsel urged the court to dismiss the Suit of the Claimant.
24. It is also the submission of counsel that assuming without conceding that the Negotiated Conditions of Service/Collective Agreement made between AAEUN and the Defendant is binding between the Claimant and the Defendant, a cursory look at the Claimant’s pleadings, documents admitted and evidence elicited during cross-examination, it is obvious that the Claimant has not pleaded and or led evidence to prove that he is a member of the union (AAEUN) to be entitled to benefit from the reliefs he is claiming under the negotiated agreement made by the union. As during cross-examination questions thrown at the Claimant by the Defendant’s Counsel, the Claimant responded thus:
“Question: Exhibit C3 was negotiated between the company and AAEUN?
Question: you did not sign Exhibit C3?
Answer: I did not sign but the company signed.”
25. Counsel submitted that a careful look at the evidence adduced from the Claimant excerpt of which has been reproduced above, the Claimant has put nothing before this Honourable Court to show that he was a member of AAEUN, the union who negotiated the conditions he is claiming his reliefs under. To further bring home this point, we submit that in paragraph 5 of the Claimant’s statement of facts, the Claimant stated that: “The Claimant’s condition of service was governed by the negotiated conditions of service for workers agreed between the Negotiated Conditions of Service for Workers of Biase Plantations Ltd. and Eyop Industries Ltd. agreed between The Agriculture and Allied Employees Union of Nigeria (AAEUN) and the Management of Biase Plantations Ltd and Eyop Industries Ltd.”
26. Counsel submitted that there is no register, membership card, payment slip, pay roll to show deductions of union fee from his salary. Counsel urged the court to so find and hold.
27. Issue two; Whether having regards to his evidence, the claimant has proved his case to be entitled to the reliefs sought. In arguing this issue counsel submitted that it trite law that he who asserts must prove. The general rule of burden of proof in civil cases lies on that person who would fail if no evidence at all were adduced on either side. Counsel refers to the reliefs being sought and asked:
Has the Claimant in the circumstance of this case been able to prove that he is entitled to the reliefs sought?
28. According to counsel the answer to this question is a resounding NO. The law is trite that a claimant has to first prove his own case with cogent and credible evidence before the burden or onus shifts to the Defendant.
29. Counsel further submitted, having regards to the pleadings and evidence, the Claimant has not proved any of the sub-heads of his reliefs. As the crux of the Claimant’s case is that before dismissing him (the Claimant), the Defendant did not follow the conditions prescribed in the Negotiated Conditions of service which was negotiated between the Defendant and AAEUN. On duty on an employee alleging wrongful termination of employment, counsel refers to the case of ONWUSUKWU V. CIVIL SERVICE COMMISSION (2020) 10 NWLR 1731) 179 @ 200 PARAS D-F, where the Court of Appeal Owerri Division per Mbaba, J.C.A held that:
“It is the duty of an employee complaining of wrongful termination of employment to state the provisions of the statute that have not been complied with by the employer in the course of the discipline, whether terminating of his appointment or dismissal was wrong. Therefore, where an employee alleges wrongful termination or dismissal, the onus will usually be on him to prove wrongful termination or dismissal as the case may be”.
30. Counsel submitted that flowing from the above judicial decision, the logical issues to be considered in the circumstance of this case is, what are the terms of his employment/conditions of service as mutually agreed upon by himself and the Defendant and as contained in his employment letter is. The Claimant pleaded his employment letter admitted as Exhibit C1. However, he did not lead evidence as to the way and manner the terms and conditions of his employment was breached rather he based his assertions on the Negotiated Conditions of Service which he was not a member of. In support of his submission counsel placed reliance on sections 131, 132 and 133(1) of the Evidence Act, 2011 which deal with burden of proof resting on the person who asserts the existence of a claim to prove same and must fail, if he does not succeed in establishing the claim, it is clear that the Claimant from his pleading and evidence, has not proved why this Honourable Court should grant his prayers as contained in his statement of facts.
31. At this juncture counsel considers the reliefs sought by the Claimant.
32. Counsel refers to the second relief which is claiming “the sum of N5,000,000.00 being terminal benefit of the Claimant”. On this relief counsel refers to the case of JULIUS BERGER (NIG) PLC V. NWAGWU (2006) 12 NWLR (PT 995) 518 @ 542 PARA B, where the Court of Appeal Abuja Division per Rhodes-Vivour J.C.A stated that:
“Terminal benefits are sums of money which a party entitled to it has earned”.
33. It is the submission of counsel that the claimant is not entitled to terminal benefit, because he was the one together with his lawyer that computed the entitlement. The claimant and his lawyer computed his terminal benefit without the input of the defendant. The court of Appeal in the case of MAJOR EKUNDAYO AWOYOMI V. CHIEF OF ARMY STAFF & ORS (2015) ALL F.W.L.R. (PT 771) 15906 @ 1526, in considering the situation similar to the one at hand, the Lagos Division of the Court of Appeal per Iyizoba, J.C.A held that:
“Common sense alone dictates that in a situation such as occurred in the instant appeal, there has to be an avenue for the judgment debtor to challenge the amount the appellant computed on his own without any court order and without input from his employers who alone know the modalities for computation of entitlements of their employees”.
34. Counsel submitted that applying the above decision to the instant case, it is submitted that the Claimant and his Counsel do not have the powers to compute terminal benefits of the Claimant without giving the Defendant an avenue to challenge the amount the Claimant and his lawyer has computed. Counsel urged the court to so find and hold.
35. It is also submitted by the reason of Exhibit C1, the Claimant’s punishment for misconduct as provided for in Exhibit C1 which is the letter of employment is a dismissal and cannot be entitled to terminal benefits. Counsel urged the court to so hold.
36. Counsel argued that an employer has the right to retire and/or terminate the employment of his employee’s appointment for good, bad or no reason at all. The Court would therefore not foist an employee on an unwilling employer or make an Order of specific performance of an ordinary contract of service except there are special circumstances. Counsel supported this submission with the case of DR. BEN O. CHUKWUMAH V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (1993) 4 N.W.L.R (PT 289) 512 @ 560 PARA E-G, per Karibi-Whyte, J.S.C that:
“ It is well established principle of common law, and Nigerian Law, that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all. The Common law recognises and respects the sanctity of contracts. The Latin maxim pacta sunt servanda is a sacred doctrine for the preservation of contracts which is entitled to the greatest respect. Hence where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed. Ordinarily and consistent with the common law principle, the court will not impose an employee on an employer.”
37. It is submitted that the terms of service between the Claimant and the Defendant clearly states that:
“The company values honesty, integrity and moral conduct of its employee. As such, employee who is found to be dishonest or involved in any fraud or corrupt and immoral practice insubordination and/or other major misconduct will be liable to instant dismissal.”
38. During examination-in-chief, the Defendant tendered one Exhibit which was marked as D1 this was the investigation report which formed the basis upon which the Claimant was dismissed. This Court cannot therefore compel the Defendant to re-instate the Claimant as per his relief (s) counsel pray the court to so find and hold. And is not be entitled to his reliefs c and d.
39. On damages to be awarded the Claimant must have been wrongfully dismissed. In OSOH V. UNITY BANK PLC (2013) 9 NWLR (PT. 1358) 1 @ 34 PARA E, per Chukwuma-Eneh J.S.C it was held thus:
“...damages in an action of wrongful determination of employment can only follow events where termination is wrongful.”
40. Counsel submitted that the only document that binds the Claimant and the Defendant in the instant case is Exhibit C1. Exhibit C1, excerpt of which has been reproduced in paragraph 4.10 above states the conditions were an employee can be summarily dismissed. Exhibit D1 is the investigation report carried out before the Claimant was dismissed which connotes that the Claimant was dismissed in line with the provision of the terms and conditions contained in his employment letter. The Claimant as such is not entitled to general damages as claimed by him.
41. In concluding his submission counsel submitted that the Defendant in this final address has shown that the action of the Claimant must fail for having not been proved. Counsel urged the court to dismiss this suit with ignominy, and grant the Defendant substantial costs.
THE SUBMISSION OF THE CLAIMANT.
42. Leo Onuche, Esq; counsel for the claimant adopted the final written address of the claimant. In the final written address three issues were formulated for determination. They are:-
(a) Whether a party who participated in the making of a document for the benefit of its workers can later resile out from same.
(b) Whether from the totality of pleadings, law, and evidence led, whether the Claimant has established his case and is entitled to the reliefs sought.
(c) whether the Claimant has established his case and is entitled to the relief sought.
43. Issue one; whether a party who participated in the making of a document for the benefit of its workers can later resile out from same.
44. In arguing this issue counsel submitted that exhibit C3 being one of the exhibits tendered by the Claimant clearly represents a collective agreement containing conditions of service of workers of the Defendants creating obligations that is enforceable or otherwise recognizable at law. There is no doubt that there was or there is legal right and obligations between the Claimant and Defendant. See the case of Omojinmi v. Ogunsiji (2008) Vol. 3 WRN pg 115 @ 119 Held 2.
45. Counsel refers to definition of collective agreement in the Black’s Law Dictionary Tenth Edition:-
“A contract between multiple parties, especially where one side consists of many people or entities with a common interest, as when an association or other organization acts on behalf of its members”
46. According to counsel under cross examination, DW1, the Defendant’s lone witness admitted to being Administrative manager of the Defendant and at all material times Human Resource Manager and one Lee Kok Sen (General Manager) of the Defendant Company both participated in the making of Exhibit C3 and both duly signed same on behalf of the Defendant.
47. It is submitted with that it is a basic principle of law that extrinsic evidence will not be given to contradict, vary and alter the effect of a written contract. This position of the law has been made clear in Odogwu v. Oki 1(1990)5 NWLR (pt. 153) 721 @ 736 where the court of Appeal followed the reasoning of this court in Darocha v. Hussien (1958) SCNLR 280. The Judicial pronouncement in the two cases has found statutory backing in Section 128(1) (b) of the Evidence Act 2011. See also Idufueko v. Pfizer Prod. Ltd (2014) Vol. 41 WRN pg 1 @ 7 Held 3.
48. Counsel submitted that in determining the rights and obligations and the parties to a contract, the court must respect the sanctity of the contract made by them. Exhibit “C3” tendered by the Claimant is the evidence of collective agreement entered by the parties. They are bound by the terms thereof and the court will not allow a party to resile out of the said agreement. Counsel urged the court to so find and Hold.
49. Counsel argued that the rights, duties and obligations of the parties must reasonably and lawfully be construed within the ambits of the said document. See: Koiki v. Magnuson (1999) 8 NWLR (pt. 615) 492, Union Bank (Nig.) Ltd. V. Umeh & Sons Ltd (1996) 1 NWLR (pt. 426) 565.
50. Counsel refers to exhibit C3 particularly Articles 33 and submitted that it reveals that the Claimant is duly entitled to reliefs 1, 2 and 5 as per its complaint.
51. Counsel refers to Isheno v. Julius Berger (Nig.) Plc (2008) Vol. 23 WRN (pg 35 @ 41 Held 7, and submitted that “terms and conditions of service in a Labour agreement, are concise and precise and so stated in the agreement. A court of law will therefore not find it difficult to grant a relief based on the labour agreement, if the Plaintiff pleads it.
52. Issue two; whether from the totality of pleadings, law, and evidence led, whether the Claimant has established his case and is entitled to the reliefs sought.
53. In arguing this issue counsel submitted that the relationship between the Claimant and the Defendant is governed by Exhibit C3, the negotiated condition of service for Workers of Biase Plantation Ltd and Eyop Industries Ltd. Both parties agreed to the terms contained in the aforementioned handbook.
54. The Claimant was employed by the Defendant on the 01/09/2013 and worked with the Defendant till 11/02/2019 when the Chief Magistrate Court dismissed the charges preferred against the Claimant at the instance of the Defendant for want of evidence and the Claimant was discharged and acquitted. The Claimant was in the Defendant employment for a period of six (6) years.
55. The Claimant in paragraphs 5, 6 and 7 and paragraphs 6 and 9 of its complaint and Written Statement on Oath consistently maintained that its condition of service was governed by Exhibit C3.
56. The Defendant witness under cross examination on the 01/06/2022 admitted to the existence and being a signatory to the C3 and could not also show to the court any document stating that exhibit C3 shall not apply in the instant case. Further to the above, the Defendant could not also show or establish that the Claimant is not entitled to the benefits as per exhibit C3.
57. Counsel refers to the provisions of Section 131(1) and (2) and Section 132 of the Evidence Act 2011 and submitted that it is settled law that;
“Whoever desires any court to give judgment as to any legal right or liabiliy dependent on the existences of fact which he asserts shall prove that those facts exists”.
“When a person is bound to prove the existence of any fact, it is said that a burden of proof lies on that person”.
“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side”.
58. According to counsel in the instant case, the Claimant had pleaded and led un-contradicted evidence as to the existence of exhibit C3 which governed the condition of services of the Claimant and the Defendant. The forgoing facts have not been contradicted by the Defendant throughout the period of the trial. The law is trite that the court is enjoins to act upon unchallenged evidence. To support this submission counsel relied on the case of Kayili v. Yiibuk (2016) Vol. 6 WRN pg. 53 @ 64 Held 8.
59. It is further submitted that the court can only act on the basis of evidence placed before it and nothing more. See: Bisola (Nig.) Ltd v. Mainstream Bank Ltd (2014) Vol. 12 WRN pg. 81 Held 2.
60. Counsel continued his submission that under the negotiated condition of service exhibit C3; Articles 33 (d) and Article 51 clearly stipulates circumstances upon which the Claimant can validly claim entitlements. The Claimant in this case had been in the employment of the Defendant from 2013 till 2019 well over 5 years but under 10 years thus entitled to serve gratuity for one and half (11/2) month gross pay for every completed year of service. See: Article 33 (d) and Article 51 respectively.
61. Counsel submitted that the Claimant through his solicitors at different occasions wrote to the Defendant on 06/03/2019 and 06/06/2019 demanding the payment of Claimant’s salary and benefits in line with Articles 51 and Articles 33(d) respectively of Exhibit C3. The Claimant Solicitor’s letter was tendered in evidence as Exhibits 5 and 6, this demand was never adhered to by the Defendant.
62. It is the submission of counsel that in line with the stated provisions above of exhibit C3, the negotiated condition of service for workers of Biase Plantations Ltd and Eyop Industries Ltd Agreed between the Agriculture and Allied Employers Union of Nigeria and the Management of Biase Plantations Ltd and Eyop Industries Ltd, the Claimant is legally entitled to all the reliefs sought.
63. It is also submitted that the Claimant on the 02/11/2021 duly tendered exhibit C3, without objection nor its existence was ever contested. To corroborate this position, the Defendant’s lone witness on the 01/06/2022 admitted being signatory to the exhibit C3. The Defendant’s lone witness also further admitted under cross examination that when management takes a decision it binds all its employees.
64. It is further submitted that the Defendant did not also show or lead evidence to show that exhibit C3 shall not apply to the Defendant’s workers. The Defendant in its failed attempt could not prove documentarily whether the Claimant was a Senior Officer in its employment. counsel urged the court to so find and hold that where the Defendant has fail to prove the seniority status of the Claimant in its employment, exhibit C3 shall prevail in the circumstance in favour of the Claimant.
65. Counsel submitted under cross examination, the Defendant lone witness admitted to constituting investigative panel that submitted its reports allegedly indicting the Claimant which was later dismissed by the Chief Magistrate Court, Akpet Central for want of Prima Facie case against the Claimant. The witness admitted that the panellists were staff of the Defendant and at all material times during the currency of their investigation were receiving their wages from the Defendant. The question that naturally flows from the forgoing is whether a person can be a judge in his own case (Nemo Judex incausa sua). Counsel answered in the affirmative No.
66. Counsel submitted while exhibit C10 lasted, the Claimant’s meagre entitlements till date has not been released to him. The Claimant by exhibits C5 and C6 had engaged the services of lawyers to drive home the injustice meted on him. He paid for the Solicitor’s services and filed the necessary court processes. During the criminal trial at the Chief Magistrate’s Court, Akpet Magisterial District, Biase Local Government Area over a frivolous charge orchestrated by the Defendant.
67. It is the submission of counsel that by the National Industrial Court Act, 2006 particularly at Section 40 this Honourable Court have full power to determine by whom and to what extent the costs are to be paid. Counsel placed reliance on the provision of Section 40 of the Act and urge the Court to award Two Million Naira (
N2,000,000.00) cost of action to the Claimant.
68. Counsel submitted that it is trite principles of law that documents such as exhibit C3 are to be construed in their ordinary and grammatical meanings, to this end, the words used in the document must be given their ordinary meaning in the context in which they appear and in no circumstances may new and extraneous words be imported into the text of the document except the document would be incapable of meaningful interpretation without the additional words being incorporated into the text.
69. Counsel insisted that the court must give full interpretation to the portion of the document relating to the issue before it, as it is the cardinal principle of interpretation of documents that parties are presumed to have intended what is contained in a document to which they have subscribed. In support of this submission counsel relied on the Maximum Insurance Co. Ltd v. Owoniyi (1996) 1 NCLC (pt 1) 141 @ 145 Nwegbu v. Nwegbu (2017) Vol. 52 WRN pg 157 @ 159 Held 2.
70. Counsel urged the court to in view of the evidences presented before the Court, grants the claim of the claimant.
71. In response to the final written address of the claimant the defendant filed reply on points law, wherein responses were made to the issues raised in the claimant’s final written address.
72. Counsel submitted that contrary to the argument of Claimant’s Counsel in issue 1 of his final written address particularly paragraphs 2.2 to 2.7, that it is not in doubt that there is a relationship between the Claimant and the Defendant. The contention of the Defendant is that, the basis of employee, employer relationship in an employment is the contract of service. In the instant case Exhibit C1 which is the letter of employment and not Exhibit C3 as claimed by the Claimant. This position of the law was reiterated in the Court of Appeal decision of UNITED BANK PLC V. ADEMILUYI (2013) LPELR-21984 PP 22-23 PARAS E-B, per Saulawa, JCA (as he then was now JSC) held thus:
‘As a matter of principle, a collective Agreement is not in any way meant to supplement an employer’s contract of service. Undoubtedly, it’s the service agreement or the conditions of service that regulate ay meant to supplement an employer’s contract of service (govern) the relationship between an employer and the employee thereof.
73. On issue two, counsel submitted that the burden of proof shall be discharged by the Claimant on the balance of probabilities or preponderance of evidence and not on the weakness of the case of the Defendant. The Claimant in his pleadings and evidence relied only on exhibit C3 but never led evidence to establish the relationship between him and the said exhibit C3 or effect or it’s bindingness on him. The said exhibit C3 is worthless to the Claimant’s case as there is no connection between the Claimant and exhibit C3.
74. In reply to the argument at paragraph 3.7 of the Claimant’s final written address, counsel align his submissions with the said paragraph particularly, in the cited authority of BISOLA (NIG.) LTD V. MAINSTREAM BANK LTD (2014) VOL 12 WRN PG. 81 HELD 2 and submit that this Honourable Court acts on the basis of the evidence placed before it as the Claimant has not shown that he is a member of exhibit C3 to avail him of the benefits provided for in exhibit C3. It is submitted that the existence of exhibit C3 is not in doubt the contention of the Defendant is that the said exhibit C3 does not apply to the Claimant and in effect he cannot rely on same to claim any relief against the Defendant.
75. Contrary to the argument canvassed in paragraphs 3.12 and 3.13 of the Claimant’s final written address, it is submitted that the purpose of the Disciplinary Committee set up by the Defendant was to take disciplinary measures against workers for gross misconduct or fraud or poor performance or other related matters of discipline, the decision or report of the Disciplinary committee was independent of the decision of the Court, this is contrary to the Claimant’s claim. The Disciplinary Committee as a prerequisite followed due process by ensuring that hearing was fair.
76. It is submitted that the argument in paragraph 3.13 and 3.14 cannot avail the Claimant as this Honourable Court does not base its decisions on mere sentiments but on the evidence before it. This was the position of the law in the authority cited by Claimant Counsel in BISOLA (NIG.) LTD V. MAINSTREAM BANK LTD (supra). Counsel urged the court to so find and hold.
77. In concluding his submission counsel submitted that the Claimant’s argument and authorities cited in Claimant’s final written address, rather supports the Defendant defence. Counsel urged the court to discountenance the reliefs sought by the Claimant as they are unmeritorious and gold digging.
78. I have considered the processes filed in this suit, the evidence led by the parties, as well as the written and oral submissions of counsel for both parties.
79. The claimant’s claim as endorsed at paragraphs 17 of the statement of facts, which have been captured earlier in this judgment, clearly shows that reliefs a, b and c, are for outstanding salary arrears, N5,000,000.00 terminal benefit and N2,000,000.00 cost of litigation, these reliefs being monetary in nature are in law claim for special damages. See 7UP Bottling Company Plc v. Augustus  LPELR-20873(CA) page 35 paragraphs BE, per Abba Aji, JCA (now JSC) held thus:
‘‘The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.’’
80. On success of claim for special damages, the Supreme Court in the case of NNPC V CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174, stated as follows:
"A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357."
81. Stressing further on the need to strictly prove special damages, the apex Court in the case of NEKA BBB MANUFACTURING CO. LTD V AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt 1) 32, it was held:
‘’Where the claimant specifically alleges that he suffered special damages, he must perforce prove it. The method of proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable so that the opposing party and the Court will see and appreciate the nature of special damages suffered and being claimed.
82. The trite position of the law as restated in the above decisions is that a claim for special damages being exceptional and specific in nature, can succeed only upon concrete proof and not upon admission, either implied or express. Put differently, because special damages are exceptional and specific in nature, they will not succeed and will not be granted as a matter of course upon admission, express or otherwise, even where it is specifically pleaded as required by the law, as it must be proved strictly.
83. The law is also trite that a claim is circumscribed by the reliefs claimed by litigant. The court that adjudicates is bound to limit itself to the claim before it. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd  LPELR-591(SC);  10 NWLR (Pt. 1095) 399;  5 - 6 SC (Pt. II) 47: The duty of a claimant in an action therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same.
84. It is clear from the above decision that courts of law are not charitable organisations for the purpose of offering reliefs unsolicited for by parties. Parties must, as of law, make their specific claims concisely presented before the court for consideration and determination. It is those reliefs and only those reliefs claimed on appropriate consideration that will be awarded the successful party. As a trite principle of law, courts have no power to grant a relief that is not claimed by a party and which is not in any way incidental to the reliefs sought. A court is bound by the claims of parties and must restrict itself within the ambit of the claims, and grant the reliefs claimed and not go beyond or outside them, for doing so will be granting reliefs not claimed. See A.-G., Federation v. A.I.C. Ltd. (2000) 10 NWLR (Pt. 675) 293; U.T.A. French Airlines v. Fatayi-Williams (2000) 14 NWLR (Pt. 687) 271, Ekpenyong v. Nyong (1975) 2 SC 71; Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532; African Technical Services (Nig.) Ltd. v. MIA & Sons Ltd. (2000) 15 NWLR (Pt. 692) 730, Akinyanju v. Unillorin  7 NWLR (Pt.923) 87.
85. In any event, the court and parties are duty bound to adhere to the claim before the court and any extraneous matter not claimed and averred to as facts before the court cannot be adjudicated on. A court is competent to adjudicate over a claim when it is properly initiated. Similarly, a counsel cannot raise a claim in his written address or brief. The submission of learned counsel must be based and founded on the case of the claimant. The court cannot in considering submission of parties make an order that is not a claim before the court. see Tukur v. Govt., Taraba State (1997) 6 NWLR (Pt. 510) 549; Gafar v. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375.
86. In view of the foregoing principle of law on claim before the court, this court’s duty is to adjudicate between the parties on the basis of the claim formulated by them. The court has no business going outside the reliefs of the parties. Thus, a party cannot and should not be allowed to make a case different from his relief before the court. see Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Abbas v. Solomon (2001) 15 NWLR (Pt. 735) 144.
87. In determining the claim of the claimant, I shall be bound by the five reliefs being sought by the claimant. However, I shall start by considering relief ‘e’ which is for an order of court directing the defendant to re-instate the claimant to his rightful position.
88. By this relief the claimant seems to be saying that he is still an employee of the defendant. The law is well settled that an employee whose appointment is terminated or is dismissed from service cannot reject such step taken by his employer and regard his employment as still subsisting. An employee even if his termination or dismissal by his employer is in breach of his contract of service, the remedy is not in specific performance of the contract but rather for damages for breach. Where termination or dismissal is not in compliance with the terms and conditions service, the termination or dismissal will be wrongful but certainly not null and void. The rationale for this principle stems from another principle postulating that the court will not foist an unwilling employee on employer on a willing employer. See Adebayo Sunday Joseph & Ors. V Kwara State Polytechinic & Ors. (2013) LPELR-21398(CA).
89. For a contract of service which has no statutory flavour like the one under consideration, an employee cannot be ordered to be reinstated, as the primary and invariably the only remedy available to an employee whose contract was wrongfully brought to an end is damages. Therefore, a claimant has a duty to properly frame his cause of action to reflect the appropriate remedy available to the breach being complained of. The right to enter and exit a master/servant relationship is a voluntary one. There is also free entry and exit from same. Even in the unfortunate event where a party to such a relationship decides not to comply with the terms as agreed upon, no court will compel compliance or order specific performance of contract of personal service. See Katto V CBN (1999) 5 SCNJ 1; Idoniboye-Obu V NNPC (2003) 1 SCNJ 87. This means the law will not impose an employee on employer and vice versa. Hence, an order for specific performance of contract of employment is an aberration which is rarely made. The common law principle on termination or dismissal of an employee of a contract of service even if unlawful has the effect of bringing to an end the relationship of master and servant, employer and employee. See CHUKWUMAH V SHELL PETROLEUM DEV. CO. NIG. LTD 1993 4 NWLR PT.89 512.
90. Applying the above principles of law to the case at hand I hold that the dismissal of the claimant by the defendant has effectively ended the relationship of master and servant between the claimant and the defendant. In the instant case the claimant employment not being one that enjoys statutory flavour, relief for re-instatement is not an appropriate relief to be sought before the court. The claimant woefully failed to prove entitlement to an order of reinstatement in the circumstances the relief is hereby refused.
91. I now turn to relief ‘a’ which is for payment of outstanding salary arrears at the rate of N51,000.00 per month from 21/3/2017 to 11/2/2019 totalling the sum of N1,224,000.00. The facts relied by the claimant to prove entitlement to his relief are that he was employed by the defendant as per exhibit C1, after undergoing probation his employment with the defendant was confirmed as per exhibit C2. Vide exhibit C9, the claimant had his salary increased from N25,000.00 to the sum of N51,000.00 per month with effect from 1/1/2016. It is the case of the claimant that he was dismissed from service vide exhibit C11, letter dated 21/3/2017, without regard to exhibit C3. Vide exhibit C10, the claimant together with another person were charged before magistrate court. The trial of the claimant lasted for a period of two years from 2017 to 2019, at the end of which the claimant was discharged and acquitted on 11/2/2019, as per exhibit C12. Thereafter, his lawyers wrote to the defendant demanding payment of his salary to date, but the defendant failed and neglects to comply with the demand.
92. In seeking for grant of relief ‘a’ the claimant relied on exhibit C3, the negotiated conditions of service for workers of Biase Plantations Ltd and Eyop Industries ltd, agreed between the Agriculture and Allied Employees Union of Nigeria (AAEUN) and the Management of Biase Plantation Ltd and Eyop Industries ltd. The claimant insisted that he is entitled to benefit from exhibit C3 being employee of the defendant, since the defendant signed the said agreement through its staff including DW1. The claimant further stated that by exhibit C3 any employee of the defendant charged with criminal offence, the employee shall be suspended from duty and if discharged and acquitted, the decision of his re-engagement shall be at the discretion of the management, if the management decide not to reengage him he shall be paid up to date of discharge including his terminal benefit.
93. The claimant maintained that his employment is governed by exhibit C3. While the defendant insisted that the claimant is not entitled to benefit from exhibit C3, as he is not a party to it.
94. For relief ‘a’ to be determined, it is imperative to consider the applicability of exhibit C3, to the employment of the claimant and his entitlement to make claim based on it. In contract of employment the relationship between a master and his servant or an employer and his employee is a contractual one and is governed by the terms and conditions of the contract between them. This means, an employee is only entitled to make claims from his employer based on stipulations contained in the terms and conditions of the contract. See NWAUBANI V GOLDEN GUNEA BREWERIES PLC (1995) 6 NWLR (Pt.400) 184.
95. However, it must not be forgotten that a contract of service, is a relationship entered into between two or more persons employer and employee (master and servant) whereby the employee or servant agree to serve the employer or master and to be subject to the control of the master either for a fixed term or a term of indefinite duration in return for a benefit i.e. payment of salary or wages. See Nigeria Airways V Gbajumo (1992) 5 NWLR (Pt.244) 735.
96. The evidence before the court shows that the claimant was employed by the defendant as a supervisor, his employment was confirmed as per exhibit C2 and his salary increased as per exhibit C11. It was the case of the claimant that exhibit C3, governed his appointment. The point of disagreement between the parties is on exhibit C3. The claimant insisted that exhibit C3 is the appropriate terms and conditions of service governing the employment relationship between him and the defendant and can rely on it to make claim against the defendant. While the defendant maintained that exhibit C3 is not applicable to the claimant’s employment.
97. Exhibit C3 being product of collective bargaining is collective agreement between the trade union unionizing workers of the defendant and the defendant and another entity by name Eyop Industries Ltd.
98. One thorny recurring issue whenever reliance is placed on collective agreement to make claim is the legal status of the collective agreement i.e. legal enforceability or justiciability of the collective agreement in question. The precise legal status of collective agreement will revolve around both common law principles regulating formation of contract enforceable at law and statutory provisions. Generally collective agreement is non-justiciable and devoid of legal sanction. See Texaco V Kehinde, Nwajugu v BAICO (2001) 14 NWLR (Pt.687) 356. One of the reasons for the general position of the law is that there is usually no intention to create legal relations by the parties to the agreement, which is a cardinal requirement for an enforceable contract. Thus, why collective agreement is regarded as ‘gentleman’s agreement, an extra legal document devoid of sanctions, which is a product of trade unionists’ pressure. See Nigeria Arab Bank Ltd V Shuaibu (1991) 4 NWLR (Pt.186) 450.
99. However, there are recognized exception to the general rule on non-justiciability of collective agreement. In ACB V Nwodika (1996) 4 NWLR (Pt.443) 470. The court stated that;
‘‘As regards collective agreements, … whether they are binding on the individual and employer depends on a number of factors such as their incorporation into the contract of service if one exists, the state of pleadings, the evidence before the court and perhaps the conduct of the parties.’’
100. In all the instances enumerated by the court, the collective agreement would have been incorporated or adopted, expressly or impliedly, as part of the contract of employment between the parties. See Mrs. Risi Shuaibu V Union Bank of Nigeria Plc (1995) 4 NWLR (PT.388) 173, Abalogu V SPDC (supra).
101. In contemporary labour jurisprudence, more particularly the constitutional arrangement that exclusively conferred jurisdiction on this court on employment, labour and industrial relation matters, there is shift from the general attitude of the law of contract to collective bargaining and collective agreement. By virtue of section 254C(1) (j) (i) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), this court has jurisdiction in terms of the interpretation and application of any collective agreement. However, for this jurisdiction to be exercised in favour of an employer, the employee must provide evidence and convincingly prove membership of the trade union which is party to the collective agreement based on which claim is being made. In the eyes of the law a non-member cannot enforce to his benefit a collective agreement entered into by a trade union that he is not a member of; neither can he have it enforced against him. Proof of membership has to be by direct evidence. In Habu V NUT Taraba State (2005) 4 FWLR (Pt.283) 646, the court held that the deduction from salaries and wages as check-off dues of a worker and the remittance of same to a trade union is an incidence of membership of the worker and not conclusive evidence of membership.
102. For the claimant in this case to rely on exhibit C3, to press home his claim for outstanding arrears of salary, he has the onerous duty to establish that he is a bona fide member of the Agriculture and Allied Employees Union of Nigeria (AAEUN). I have deeply examined the pleadings of the claimant, there is nowhere the claimant pleaded his membership of the trade union. In the circumstances, exhibit 3, is not applicable to the claimant’s employment with the defendant. Furthermore, there is nowhere the terms of exhibit C3, was expressly or impliedly incorporated into the service of the claimant. There is also no evidence to show that the parties have agreed to be bound by exhibit C3.
103. The claimant has not equally told this court the status of his employment whether he was a junior or senior member of staff of the defendant, if that had been done it would have made it easier for the court to find out if the status of the claimant is one that is deemed to be member of the trade union or one that he has to opt in.
104. In making claim as per relief ‘a’ the claimant heavily relied on Article 33(c) of exhibit C3, where it provides:-
‘‘When however an employee is accused of criminal conduct he may be suspended from duty without pay pending final investigation which should not last for more than one calendar month. The appropriate administrative department in the company will then be informed and at the same time the employee concerned shall be asked to write his explanation which should be forwarded along with his sectional manager’s recommendation, if such employee is exonerated all such remuneration as wages due to him shall be paid to him and the employee shall be automatically reinstated.
(d) if any employee is charged with a criminal offence by the civil authority, he shall be suspended from duty and if discharged and acquitted he shall be treated as contained in (c) above. If the management decides not to re-emgage him/her the management shall pay him/her up to the date of discharge including his/her terminal benefit.
105. The provisions of article 33 (c) and (d) of exhibit C3, quoted above are very clear and unambiguous. The provisions deal with suspension of employee who has been accused of criminal conduct or charged with a criminal offence before a court of law. There no iota of evidence adduced by the claimant to show that the defendant suspended the claimant from work upon being accused of criminal misconduct or upon been charged before the Magistrate Court for a criminal offence. Rather what is before the court is the evidence of dismissal of the claimant from the services of the defendant on 21/3/2017, as per exhibit C11. And curiously there is no relief before the court where the claimant is challenging the validity of his dismissal from service as per exhibit C11. This means that with the dismissal of claimant from service he cannot be entitled to salary from the date of dismissal to when he was discharged and acquitted. The reason being that in master and servant relationship once the contract has been brought to an end, even if wrongfully the employee cannot treat such employment to be subsisting. See WAEC V Oshinebo (2006) 12 NWLR (Pt.994) 258.
106. It is also settled law that an employee whose employment has been terminated or dismissed cannot claim salary for the periods he was no longer in the employment. See Spring Bank V Babatunde (2012) All FWLR (Pt.609) 1191 @ 1205, Obot V CBN (1993) 1 NWLR (Pt.310) 140.
107. It is patently clear from the foregoing that the claimant by the provision of exhibit C3, which he relied to claim salaries, he is not entitled to make such claim for having not proved that he was on suspension in line with the provisions of exhibit C3, as at the date of his discharge and acquittal. Therefore, this head of clam failed for having not satisfied the requirement of particularization and strict proof, same is hereby refused.
108. Reliefs ‘c’ and ‘d’ are ancillary reliefs based on a main or major reliefs in this case. They depend on grant of the main reliefs. Therefore, the main or principal reliefs sought by the claimant having failed, the ancillary or associated reliefs would also fail having no foundation. See Nwaogu V Atuma Adeogun V Ekunrin Nobore Properties Ltd V Peace Cover Nig. Ltd . The failure of the main reliefs means failure of the ancillary relies, in the circumstance of this case reliefs ‘c’ and ‘d’ being ancillary reliefs are hereby refused due to refusal of the main reliefs to which the ancillary reliefs derived their strength.
109. On the whole, the claimant having not been able to prove entitlement to any of the reliefs being sought from the court by cogent, compelling and credible evidence, his claim failed same is hereby dismissed for lacking in merit.
110. I make no order as to cost.
111. Judgment is hereby entered accordingly.
Attah Ochinke, Esq; for the defendant.