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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT ABUJA BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo President Prof. B.B. Kanyip Member Barr. M.B. Dadda Member DATE APRIL 27, 2006 SUIT NO. NIC/15/2000 BETWEEN National Union of Hotel and Personal Services Workers…………………… Applicants AND 1. Palisco Nigeria Limited } 2. Pellegrini Nigeria Catering Limited } ……………………. Respondents REPRESENTATION Uche Wisdom Durueke, with him are C.E Ohaegbulem and Edozie Ikenna, for the applicant. Uzor Ikenga, for the 1st respondent T.I Sipoto-Pepple, for the 2nd respondent RULING This is a matter brought by way of an originating application pursuant to sections 15(1) and (2) and 20(1) (b) (i) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 and under the inherent jurisdiction of the court. The applicant is praying the court for the following reliefs. 1. Due interpretation of the disciplinary provisions or procedure contained in the collective agreement dated 1st June 1999 between the applicant and the respondents, especially the 1st respondent on the issue whether the summary dismissals of the following staff: Christopher Obire, Mark Okorogbunu, Samuel Jefferson and Daniel Nwokeafor on 22/02/2000 by the 1st respondent without query or any form of fair hearing for allegedly being in possession of soaps, remnant of cakes and meat are lawful and valid under Article 20 of the said collective agreement annexed hereto and marked Exhibits A. 2. An order of reinstatement and/or adequate monetary compensation in favour of the said four workers, if this court decides the issue above in favour of the applicant. 3. Such order(s) as this court may deem fit to make in the circumstances of the case. Attached to the originating application is a 17-paragraphed affidavit sworn to by Comrade Anthony Nwajei. And attached to the affidavit are Exhibit A, the collective agreement to be interpreted, Exhibits B1, B2, B3, B4, copies of the letters of dismissal of the four staff in issue. The respondents, originally represented by one counsel, filed a joint 11-paragraphed affidavit in opposition to the originating application sown to by Helen Akpala. Attached to this affidavit in opposition is a copy of a letter from Texaco Overseas (Nig.) Petroleum Company Unlimited (hereinafter referred to simply as Texaco) to the 2nd respondent (marked Exhibit A) asking the 2nd respondent to replace the four staff in issue from the platforms where they work. Later, when counsel for the respondents was changed and each of the respondents took up separate counsel, the 2nd respondent filed its affidavit in opposition sworn to by Henry Eze and containing 16 paragraphs. The parties agreed and filed written briefs of argument in addition to oral arguments. The applicant’s case is that on 21/02/2000, four workers of the 1st respondent who were on duty at the Texaco Overseas Co. Funiwa Platform were coming out during crew change for off-time and were searched. It was found on them remnants of cake, meat and soaps given to them by the camp-boss. That the soaps were given to the workers for their use but they did not use them as they usually use medicated soap and did use medicated soap (see para.7 of the applicant’s affidavit in support). That the workers explained to the superintendent that the remnants of cake and meat found on them were allowed by the camp-boss. The workers claimed their innocence of any wrongdoing or offence. That on 22/02/2000, these workers were summarily dismissed without any investigation of their claim of innocence. That no queries were given to them in accordance with the collective agreement/Conditions of Service. That the camp-boss was never brought before any panel or at any time in the presence of the workers to verify their claims. That there was no hearing of their case before their dismissal. The applicants then raised two issues for determination. First, was the proper procedure including fair hearing adopted before the summary dismissal of the workers? And secondly, are the workers not entitled to be reinstated with adequate monetary compensation or only to adequate monetary compensation? In argument, the applicant submitted that by the facts and circumstances of this case, the summary dismissal of the workers was improper, wrongful and illegal. That Article 20 of its Exhibit A, the collective agreements, provides that “….any employee who has completed the probationary period shall be issued with three warning letters before his services can be determined by the Company” (the emphasis is the applicant’s). That this procedure was not followed in the instant case. That the workers were not given fair hearing. That the camp-boss was not brought before the workers to comment on the defence of the workers. That the camp-boss, as the superior officer of the workers, had allowed the workers, those items (see para.8 of the applicant’s affidavit in support). That this negatives any fraudulent intention or act. So, they cannot be punished. Furthermore, that Article 21 of its Exhibit A, the collective agreement, does not list the alleged acts of the workers as one of those acts that should warrant summary dismissal. That it is settled law that what is not expressed cannot be implied. And also, that the express mention of one thing what is not expressed cannot be implied. And also, the express mention of one thing is the exclusion of the other. That the so-called policy of the respondents (which is not conceded by the applicant), which is to the effect that one cannot take remnants away, is unreasonable and petty. In any event, that there is no evidence before the court that there is such policy of Texaco passed to the workers upon employment or thereafter. That if the respondents do not give one his/her choice and one spends money on soap, is such one not entitled to cushion one’s expense by taking the soap away? The applicant then further submitted that soap given to any worker and the remnant of his or her food are not the property of Texaco. That once the soap and food are given to the Akpala. Attached to this affidavit in opposition is a copy of a letter from Texaco Overseas (Nig.) Petroleum Company Unlimited (hereinafter referred to simply as Texaco) to the 2nd respondent (marked Exhibit A) asking the 2nd respondent to replace the four staff in issue from the platforms where they work. Later, when counsel for the respondents was changed and each of the respondents took up separate counsel, the 2nd respondent filed its affidavit in opposition sworn to by Henry Eze and containing 16 paragraphs. The parties agreed and filed written briefs of argument in addition to oral arguments. The applicant’s case is that on 21/02/2000, four workers of the 1st respondent who were on duty at the Texaco Overseas Co. Funiwa Platform were coming out during crew change for off-time and were searched. It was found on them remnants of cake, meat and soaps given to them by the camp-boss. That the soaps were given to the workers for their use but they did not use them as they usually use medicated soap and did use medicated soap (see para.7 of the applicant’s affidavit in support). That the workers explained to the superintendent that the remnants of cake and meat found on them were allowed by the camp-boss. The workers claimed their innocence of any wrongdoing or offence. That on 22/02/2000, these workers were summarily dismissed without any investigation of their claim of innocence. That no queries were given to them in accordance with the collective agreement/Conditions of Service. That the camp-boss was never brought before any panel or at any time in the presence of the workers to verify their claims. That there was no hearing of their case before their dismissal. The applicants then raised two issues for determination. First, was the proper procedure including fair hearing adopted before the summary dismissal of the workers? And secondly, are the workers not entitled to be reinstated with adequate monetary compensation or only to adequate monetary compensation? In argument, the applicant submitted that by the facts and circumstances of this case, the summary dismissal of the workers was improper, wrongful and illegal. That Article 20 of its Exhibit A, the collective agreement, provides that “…any employee who has completed the probationary period shall be issued with three warning letters before his services can be determined by the Company” (the emphasis is the applicant’s). That this procedure was not followed in the instant case. That the workers were not given fair hearing. That the camp-boss was not brought before the workers to comment on the defence of the workers. That the camp-boss, as the superior officer of the workers, had allowed the workers those items (see para.8 of the applicant’s affidavit in support). That this negatives any fraudulent intention or act. So, they cannot be punished. Furthermore, that Article 21, of its Exhibit A, the collective agreement, does not list the alleged acts of the workers as one of those acts that should warrant summary dismissal. That it is settled law that what is not expressed cannot be implied. And also, that the express mention of one thing is the exclusion of the other. That the so-called policy of the respondents (which is not conceded by the applicant), which is to the effect that one cannot take remnants, away, is unreasonable and petty. In any event, that there is no evidence before the court that there is such policy of Texaco passed to the workers upon employment or thereafter. That if the respondents do not give one his/her choice and one spends money on soap, is such one not entitled to cushion one’s expense by taking the soap away? The applicant then further submitted that soap given to any worker and the remnant of his or her food are not the property of Texaco. That once the soap and food are given to the workers, the property therein passes to the workers. That the workers cannot, therefore, steal their own property. The applicant then urged the court to hold that the applicant has made out a good case and is entitled to judgment. From the original joint brief of the respondents, the following facts emerge. The 1st respondent is a labour contractor engaged by the 2nd respondent to supply it with workers. The 2nd respondent is a catering company contracted by Texaco to cater for its workers at its offshore locations. The workers in issue were engaged by the 1st respondent as labour contractor to the 2nd respondent who engaged them in Texaco. To the respondents, on 21/2/2000 during a random search conducted by Texaco on some of the 1st respondent’s staff who were departing one of Texaco’s platforms, certain items including soaps and food belonging to Texaco were found on the workers against Texaco policy. That it is Texaco’s policy known to the workers that one does not take away Texaco’s property when departing the platform except authorized in writing. That in consequence, Texaco asked the 2nd respondent to replace the four workers in issue, which instruction the 2nd respondent passed to the 1st respondent and which necessitated the workers’ dismissal. The respondents then raised six issues for determination, namely: 1. Whether the workers on behalf of whom the applicant has brought this action are covered by the collective agreement dated 01/06/99. If the answer is in the affirmative, then the court is urged to dismiss the applicant’s case. 2. Whether the workers were given fair hearing before being dismissed. 3. Whether the 1st respondent, having been instructed by Texaco to replace the workers and not to let them into any of its locations to work, had any option other than to relieve the workers of their jobs. 4. Whether the taking of foodstuff, soaps, etc property of Texaco from Texaco yard without written authorization amounted to gross misconduct. 5. Whether the respondents are entitled to follow the disciplinary procedure in cases of gross misconduct before applying the summary dismissal instrument. 6. Whether workers are entitled to reinstatement with adequate monetary compensation. In arguing these issues, the respondents made the following submissions. On issue 1, the respondents argued that the said Article 20 applies for only workers who have completed the probationary period. There is no evidence before the court than the workers in issue had completed their probationary period and were issued letters of confirmation. That the entire affidavit evidence before the court is bereft of this fact. That in the absence of this fact, Article 20 does not apply to the applicant in this case. On issue 2, the respondents submitted that the workers know Texaco’s policy that you do not take any of its property out of its yard without written authorization. That this policy explains why all personnel are required to declare Texaco property including food items in their possession at the security stand when departing Texaco platforms. That the fact is that the four workers were asked to explain and they said that the camp-boss permitted them. That apart from the permission not being in writing, the camp-boss denied giving the workers permission. That the workers were given adequate opportunity to know the case against them and to answer to it. That the workers’ defence was that the camp-boss permitted them to take the items and the camp-boss who was present denied it in the workers’, presence. That the instant case did not require the setting up of a committee. That there was an oral hearing at which the workers had all the opportunity to state their case which they did, and to confront the camp-boss, which they did not. That the decision whether or not the allegations were established rested with Texaco, which it did and passed same to the respondents. On issue 3, the respondents argued that the applicant did not bring the proper parties to the court. That the 1st respondent is an agent of a disclosed principal who acted clearly within the express authority of its principals, i.e. the 2nd respondent and Texaco, known to the applicant as shown in Exhibit A attached to the affidavit in opposition dated 8/9/2000. That the law is that an agent acting on behalf of a disclosed principal has no liability in law unless exceeds his authority. That the 1st respondent, in terminating the workers’ employment, did so upon the instructions of Texaco that the workers would not be allowed to work for it and the 1st respondent being only a labour contractor did not have a catering department of its own to absorb the workers. On issues 4 and 5, which the respondents argued together, the respondents submitted that gross misconduct is defined in Article 21of the collective agreement to include theft, fraud,forgery and dishonesty.that the same Article 21 puts the company under an obligation to apply the summary dismissal instrument where an employee is guilty of gross misconduct. That the taking Texaco’s properties, i.e. foodstuff, soaps, etc by the workers without its consent is a dishonest act amounting to gross misconduct. That the only punishment for gross misconduct is summary dismissal. That the collective agreement gives no room for warning letters. On issue 6, the respondents submitted that the contract between the workers and the 1st respondent is one of master and servant, which does not enjoy statutory flavor. That in master and servant contracts, reinstatement is not a remedy available to the workers as the courts will not foist a servant upon an unwilling master – the general principle being that the courts will not grant specific performance of contract of service. Consequently, that pursuant to article 21 of the collective agreement, a dismissed employee forfeits all benefits and may even be required to make reparations. That the respondents are not entitled to pay any compensation to the workers. That such a claim is vexatious and gold digging. The respondents then urged the court to hold that the applicant has made no case against the respondents, in which event, the case should be dismissed. All of these arguments in the processes filed and served including the written briefs of arguments submitted by the parties were orally adopted and amplified by respective counsel. Counsel for the second respondent, as we indicated earlier, filed and served a counter-affidavit dated 7th June, 2004 and filed on the same date. Counsel relied on this counter-affidavit and then adopted the facts of the case as stated in the 1st respondent’s brief. 1. Whether the 2nd respondent is privy to Exhibit A, the collective agreement, as to be bound by its provisions including Article 20, which the court has been called upon to interpret. That if the answer to this question is in the negative, then the applicant has no claim against the 2nd respondent. 2. Flowing from the above issue, assuming the answer to the question is in the affirmative, whether the said Exhibit A can be read in isolation of the 1st respondent’s affidavit in opposition and its Exhibit A so as to enable the applicant establish its claim or case. On the first issue, the 2nd respondent submitted that it is clear on the face of the collective agreement that it is between the applicant and the first. That, on the authority of the case of Chuba Ikpeazu v. ACB [`965] NMLR 374, the law is that only a party privy to an agreement can sue and be sued on it. Conversely, that a party who is not privy to an agreement cannot be sued on it nor can he benefit from it. That the 2nd respond is not a party to the collective agreement and therefore cannot be bound by it. The 2nd respondent then urged the court to hold that the applicant by its affidavit to its originating application and by its written brief has not made or proved any case against the 2nd respondent. That the claim against the 2nd respondent should, therefore, be dismissed. On the second issue, the 2nd respondent submitted that assuming its prayer on the first issue is not granted, then its argument is that the contractual relationship as deposed to in its counter-affidavit that exist between the 2nd respondent and Texaco is such that the 2nd respondent, as agent of Texaco, is bound to obey the instruction of its principal. That the said instruction as it affects this case is evidence by Exhibit A attached to the affidavit in opposition filed by the 1st respondent. The 2nd respondent then urged the court to dismiss the case as against the 2nd respondent. At this point, the applicant asked for time to enable it reply to the submissions of the 2nd respondent. The court granted an adjournment for this purpose. For the next two adjourned dated for hearing, neither the applicant nor its counsel appeared in court to reply to the 2nd respondent’s submissions. At the third adjourned date for hearing, counsel for the applicant surfaced and simply argued that its response to the 2nd respondent is that the 2nd respondent is a necessary party to this suit. That the law is that a party which an applicant sees as being a necessary party to a suit should to the claim of the applicant. No authority was cited for this proposition. At the next adjourned date for hearing a new counsel came into the matter for the 1st respondent, for which the court granted time to enable counsel study the record of proceedings and prepare the 1st respondent’s defence. At the next adjourned date for hearing, the new counsel for the 1st respondent adopted all the processes including the written brief of argument filed by the former counsel for the 1st respondent, which have been highlighted in this ruling. By way of additional submission, the counsel for the 1st respondent reiterated that the matter before the court is for interpretation of the disciplinary provision or procedure contained in the collective agreement between the applicant and the 1st respondent. The 1st respondent then drew the period of probation shall be four months. That the applicant did not show that the workers in issue complied with this requirement as to bring into operation Article 20 of the collective agreement in order to enjoy the relief sought. The 1st respondent then referred the court to paras. 3(e), (f), (g) and (h) and 4 of the 1st respondent’s affidavit in opposition as evidence that the workers were given fair hearing. Furthermore, the 1st respondent referred the court to the cases of ACB Plc v. Ndoma- Egba [2001] FWLR (Pt. 40) 1780 at p.1781 Ratio 1 and Odudu v. Onyibe [2000] FWLR (Pt. 79) 1403 at p.1406, and then argued that its action was based on the express directive of the 2nd respondent to who they owe a duty to obey. The 1st respondent concluded by submitting that the party to be held responsible is the 2nd respondent for whom the 1st respondent acted based on instruction from the 2nd respondent, which instruction it is not the duty of the 1st respondent to question. Given the 1st respondent’s submission that if there is a party liable at all it is the 2nd respondent, the 2nd respondent reacted and urged the court to discountenance that submission of the 1st respondent. To the 2nd respondent, the court is called upon to interpret a collective agreement, which is expressly between the applicant and the 1st respondent; and by the privity rule, the 2nd respondent cannot be bound by that agreement. Moreover, that the 1st respondent did not come under any exception of the privity rule to ground its submission. The 2nd respondent submitted further that it is trite law that a disclosed principal is the proper party to be sued in an agency situation and not the agent (Owena Bank Plc v. Olatunji [2000] 12 NWLR (PL 781) at p. 305B – C). However, that where a person makes a contract in his own name without disclosing the name or existence of a principal, he is personally liable in the contract to the other contracting party even though he may in fact be acting on behalf of the principal (UTC Nig. Ltd v. Wema Bank Plc and anor. [2002] 12 NWLR (PL 781) 211). That in the collective agreement, the 1st respondent did not disclose the 2nd respondent as its principal and, therefore, cannot hold the 2nd respondent liable under that agreement. Regarding the latter from Texaco to Pellegrini of 22/2/2000, that assuming without conceding, that it creates an agency relationship, it is certainly not between the 1st and 2nd respondents. That if it creates any agency relationship, it is between Texaco and the 2nd respondent. That the principle that a disclosed principal is the proper party to be sued in an agency relationship and not the agent will, therefore, apply. The 2nd respondent then urged the court to discountenance the submissions of the 1st respondent that it acted as agent of the 2nd respondent and so the latter is liable in the circumstance of this case. All of these submissions were made in the absence of counsel for the applicant who for three consecutive sittings of the court failed to appear in court with no reason whatsoever for the absence sent to the court, and despite all the hearing notices sent to him. So when the counsel for the applicant finally appeared in court after the court had adjourned for ruling and asked to be granted leave to reply on points of law despite not even applying for the record of proceedings, this court, in a considered ruling, rejected the application of counsel for the applicant. We have carefully considered the processes and submissions of the parties in this matter. The applicant is invoking the interpretation jurisdiction of this court under sections 15 and 20 of the TDA 1990 and is asking the court not just to interpret the disciplinary provisions of the collective agreement to issue, but to order reinstatement of the four affected workers in issue and/or award adequate monetary compensation in the workers’ favour. The case of the applicant is that the four workers were summarily dismissed without due process/fair hearing as the disciplinary process of the collective agreement was not followed. To support its assertion, the applicant filed an affidavit sworn to, not by any of the four workers affected, but by an officer of the applicant union. The collective agreement sought to be interpreted is one between the applicant union and the 1st respondent. The applicant’s argument is that, because the applicant union and the 1st respondent. The applicant’s argument is that, because the 2nd respondent is simply a necessary party in this suit, the collective agreement in issue should be interpreted in such a way as to make it binding on the 2nd respondent even though the 2nd respondent is not a party to it. The 1st respondent’s defence is that the summary dismissal was in line with Article 21 of the collective agreement, which permits the employer to summarily dismiss a worker if any of the acts listed therein including theft and dishonesty is committed by a worker. What does all of this portend? It cannot be doubted that the issues here are all try-able issues for which the interpretation jurisdiction of this court is an inappropriate means of resolving them. This court has persistently held that its interpretation jurisdiction is not the appropriate means of resolving trade dispute especially where the processes of Part 1 of the TDA would be more appropriate (Itodo and ors v. Chevron Texaco Nigeria [2005] 2 NLLR (Pt. 5) 200 especially at pp.221-223). This court has consequently frowned on the use of its interpretation jurisdiction as a means of side-tracking the processes of Part I of the TDA (Hotel and Personal Services Staff Association v. Tourist Company of Nigeria Plc unreported Suit. No. NIC/14/2002 decided on October 27, 2004). It is, therefore, difficult for us to allow the applicant to side-track the processes of Part I of the TDA by activating the interpretation jurisdiction of this court. The issues of summary dismissal, reinstatement or the award of adequate compensation, etc all conjure up matters of trade dispute for which the applicant ought to have utilized the processes of Part I of the TDA. All of these issues are not issues for which affidavit evidence, for instance, would resolve. Aside from all of this, the arguments generally presented raise questions as to the legal effect and indeed propriety of sub-contracting of labour (this is the sense in which we understand the arguments calling for the 2nd respondent and Texaco to be held liable). Not only were the submissions made here grossly inadequate, we do not even think the interpretation jurisdiction of this court is appropriate in resolving the issues. Assuming that the interpretation jurisdiction of the court was properly activated by the applicant, we must first state that we agree with submission of the 2nd respondent that, not being a party to the collective agreement, it was wrong that they are sued on it. Sections 15 and 20 of the TDA contemplate only the Minister responsible for Labour or the parties to a collective agreement as those who can activate the interpretation jurisdiction of this court. By extension, and in line with the privity rule, only parties to this collective agreement sought to be interpreted can benefit or suffer from it. We, therefore, and hereby rule that the 2nd respondent has no case to answer in this matter. This leaves out the case against the 1st respondent. This is one case that both sides stick to their respective positions for which the main evidence is the respective affidavits. Whereas the applicant claims that the four workers in issue were wrongly dismissed and were not given fair hearing, the 1st respondent’s defence is that they were lawfully dismissed and were given fair hearing. In all of this, neither the four workers nor the camp-boss were brought to testify. To worsen matters, the applicant wants a monetary compensation without stating the amount. The court was not even told what the salary of each of the four workers is. The basis for awarding the monetary compensation is not even disclosed. The conclusion we can draw from all of this that the applicant has not succeeded in making out any case against the 1st respondent for which this court should intervene in its favour. The evidence on record is insufficient to warrant a claim against the 1st respondent in the manner that the applicant wants. He who asserts must prove. In the circumstance, therefore, we again rule that the applicant has made out no case against that 1st respondent. For the avoidance of doubt, we hereby rule that this action is brought to side-track the processes of Part I of the TDA for which we will not accept. But even if this were not the case, no case has been made either against the 1st or the 2nd respondent by the applicant. Ruling is entered accordingly. ………………………………… Hon. Justice B.A. Adejumo President ………………………….. ……………………….. Prof. B.B. Kanyip Barr. M.B. Dadda Member Member