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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Paul Omoijiade with Helen Eiguedo-Okoeguale Mrs. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">F.O. Ogungbemi with A. Onoja Miss for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT</span></u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Introduction & Claims<o:p></o:p></span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant approached the Court via her <i>General Form of Complaint </i>on 5/2/15 and sought before this Court the following reliefs against the Defendant -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the purported termination of employment of the claimant is unlawful and wrongful as the said termination was done without following due process/procedure laid down in the Defendant Bank’s Hand Book and the Collective Agreement in terminating an employee’s employment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. An Order of this Honourable Court Compelling the Defendant Bank to reinstate the Claimant to its employment which was terminated without due process/procedure laid down in the Defendant Bank’s Hand Book and Collective Agreement.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. An Order of this Honourable Court Compelling the Defendant Bank to pay the salary and other allowance due to the claimant from the date of the purported termination to the date of judgment or in the alternative. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. An Order that the Defendant Bank Pay the sum of =N=20,000,000.00 (Twenty Million Naira) to the claimant as damages for the emotional trauma and other setbacks suffered as a result of the purported termination of employment <b>or in the alternative to (c) & (d) </b><o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. An Order that the defendant pay the claimant redundancy benefits in line with Article 5 of the Collective Agreement. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. An order that the Defendant pay to the claimant the sum of =N=5,000,000 (Five Million Naira) being cost of litigating this matter. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="line-height:normal"><span style="font-size: 12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="line-height:normal"><span style="font-size: 12.5pt;font-family:"Times New Roman","serif"">The Claimant accompanied her Form 1 with all the requisite documents as mandated by the Rules of this Court. On 8/5/15, the Defendant filed its statement of defence accompanying same with documents required for front loading.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="line-height:normal"><span style="font-size: 12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Case for the Claimant<o:p></o:p></span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 13/7/15, the Claimant opened her case and testified as <i>CW1. </i>Claimant adopted her written deposition dated 5/2/15 as her evidence in chief and tendered 8 documents as exhibits. 7 of the documents were admitted and marked as <i>Exh. C1-Exh. C7. </i>3 additional documents were tendered and admitted under cross examination and were marked as <i>Exh. C8 - Exh. C10. </i>The case of the Claimant as apparent from his pleadings is that he joined the employment of the defendant on 2<sup>nd</sup> August 1990 through a letter of employment dated 2/8/90; that on resuming duty on 6<sup>th</sup> August 1990, with the Defendant Bank, he signed a contract of service drawn up by the Defendant in the Defendant standard form which is the contract between him and the Defendant, together with the Collective Agreement in the industry which was incorporated into his contract of employment in the employment letter ; that in the course of his employment, he worked in several branches of the Defendant Bank including Alaba International Market branch where he worked as Head - Customer service until 7<sup>th</sup> June 2013 when his appointment was wrongly terminated; that before the termination of his appointment, the Business Development Manager Mrs. Flora Ebhodaghe on or about the 26<sup>th</sup> day of June, 2012 during working hours in his said branch told him orally that one Mrs. C.N Otikpa wrote a petition against me on the sale of Bureau De Change at Aspanda Main Gate Branch; that he was never shown the petition by Mrs. CN. Otokpa nor was he afforded the opportunity to defend himself against the allegations contained in it; that he was never issued any query; that he was only invited to Inspection Department of the defendant Bank for questioning on CBN guidelines for the sale of BDC; that he travelled to London in October 2013 and on return wrote an appeal against the wrongful termination on 28<sup>th</sup>April 2014 to the Managing Director/CEO of the defendant’s Bank and that he did not receive reply to the letter of Appeal dated 28<sup>th</sup> April 2014.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Claimant further averred that he never had any irregularity as an employee of the Defendant Bank and has never been queried in line with Article 4 Paragraphs (ii) a, b, and c of the Collective Agreement between the <i>Nigeria Employers’ Association of Bank, Insurance and Allied Institutions</i> (NEABIAI) and the <i>Association of Senior Staff of Banks, Insurance and Financial Institutions</i> (ASSBIFI) and the Defendant Bank; that by virtue of volume 4, page 21 of the Defendant Bank’s Hand Book entitled “Contract of service” every member of staff must sign a contract of service Agreement and is bound by the conditions thereof in addition to the provisions of the relevant collective agreement; that the termination of his appointment also violates <i>ILO Termination of Employment Convention, 1982</i>; that he had never committed any irregularity nor given any query or varying howsoever as an employee of the Defendant for the past 23 years I work with the defendant as he carried out his duties diligently; that the termination of his employment by the defendant was done in bad faith, without given me any fair hearing and without following the procedure laid down in its Hand Book and the Collective Agreement; that the purported termination of my employment was done in bad faith, calculated to destroy my enviable records; that termination of employment in the banking sector carries a stigma as such an employee will not be entitled to work in the Nigerian Banking industry and that it is in the interest of justice to grant all the reliefs he claims as the defendant will not be prejudiced. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination, <i>CW1<b> </b></i>testified that he signed a contract of service when he joined Defendant; that he could recognise the contract if shown to him and that he received one month salary in lieu of notice together with her gratuity.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Case for the Defendant<o:p></o:p></span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 2/11/15, the Defendant opened its case and called one Anthony Nsoro as its lone witness. <i>DW1 </i>adopted its witness deposition dated 8/5/15 as his evidence in chief and urged the Court to dismiss the case of the Claimant. The case of the defendant is simply that it terminated the employment of the Claimant for services no longer required and paid a month's salary in lieu of notice together with the terminal benefit of the Claimant. Under cross examination, DW1 testified that he has been in the Human Resources Department of Defendant for 6 years; that he is not a Lawyer; that he has gone on annual leave this year; that it is mandatory for him to go on annual leave and that there is nothing like termination for services no longer required in the contract of service between the parties. <b><o:p></o:p></b></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Submissions on behalf of the Defendant<o:p></o:p></span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">At the close of trial, learned Counsel on either side were directed to file their final written addresses in accordance with the rules of Court. On 28/1/16, learned Counsel to the Defendant filed his final written address in which he set down the following issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the termination of the Claimant’s employment by the Defendant was wrongful?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the alleged Collective Agreement and the Defendant’s Handbook form part of the Claimant’s Contract of Service and thus binding and enforceable against the Defendant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant is entitled to be paid salary and other allowances from the date of the termination to the date of judgment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Claimant is entitled to be reinstated?.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Whether or not the Claimant, having been paid a month’s salary in lieu of notice and her terminal benefits and having accepted same, can be heard to complain that her contract of employment was not properly determined. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Whether the Claimant is entitled to payment of redundancy benefit under the alleged Collective Agreement. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. Whether the Claimant is entitled to the damages for alleged emotional trauma and other setbacks. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 1as formulated, learned Counsel submitted that the law recognises the right of an employer to determine the contract of employment of an employee, for good, for bad reasons or for no reason at all and that the also recognises the right of an employee to leave the service of his master at will without hinderance as a worker cannot be forced to continue in the service of a master against his will, citing <i>Ajayi v. Texaco Nigeria Limited (1987)3 NWLR (pt. 62) 577, Zildeeh v. R.S.C.S.C (2007)3 NWLR (Pt. 1022) 554 at 577 & N.E.P.A v. Eboigbe (2009)8 NWLR (Pt. 1142) 150 at 162. </i>According to learned Counsel, the Claimant confirmed that she signed a contract with the Defendant - <i>Exh. C8; </i>that <i>Clause 7 </i>of same stipulates that either party may determine the contract by giving a month notice to the other party or payment of a month's salary in lieu of notice and that the burden is on the Claimant to prove how her employment was wrongly terminated. Counsel submitted that the Claimant only placed her contract of service before the Court without a proof of how same has been breached. Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The second issue is whether the alleged Collective Agreement and the Defendant's handbook form part of the Claimant's Contract of service and thus binding and enforceable against the Defendant. On this Counsel submitted that Collective Agreements are generally unenforceable and cannot be a ground for a cause of action the reason being that although the Collective Agreements are made for the benefit of an employee, there is no privity between the employer and the employee. Counsel cited <i>Gbedu v. Itie (2010)10 NWLR (Pt. 1202) 282, Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (1993)4 NWLR (Pt. 288) 512. </i>Counsel submitted further that the only instance where a collective agreement is enforceable is when same has been incorporated into the contract of employment citing <i>UBN v. Chinyere (2010)10 NWLR (Pt. 1203) 471 & Texaco Nigeria Plc v. Kehinde (2001)6 NWLR (Pt. 708) 224, Rector, Kwarapoly v. Adefila (2007)15 NWLR (Pt.1056) 42 & Unity Bank Plc v. Ademiluyi (2013) LPELR-21984. </i>According to Counsel, the Claimant is seeking to rely on an alleged Collective Agreement purportedly made between the <i>Nigeria Employers' Associate of Banks, Insurance and Allied Institution (NEAABIAI) </i>and the <i>Associate of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) </i>in 2005; that same was referred to in the Claimant's employment letter dated 2/8/90 and that by the decision of the Court of Appeal in <i>Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares (2012) NWLR (Pt. 1312) 550 </i>which is on all furs with the instant case, the said letter of employment of the Claimant did not incorporate the Collective Agreement into the contract of service of the Claimant. Counsel urged the Court not to read any extraneous matter into the agreement between the parties, citing <i>Dr. Ben Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (1993)4 NWLR (Pt. 288) 512</i> but rather to hold that the collective agreement is unenforceable by the Claimant against the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 3, learned Counsel submitted that employment relationship between the parties is without statutory flavor and that the law is trite that remedy for wrongful termination is damages and not payment of unearned salary. Counsel cited <i>Gabriel Ativie v. Kabemetal Nigeria Limited (2008)10 NWLR (Pt.1095) 399 & Union Bank of Nigeria Plc v. Okenwa (1994) LPELR-23178. </i>Learned Counsel thus urged the Court to dismiss the Claimant's claim for salary and other allowances from the date of termination of her employment to the date of Judgment as the claim lacks support in law.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 4 which is whether the Claimant is entitled to be reinstated, learned Counsel submitted that the Claimant's contract of employment is that of ordinary master/servant and one without statutory flavor and that the Claimant cannot seek an order of reinstatement in the circumstance citing <i>Union Bank of Nigeria Plc v. Soares (2012)11 NWLR (Pt. 1312) 550. </i>Learned Counsel added that in any event the Court cannot impose a willing employee on an unwilling employer, relying on <i>Osisanya v. Afribank (Nig.) Plc (2007)6 NWLR (Pt. 1031) 565. </i>Counsel therefore prayed the Court to hold that the Claimant's employment was rightly terminated in accordance with her contract of service.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 5, learned Counsel stated that by paragraph 11, the Claimant was paid a month salary in lieu of notice; that during trail of the case, the Claimant testified under cross examination that she received one month salary in lieu of notice together with her gratuity and that the Claimant cannot now turn to raise dust over the termination which she has acceded to by not rejecting the terminal benefit paid to her. Counsel cited <i>Morohunfola v. Kwara Tech (1990)4 NWLR (Pt. 506 at 528, Ekeagwu v. Nigeria Army (2006)11 NWLR 382 at 397. </i>Counsel prayed the Court to so hold. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 6, learned Counsel submitted that it is for an employer to declare an employee redundant under certain conditions; that these conditions include the fact there is surplus manpower, the employer must inform the representatives of the Union of its intentions to lay off some staff, that the principle of last in first out will be effected and that the employer must take steps to properly compensate the redundant workers; that the Defendant did not take any of these steps and that from pleadings and evidence led in this case, the case of the Claimant is that the employment of the Claimant was terminated by the Defendant and that the Claimant did not allege that she was declared redundant. Learned Counsel added that while an employer can declare an employee redundant, an employee cannot declare himself redundant. Learned Counsel submitted further that Claimant's claim for payment of redundancy is by nature a claim for loss of income and hence a claim for special damages and that under the law such a claim must be particularised and strictly proved citing <i>Ngilari v. Mothercat Ltd (1993)3 NWLR (Pt. 636) 626</i>and that on the authority of <i> A-G Leventis Nig. Ltd v. Akpu (2002)1 NWLR (Pt. 747) 182 </i>this claim must fail. Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 7, learned Counsel submitted that the Claimant having failed to establish her case for wrongful termination, the Claimant could not possibly be entitled to damages sought as a result of the alleged wrongful termination of her employment; that the claim of the Claimant lacks basis both in law and fact and that the Court should so hold. Respecting reliance on <i>Art. 7 </i>of <i>ILO Termination of Employment Convention 1982 </i>by the Claimant, Counsel submitted that the said Convention has no application to this case; that there is no evidence before the Court to show that Claimant's employment was terminated for reasons related to her conduct or performance and that the letter of termination of employment was explicit. Learned Counsel urged the Court to dismiss the Claimant's case with substantial cost. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Submissions on behalf of the Claimant<o:p></o:p></span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The final written address of the Claimant was filed on 15/3/16. In it learned Counsel canvassed 4 issues for determination as follows - <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Collective Agreement has been Incorporated into the Claimant’s Contract of Employment.<span style="font-variant-numeric: normal; font-variant-caps: small-caps;"> <o:p></o:p></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size: 12.5pt; font-family: "Times New Roman", serif; font-variant-numeric: normal; font-variant-caps: small-caps;">2. </span><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">If the above question is answered in the affirmative, whether the Defendant can lawfully terminate the employment of the Claimant without due process as entrenched in the Collective Agreement?. If no, whether the termination amounts to redundancy for which the Claimant is entitled to redundancy benefit<span style="font-variant-numeric: normal; font-variant-caps: small-caps;">. <o:p></o:p></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the termination of the employment of the Claimant accords with International Best Practice.<span style="font-variant-numeric: normal; font-variant-caps: small-caps;"> <o:p></o:p></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size: 12.5pt; font-family: "Times New Roman", serif; font-variant-numeric: normal; font-variant-caps: small-caps;">4. </span><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Whether the Claimant is entitled to all the reliefs. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, learned Counsel submitted that the law is that where a Collective Agreement has been incorporated into a contract of service whether directly or by implication, the parties are bound by the provision thereof relying on <i>Abalogun v. SPDC Ltd (2003) LPELR-18, (2003)13 NWLR (Pt. 837) 309 (SC) & Salami v. UBN Plc </i>as authorities. Learned Counsel further cited the case of <i>NNB Plc v. Solomon Owie (2010) LPELR-4591 (CA) </i>on the same proposition where the Court stated that it is for the Court to read the language of the two documents with the eyes of an eagle before taking a decision and that it is the duty of the Court to read the documents should be read together in order to decide. In the instant case, learned Counsel submitted that by <i>Exh. C1 </i>- letter of offer of employment, ''other conditions of service will be laid down in the Contract of service and Collective Agreement currently in force''. Counsel submitted that by this provision, <i>Exh. C1 </i>has incorporated <i>Exh. C6 </i>which is the Collective Agreement into the contract of service of the Claimant. Counsel also referred to <i>Exh. C9 - </i>letter of reprimand which in referring to the Collective Agreement had stated thus - <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''This letter is written to reprimand you in accordance with the terms of Senior Staff Collective Agreement part 11 section 1(Article 4ii) in that as treasury Custodian at Alagbon branch, you paid some debit advice on the account of O.O Williams thereby granting unauthorized facilities''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Counsel submitted that by the act of the Defendant it has shown the intention to be bound by the Collective Agreement <i>Exh. C9 </i>relying on <i>Salami v. Union Bank of Nigeria Plc (Supra). </i>Counsel submitted that the present case is distinguishable from the case of <i>UBN v. Soares </i>as there was no reference to any other document in that case unlike the present one where aside from <i>Exh. C1 </i>other documents are available to infer the intention of the parties. Counsel that Part 111 of the Collective Agreement keeps same alive notwithstanding the fact that its expiration date has passed until a new agreement or amendment is made and the date of commencement is agreed upon. Learned Counsel thus urged the Court to hold that the said Collective Agreement is incorporated into the Claimant's letter of employment and that the Defendant's act of acting in reference to the Collective Agreement in dealing with the Claimant shows the parties' intention to be so bound by its provisions.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that the Collective Agreement specified the grounds under which an employee's appointment may be terminated as contained in <i>Art. 4(ii)(a)-(c); </i>that the clear interpretation of this Article is that the Defendant does not have the freedom to depart from the letter of the said Article; that by the provisions, an employee's appointment can only be terminated for the reasons as stated in it and that the only instance the Defendant may terminate without reason is in a case of redundancy as contained in <i>Art. 5 </i>of the Collective Agreement; that the Defendant having averred in paragraph 12 of its witness statement on oath that the termination of Claimant's appointment is not on grounds of misconduct or by reason of the BDC or the invitation to the Defendant's Inspectorate Department, then the only reasonable conclusion that can be drawn is that the purported termination is wrongful same being in breach of the Collective Agreement and an effort to avoid payment of redundancy benefit to the Claimant citing <i>Obaseki-Osagahe J </i>in <i> Ademulegun Gbenga Cosmas & 219 Ors. v. Union Homes Savings and Loans Plc Unreported Suit No: NICN/232/2014</i>. Counsel prayed the Court to hold that the termination of the Claimant's appointment with the Defendant for ;services no longer required' is contrary to <i>Art. 4(ii)(a)-(c) </i>of the Collective Agreement and therefore wrongful same being done to avoid payment of redundancy benefit to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">With respect to issue 3, Counsel referred to S. 7(6), <i>National Industrial Court Act </i>which enjoined the Court to have due regard to good or international best practice in labour or industrial relations. Counsel cited Art. 7 of <i>ILO Convention on Termination of Employment, 1982 </i>which forbids termination of a worker's employment for reasons related to the worker' conduct or performance before he is provided an opportunity to defend himself against the allegation made unless the employer cannot reasonably be expected to provide this opportunity and <i>Art. 4 </i>which prohibits termination without valid reasons. Counsel also referred to <i>Recommendation 166 </i>of the Convention and argued that whilst Nigeria has not ratified the Convention, its provisions are not devoid of legal effects referring to S. 7(6) of the <i>National Industrial Court Act, 2006. </i>Learned Counsel referred to the Lesotho case of <i>Paleda Peko v. The University of Lesotho Case No: LC 33/95 </i>decided on 1/8/05 and the South African case of <i>Modise & Ors. v. Steve Spar Case No. J.A. 29/99 </i>decided on15/3/2000 contending that this Court is empowered by S. 7 of the <i>National Industrial Court Act </i>to apply ILO Convention just like its counterpart in Lesotho and South Africa. Counsel submitted that termination for services no longer required does not accord with international best practice and that that phrase was imported to avoid payment of redundancy benefit in the instant case and that the law remains that where parties have reduced the terms and conditions of their contract into writing same must be observed relying on <i>Chukwumah v. Shell Petroleum Development Company (1993)4 NWLR (Pt. 289) 512. </i>Learned Counsel submitted that termination of employment for services no longer required does not accord with international best practice and urged the Court to so hold. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The issue 4 is whether the Claimant is entitled to all his reliefs. On this issue Counsel, submitted that having established that the termination of the Claimant's employment is wrongful, the Claimant is entitled to his reliefs. Learned Counsel relied on the decision of the apex Court in <i>Samuel Isheno v. Julius Berger Nig. Plc </i>where <i>Oghene J.S.C </i>had stated that <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> '... where the employer fires an employee in compliance with the terms and conditions of their contract of employment, there is nothing the Court can do as such termination is valid in the eyes of the Law. It is only where the employer in terminating or dispensing with the services of an employee does so without due regard to the terms and conditions of the contract of employment between the parties that the problems arise and as such termination is usually not tolerated by the Courts and are, without hesitation usually declared wrongful and appropriate measures of damages awarded to the plaintiff''. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Learned Counsel further submitted that it is the law, relying on <i>Tomlinson v. L.M. LSR (1944)1 AER 537 & The Registered Trustees of the Planned Parenthood Federation of Nigeria & Anor. v. Dr. Jimmy Shoghola (2003) LPELR-7300 (CA),</i> that where a collective agreement has been incorporated into a contract of employment that has set out the steps to be followed for its determination, failure to follow the steps gives rise to an action in damages for its breach, this is so though the contract has been effectively determined. Counsel submitted that even apart from the issue of damages, this Court is empowered by S.19(d), <i>National Industrial Court Act, 2006, </i>to make award of compensation or damages in any circumstance contemplated under the Act or any other Act of the National Assembly dealing with any matter the Court has jurisdiction to hear. While urging the Court to award compensation, learned Counsel cited the case of <i>Mbilitem v. Unity Capital assurance Plc (2013)32 NLLR 230 </i>where this Court held that ''where the employment of an employee is terminated on the basis of redundancy, every benefit paid to the employee is not part of the redundancy benefit''. Finally, Counsel prayed the Court to hold that the Claimant is entitled to all the reliefs sought. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 10/5/16, Counsel to the Defendant filed a 19-page reply on points of law. Some of the argument canvassed bordered on whether or not the case of <i>Union Bank of Nigeria Plc v. Soares </i>is relevant to this case; whether by virtue of Part 1 of <i>Exh. C6 </i>all senior staff in the Defendant are automatically members of <i>ASSBIFI; </i>whether a decision on appeal cannot be a precedent to be cited by reason of its being on appeal; whether there is a saving clause under Part 111-Art. 1(b) of the Collective Agreement which keeps same alive notwithstanding its expiration date an whether or not this Court can enforce an ILO Convention which has not been ratified.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Court Decision<o:p></o:p></span></i></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I read and understood all the processes filed by learned Counsel on either side including their final written addresses and the reply on points of law filed by the Defendant. I listened attentively to the testimonies of witnesses called at trial and watched their demeanor. I, in addition, evaluated all the evidence put forward by parties in this case. Having done all this, I narrow the issues for the just determination of this case down to the following -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Collective Agreement in this case has been incorporated into the terms and conditions of the contract of employment between the parties.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the employment of the Claimant was validly terminated in accordance with the terms and conditions of her employment by the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant is entitled to any or all the reliefs sought in this case.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <table class="MsoNormalTable" border="0" cellspacing="0" cellpadding="0" width="100%" style="width:100.0%;mso-cellspacing:0in;mso-yfti-tbllook:1184;mso-padding-alt: 0in 0in 0in 0in"> <tbody><tr> <td style="padding:0in 0in 0in 0in"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, it is trite that Collective Agreements are usually entered into between Unions and employers of labour. Thus in accordance with the general principle of law of privity of contract, the parties to Collective Agreement are those who can enforce same. See <i>Dr. Emeruche Kalu Nto & Anor. v. Global Soap & Detergent Ind. Limited (2012) LPELR-7997. </i></span><span lang="EN-GB" style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB;mso-fareast-language: EN-GB"><o:p></o:p></span></p> </td> </tr> <tr> <td style="padding:0in 0in 0in 0in"></td> </tr> </tbody></table> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Therefore, even an employee for whose benefit a collective agreement is made may not be able to claim same not being a party to the said agreement<b>.</b> Thus in<span class="apple-style-span"><span style="color:#000099"> <i>UBN Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 at 298-299,</i> Uwaifo, J.C.A. as he then was, stated the legal status of collective agreements <i>inter alia</i> as follows - <o:p></o:p></span></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span class="apple-style-span"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"; color:#000099"> </span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span class="apple-style-span"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"; color:#000099"> Collective agreements are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable..."</span></span> <o:p></o:p></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><o:p> </o:p></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">See also <i>Makwe v. Obanzuwa Nwukor & Anor. (2001) 14 NWLR (Pt. 733) 356</i>. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">That, however, is the general rule and to every general rule there are usually exceptions. Thus where however, the collective agreement has been incorporated into the terms and conditions of service or contract of service between an employer and an employee, it is opened to the employee to successfully claim the benefit available under the Collective Agreement and enforce the Collective Agreement. The incorporation may be reference of one document to the other. What then is meant be incorporation by reference? <span class="apple-style-span"><i><span style="color:#000099">Black's Law Dictionary, 7th Edition page 770 </span></i><span style="color:#000099">defines the term ''Incorporation by reference'' as - <o:p></o:p></span></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span class="apple-style-span"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"; color:#000099"> </span></span></p> <p class="MsoNormalCxSpLast" style="text-align:justify;line-height:normal"><span class="apple-style-span"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"; color:#000099"> A method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one - often shortened to incorporation. <o:p></o:p></span></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt">This is the position of the law.<b> </b>In <i>ACB Plc v. Nwodika (1996) 4 NWLR (Pt. 443) 470 at 484 </i>Tobi, JCA (as he then was) stated the position of the law stating that it is clear from the state of the case law that where a collective agreement is incorporated or embodied into the conditions or contract of service, it will be binding on the parties.<span class="apple-converted-space"><span style="color:#000099"> </span></span>Trial Courts have also been enjoined to read the available documents both carefully and thoroughly so as to find out the intention of the parties as to whether or they intend to be bound by the contents of collective agreement so as to make enforceable notwithstanding the absence of privity of contract between the employer and the employee. See <i>Adetoun Oladeji (Nig.) Limited v. Nigeria Breweries Plc (2007) LPELR-160 (SC)</i> <o:p></o:p></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt">In the instant case, was the Collective Agreement here <b><i>Exh. C6 </i></b>incorporated into the terms and conditions of service or contract of service between the parties? Are the circumstances here such that a positive finding could be made in favour of the Claimant? In <i>Exh. C1 - Letter of Offer </i>a reference was made to the Collective Agreement in the following words - <o:p></o:p></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt"> ''Other conditions of service will be laid down in the Contract of Service Agreement and also the Collective Agreement currently in force''<b>. <o:p></o:p></b></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt">There is also evidence before me to the effect that the Defendant manifested intention to make the Collective Agreement part of the contract of employment it entered into with the Claimant. For instance, in exercising its disciplinary power over the Claimant, the Defendant wrote <i>Exh<b>. </b>C9<b> </b></i>which is a warning letter and made copious reference to the Collective Agreement. The first paragraph of that exhibit states as follows - <o:p></o:p></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt"> ''This letter is written to reprimand you in accordance with the terms of the Senior Staff Collective Agreement part 11 Section 1 (Article 4ii) in that as a Treasury Custodian at Alagbon House Branch, you paid some debit advice on the account of O.O Williams thereby granting unauthorised overdraft facilities''. <o:p></o:p></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt">Not this alone. In <i>Exh. C10, </i>a document dated 21/2/01 and titled <i>First Warning Letter </i>its first paragraph also made copious reference to the Collective Agreement. No doubt, these singular acts of the Defendant sufficiently distinguishes this case from the case of <i>Soares<b> </b></i>cited before me<b> </b>a decision of the Court of Appeal and which is a sound reflection of the position of the law respecting that case and which this Court as a trial Court is bound. In the present case, quite apart from reference to the Collective Agreement in the offer letter, there is also reference to same in yet another two other documents voluntarily written by the Defendant. On the other hand, in the case of <i>Soares<b>, </b></i>reference was made to the Collective Agreement in only the offer letter and there was nothing else where reference was made to the document in the case. Besides, it is trite for me to add that the conduct of the Defendant in relation the Collective Agreement is such that conveyed impression to the Claimant that the Collective Agreement formed part of her contract of service. The Defendant was ready to discipline the Claimant on the basis of the content of the Collective Agreement and it issued <i>Exh. C9 </i>and<i> Exh. C10</i> to the Claimant on the basis of same. Unfortunately, the Defendant is now not prepared to let the Claimant take any benefit that may be available to her under the same Collective Agreement. It is safe to hold that by its conduct the Defendant is estopped from contending that the Collective Agreement is not part of the contract of service or terms and conditions of service between the parties. <o:p></o:p></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt">I am constrained to note that the contents of the Collective Agreement in this case are such as imperative to the promotion of industrial peace and harmony. Indeed, Part 11 (Section 1) of the document deals with <i>Terms and Conditions of </i>Service. It deals with such issues as probationary period of service, Promotion and training, Pension and Gratuity and Medical Scheme among others. Part 11 of same deals with issues such as Salary Scales and Increment, leave of Absence, Transfer, Allowances, Overseas Training/Courses, Equity participation etc while Part 111 deals with other sundry matters. It is also important to note that indeed, this is the only exhibit which set out these important issues in the relationship between the parties. It is thus difficult, if not impossible not to hold from the facts and evidence led that it has been incorporated into the terms and conditions of the contract of employment between the parties. In addition, I note the submission of learned Counsel to the Defendant that the Claimant has not proved that she was a senior staff to be entitled to the benefits available under <i>Exh. C6 - </i>the Collective Agreement. That argument, with respect to the learned Counsel, would seem to have been made in oblivion of the fact that the Defendant by <i>Exh. C9 & Exh. C10 </i>recognised the Claimant as such. The Defendant exercised disciplinary power over the Claimant on the basis of <i>Exh. C6. </i>It is thus rather late in the day to contend that the Claimant was not a senior staff within the context of <i>Exh. C6. </i>Claimant was made to bear burden under the Collective Agreement by the Defendant. It accords with the law, equity as well as commonsense that the Claimant be entitled to any benefits available under the same document. I find and hold that the Collective Agreement in this case has been incorporated into the terms and conditions of the contract of employment between the parties. I further hold that by its conduct, the Defendant is estopped from denying the incorporation of the said Collective Agreement into the contract of service between it and the Claimant. <o:p></o:p></span></p> <p style="text-align:justify"><span lang="EN-GB" style="font-size:12.5pt">Notwithstanding the holding in this case thus far and the basis for same, it is pertinent to ask the extent to which the proposition that a collective agreement is only binding when incorporated or embodied in the conditions of service is valid in today's labour jurisprudence in this country. The fact remains that most of the cases which have so decided <i>( UBN Limited v. Edet (1993)4 NWLR (Pt. 287) 288, Mrs. Risi Shuaibu v. Union Bank of Nigeria Plc (1995)4 NWLR (Pt. 388) 173, Emmanuel Nwobosi v. ACB Limited (1995)6 NWLR (Pt. 404) 658</i>) were cases decided before the enactment of the <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010. </i>In <i>Ezeamaka Esther & Ors. v. Skye Bank Plc Suit No: NICN/LA/31/2010 </i>a Judgment of this Court delivered on 22/10/15, Agbadu-Fishim J, after reviewing the provisions of S. 254(1)(j)(i), <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 (</i>conferring exclusive jurisdiction on this Court to determine any question as to the interpretation and application of collective agreement), S. 7(1)(c)(1), <i>National Industrial Court Act, 2006 (</i>conferring power on this Court relating to the determination of any question as to the interpretation of any collective agreement) and S. 54(1), <i>National Industrial Court Act, 2006 </i>on the definition of disputes held that -<o:p></o:p></span></p> <p class="MsoNormalCxSpFirst" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''... the law would not go to this length if the desire is not collective agreements should be binding and enforceable. Of what use, is the power of the court to interpret or inquire into matters relating to conclusion or variation of collective agreements if the desire is not that they should thereby be binding and enforceable. Even aside from this, it is my humble view that the courts over time are merely giving effect to the common law when they hold that collective agreements are binding in honour only. can this common law principle actually or really withstanding a constitutional provision i. e Section 254C(1)(j)(i) and statutory provision i.e Sections 7(1), 13, 15 and 54(1) of the National Industrial Court Act, also an act of the national Assembly? I do not think so''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">His lordship was to add that -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> '' industrial relations relies(sic) heavily on the collective agreement process which collective agreements are negotiated and agreed upon. It is often a process that entails financial cost, not to talk of the time expended on it. So to throw all of this away on the simple common law expedient that the outcome, i.e the collective agreement is binding in honour only, or only when specifically incorporated into the employment contract in my humble opinion portends great danger to industrial peace and harmony at workplace, especially with the growing awareness and restiveness that permeates the world of work''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I find it difficult not to align myself with the sentiments expressed by His Lordship. Thus notwithstanding the ground upon which I have found and held that the collective agreement in the instant case forms part of the contract of employment of the Claimant, the present state of labour law and jurisprudence in Nigeria has certainly moved forward from the common law position respecting the applicability and enforceability of Collective Agreements. Suffices to simply say that the old common law position on collective agreement no longer hold sway in this country. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The second issue for determination is whether the employment of the Claimant was validly terminated in accordance with the terms and conditions of his employment or his contract of service by the Defendant. The law is settled that where a servant alleges wrongful termination of his contract of service or employment, he has the onus on him to lay before the Court his contract of service containing the terms and conditions agreed on with<b> </b>his employer. See <i>Fakuade v. OAUTH (1993)5 NWLR (Pt. 291) 47 & Idoniboye-Obe v. NNPC (2003)2 NWLR (Pt. 805) 589 at 630. </i>The Court of Appeal in <i>Akinola & Ors. v. Lafarge Cement Wapco Nigeria Plc (2015) LPELR-24630 per Bage, JCA </i>puts the law in perspective as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span class="apple-style-span"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"; color:#000099"> '' ... in contract of service parties are bound by the terms of the contract. Where the terms of the contract are clear and unambiguous, the parties cannot move out of them in search for more favourable terms or greener pasture. However, where the terms of the contract are clear and unambiguous, a Court of Law cannot move out of them and invoke the general rule of contract applicable to the nature of the contract of service. See: generally <i>Olaniyan vs. University of Lagos & Anor. (1985) 2 NWLR (Pt.9) 588; I.D.C. v. Ajijala (1976) 2 S.C. 115''.<o:p></o:p></i></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">It is therefore the obligation of such an employee to prove the contract of his employment to the Court and show how the termination of his employment was in breach of the terms and conditions as contained in the contract of service between the parties. Having held respecting issue 1, the terms and conditions of service of the Claimant are as contained in her offer letter <i>Exh. C1, </i>Contract of Service - <i>Exh. C8 </i>and the Collective Agreement <i>Exh. C6. </i>In a written contract, it is not the duty or responsibility of the Court to add to, remove or vary in any form or manner the content of that contract. Rather the primary duty of the Court is to interpret and give meaning to the necessary intention of the parties which intention can only be deduced from the contract documents signed. ''<span class="apple-style-span"><span style="color:#000099">Where documents form part of a long drawn transaction such as in the instant case'', explained the Court of Appeal in <i>Ogunniyi v. Hon. Minister of FCT (2014) LPELR-23164, </i> ''they should not be interpreted in isolation but in the context of the totality of the transaction in order to fully appreciate their legal purport and impact. That is the only way to find out and determine the real intention of the parties. A restrictive and restricted interpretation which does not take cognizance of the total package of the transaction in which the documents are integral part cannot meet the justice of the case."</span></span> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Now what are the terms and conditions of the Claimant's employment as contained in the exhibits tendered and admitted? <i>Exh. C1 </i>merely referred to ''Contract of Service and also the Collective Agreement'' and nothing more. <i>Exh. C8 </i>on its own simply dealt with period of notice for termination without stating what conditions might lead to termination of the contract by either side. Now <i>Exh. C6 </i>in its <i>Article 4 </i>makes robust provisions relating to <i>Disciplinary Procedure. Art. 4(ii) </i>provides for <i>Termination after Warning </i>as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">a. Where the services of an Employee have proved unsatisfactory, he may be given a written warning. For the purpose of this paragraph, such written warning may be issued in respect of any of the following major cases of misconduct-<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> i). Absenting himself at any time from the place proper and appointed for the performance of his work without leave or other legitimate cause;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ii). Unfitting himself for the proper performance of his work during working hours, for example, by becoming intoxicated;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> iii). Neglecting to perform any work which it was his duty to have performed or carelessly or improperly performing any work which it was his duty to have performed carefully and properly;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> iv). Using any abusive or insulting language or unbecoming guilty of insulting behaviour to any person placed in authority over him;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> v). Refusing to obey any proper instruction of any person placed in authority over which instruction it was his duty to obey;<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> vi). Any other cases of misconduct which may be agreed upon between the Association and the Union from time to time.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">(b). Before a written warning is issued, the Employee shall first be given a written query and opportunity of stating his case in writing''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">(c). An Employee's services may be terminated if, within any period of 12 (twelve) months, he had been guilty on three occasions of committing any act of misconduct for which a warning letter has been issued. termination may only be effected on the third occasion, provided warnings in writing have been given to the Employee in respect of two previous cases of misconduct within the preceding 12 (twelve) months. Persistent breaches, however, will be treated in accordance with the Employee's previous records even though they may have been ineffective after 12 (twelve) months from the date of warning''. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">From the exhibits as analysed, it remains to find out whether the termination of Claimant's employment can find solace under any of the grounds as stated. By <i>Exh. C2, </i>Claimant's employment was ''... terminated with effect from from10th June, 2013 as your services are no longer required''. Again in <i>Exh. C5, </i>Defendant further reiterated the ground for termination of Claimant's employment when it stated that '' ... the services of your client was terminated for services no longer required''. To the extent that <i>Exh. C6 </i>remains binding on the parties, the Defendant loses the luxury of terminating the employment of the Claimant without taking cognisance of the provisions of <i>Art. 4 </i>of <i>Exh. C6. <o:p></o:p></i></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><i><span style="font-size:12.5pt;font-family: "Times New Roman","serif""> </span></i></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Within the context of the contract of employment between the parties, the above as contained in <i>Exh. C6 </i>are the grounds upon which the appointment of the Claimant may be terminated. It is important to state that I bear in mind the fact that an employer of labour may hire and fire and that he may so fire for any reason or for no reason at all. This, I dare say, however is in the absence of anything to the contrary in the contract between the parties. For, the law is trite that parties are bound by the contents of any agreement voluntarily entered into by them. See <i>Wema Bank Plc & Anor. v. Alaran Frozen Foods Agency Limited & Anor. (2015) LPELR-25980. </i>To the extent that <i>Exh. C6 </i>remains binding on the parties, the Defendant does not have the luxury to terminate the employment of the Claimant without taking cognisance of <i>Art. 4(ii) </i>of <i>Exh. C6. </i>Indeed, the Defendant cannot terminate the employment of the Defendant without acting within the provision of that <i>Art. 4. <o:p></o:p></i></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><i><span style="font-size:12.5pt;font-family: "Times New Roman","serif""> </span></i></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Defendant had submitted that the employment of the Claimant was terminated for ''Services no longer required''. What really is meant by this phrase which has been a very common umbrella for sending hitherto productive, efficient and dedicated employees to a sudden job market? It appears to me, I may be wrong, that the phrase or terminology has not attracted the attention of the appellate Courts for its construction. The term ''service no longer required'' is one method of an employer to show that he who hires at will can also fire at will without explanation. This term provides a sufficient guise for an employer to do away with the service of an employee without any fault being necessarily alleged on the part of the employee. Simply put, the terms means exactly what it says. However, the power of an employer to hide under this phrase in terminating the services of its employee is limited to the extent that there is nothing in the contract of employment entered into by the parties to the contrary. Thus, the phrase is not a magic wand and where reasons are stated upon which an employment may be terminated, any termination outside any of the stated reasons will amount to a breach of contract for which the Court may make the necessary intervention when its jurisdiction is properly invoked. I want to add that employers of labour may wish to rethink the use of the phrase ''termination for services no longer required''. For it appears to me that for an employer to simply state that ''... your employment is here terminated'' is not the same as saying '' ... your employment is terminated for services no longer required''. While it is difficult if not impossible to infer reason for termination where the former phrase is used, the latter phrase, no doubt provides a window to see some form of reasons being proffered for the termination of employment of the employee concerned. The sole witness of the Defendant confirmed under cross examination that there is nothing like termination of employment for services no longer required in <i>Exh. C6. </i>Without much ado, it portends therefore that the termination of the employment of the Claimant was recklessly done by the Defendant without recourse to the existing rules on same. Not having terminated the employment of the Claimant within the windows provided in <i>Article 4 </i>of the Collective Agreement, the only option available to the Defendant is to invoke the provision of <i>Article </i>5 the same document. Now the latter provision was not invoked. If it had been invoked, the Claimant would have been entitled to the redundancy benefits as provided under that Article. From the foregoing it is safe for me to hold and I so hold that the sole reason for so terminating the employment of the Claimant was to allow the Defendant avoid payment of redundancy benefit to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I have found and held in this Judgment that the Collective Agreement in contention here forms part and parcel of the terms and conditions of employment which the Claimant entered into with the Defendant. This finding is based on not just the fact that the letter of employment of the Claimant referred to same but also and more importantly the fact that the Defendant on its own volition made copious references to the said Collective Agreement in its dealing (including disciplinary measures) with the Claimant. Now, an important issue for determination at this stage is whether within the confines of the said Collective Agreement the Defendant can validly terminate the employment of the Claimant as it claimed to have done. Or what is the implication of termination for services no longer required within the contemplation of the Collective Agreement? The Defendant could only terminate the appointment of the Claimant within the provision of the Collective Agreement which I have found and held to form part of the terms and conditions of service of the Claimant. Termination of employment for services no longer required is not ground for termination as provided for by that exhibit. I have no hesitation in holding and I hold that the termination of the employment of the Claimant by the Defendant is a breach of her terms and conditions of employment as contained in <i>Art. 4(ii) </i>of <i>Exh. C6 </i>and hence wrongful. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The third issue slated for determination is whether the Claimant is entitled to any or all the reliefs sought in this case. The Claimant sought 6 reliefs from the Court. Reliefs 5 and 6 are in alternative to reliefs 3 and 4. The first relief sought is for a declaration that the purported termination of employment of the claimant is unlawful and wrongful as the said termination was done without following due process/procedure laid down in the Defendant Bank’s Hand Book and the Collective Agreement in terminating an employee’s employment. In the course of trial of this case, the Claimant tendered a Defendant's Handbook which was successfully objected to . Thus I do not have any exhibit by such a name before me for the purpose of considering this case. I have already found in this Judgment that the Collective Agreement - <i>Exh. C6 </i>forms part of the terms and conditions of employment of the Claimant. I also found and held that the termination of the appointment of the Claimant was in breach of the said <i>Exh. C6. </i>Therefore, I grant this head of relief and declare that that the purported termination of employment of the Claimant is unlawful and wrongful as the said termination was done without following due process/procedure laid down in the Collective Agreement in terminating an employee’s employment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The second relief sought is for an Order of this Honourable Court compelling the Defendant Bank to reinstate the Claimant to its employment which was terminated without due process/procedure laid down in the Defendant Bank’s Hand Book and Collective Agreement. The state of the law is clear and remains uncontroverted that the Court will not and cannot impose a willing employee on an unwilling employer. See <i>Olabode Adewunmi v. Nigerian Eagle Flour Mills (2014) LPELR-22557 &</i><span class="apple-style-span"><span style="color:#000099"> <i>UBN v. Chinyere (2010) 10 NWLR (Pt. 1299) 453 at 472)</i></span></span><i> .</i><b> </b>Even when the Court declares a termination of employment unlawful, except in some special circumstances such as in employment with statutory flavor, the Court will not grant the present relief sought by the Claimant. In the circumstance, the relief for an order of reinstatement is refused and dismissed. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The third prayer is for an Order of this Honourable Court compelling the Defendant Bank to pay the salary and other allowance due to the claimant from the date of the purported termination to the date of judgment or in the alternative. Claimant's appointment was terminated effective on 10/6/13. Though I have held that the termination was wrongful and unlawful, there is no evidence before me to the effect that the Claimant continued to work for the Defendant. That being the case what then is the basis for this claim? A grant of this relief is tantamount to ordering payment of salary for services not rendered. Such an action by the Court has no foundation both in law and equity. See <i>Olatunbosun v. NISER Council (1988)3 NWLR (Pt. 80) 25. </i>The prayer for an order for the payment of salary till date of Judgment is refused and dismissed for finding no basis in law and equity.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant also sought for payment of the sum of =N=20,000,000.00 (Twenty Million Naira) to the claimant as damages for the emotional trauma and other setbacks suffered as a result of the purported termination of employment. I find no proof of this claim by the Claimant. I find no evidence led in support of the claim to enable the Court grant same. A Claimant will only succeed on the basis of credible, cogent and admissible evidence presented to the Court. Therefore in the absence of requisite proof, the claim for payment of the sum of =N=20,000,000.00 (Twenty Million Naira) to the claimant as damages for the emotional trauma and other setbacks suffered as a result of the purported termination of employment is refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The first alternative prayer sought by the Claimant to reliefs 3 and 4 is for an Order that the defendant pay the claimant redundancy benefits in line with Article 5 of the Collective Agreement. <i>Art. 5 </i>of <i>Part 1 </i>of <i>Exh. C6 </i>deals with Redundancy. The provisions under this Article are clear to the effect that there must be declaration of redundancy; that before then, there shall be consultation between the <i>National Secretariat </i>of the<i> Union </i>and the <i>Secretariat </i>of the <i>Association; </i>that the principle of 'last in, first out' shall apply except where the merit and ability of a less senior Employee are, in the Management's opinion, greater than those of an Employee with longer service and that ''any employee declared redundant shall be entitled to monetary compensation on the following basis:''. It is obvious that for an employee to make claim under the redundancy provision of <i>Exh. C6, </i>there must have been a declaration of redundancy by the employer. This is also in tandem with the state of the law on redundancy. In this regard, Section 20(1) of <i>Labour Act, Laws of the Federation of Nigeria </i>states thus -<o:p></o:p></span></p> <table class="MsoNormalTable" border="0" cellpadding="0" width="593" style="width:444.75pt; mso-cellspacing:1.5pt;mso-yfti-tbllook:1184"> <tbody><tr> <td width="21" valign="top" style="width:15.4pt;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;line-height:normal"><span lang="EN-GB" style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#000099;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">''1.</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB;mso-fareast-language: EN-GB"><o:p></o:p></span></p> </td> <td width="566" style="width:424.85pt;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;line-height:normal"><span lang="EN-GB" style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#000099;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">In the event of redundancy-</span><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-GB;mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> </tr> <tr> <td style="padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;line-height:normal"><span lang="EN-GB" style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-GB;mso-fareast-language:EN-GB"> <o:p></o:p></span></p> </td> <td style="padding:.75pt .75pt .75pt .75pt"> <table class="MsoNormalTable" border="0" cellspacing="6" cellpadding="0" width="100%" style="width:100.0%;mso-cellspacing:4.5pt;mso-yfti-tbllook:1184"> <tbody><tr> <td width="5%" valign="top" style="width:5.0%;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;line-height:normal"><span lang="EN-GB" style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#006600;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">A</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB; mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> <td width="95%" style="width:95.0%;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";color:#006600;mso-ansi-language:EN-GB;mso-fareast-language: EN-GB">the employer shall inform the trade union or workers' representative concerned of the reasons for and the extent of the anticipated redundancy;</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB; mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> </tr> <tr> <td width="5%" valign="top" style="width:5.0%;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;line-height:normal"><span lang="EN-GB" style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#006600;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">B</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB; mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> <td width="95%" style="width:95.0%;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";color:#006600;mso-ansi-language:EN-GB;mso-fareast-language: EN-GB">the principle of "last in, first out" shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB; mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> </tr> <tr> <td width="5%" valign="top" style="width:5.0%;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;line-height:normal"><span lang="EN-GB" style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#006600;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">C</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";mso-ansi-language:EN-GB; mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> <td width="95%" style="width:95.0%;padding:.75pt .75pt .75pt .75pt"> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";color:#006600;mso-ansi-language:EN-GB;mso-fareast-language: EN-GB">the employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section.</span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-ansi-language:EN-GB;mso-fareast-language:EN-GB"><o:p></o:p></span></p> </td> </tr> </tbody></table> </td> </tr> </tbody></table> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The case of the Claimant is that the termination of her employment was not in compliance with the procedures laid down in <i>Art. 4 </i>of <i>Exh. C6 - Collective Agreement </i>and that the Court should hold that instead of termination she should be held to have been declared redundant. I do not have before me evidence to enable this Court so hold. For the provision of <i>Art. 5 </i>of Part 1 of <i>Exh. C6 </i>to come into play the conditions as contained in the same Article must exist. Those conditions do not exist here and I so hold. The prayer for an Order that the Defendant pay the claimant redundancy benefits in line with Article 5 of the Collective Agreement is refused and accordingly dismissed.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Now, having so found in respect of the claims of the Claimant and the reliefs sought, should that be the end of story for her? This Court has found that the termination of her appointment was wrongful. This Court has also found and held that the Defendant terminated the employment of the Claimant in the manner it did so as to deny the Claimant redundancy benefits as provided under <i>Article 5 </i>of the Collective Agreement. It is trite that where there is a wrong committed, there certainly must be a remedy. See <i>Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors (2015) LPELR. </i>In <i>Jones v. Kaney (2011) UKSC 13, </i>Lord Dyson put the position in perspective thus -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"> <span style="font-size:12.5pt; font-family:"Times New Roman","serif"">''<span class="apple-style-span"><span style="color:#000099">The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional. As has been frequently stated, any justification must be necessary and requires strict and cogent justification: see, for example, per Lord Hoffmann in <i>Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 214D</i>; <i>Darker v Chief Constable of the West Midlands Police</i> per Lord Hope at p 446D, per Lord Clyde at p 456H and per Lord Hutton at p 468F. If the position were otherwise, the law would be irrational and unfair and public confidence in it would be undermined."<o:p></o:p></span></span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span class="apple-style-span"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"; color:#000099"> </span></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Court exists to do justice between all manner of men irrespective of status. Therefore when a litigant approaches the Court for the ventilation of his grievances and seeks redress, it is only if and when no wrong is found committed that the Court will leave the litigant to go empty handed. After all the Court exists to do justice and this is done by providing remedy to a wrong found committed. May the day never come, when the Court will, after finding a wrong committed, be unable to provide a remedy as well. Otherwise the Court will not only lose public confidence upon which it is built, the society will find itself reverting to Thomas Hobbes' <i>State of Nature</i>. No doubt, that will not augur well for the continued existence of the society at large. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Now, this Court, the <i>National Industrial Court of Nigeria, </i>is both a Court of Law and Equity and it is empowered to administered same concurrently. See <i>S. 13, National Industrial Court Act, 2006 </i>and in event of any conflict between the rules of equity and the rules of law, the rules of equity are to prevail. See <i>S. 15, National Industrial Court Act, 2006. </i>This Court is also empowered to ensure determination of matters brought before it completely and finally. Thus, S. 14, <i>National Industrial Court Act, 2006 </i>states -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I have examined all the circumstances of this case. I have found in this case that a wrong was committed by the Defendant against the Claimant. Bearing in mind the long established principle that where there is a wrong there must be a remedy, from the facts and evidence led, it appears to me and I hold that the Claimant is entitled to compensation for the wrongful act of the Defendant. See Section 19(d), <i>National Industrial Court Act, 2006. </i>The Defendant is here ordered and directed to pay to the Claimant the sum of Two Million Naira (=N=2,000,000.00) only as compensation. The Claimant is also to be paid the sum of One Hundred Thousand (=N=100,000.00) Naira as cost of this action. All the sums due under this Judgment except cost shall attract interest at the rate of 15% from the date of this Judgment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. I find and hold that the Collective Agreement in this case has been incorporated into the terms and conditions of the contract of employment between the parties. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. I declare that that the purported termination of employment of the Claimant is unlawful and wrongful as the said termination was done without following due process/procedure laid down in the Collective Agreement in terminating an employee’s employment.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. The claim for payment of the sum of =N=20,000,000.00 (Twenty Million Naira) to the claimant as damages for the emotional trauma and other setbacks suffered as a result of the purported termination of employment is refused and dismissed for lack of proof.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. The prayer for an Order that the Defendant pay the claimant redundancy benefits in line with Article 5 of the Collective Agreement is refused and accordingly dismissed.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. The Defendant is here ordered and directed to pay to the Claimant the sum of Two Million Naira (=N=2,000,000.00) only as compensation for its wrongful act.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. The Claimant is also to be paid the sum of One Hundred Thousand (=N=100,000.00) Naira as cost of this action.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. All the sums due under this Judgment except cost shall attract interest at the rate of 15% from the date of this Judgment till final liquidation.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The terms of this Judgment are to be complied with within the next 30 days.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpLast" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:center;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p>