Akauve Moses Osoh Vs Unity Bank Plc (2013)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, JSC

The plaintiffs, forty one (41) of them in this action in the trial court are Senior staffers and former employees of the 1st defendant and are the appellants in this appeal. The 1st defendant at the trial court is now the sole respondent in this court as the appeal against the 2nd defendant has been discontinued, it is not contested in the matter that the appellants, each of them, have put in various years of length of service not below ten (10) years in their PAGE| 3 respective employments with the respondent. By identical letters dated 12/11/94, their respective employments with the respondent have been terminated on the ground that their services are no longer required and as alleged in the said letters their individual accounts have to be credited with a months salary in lieu of notice, which has been paid much later. The plaintiffs have initiated the instant action for the wrongful termination of their respective employments in the Edo State High Court holden at Benin-City. Pleadings have been filed and exchanged. The plaintiffs have claimed as set out in their amended joint statement of claim the following reliefs: (i) A declaration that pursuant to the agreement reached on 27/2/92 between the first defendant and the Association of senior Staff of Banks, insurance, and Financial institutions (New Nigeria Bank Pic Unit) being the statutorily recognized sole collective bargaining agent authorized to negotiate on behalf of and to represent the plaintiffs, being senior staffers of the first Defendant before the purported termination of their respective employments, the respective pension and gratuity rates should take cognizance of their basic salary, housing, transport and luncheon allowances (i.e. total emolument) and not basic salary only as is being offered to the plaintiffs by the 1st Defendant. (ii) A declaration that pursuant to the main collective agreement between the Nigeria Employers Association of Banks, insurance and Allied institution and the Association of Senior Staff of Banks, insurance and Financial institutions which sets out the conditions regulating the plaintiffs employment with the first Defendant currently under the management and control of the 2nd Defendant, the plaintiffs employment with the first Defendant employment is only properly determinable under Article 5 thereof on redundancy and their entitlement calculated and paid as provided thereunder. (iii) An order of mandatory injunction directing the 1st Defendant currently being managed and/or supervised by the 2nd Defendant to pay the plaintiffs their outstanding benefits (as is more particularly set out in the particulars of special PAGE| 4 damages set out in the Appendixes 1-14 annexed hereto with interest at 21% from February 1994 til! judgment is delivered in this case and thereafter at 10% till the entire sum is paid up. (v) N5 million damages to each of the plaintiffs for unlawful termination of their employment. ALTERNATIVELY (a) A declaration that the first Defendants letters dated 12/1/94 to each of the plaintiffs purportedly terminating their respective employment is contrary to the main collective agreement between the Nigeria Employers Association of Banks, insurance and Allied institution and the Association of Senior Staff of Banks, insurance and Financial institution setting out the conditions of service of the plaintiffs and is thus manifestly unlawful, null, void and unenforceable. (b) A declaration that the plaintiffs are still in the employment of the 1st Defendant which is currently being managed and/or controlled by the 2nd defendant and are thus entitled to ail their salaries, allowances and increments from 12/1/94. (c) An order directing the 1st Defendant to deduct all or any sums of money unlawfully and unilaterally credited to the plaintiffs respective accounts as indicated in their letters of purported termination save for the due accruals to the plaintiffs by way of salaries allowances were unlawfully declared as terminated by the first Defendant. The plaintiffs win at the trial found ana rely on all documents, letters, books memoranda and entries relevant to this case at the hearing, in proof of their claims.’ The aggregate monetary reliefs that have been claimed in the suit by each of the 41 PAGE| 5 plaintiffs are as set out at pages 76-122 of the record. Save to say that by 1993 the 1st defendant has become unhealthy financially as a result of which the 2nd defendant (i.e. the Central Bank of Nigeria) has moved to take over the management of the Bank to avert its total crashing into liquidation as a Bank. The measures that have been put in place in that exercise have led to the reduction of the workforce of the Bank which has necessarily affected the plaintiffs hence the issuance of termination letters to each of them on payment of one month salary in lieu of notice to everyone of them. The plaintiffs have brought this action having been aggrieved by the alleged wrongful termination of their respective employments. Pleadings have been filed and exchanged and the case has proceeded to trial at the end of which the trial court has found for each of the plaintiffs respective benefits and entitlements as contained in their respective claims. See pages 76-112 of the record. The claim for general damages has been dismissed as not proved. The 1st defendant being dissatisfied with the decision of the trial court has appealed the decision to the lower court. The plaintiffs have also cross-appealed the refusal of the trial court to grant to each of the plaintiffs any general damages based on the delay in paying one month salary in lieu of notice to each of the plaintiffs at the time of notification of terminating their respective employments, it is worthy of note that there is a consensus that the said payments that is to say the one month salary In lieu of notice have much later been paid to each of the plaintiffs although several months after the letters terminating their respective employments. The lower court has in upholding the appeal of the 1st defendant set aside the entire decision of the trial court which has awarded the plaintiffs their respective claims as perverse and it has also dismissed the cross-appeal filed by the plaintiffs for general damages on the basis that the termination of the appointments of the plaintiffs/respondents has not been wrongful. The plaintiffs who are the appellants in this court aggrieved by the decision have now appealed the decision of the court below given in favour of the 1st defendant now respondent PAGE| 6 in this court by a Notice of Appeal filed on 11/4/2001 containing 4 grounds and an additional grounds of appeal filed by leave of court. I must note that the appellants have dropped the Central Bank of Nigeria, the 2nd defendant in this matter hence it has not featured in this appeal, in accordance with the Rules of this court the appellants and respondents have filed and exchanged their respective briefs of argument in this appeal. The appellants have raised four issues for determination as follows:- ‘1. Whether the Court of Appeal was right in finding that Exhibits D, F, J1 – J5, N and P were minutes of meetings or in the category of Exhibit G and as such gentlemen agreement which are not justiciable. 2. Whether or not the court below was right in finding that for item 14 Exhibit J2 to be enforceable, it must be incorporated in the appellants termination letters of 12/1/94. 3. Whether or not the court below was right to find that the award by the High court of gratuity and pension based on total emolument predicated on Exhibits D, F, J5, N and R is perverse. 4. Whether the Appellants were not entitled to an award of damages in consequence of the failure to pay their respective entitlements at the time of the termination of their respective employments.’ The respondent has filed a brief of argument on 2/11/2001 in which it has adopted the four issues as formulated by the appellants, which have been similarly replicated in their further Amended brief of argument deemed filed on 18/11/2011. Let me digress a bit, based on a complete overview of this case to note that the respondent having been granted leave to file and argue a ground of appeal on the issue of jurisdiction of the trial court to hear and determine this suit ab initio has cross-appealed the lower courts decision dismissing that ground of appeal as set out at page 367 of the record, i will come to it anon. Even though the issue of jurisdiction which in principle ought and should PAGE| 7 be dealt with firstly as borne out by a plethora of authorities my reason for stepping it down in this judgment will become manifest in the conclusions have reached on that issue later. On a critical look at the four issues for determination as identified by the appellants in this appeal it is clear that issues 1, 2 and 3 again considered on an overview of this matter are inter related not only as they concern the findings of the lower court that Exhibits D, F, JI – J5, N and P1 are collective agreements between the joint consultative committees of the employers representatives and employees representatives (i.e. the collective parties) in this matter. These agreements as contained in the aforesaid exhibits are also collective agreements in the category of Exhibit G, the official Handbook titled ‘Main Agreement between the Nigeria Employers Association of Banks, insurance and Allied institutions and Association of senior staff of Banks, insurance and Financial institution’. More importantly, the various agreements contained in Exhibits D, F, J1 – J5, N and P1 relate to specific issues of staff welfare etc. Following from the above preamble l must state before hand that to discuss issues 2 and 3 as formulated by the appellants in this matter in my view has to depend on holding that Exhibits D, F, J1 – J5, N and P1 do constitute agreements raising contractual obligations enforceable at law by the appellants. Meaning that the respondent is contractually bound to the appellants to perform the terms of the agreements contained in Exhibits D, F, Ji – J5, N and P1. The lower court has rejected as perverse the legal enforceability of the terms of these collective agreements in Exhibits D, F, J1 – J5, N and P1 not only as between the collective parties this is to say the employer and New Nigeria Bank Pic unit of the union but also as between the individual appellants as employees and the respondent as the employer. And it seems to me sound enough. From the above surmises it is my view that I take issues 1, 2 and 3 together at one fell swoop to avoid being repetitive. Further to the foregoing what is important in discussing the 3 (three) issues raised for determination herein together as it appears to me is that it is not necessary discussing the question whether the respondent in dismissing the appellants has or has not acted in violation of these agreements in exhibits D, F, J1 – J5, N and P1 as such; and thus arising therefrom that the respondent has breached the appellants rights if at all enforceable at law against it. I do not think that whether or not the respondent has violated these agreements even on the peculiar PAGE| 8 facts of this case should really come into any contention in this case. And so, this appeal has to be proceeded with by conceding the alleged violations in the appellants favour, in that vein the respondent is taken to have acted practically in violation of these.agreements.as contained in the said exhibits. This then leads to the most outstanding question in the appeal of whether the respondent ab initio is contractually bound to the plaintiffs/appellants according to the terms of these agreements as contained in the said exhibits. This is because the appellants legal rights of suing in this matter for the alleged breaches as regards the terms of the agreements as contained in the said exhibits are clearly predicated on that footing. See: Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 at 690 and Ogbuehi v. Governor of imo state (1995) 9 NWLR (Pt.417) 53 at 85. In this respect the next step is premised on whether the appellants have established that their respective contracts of employment have included, indeed have incorporated theses agreements so as to make them enforceable at their suit against the respondent, in that sense once the poser is answered affirmatively the instant action having been predicated on the evidence of having breached their contractual obligations as per the said agreements the claims of the appellants in this suit must succeed otherwise the action must fail. I therefore embark on discussing this matter by taking the question of violation of these agreements in the appellants favour. In this regard the trial court, on the one hand, has granted totally the appellants rights entitling them to their respective reliefs as claimed; and as I have commented above it has also refused the claim as to general damages. The lower court, on the other hand, in reversing the decision of the trial court in this matter has not found the agreements as contained in these exhibits as properly establishing any legal relations giving rise to any enforceable contractual liabilities as between the respondent and the appellants severally in this matter. I now pause here to come to discuss the three issues in the appellants joint brief of argument. It is their submission that Exhibits D, F, J1 – J5, N and P1 are binding agreements between the instant parties as they are collective agreements between the management of the respondent and Association of senior staff of Banks, insurance and Financial institution (New Nigeria Bank Pic Unit) as Exhibit C – the Main Collective Agreement. PAGE| 9 The appellants have argued in their joint brief of argument that where the terms of a collective agreement have been adopted at the level of the employer and the New Nigeria Bank Pic unit as representing the employees that the agreements become automatically binding and enforceable at law as between the instant parties as the agreements have formed part of the terms of their respective employments; they refer to and rely on Union Bank of Nigeria Ltd & Anor. v. Mrs. F. F. Edet, and Abalogu v. The Shell Petroleum Development Co. of Nig. Ltd. (2003) 13 NWLR (Pt.837) 303 at 337, and Chukwumah v. Shell Development Nig. Ltd. (1993) 3 NWLR (Pt.289) 512 at 543-544. in this respect they have argued that the terms of these agreements touch on the conditions of the appellants employment and have created legal relations making them enforceable at law on their being breached at the suit of the appellants without more. On Exhibit D specifically it has been contended to have dealt with 17 items of agreements on specific matters of staff welfare as agreed by the collective parties in this matter. And that such agreements they submit have been so indicated against each of these items in Exhibit D. And that the agreements having been adopted as part of their conditions of employment are enforceable at the suit of the appellants; even moreso as item 11 in Exhibit D has also stipulated 1/3/1992 as the date of the effective implementation of the said agreements particularly so on the issues of pension and gratuity which have to be computed to take cognizance of the appellants basic salaries, housing etc. On the meaning of ‘agreement’ in the context of this matter, it is submitted that the word, ‘agreed’ as used in these agreements does not admit of any other meaning than what it says/denotes. The appellants have also adverted to their pleadings particularly paragraphs 5 and 6 of the Amended statement of Claim as well as the appellants PW1’s testimony thereupon to strengthen their case on having reached binding agreements as regards these 17 items as contained in Exhibit D. They have also referred to paragraph 10 of the Amended Defence and the evidence of DW1 thereupon as well as the address of the Defence counsel, again to show an overall consensus on the said agreements as having raised contractual liabilities in respect of those items as contained in exhibit D and as pleaded. They therefore have urged that the parties as well as the courts are bound by the pleadings and have referred to and relied on African Continental Seaway Ltd. v. Nigerian Dredging Road and General works Ltd. (1977) 5.SC.255 at PAGE| 10 250 per irikefe JSC as he then was (to show that courts are as much bound by the pleadings of the parties). Also see: Madam Etiko Ukpakara & Ors. v. ominike Ebevuhe (1996) 40/41 LRCN 1481 at 1484. On Exhibit J2 – the minutes of the meeting of 10/1/92 between the management of the respondent and the appellants branch union; again, the appellants have argued in the same vein to indicate that the agreements reached on redundancy issues are completely in accordance with the stipulation in Exhibit G and that such binding agreements have per se constituted sufficient adoption of the said redundancy provisions as contained in Exhibit c into the appellants conditions of employment and that they are enforceable at their suit. it has further been submitted that as agreed and pleaded by the appellants in paragraph 5(b) of the Amended Statement of Claim that the respondent has always negotiated on all issues of its staff conditions of employment with the appellants unit of the union (i.e. New Nigeria Bank Pic unit) and never with an individual employee as the individual appellants here and that these agreements having raised contractual obligations arising from their employment relationship are nonetheless binding and enforceable without more by the appellants who have authorized their union to negotiate these agreements on their behalf. It is argued that by Exhibit A being a protoype letter of employment issued to each of the appellants that they are bound by the terms of their conditions of employment as stipulated therein and that by the use of such phrase like, ‘for the time being’ in their contracts that all future agreements as and when reached between the respondent and ASSBIFI (New Nigeria Bank Pic unit) are deemed adopted into their respective letters of employment in their respective employment relationships, it is further their submission as I understand it that an agreement reached between the respondent and the said unit of the employees union binds not only the immediate collective parties that is as an agreement made between the employer and New Nigeria Bank Pic Unit of the union but also between the individual appellants severally as employees and their employer, the respondent in this matter and so are Exhibits D, F, J1 – J5, N and P1 being collective agreements on several specific matters in regard to their conditions of employment without having been specifically adopted, all the same that they have formed part of the employees contracts of employment and so binding on the appellants and the respondent PAGE| 11 as they have created legal relations between them, which if breached are actionable at the suit of either party to the contract. See: Union Bank of Nigeria Ltd. & Anor. v. Edet (supra), in this regard they have also submitted that the contents of a written document as the instant agreements (i.e. as per Exhibits D, F, J1-J5, N, P1 and G) which otherwise are clear and unambiguous and reflect agreements as made between the collective parties herein cannot be altered or varied by parole or oral evidence. The appellants have therefore urged that the issues ought and should be resolved in their favour. The respondent has responded vehemently to the foregoing submissions in its brief of argument by examining Exhibits D, F, J1 – J5, N and P1 and observing thereof that (1) they are records of the minutes of meetings as to what have taken place between the representatives of the parties herein (as collective parties) and have never been intended to create legal relations and (2) that though the word ‘agreement’ has been used to describe and denote the aforesaid exhibits they have been in actual fact true recordings of the resolutions reached at the various joint negotiating meetings of the collective parties and (3) that various items discussed at the said meetings do not relate to the conditions of employment of the staff or their welfare and are in most cases otherwise too vague enough to create legal relations, in other words that in most cases the said agreements cannot be construed as creating legal obligations on the part of the collective parties to the agreement nor between the instant parties to this suit, it is therefore submitted that the exhibits are sui generis and come within the purview of collective agreements as defined in Section 47(1) of the Trade Disputes Act 1990. And that the legal status of the section has been judicially pronounced on in Union Bank of Nigeria Pic v. Edet (supra) (wherein it is held inter alia that a collective agreement to be binding and enforceable has to be expressly adopted into either the letter of appointment or a subsequent communication varying the terms of employment of an employee). The respondent therefore has submitted that in neither the pleadings nor in the testimonies of the witnesses at the trial have the instant exhibits as aforesaid satisfied the above definition and so that the alleged agreements are not capable of enforcement at law by the appellants. Even then it is alleged that there is no privity of contract between the appellants and the respondent vis-a-vis the said agreements as contained in the aforesaid exhibits. And besides, that none of the appellants as an individual has personally PAGE| 12 negotiated the adoption of these conditions of employment with the respondent as contained in the said Exhibits but through their Union representatives and that mere labeling of these documents as agreements does not ipso facto make them legally binding enforceable agreements at law by the individual appellants. And that the appellants have failed to prove these agreements as having created legal relations binding and enforceable as contracts as stipulated in Edets case (supra) and See also T. C. Makwe v. Nwakor (2001) WRN.1 at 110 per Iguh JSC (on privity of contract to the effect that only parties to a contract can sue and be sued on the contract). And that as these agreements have not been adopted into the appellants contracts of employment that no legal rights of the appellants have arisen therefrom albeit as regards their respective conditions of employment to sustain the instant claims. See Thomas v. Oiufosoye (1986) 1 NWLR (Pt.18) 669 at 690 and Ogbuehi v. Governor of Imo State (1985) 9 NWLR (Pt.417) 53 at 85 (which decisions are on the issue that wherever a plaintiff is claiming a remedy, that the remedy must be founded on a legal right). Furthermore, it is submitted that the lower court has carefully examined and evaluated these documentary evidence to reach its conclusion of non-enforceability of these agreements by the appellants and that the appellants have not faulted nor have they challenged their evaluation to be wrong or perverse. See: Nwadiogba v. Nnadozie (2001) 39 WRN 71 and Bassil v. Fejebe (2001) 21 WRN 58 at 75 – 76. The respondent submits that for all this, that the decision in Union Bank of Nigeria Pic. v. Edet (supra) is properly decided and represents the law in this country and has urged this court to uphold the same even moreso as the principles that have informed that decision have been adopted and foiiowed in many cases including New Nigeria Bank Pic v. Egun (2001) 22 WRN 29, Nigeria-Arab Bank Ltd. v. Shuaibu (1991) 4 NWLR (Pt.186) 486, A.C.B. Pic. V. Mbisike (1995) 8 NWLR (Pt.416) 725. The court is urged to resolve this issue in favour of the respondent and dismiss the ground of appeal. The instant issue one, I have to observe, is in pari materia with issue one as raised by the respondent before the lower court as per pages 349 -353 of the record. The lower court has so brilliantly treated the issue and properly evaluated the agreements as contained in Exhibits D, F, J1 -J5, N, P1 and c in issue here to arrive at its solid findings which cannot be faulted. I find the PAGE| 13 treatment of these questions as impeccable and I have approved and adopted the same for purposes of resolving this appeal, in that regard I quote the following abstract of the lower courts judgment with approval:- “In order not to gloss over any of them, i intend to consider them one by one in this judgment. Exhibit D at pages 211-212 of the record dealt with 17 items. I am of the firm view that what is recorded as Agreement under each item is clearly a resolution and not a legally binding and enforceable Agreement. By the minutes or recording items 5, 6, 8,12 and 14 were all stepped down. Under items 15 and 16 it was recorded ‘No Agreement’. A careful look at items 1, 2, 3, 4,7, 9,10,11,13 and 17 reveal that they cannot be intended to create a legal relationship, can Exhibit D which is in the main minutes of the meeting it recorded be referred to as a legally binding and enforceable Agreement? The answer is in the negative, it seems to me therefore that the learned trial judge made a grave error in law when she held at page 204 of the record that Exhibit D is a binding Agreement and justiciable. Exhibit T at page 214 of the record dealt with 7 items, item (1) is a decision to implement the Agreement reached on 22/2/92 in favour of Mr. B. I. Anazia and Mrs. Avboraye. it does not seem to me that those not named in item one can hold it as legally binding and enforceable in their favour, see Ikpeazu vs. A.C.B. (1965) N.M.L.R. 574 at 579. it seems to me also that items 2, 3, 4, 5, 6 and 7 cannot be construed to create a legal obligation. Exhibits J1 – J5 at pages 216-220 of the record are of the same pattern as Exhibits D and F. Exhibit J1 was a communique; Exhibit J2 merely reported Managements action taken in respect of the three items on the agenda; Exhibit J3 dealt with ll items which cannot by any stretch of imagination be called legally binding and enforceable agreement; Exhibit J5 dealt with 2 items which cannot be made legally enforceable without more. Exhibit N at pages 224-225 dealt with 15 items or topics, it is particularly instructive PAGE| 14 to have a close look at items 7, 8, 9,10 and 12. This document to my mind cannot in law be categorised as an agreement which is legally enforceable. Exhibit p1 at pages 226-227 of the record is like the afore-mentioned ones. I have taken a hard look at Exhibits D, F, J1 – J5, N and P1 and I have come to the conclusion that they belong to the same category as Exhibit G, the Main Collective Agreement. Exhibit G’ is entitled: Main Collective Agreement between the Nigeria Employers Association of Banks, insurance and Allied institutions and the Association of Senior staff of Banks, insurance and Financial institution. The status of Exhibit G’ has been elaborately defined and eloquently explained by this court in Union Bank of Nigeria Ltd. & Anor. vs. Mrs. E. E. Edet (1993) 4 NWLR (Pt.287) 288 at 297 – 298, 303 and 304. AKINTAN J.C.A. at page 304 paragraphs C – E said:- ‘The learned trial Judge was also in error to have applied the provisions of the booklet (Exh.13) titled Recognition and procedural Agreement and Main Collective Agreement between the Nigeria Employers Association of Banks, insurance and Financial institutions This is because he failed to advert his mind to the fact that both the plaintiff and the defendant in the case before him have not adopted the contents of the document as forming part of the respondents term of employment, it is definitely necessary to expressly adopt the provisions of the document either in the letter of appointment or in a subsequent communication varying the terms of employment before the respondent could enforce its contents against the appellant’. Thus, inter alia, this court held in Edets case that ‘the general tenor of Collective Agreement is that it was never intended that the Agreement should create any legally enforceable contractual obligation by individual employees’. For Exhibits D, F, J1-J5, N and P1 to become legally binding and justiciable there must be evidence of adoption of the agreement either by incorporation of the Agreement into the existing service Agreement by amending the old provision to reflect the new one or by addendum incorporating an entirely new award, in the case in hand nothing of the sort happened between the appellants and the respondents, in Thomas vs. Olufosoye (1986) 1 NWLR (Pt.18) 669 at 690, Oputa JSC said:- PAGE| 15 ………….wherever a plaintiff is claiming a remedy that remedy must be founded on a legal right the first hurdle for the plaintiff to clear is to let their statement of claim reflect their legal authority to demand the declaration sought and their right which had been injured or which is likely to be injured and for protection of which they need the remedy of an injunction. Again in Ogbuehi vs. Governor of lmo state (1995) 9 NWLR (Pt.417) 53 at 85 this court held inter alia:- ‘that where a plaintiff fails to establish that his claim is justiciable he has thus failed the first two tests used in determining the locus standi of the person.’ From the above authorities, I have no doubt in my mind that Exhibits D, F, J1 – J5, N and P1 are minutes of meetings held or at best, they like Exhibit G’ are gentlemens agreements, ‘a product of trade unionists pressure’ ‘totally devoid of sanctions’ and that failure to act in strict compliance with any of them is not justiciable’, see Edets case supra. At page 203 of the record the learned trial judge held that:- ‘it is my findings that the plaintiffs were redundant and ought to have been so declared and entitled to redundancy payment as provided for in Exhibit G their appointments having ceased on that ground.’ With due respect to the learned trial Judge, the above findings amount to going on a voyage of discovery as the findings are not supported by the evidence adduced before the trial court. I should point that there is nothing in Exhibit J2 to show that the 1st appellant expressly adopted the provisions of Exhibit G in relation to redundancy and therefore the findings and conclusion of the lower court on this point are perverse.’ The foregoing abstract in essence is the core of the lower courts well considered findings in its judgment in this matter, i have closely examined the above abstract of the lower PAGE| 16 courts judgment and in my view it rightly has found that Exhibits D, F, J1-J5, N, P1 and G severally belong to the category of collective agreements reached between the respondent (as the employer) on the one hand and the Senior staff Association of Banks, insurance and Financial institution (New Nigeria Bank Pic unit) on the other hand (i.e. as the collective parties).

SC. 182/2001