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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Prince Adejunle Ajasa, with Tunde Omojola, for the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Ekene Odum, with H. U. Okany, Mrs. Abimbola Ayorinde, Mrs. F. Awe and Mrs. J. D. Okonkwo, for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimants filed this action on 16<sup>th</sup> August 2012 vide a complaint accompanied by the statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the documents. By order of Court made on 18<sup>th</sup> February 2014, the claimants were permitted to amend these originating processes in terms of filing additional processes. The claimants by this action are praying for the following reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo5"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the dismissal of the 61 claimants from their employment without paying the claimants their entitlement and or benefits amounted to wrongful termination of employment, arbitrary and oppressive conduct.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo5"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the conduct of the defendant by inviting armed soldiers and police to torture and brutalize the claimants was unlawful oppressive and the defendant is legally liable and responsible for the injury that arose out of and in the course of employment of the claimants and the claimants are entitled to monetary compensation of N100,000,000.00 (One Hundred Million Naira only).<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo5"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order compelling the defendant to pay the claimants the sum of N900,000,000 (Nine Hundred Million Naira) as outstanding entitlements benefit due to the 61 complainants.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo5"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order compelling the defendant to pay the claimants the sum of N500,000,000.00 (Five Hundred Million Naira) as exemplary and aggravated damages in reparation for the unlawful acts occasioned by the defendants against the 61 claimants.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo5"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of perpetual injunction restraining the defendant, its agents, servant and privies from harassing, intimidating and unlawfully terminating the employment of the 61 claimants and we are asking for their restatement by the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant entered formal appearance and also filed its defence processes i.e. the statement of defence, list of witnesses, witness statement on oath, list of exhibits and copies of the exhibits. Given the approval given the claimants to amend their originating processes, the defendant consequentially amended its defence processes.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">At the trial, it was agreed that the claimants will not call out all the witnesses they listed and who filed sworn depositions. Accordingly, the claimants called three witnesses. Mr. Oni Ayodeji John came first as CW1 but because in the list of witnesses and the witness deposition the name of the witness is put as “Oni Ayodele John”, which is not the name CW1 gave in the witness box as his name, the Court ruled that CW1 is not properly before the Court; as such CW1 was asked to step down. Olusegun Aniyi then came as CW3, while Onasi Emmanuel testified as CW4. The defendant on its part called only one witness, Henry Ajayi, who works with the defendant as Human Resources Business Partner. He testified for the defendant as DW. At the conclusion of trial, parties were asked to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant did not file its written address within the time permitted by the NIC Rules; as such the claimants filed theirs on 4<sup>th</sup> May 2015 though it is dated 30<sup>th</sup> April 2015. The defendant then filed its written address on 3<sup>rd</sup> February 2016 – it is dated same date. The claimants’ reply on points of law was filed on 10<sup>th</sup> May 2016 though it was dated 6<sup>th</sup> May 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CASE OF THE CLAIMANTS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The 61 claimants in this case were staff of Uni1ever Nigeria Plc, the defendant in this case. They were among others that were dismissed by the defendant on 10<sup>th</sup> November 2010 “without payment Notice, every, warning and not only paying them their entitlement and or other benefits accruing to the 61 Claimants due to wrongful termination of their employment arbitrary and oppressive conduct by their Employers inviting Armed Policemen, Armed Soldiers in brutalizing the 61 Claimants for exercising their Constitution Rights of Embanking on Industrial Action as laid down in their Employer/Employee booklet Section 5.3, 5.4 respectively the 61 Claimants are entitled to monetary compensation thereby instituting an action at National Industrial Court, Ikoyi and the case was transferred to Court 2 since 2012 when the process was filed Suit No. NICN/LA/423/2012. i.e. on the 25<sup>th</sup> July, 2012 and the Defendant’s were served at No.1 Billingsway Oregun, Ikeja in Lagos State of Nigeria”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then proceeded to give a narration of what transpired in Court in terms of the proceedings in this suit and the evidence tendered; and then submitted that “based on the evidence adduced in proof of the Claimants”, the Court should see the following cases: <i>UBA v. Tejumola</i> [1988] 2 NWLR (Pt. 79) at 662, <i>Ekpanya v. Akpan</i> [1989] 2 NWLR (Pt. 101) at 86 and <i>Newbreed Organization Ltd v. Erhome Sele</i> [2006] 12 SC (Pt. I) 136 especially at 150. That the claimants have proved their case on the preponderance of evidence or the balance of probabilities as he who asserts must prove, citing <i>G & T Investment Ltd v. with bush Ltd</i> [2011] 8 NWLR (Pt. 1250) at 500 and <i>Combined Trade Ltd v. All States Trust Bank Ltd & anor</i> [1998] 12 NWLR (Pt. 576) at 56. That the law is fairly well settled that an agreement or “a contract of empowerment” can be oral or written but it must have the main factors e.g. offer, acceptance and consideration. In addition are the other factors of intention to create legal relation and capacity to contract, referring to <i>Yaro v. Arewa</i> [2007] 17 NWLR (Pt. 1063) 333 at 377, <i>Johnson Wax Nig. Ltd v. Sanni</i> [2010] 3 NWLR (Pt. 1181) 235, <i>BFI Group Corp. v. Bureau of Public Enterprises</i> [2012] 7 SC (Part III) 1 and <i>Akinyemi v. O’dua Investment Co. Ltd</i> [2012] SC (Pt. IV) 43.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CASE OF THE DEFENDANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The case of the defendant is that the claimants were employees of the defendant company who were dismissed from the services of the defendant on 10<sup>th</sup> November 2008 vide Exhibit CW4 (the collection of dismissal letters of the claimants) on grounds of improper conduct and pursuant to paragraph 3 of page 34 of the Staff Handbook 2006 (Exhibit DW1). That on 3<sup>rd</sup> and 4<sup>th</sup> November 2008, the claimants embarked on an unlawful strike in violation of the provisions of the Trade Disputes Act and while mediators from the Federal Ministry of Labour were meeting with the management of the defendant company. That On 4<sup>th</sup> November 2008 as admitted by the claimants under cross-examination, the claimants locked the main gate to the factory, restricting entry and exit thus holding the management, other staff and visitors within the factory premises hostage throughout the day until the police was invited at close of day to rescue and set free the personnel detained and held hostage by the claimants. That the claimants then embarked on rampage destroying company properties and assaulted management staff.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that it is for these acts that the claimants were summarily dismissed and they instituted this action challenging their dismissal, claiming entitlements, damages inter alia. That in proof of their case, they called a single representative witness who adopted his statement on oath and tendered Exhibits CW1 – CW5. The defendant on its part called a single witness who adopted his statement on oath and tendered Exhibits DW1 – DW5. That from the testimony of the claimants, the following facts were admitted under cross-examination:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The claimants did not obtain permission from the defendant to hold the rally of 3<sup>rd</sup> and 4<sup>th</sup> November 2008.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The rally was held during the defendant’s working hours.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The claimants embarked on a strike on 3<sup>rd</sup> and 4<sup>th</sup> November 2008.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The conditions of service of the claimants did not include holding rallies.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Officials of the Federal Ministry of Labour and officials of the claimants’ trade union were holding meetings with the defendant’s management while the rally/strike was embarked upon.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The claimants restricted entry and exit to the factory on 4<sup>th</sup> November 2008 until the police came.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->There was no written referendum, poll or ballot organized or held by the union before the strike was embarked upon.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->Mediation by the Federal Ministry of Labour officials had not been concluded when the claimants began strike.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The strikes, rallies and related issues caused the claimants’ dismissal from service.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo6"><!--[if !supportLists]--><span style="font-family:Symbol; mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol">·<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]-->The staff handbook clearly states grievance or dispute resolution procedure in the company.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE SUBMISSIONS OF THE CLAIMANTS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimants framed a sole issue for the determination of this Court, to wit: whether the evidence adduced by the claimants in this case entitles them to the reliefs sought by them in the action herein. To the claimants, the 61 of them, who were employed at various time and period both at Oregun and Agbara Divisions of Unilever Nig. Plc, had been working without any queries, suspension or warning; most of them put in 25 years, 22 years, 20 years, 15 years, 10 years and 5 years respectively and also have stakes in the company through buying shares and obtaining share certificates, all of which showed that they took their jobs seriously. Also that they were so committed that they have a functional union that negotiates with their employer, and parent bodies at all times. That, therefore, there is a forum to negotiate, dialogue and conclude on some of the grievances shown in their letter to their employer seeking increase in salaries, Xmas bonus, share of the company’s products etc. That all these can still be negotiated and amicable settlement reached between the parties.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants went on that the defendant defiled all negotiation and interventions by OPD, Ministry of Justice mediation centre, etc. including the patent body of the union and “all their judgment is to get rid of their workers because they were foreign company initimating harassing Nigerians workers using them as a slave in their country and dismiss them without compensation because they have no money to take up their cases at competent court of records therefore we urge the court to uphold Justice and determine this case on its merit because there is nothing to write about on their defence, the Defence witness brought Mr. Henry Ajayi said it all on the 19<sup>th</sup> February 2015, that he was yet to be employed on the 4<sup>th</sup> November 2008 when they went on strike and yet to be employed when their summary dismissals letters were handed over to the 61 claimants mentioned in this case the credible evidence of Mr. Emmanuel Obasi gave good verdict to this case and wish the court to uphold Justice which they court is known for in this case and in previous cases determined before this case”. The claimants continued that “therefore the Claimants credible evidence proffered before the court should be uphold and dismiss evidence of the Defendant because it is a mere say and Mr. Henry Ajayi did not witness the event of the 4<sup>th</sup> Nov. 2008 and 10<sup>th</sup> November 2008 as stated by him and therefore he did not witness it and he was still at Adekunle Ajasin University Ondo State of Nigeria, still studying and all what he stated in his written statement on oath were told by him and he did not witness them, therefore such evidence of the Defence should be dismissed with substantial cost”. The claimants then implored the Court to uphold the claims and reliefs they seek in this case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimants submitted that they have made a credible and good case and all evidence adduced should be upheld by the Court; and that the Court should give justice on merit because the claimants have satisfactorily discharged the onus on them and they are entitled to all their reliefs sought. That the Court should dismiss the defendant’s evidence as hearsay evidence, not any evidence at all. The claimants then urged the Court to give them judgment and approve all their reliefs sought from this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE SUBMISSIONS OF THE DEFENDANT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendant on its part framed two issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the dismissal of the claimants from the services of the defendant was proper and valid in law.<b><u><o:p></o:p></u></b></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimants are entitled to the reliefs as claimed.<b><u><o:p></o:p></u></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 1, the defendant submitted that the dismissal of the claimants from the service of the defendant was proper and valid in law. That the dismissal was also in conformity with the claimants’ terms and conditions of service as stated in paragraph 3 at page 34 of Exhibit DW1. That it is trite law that an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct as was held by the Supreme Court in <i>Eze v. Spring Bank Plc</i> [2012] 205 LRCN 157 at 176. That paragraph 3 at page 34 of the Staff Handbook (Exhibit DW1) provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Employees guilty of breaking any of the rules and regulation in force for the time being, or of neglect of or of insulting behavior to or disobedience of orders of senior employees of supervisory rank or above or of improper conduct (including theft, irregularity of attendance and willful waste of time and materials), assault, fighting, drunkenness, or clocking for other employees, may be summarily dismissed (emphasis is the defendant’s).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, from the settled evidence before this Court, the defendant dismissed the claimants vide a common letter of dismissal (Exhibit CW4) for gross misconduct (improper conduct) and pursuant to the Staff Handbook (Exhibit DW1). That in the Supreme Court case of <i>Eze v. Spring Bank</i> (<i>s</i><i>upra</i>), gross misconduct was been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and his employer; so too working against the deep interest of the employer, each of which entitles an employer to summarily dismiss the employee. Also referred to were <i>Ridge v. Baldwin</i> [1953] 2 All ER 66 at 71 and <i>Olaniyan v. University </i><i>of Lagos</i> [1985] 2 NWLR (Pt. 9) 599.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that in the instant case before, the admitted act of the claimants unilaterally embarking on a strike and holding rallies, thus disrupting production of the defendant’s factory for two days, locking the factory gate for a whole day thus holding management and staff hostage, disregarding the presence and authority of officials of the Federal Ministry of Labour/Management before embarking on the strike/rally undermined the relationship of confidence which existed between the claimants and the defendant. That it can only be compared to a mutiny. That discipline had broken down totally. The defendant then submitted that this amounted to a misconduct which attracts summary dismissal in law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the case of the claimants is made worse by the fact that the admitted action of the claimants is in clear violation of the Trade Disputes Act 1976 and the Trade Unions (Amendment) Act 2005 and also a crime. That section 18 of the Trade Disputes Act states that a worker shall not take part in a strike in connection with any trade dispute where (a) the procedure in sections 4 and 6 has not been complied with and (b) a conciliator has been appointed under section 8. That section 18(2) states that a person who contravenes this provision shall be guilty of an offence and liable on conviction to 6 months imprisonment. Also that section 4 of the Trade Disputes Act provides that the parties should first attempt to settle their dispute by the agreed means of settlement; where that fails, they should meet under a mediator, and where that fails, it should be reported to the Minister of Labour as provided in section 6.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that section 6(6) of the Trade Unions (Amendment) Act 2005 states that no person shall take part in a strike unless (c) the strike concerns a dispute arising from a collective and fundamental breach of contract of employment or collective agreement (d) the provision for arbitration in the Trade Disputes Act have first been complied with (e) a ballot has been conducted in accordance with the rules and constitution of the trade union at which a simple majority of all registered members voted to go on strike. That section 6 (7) provides that anyone who contravenes this provision is liable to imprisonment of 6 months or a fine of N10,000 or both.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the evidence in chief of the claimants and their admitted facts under cross-examination clearly established that the claimants went on strike in clear violation and in utter disregard to the provisions of Trade Disputes Act and the Trade Unions (Amendment) Act. That the admitted facts brought out the “sting” of their illegality and criminal violation. This, to the defendant, is worse than gross misconduct and attracts not only summary dismissal, but criminal prosecution. That the claimants embarking on a strike without prior compliance with the above stated provision of the laws makes the strike an illegality, a violation and a fundamental breach of their respective contracts of service, and amounts to contract vitiating misconduct and resultant summary dismissal.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that the claimants did not follow or observe the Grievance Procedure as provided at pages 35 – 37 of the Staff Handbook. That they admitted under cross-examination that the Staff Handbook clearly contained grievance or dispute resolution procedure. That the claimants embarking on strike/rally without showing that they had complied with the Grievance Procedure amounts to breaking of the rules and regulations in force and improper conduct as stated in paragraph 3 at page 34 of the handbook; this by the contract (handbook) attracts summary dismissal, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, it is trite law that where an employee alleges that his employer has wrongfully terminated his employment, it is his duty to prove that he was wrongfully removed from office. That the burden of proof is on the employee as was held in <i>Nigeria Airways v. Gbajumo</i> [2004] All FWLR (Pt. 203) 2109 and restated by the Supreme Court in <i>Ziideh v. RSCSC</i> [2007] 145 LRCN 530 at 547. That in this suit, the claimants have woefully failed to prove that their dismissal was unlawful and that they are entitled to the reliefs as claimed. That the claimants in their testimony have failed to show how their dismissal is in violation of their terms and conditions of service or the Staff Handbook. That they claimed that the dismissal was in violation of paragraph 3 at page 34 of the handbook but they failed to provide any scintilla of evidence showing how the defendant violated the provision. That the claimants’ counsel’s address was totally based on sentiments and emotions but most certainly not law. That it is trite that the courts have no business with sentiments and emotions in the administration of justice, but will do justice according to law and based on evidence as has been severally held in <i>Grosvenor Casino Ltd v. Halaovi</i> [2009] 174 LRCN 115 at 143, <i>Ezeugo v. Ohanyere</i> [1978] 6 – 7 SC 171 at 184 and <i>Orhue v. NEPA</i> [1998] 5 SCNJ 126 at 141.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that the claimants’ counsel’s submission is based on issues which are clearly outside the jurisdiction of this court like assault, battery, malicious prosecution and false imprisonment which are torts and not within the jurisdiction of this Court. The defendant also submitted that the testimony of the claimants’ witness is fundamentally flawed and cannot in any way support or sustain their case before this Court. That apart from appeal to irrelevant sentiments, it has not shown how the dismissal is legally wrong or in breach of the contract of service. The defendant then urged the Court to resolve issue 1 in its favour.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 2 i.e. whether the claimants are entitled to the reliefs as claimed, the defendant submitted that the claimants are not entitled to the reliefs as claimed. That the testimony of the claimants cannot in any way sustain the reliefs claimed. In fact, that the testimony of the claimants under cross-examination destroyed whatever claim they had as it only established the illegality and criminality of their actions. To the defendant then, the claimed reliefs of the claimants should be dismissed for the following reasons –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->On the claimed declaration that the dismissal of the 61 claimants from their employment without paying the claimants their entitlement and or benefits amounted to wrongful termination of employment, arbitrary and oppressive conduct, the claimant have failed to show how. Summary dismissal connotes that there shall be no entitlements or benefits for the dismissed employee as has been held by the court in <i>Eze v. Spring Bank Plc</i> (<i>supra</i>) and a plethora of other cases. Dismissal is not termination as they have different legal implications on benefits. Dismissal for misconduct is valid in law and does not amount to an arbitrary or oppressive conduct.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->On the declaration that the claimants are entitled to N100,000,000.00 from the defendant for inviting security agents who brutalized the claimants, the claimants have also failed to show how. This prayer is a tort as rightly observed by this Court and outside the jurisdiction of this Court. Also, it was not proven that the defendant invited the security agents with the instruction to brutalize or torture the claimants. There was no credible oral or documentary evidence to that effect. No damage was proven. No medical report was tendered. Also, the defendant cannot be vicariously liable for the act of police or any state security agency as they are not the defendant’s employee acting in the course of her employment as has been restated by the Supreme Court in <i>Ifeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig.) Ltd</i> [2000] 5 NWLR (Pt. 656) 322. The police is not and cannot be under the command and control of the defendant but of Inspector General of Police and Commissioners of Police as provided by section 6 of the Police Act Cap. P19.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->On the order compelling the defendant to pay the claimant N241,853,681.46 as outstanding entitlement, we have earlier submitted that dismissed employees are not entitled to terminal benefits. Since the claimants were properly dismissed from the services of the defendant, they are not entitled to this relief. This is settled law as was held in <i>Eze v. Spring Bank Plc</i> (<i>supra</i>). Assuming but not conceding that they are entitled to benefits, the claimants failed to show how they arrived at the figure claimed. They placed no oral or documentary evidence before the Court on how they arrived at the figure N241,853,681.46. The onus is on the claimants and not on the defendant. The tabulated chart contained in Exhibit CW5 was not proven and was speculative. There was no evidence as to how the figures were arrived at. The claimants placed no contractual term or material to compute this, but relied on a speculative sum which we submit should be dismissed.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->On the order compelling the defendant to pay N500,000,000.00 as exemplary and aggravated damages, this prayer should be refused as it is unknown to law. General damages is not applicable in a case of termination of employment. It is not an appropriate remedy as was held by the Supreme Court in <i>Ativie v. Kabelmetal Nig. Ltd</i> [2008] 164 LRCN 71 at 84. Aggravated damages are compensatory while exemplary damages are punitive as was held in <i>Ilouno v. Chiekwe</i> [1991] 2 NWLR (Pt. 173) 316. As a general rule, aggravated damages are not payable in contract since in action for breach of contract, the motive and conduct of the defendant is not taken into consideration as was stated in <i>Marine Mgt Associates Inc. v. NMA</i> [2012] 12 SC (Pt. II) 141. Exemplary damages are awarded in the case of arbitrary, oppressive or unconstitutional acts by government servants; where the defendant’s conduct had been calculated by him to make profit for himself; or where expressly authorized by statute as was held in <i>Alele-Williams v. Sagay</i> [1995] 5 NWLR (Pt. 396) 441. It can thus be seen that exemplary or aggravated damages are unsustainable in this case and that the prayer ought to be dismissed.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->On the order compelling the defendant to pay 5 claimants N200,000,000.00 as damages for unlawful detention and trial, we submit that this Court lacks jurisdiction hear a case or grant a relief on a claim on false imprisonment and malicious prosecution by agents of the State. More so, the defendant is not a party to the case at the Magistrate Court involving the claimants and the defendant never at anytime detained the claimants.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->On the order of perpetual injunction, and an order reinstating the claimants, it is trite that the Court will not impose a willing worker on an unwilling employer, referring to <i>Ziideh v. RSCSC</i> [2007] 145 LRCN 530 at 547. The relationship between the parties is a master/servant relationship and does not have statutory flavor. This makes the prayer incompetent and devoid of merit. A concluded act cannot be injuncted and the termination of a servant’s employment by the master is always valid in law.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimants are not entitled to cost. Cost is a special damage which must be proved. Since the claimants have not proved same, they are not entitled thereto.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the defendant urged the Court to dismiss this suit with substantial cost on the twin grounds that the dismissal of the claimants from the service of the defendant was proper and valid in law; and the claimants have failed to establish that they are entitled to the reliefs as claimed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANTS’ REPLY ON POINTS OF LAW<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the claimants, the provision for arbitration in the Trade Disputes Act Cap. 432 Laws of Federation of Nigeria 1990 shall apply in all disputes affecting the provision of essential services and the determination of the National Industrial Court in all such disputes shall be final. That section 42(1)(A) provides that no person shall subject any other person to any kind of constraint or restriction of his personal freedom in the course of persuasion (Trade Unions (Amendment) Act 2005).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants proceeded by referring to the doctrine of equity which states that “equity will not suffer a wrong without a remedy”, and then submitted that motive is, therefore, an essential enquiry in determining the fairness or otherwise of a dismissal, a system that prohibits an inquiry into the motive of an alleged unfair dismissal cannot be consistent with the promotion of the tenets of natural justice and equity.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then referred to <i>Olafimihan v. Nova Lay-Tech Nigeria Limited</i> [1998] NWLR (Pt. 547) at 608 and <i>Union Bank of Nigeria v. Ogboh</i> [1995] NWLR (Pt. 380) at 647. To the claimant, damages in the Nigerian law context are restricted to payment in lieu of notice, referring to <i>SPDC v. Olarewaju</i> [2008] NWLR (Pt. 1118) SC at page 1, which reiterated the principle that “damages can be inadequate especially where the terminated had been motivated by spite or is discriminatory”. That several jurisdictions have developed their laws and gotten out of the shackles of common law that dictate that an employee in private employment is only entitled to damages for unlawful termination. That there is a clear dichotomy between public and private employees with regards to claims available for unlawful termination of contract.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants went on that although damages may be the preferred option for some employees, especially in a hostile work environment, then that if the sole aim of granting damages is to restore the employee to the position he would have been had his employment not been terminated, the Court should be opened to reinstatement disputes.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants referred to Exhibit DW1, the Staff Handbook. That the claimants embarked on work-to-rule not unlawful strike which is not a ground of improper conduct and it is not a violation of the provisions of the Trade Disputes Act, as amended. That the claimants through their union wrote several letters, held several meetings with the management before embarking on work-to-rule. That on<b> </b>4<sup>th</sup> November 2008, the claimants did not admit under cross-examination that they locked the main gate to the factory, because there is a factory at Oregun and another factory at Agbara where staff are carrying out their jobs satisfactorily. That on 4<sup>th</sup> Nov 2008, nobody was held hostage, no damage was done except those carried out by the military men and policemen employed by the management to maltreat the staff on the day in question.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, the staff handbook (Exhibit DW1) stated clearly under Cessation of Appointment steps to be embarked upon – warning, resignation, termination, supervision, redundancy and dismissal. That the defendant disregarded all the steps stated in the staff handbook, which is a collective bargaining. That the claimants did obtain permission from the defendant to hold work-to-rule on 3<sup>rd</sup> and 4<sup>th</sup> November 2008, through several letters written to the management by their union representatives. That the work-to-rule was held peacefully as a work-to-rule and the work was going on simultaneous showing their grievances to the management staff when the union officials were holding meetings with the management staff. That the claimants did not embarked on strike on 3<sup>rd</sup> and 4<sup>th</sup> November 2008 rather only a work-to-rule, by putting on rubber band on the clothes as a sign that they were not happy.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants continued that their conditions of service made provisions to management through their union and in representative capacity through dialogues which their union representatives embarked upon during the period of work-to-rule. That officials of the Federal Ministry of Labour and officials of the claimants’ trade union were holding meetings with the defendant’s Management while the work-to-rule was embarked upon, not rally or strike as claimed. That the claimants did not restrict entry and exit to the factory on 4<sup>th</sup> November 2008 as policemen came to force the workers out of the factory compound. Furthermore, the claimants submitted that there was a poll or ballot or referendum organized by the union before embarking on work-to-rule on 3<sup>rd</sup> and 4<sup>th</sup> Nov 2008. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, mediation by the Federal Ministry of Labour officials was concluded on the 4<sup>th</sup> Nov 2008 and union representatives were addressed by the Federal Ministry of Labour officials during work-to-rule exercises embarked upon on 3<sup>rd</sup> and 4<sup>th</sup> November 2008. That the claimants did not embarked on strike and normal procedure was followed through various written communications through their union representatives, Ministry of Labour, their parent body, but all were not addressed by the management despite intervention before letter of dismissals were handed over to them on 10<sup>th</sup> November 2008.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the Management of Unilever did not follow the Staff Handbook in resolving the matter which their union representatives had tabled before the management severally in writing various meetings within and outside the Headquarters, all proved abortive. That the dismissal of the 61 claimants from the services of the defendant was not proper and not valid in law and should be disregarded by the court and should be set aside.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants went on that they are entitled to all the reliefs claimed as compensation or damages, referring to “<i>Lansade v. Panalpina World Transport Nigeria Limited</i> [1996] 456 NWLR (Pt. 544)”. That the claimants followed the grievance procedure as provided at pages 35 – 37 of the staff handbook. Therefore, the claimants are not guilty of gross misconduct; and that “<i>Eze v. Spring Bank Plc</i> [2012] 205 LRCN 15 (Pt. 76)” does not apply here because the circumstances of the case differ from the case here. That from the evidence placed before this Court, it is settled law that the claimants were wrongfully dismissed on 10<sup>th</sup> November 2008 without following the laid down procedure in accordance with staff handbook and the Trade Disputes Act amended 2005. To the claimants, they followed the Grievance Procedure as provided in pages 35 – 37 of the staff Handbook. That the claimants did not admit under cross-examination that they embarked on strike/rally as stated by the defence counsel; rather they embarked on work-to-rule, which is allowed by law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants continued that they have proved beyond reasonable doubt, and the burden of proof which is on the employee had been transferred to the employer who did not give them fair hearing as enshrined in the 1999 Constitution, as amended, referring to <i>Nigeria Airways v. Jumo</i> [2004] All FWLR (Pt. 203) at 209 and “<i>Z Udeh v. RSCSC</i> [2007] 145 LRCN 530 at 547”. That the claimants had proved that letters were written through their union, meetings held with Management staff severally before embarking on work-to-rule on 3<sup>rd</sup> and 4<sup>th</sup> Nov 2008, not strike or rally as claimed by the defence counsel. Therefore, that the dismissal of the claimants through letters dated 10<sup>th</sup> November 2008 is unlawful dismissal and they are entitled to damages as claimed in their reliefs. That the claimants were entitled to damages as their entitlement as reliefs claimed through unlawful dismissal of their employment. That the claimants had complied with the provisions for arbitration in the Trade Disputes Act Cap 432 LFN 1990. That the claimants through their trade union, had conducted a ballot in accordance with the rules and constitution of the trade union at which a simple majority of all registered members voted to go on work-to-rule on 3<sup>rd</sup> and 4<sup>th</sup> November 2008.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimants urged the Court to dismiss the defendant’s case with substantial cost on the grounds that the dismissal of the claimants from the services of the defendant is not proper and not valid in law; and that the claimants had established that they were entitled to damages in their reliefs as claimed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. Before considering the merit of the case, I need to resolve a preliminary issue. When on 18<sup>th</sup> February 2014 the claimants moved their motion dated 13<sup>th</sup> February 2014 but filed on 17<sup>th</sup> February 2014 praying to regularize their additional originating processes, the order granted by this Court related to only accepting additional documents in respect of only the following: the list of the 7<sup>th</sup> – 61<sup>st</sup> claimants as witnesses, list and copies of 61 employment letters, 61 witnesses statements on oath, list and copies of 16 additional documents, list and copies of 61 summary dismissal letters and list and copies of 46 stakeholders certificates of the claimants. These were the only documents deemed to be properly filed and served by the Court. So when the defendant in its written address of 3<sup>rd</sup> February 2016 reeled out the reliefs of the claimants as per their amended statement of facts dated 24<sup>th</sup> June 2013, I do not know where the defendant got that from. Arguments of the defendant on claims such as that for N241,853,681.46 being outstanding entitlements due to the 61 claimants, and the claim for N200,000,000 as damages for unlawful detention of 5 claimants accordingly all go to no issue and so will not be considered in this judgment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In like manner, when the claimants filed this suit on 16<sup>th</sup> August 2012, the reliefs they claimed from this Court did not include cost of this suit as the 6<sup>th</sup> relief. It was when the claimants filed their processes of 24<sup>th</sup> June 2013 that “cost of this suit” entered the fray as the 6<sup>th</sup> relief – it was again repeated as such when the claimants filed fresh originating processes on 25<sup>th</sup> October 2013. Since what this Court deemed to be properly filed and served in its order of 18<sup>th</sup> February 2014 did not include “cost of this suit” as a 6<sup>th</sup> relief, that relief is accordingly not before the Court for purposes of this suit. In short, the reliefs before this Court for purposes of this judgment are the reliefs of the claimants as per their originating processes filed on 16<sup>th</sup> August 2012 when this suit itself was filed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This said, I must also remark on the written addresses of the claimants. These are addresses that are full of errors in terms of the language and the logic of its presentation. For instance, the reply on points of law is structured into only two parts – the introduction and the conclusion; I wonder where the body of the reply submission is. Also, in their reply on points of law, the claimants talked of the Trade Disputes Act (TDA) 2005. It appears that they are confusing the TDA with the Trade Unions (Amendment) Act of 2005. I do not even know whether it is actually confusion or lack of knowledge. This is 2016. Yet the claimant’s counsel kept referring to the TDA Cap. 432 LFN 1990. Is counsel saying that he is unaware of the consolidation exercise done, which gave rise to the LFN of 2004? One of the hallmarks of good advocacy and indeed sound legal professionalism is currency in the law itself. A counsel who is dated in terms of knowledge of the law is a danger to his or her clients. Even in the citation of cases in the reply on points of law, the counsel to the claimants did not fare well. The affected cases are indicated in inverted commas, open and close. I must confess that the two addresses of the claimants rank as two of the worst written addresses I have had to read and grapple with in recent times. I tried to make sense out of them in terms of the claimants’ submissions, but I had to leave some portions of them intact and in inverted commas open and close just so that it is seen how messy they are. In all, I really do not know if it can be said that counsel to the claimants did justice either to or in these addresses.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I will give an instance. In employment cases, the Supreme Court in<i> Ekeagwu v. The Nigerian Army</i> [2010] LPELR-1076(SC); [2010] 16 NWLR 419 per His Lordship Onnoghen, JSC reminded us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are: whether the termination/dismissal/retirement of the plaintiff is wrongful; and the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful. Even at this, the rule is that he who asserts must prove; and in employment law, the onus is on the claimant who asserts that his termination is wrongful to show how wrongful it actually is. And to do this, the claimant must place before the Court the terms of the contract of employment and then prove in what manner the said terms were breached. See also <i>Aji v. Chad Basin Development Authority & anor</i> [2015] LPELR-24562(SC) and <i>Ademola Bolarinde v. APM Terminals Apapa Ltd</i> unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on February 25, 2016. It is not for the defendant employer to prove any of this. See further <i>Akinfe v. UBA Plc</i> [2007] 10 NWLR (Pt. 1041) 185 CA and <i>UTC Nigeria Ltd v. Peters</i> [2009] LPELR-8426(CA). Now, there is nothing in the claimants’ written addresses to show that they adhered to these admonitions except, as argued by the defendant, the reliance on emotions in their submissions. The claimants kept saying that their dismissal was wrong but never told the Court how they came about this conclusion. The burden of proof, which is squarely on the claimants, must first be discharged before it can shift to the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Even when the claimants called for the disregard of the evidence of DW, this still did not take away the duty imposed on the claimants to prove their case. DW had described himself as working with the defendant as Human Resources Business Partner. This in itself suggests that DW was not an employee of the defendant but some sort of consultant or independent contractor. When asked where he lives, DW answered that he lives at No. 1 Bilings way Oregun. When asked if this is not the address of the defendant, he answered in the affirmative. He then acknowledged that he was not given living accommodation within the office address; instead that the office address is his address for correspondence. The point here is that DW started off with a lie i.e. by stating that he lives in an address that he actually knows he did not live in. This naturally raises concerns about his credibility. DW would later testify that he lives at Block S8, Flat 12, Nigerian Airforce Base, Ikeja-Lagos.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Now, DW testified that he was employed by the defendant on 23<sup>rd</sup> August 2010 and acknowledged that he went through his deposition and then signed same. He also acknowledged that as at 4<sup>th</sup> November 2008 he was not an employee of the defendant; as such he was not on ground when all the events he narrated in paragraph 3 of his deposition happened. To DW, his depositions are not lies or hearsay but facts he got from records. The problem with DW’s sworn deposition of 9<sup>th</sup> February 2015 is that paragraphs 1, 3, 5, 6, 7, 8, 9 etc are all couched as if the deponent was an eyewitness. For instance, in paragraph 1 he deposed that he knows the claimants in this suit and is aware of the facts and circumstances of this case. In paragraph 3 he deposed to with precision as to date and time what the claimants did on 4<sup>th</sup> November 2008. This precise deposition is repeated in paragraph 5; and in paragraph 6, he deposed to how professional the police were in handling the situation. In paragraph 7, he was certain in his deposition that the claimants were never battered, harmed, molested or assaulted by the policemen, soldiers or anyone at all. DW even knew what happened as darkness fell as to him in paragraphs 8 and 9 the claimants carrying sticks went on rampage and attacked management staff and destroyed company property; for which the police at about 9.15pm had to break the locks at the gate in order to secure entry into the defendant’s premises rescue management staff held hostage. This trend of narration can be seen all through the deposition of DW.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">There is no paragraph averring that DW’s information came from files; even at this, the manner the depositions are couched suggests that DW was an eyewitness, which he was not since he was not in the employ of the defendant when the events that gave rise to this suit occurred; nor is there any averment to the effect that he was in the premises of the defendant when all he deposed to happened. Given all this, I do not see any credibility in DW himself or any evidential value in his testimony, it being hearsay. The law is that hearsay evidence, whether oral or documentary, is inadmissible and lacks probative value. See sections 37 and 38 of the Evidence Act 2011, <i>Buhari v. Obasanjo</i> [2005] 13 NWLR (Pt. 941) 1 at 317 and <i>Doma v. INEC</i> [2012] All FWLR (Pt. 628) 813 at 829. I accordingly find and hold that the testimony of DW is inadmissible and lacks probative value. It will be discountenanced for purposes of this judgment. However, this still does not take away the duty imposed on the claimants to prove their case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Exhibit CW4 is a collection of the letters of summary dismissal given to the claimants by the defendant. They are all dated 10<sup>th</sup> November 2008, are similarly worded and they all took effect on 10<sup>th</sup> November 2008 i.e. with immediate effect. In them, the individual claimants were summarily dismissed because of involvement in the recent fracas within the company premises on 4<sup>th</sup> November 2008 which resulted in the assault of the Managing Director and some Police officers, destruction of company properties, intimidation of other employee, and holding of management and office staff hostage; all of which were said to amount to improper conduct. The claimants were then dismissed from service in accordance with paragraph 3 of page 34 of the staff handbook, 2006. The claimants were then told that the Paymaster has been advised to calculate their respective contributions to the Provident Fund and transfer same to their nominated Pension Fund Administrator (PFA) in line with the “Pension Refund Act”. Paragraph 3 at page 34 of the Staff Handbook provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Employees guilty of breaking any of the rules and regulations in force for the time being, or of neglect of or of insulting behaviour to or disobedience of the orders of senior employees of supervisory rank or above or of improper conduct (including theft, irregularity of attendance and willful waste of time and materials), assault, fighting, drunkenness, or clocking for other employees, may be summarily dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">It is this dismissal that the claimants are arguing is wrong especially as their entitlements were not paid.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The contention of the defendant is that the claimants had embarked on an unlawful industrial action which led to the fracas that led to their dismissal. In other words, the industrial action embarked upon by the claimants was illegal and so the dismissal of the claimants from the employment of the defendant was lawful. In answer and to show the lawfulness of their action, the claimants in their reply on points of law argued that they did obtain permission from the defendant to hold work-to-rule on 3<sup>rd</sup> and 4<sup>th</sup> November 2008, through several letters written to the management by their union representatives, which work to rule was held peacefully. Accordingly, that the claimants did not embarked on strike on 3<sup>rd</sup> and 4<sup>th</sup> November 2008 rather only a work-to-rule, by putting on rubber band on the clothes as a sign that they were not happy. The claimants further argued that there was a poll or ballot or referendum organized by the union before embarking on work-to-rule on 3<sup>rd</sup> and 4<sup>th</sup> Nov 2008. To start with, the claimants do not seem to know that just as a strike is an industrial action, work to rule is also an industrial action; for if work to rule were not an industrial action, the claimants would not have needed to do the “poll or ballot or referendum” they said they did, something not even supported by the evidence before the Court as there is no evidence before the Court that such a “poll or ballot or referendum” was actually done. Secondly, even the submission that they obtained the permission of the defendant before holding the work to rule is not also supported by the evidence before the Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The evidence before the Court is that CW3 under cross-examination acknowledged that a demonstration (where all workers sat down in the premises) started in the morning of 3<sup>rd</sup> November 2008 and ended on 4<sup>th</sup> November 2008; and that during the demonstration, no body worked in Unilever. CW4 in his own testimony under cross-examination said that he joined other members of staff (about a thousand) for a peaceful rally, a rally that they did not obtain any written permission before embarking on. CW4 further testified that the rally was during working hours and that during the strike no body worked. CW4 continued that the terms of his employment do not permit him to hold rallies during working hours; that they did not do any balloting before embarking on the strike; and that the strike was what caused them their jobs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Now section 9(6) of the Labour Act Cap. L1 LFN 2004 provides that – <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">No contract shall –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(a) make it a condition of employment that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union; or<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">(b) cause the dismissal of, or otherwise prejudice, a worker –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify;text-indent:.5in">(i) by reason of trade union membership; or<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(ii) because of trade union activities outside working hours or, with the consent of the employer, within working hours; or<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(iii) by reason of the fact that he has lost or been deprived of membership of a trade union or has refused or been unable to become, or for any other reason is not, a member of a trade union.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The key provision for present purposes is section 9(6)(b)(ii), which provides that a worker cannot be dismissed or otherwise prejudiced because of trade union activities outside working hours or, with consent of the employer, within working hours. The import of this provision is that where the worker conducts trade union activities during working hours and without the consent of his or her employer, then such a worker can be dismissed or otherwise prejudiced. The rally or work to rule or strike (industrial action) embarked upon by the claimants on 3<sup>rd</sup> and 4<sup>th</sup> November 2008 was a trade union activity, which CW4 acknowledged was done during working hours and without any written permission being obtained. This means that the claimants flouted the provision of section 9(6)(b)(ii) of the Labour Act 2004, as such their dismissal was not wrongful; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Howsoever the dismissal was, are the claimants thereby disentitled to be paid their wages and other entitlements? The defendant thinks so. The defendant had argued that it is trite law that an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. In other words that dismissed employees are not entitled to wages, terminal benefits, entitlements or benefits. The defendant is here talking of the law as per the old dispensation. The new dispensation is that whether termination or dismissal is wrong or not, all earnings of an employee prior to the dismissal must be paid by the employer to such an employee. See <i>Udegbunam v. FCDA</i> [2003] 10 NWLR (Pt. 829) 487 SC, <i>Underwater Eng. Co. Ltd v. Dubefon</i> [1995] 6 NWLR (Pt. 400) 156 SC, <i>Kasali Olugbenga v. Access Bank Plc</i> unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, <i>Mr. Adewale Aina v. Wema Bank Plc & anor</i> unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, <i>Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & anor</i> unreported Suit No. NICN/LA/40/2012 the judgment of which was delivered on 7<sup>th</sup> April 2016 and <i>Adebayo Boye v. FBN Mortgages Limited</i> unreported Suit No. NICN/LA/496/2012 the judgment of which was delivered on 7<sup>th</sup> April 2016. This means that so long as the claimants can prove that their earned entitlements as at date of dismissal have not been paid, they will be entitled to be paid same. But have the claimants actually proved the monetary reliefs they claim? This remains the question.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">By relief 3, the claimants put the outstanding entitlements due to them as being the sum of Nine Hundred Million Naira (N900,000,000.00), which they prayed the Court to order the defendants to pay. How did the claimants arrive at this sum? I do not know; and the Court has not been told how they arrived at this sum. The claimants in proof of their case frontloaded Exhibit CW1 (a collection of their employment letters), Exhibit CW2 (a collection of their employment letters, confirmation letters, promotion letters and pay-slips), Exhibit CW3 (a collection of share certificates), Exhibit CW4 (a collection of their dismissal letters), Exhibit CW5 (miscellaneous documents including letters from the Office of the Public Defender, newspaper cutout and “information on calculation of claimants’ entitlements totaling N900,000,000.00”) and the Staff Handbook.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The “information on calculation of claimants’ entitlements totaling N900,000,000.00” is a 2-paged document structured under columns i.e. “Informations” and “Final Entitlement”. It has the names of the 61 claimants; and for each of the names, information as to employment date, number of years, basic salary per month, general increment by union on salary and allowances with increment by union is given. Then for each of the names, a calculation by way of benefit/gratuity, outstanding salary and allowances, leave allowance, shares of 4375 units at N58.50k each, Xmas bonus, medical, monthly product pack value, Xmas product pack value, leave product pack value, long year service award and retrenchment benefit is made for which the total amount for each claimant is indicated at the end. It is this total amount for each claimant that was added up to get the N900,000,000.00 that the claimants are claiming as relief 3.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The problem with all of this is that the “information on calculation of claimants’ entitlements totaling N900,000,000.00” is merely two sheets of paper the source and author of which is not disclosed. It could have been printed anywhere and by just any person. Its authenticity is certainly doubtful. Secondly, the claimants did not disclose to the Court how they are entitled to all the heads of the claims endorsed in the said document. Aside from showing an entitlement to the heads of sums indicated, the claimants must indicate how they came about the calculations they did. All of this is lacking in the case of the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The law is that a party who produces an exhibit so that the Court could utilise it in the process of adjudication must not dump it on the Court, but must tie it to the relevant aspects of his case. See <i>Ivienagbor v. Bazuaye</i> [1999] 9 NWLR (Pt. 620) 552; [1999] 6 SCNJ 235 at 243, <i>Owe v. Oshinbanjo</i> [1965] 1 All NLR 72 at 15, <i>Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco</i> [1971] 1 All NLR 324 at 333, <i>Alhaji Onibudo & ors v. Alhaji Akibu & ors</i> [1982] 7 SC 60 at 62, <i>Nwaga v. Registered Trustees Recreation Club</i> [2004] FWLR (Pt. 190) 1360 at 1380 – 1381, <i>Jalingo v. Nyane</i> [1992] 3 NWLR (Pt. 231) 538, <i>Ugochukwu v. Co-operative Bank</i> [1996] 7 SCNJ 22, <i>Obasi Brothers Ltd v. MBA Securities Ltd</i> [2005] 2 SC (Pt. 1) 51 at 68, <i>Eze v. Okolagu</i> [2010] 3 NWLR (Pt. 1180) 183 at 211, <i>ANPP v. INEC</i> [2010] 13 NWLR (Pt. 1212) 547, <i>Ucha v. Elechi</i> [2012] 13 NWLR (Pt. 1316) 330 at 360,<i> Belgore v. Ahmed</i> [2013] 8 NWLR (Pt. 1355) 60 at 99 – 100, <i>Omisore v. Aregbesola</i> [2015] 15 NWLR (Pt. 1482) 202 at 323 and 324 and <i>Ademola Bolarinde v. APM Terminals Apapa Limited</i> unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on 25<sup>th</sup> February 2016. In <i>Mr. Mohammed Dungus & ors v. ENL Consortium Ltd</i> [2015] 60 NLLR (Pt. 208) 39, this Court held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">I must emphasise here that throughout their written address, the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlements they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy; and cases can be lost just on that score.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the instant case, the claimants have not shown to the Court under what rule or term of conditions of service that they are entitled to the N900,000,000.00 they claim as relief 3 and how they even arrived at the said sum in terms of their right to the heads of sums they indicate as their entitlement. For these reasons, it is my finding and hence holding that the claimants did not prove their claim for N900,000,000.00. The claim accordingly fails and is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief 2 is for a declaration that the conduct of the defendant by inviting armed soldiers and police to torture and brutalize the claimants was unlawful oppressive and the defendant is legally liable and responsible for the injury that arose out of and in the course of employment of the claimants and the claimants are entitled to monetary compensation of N100,000,000.00 (One Hundred Million Naira only). The claimants did not also prove this. Merely making a claim as to it is no proof of entitlement. Relief 2 accordingly fails and so is dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief 4 is for an order compelling the defendant to pay the claimants the sum of N500,000,000.00 (Five Hundred Million Naira) as exemplary and aggravated damages in reparation for the unlawful acts occasioned by the defendants against the 61 claimants. This too was not proved by the claimants. The relief fails and so is equally dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief 5 is for an order of perpetual injunction restraining the defendant, its agents, servant and privies from harassing, intimidating and unlawfully terminating the employment of the 61 claimants and we are asking for their restatement by the defendant. Equally so, the claimants did not prove the claim for this relief. The relief also fails and so is dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the whole, and for the avoidance of doubt, the claimants’ case fails for lack of proof. It is accordingly dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US; mso-bidi-language:AR-SA">Hon. Justice B. B. Kanyip, PhD</span>