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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT ABUJA BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo President Hon. Justice B.8. Kanyip Judge Hon. Justice M.B. Dadda Judge Date: 24TH JUNE, 2008 SUIT NO. NIC/1/2006 BETWEEN Nigeria Breweries Plc -- Appellant AND National Union of Food, Beverage and Tobacco Employees -- Respondent REPRESENTATION Uche C. Ihediuwa Esq., for the appellant Lady E. Uduj i, for the respondent JUDGMENT This is a matter referred to this court by the Honorable Minister of Labour and Productivity vide an instrument dated 12th January, 2006 with a covering letter dated 18th January, 2006 with Ref. No. ML.HE/87S/CON./77 and acting pursuant to section] 3(1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990. By the referral instrument, the following issues are in dispute- a) Premature retirement of Mr. Joseph Shittu owing to union activities. b) Anti-union activities. c) Unfair labour practices. The Industrial Arbitration Panel (IAP) had earlier heard the matter and made an award, which the appellant objected to. Attached, therefore, to the referral instrument is the appellant's letter of objection to the IAP award as well as the IAP award itself. The appellant on 27th April, 2006 filed its memorandum dated 25th April, 2006 containing a brief introduction of the parties, the facts of the case, the points in dispute, the contention and prayers made to the court. Also attached to the memorandum is a list of Exhibits to be relied on and the Exhibits themselves, which are Exhibits 1, 2, 3, 4 - 4d, 5A,5B, 5C, 6, 7, 8, 9 and 10. A circular dated June 28, 1999 with Ref. No. HOP.I03/293, signed by O. J. Mbonu and headed 'Review of Retirement Age', though not listed, was also attached. The said circular is equally attached to the memorandum of the respondent as Appendix V. The said circular, which was actually tendered and admitted at the IAP, emanates from the Head of Personnel to all staff of the appellant company. In the circular, all employees are informed of the review of the company's retirement age limits with effect from July 1, 1999 to the effect that the current early retirement age of 50 years is left untouched, while the compulsory retirement age of 55 years was revised to 60 years. The circular goes on to state that the cases of all employees who have been notified of their compulsory retirement on attainment of 55 years of age will be reviewed, while those who have been informed of the company's intention for them to proceed on early retirement will still retire as scheduled. In all of this, the conditions affecting retirement benefits (which include pension and service gratuity benefits) remain unchanged. The respondent's memorandum dated 2nd June, 2006 was filed on 5th June, 2006. The memorandum, like that of the appellant, contains an introduction, the points of dispute, facts of the matter, the contention made thereto and the prayers made to the court. Attached to the memorandum are documents marked Appendix I, II, III, IV, V and VI. By agreement of the parties, the court ordered that written addresses be filed. In complying with the order of the court, the appellant filed its written brief of argument on 22nd March, 2007. The said written address is dated 16th March, 2007 with the list of authorities relied upon attached. The respondent's written address dated so" April, 2007 was filed out of time on 2nd May, 2007 with leave of court. The written address of the respondent also has attached the list of authorities relied upon. The appellant reacted to the respondent's written address by filing on 7th June, 2007 a reply on points of law. The said reply on points of law is dated 7th June, 2007 with the list of authorities relied on attached. In its written address, the appellant first framed seven grounds of objection to the IAP award with their particulars of error. The seven grounds of objection are – 1. That the IAP misdirected itself in law when it completely disregarded the reason for the retirement of Mr. J. Shittu and proceeded to deal his case erroneously as a case of redundancy under section 20 of the Labour Act Cap. L 1, Laws of the Federation, 2004, which is also provided for in Article 27 of the Nigerian Breweries Plc Employees' Handbook. 2. That the IAP erroneously held that Mr. J. Shittu was retired because he was a member of the union, and this will make him vacate his seat as the Treasurer of the National Union of Food, Beverages and Tobacco Employees. 3. That the decision of the IAP amounts to forcing an employee on an unwilling employer. 4. That the IAP erroneously held that the reason for Mr. J. Shittu's retirement was connected with union activities. 5. That the IAP seriously erred when it held that Nigerian Breweries Plc's implementation of Article 25 of the Company's Employees' Handbook on Early Retirement in total disregard of section 20(1 )(b) of the Labour Act is illegal, null and void. 6. That the IAP finding that Mr. J. C. Nnaji who was on terminal leave could not have signed Mr. J. Shittu' s retirement letter is not supported by the evidence before it. 7. That the IAP misdirected itself in law when it confused the declaration of redundancy of certain staff in accordance with section 20 of the Labour Act with the retirement of Mr. J. Shittu. The appellant then went on to frame the following three issues for the determination of this court – 1. Whether the exercise under which Mr. J. Shittu was relieved of his employment status was not a situation of Early Retirement in contrast to a Redundancy situation as conceived by the IAP. (This issue encompasses Grounds 1,6 and 7 of the Grounds of Objection). 2. Whether the IAP findings on the reasons for Mr. Shittu's retirement are supported by the evidence on the printed record. (This issue covers Grounds 2,4 and 6 of the Grounds of Objection). 3. Whether the decision/award of the IAP did not amount to forcing an employee on an unwilling employer and therefore illegal, null and void. (Ground 3 of the Grounds of Objection). To the appellant, in resolving issue 1, the central question revolves around whether the termination of the appointment of Mr. Shittu was brought about by the appellant through the process of declaration of redundancy or by early retirement. That it is instructive to note that both the Labour Act and the Company's Employees' Handbook contains helpful information on the nature of these processes. The appellant contended that redundancy is provided for in section 20 of the Labour Act as follows – (1) In the event of Redundancy a. The employer shall inform the trade Union or worker's representatives concerned of the reasons for and the extent of the anticipated redundancy; b. 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, reliability, and c. 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. (2) The Minister may make regulations providing generally or in particular cases for the compulsory payments of redundancy allowances on the termination of worker's employment because of his redundancy. (3) In this section, "redundancy" means an involuntary permanent loss of employment caused by excess of manpower. The appellant continued that "Early Retirement" is provided for under Article 25 of the Company's Employees' Handbook thus: 25.1 - Conditions of Retirement a) The company may retire an employee on reaching the age of 50 years but in any case employees must compulsorily retire on reaching the age of 55 years .... The appellant contended further that there is no doubt that the respondent was well aware of the distinction between the above two processes for in the IAP award it was stated as follows: - "finally, the Management of the second party in its letter. .. dated 4th June, 2004 confirmed the Early Retirement of Comrade Shittu with effect from 1 st June, 2004 (page 6, last paragraph to page 7, first paragraph). The appellant went on to say even Comrade Shittu himself had no doubts that he was placed on early retirement when the record stated as follows: Comrade Shittu further stated that his forced or early retirement at the age of 52 years has deprived him of security of tenure of his employment including enhanced accumulated retirement benefits which accrue to employees who retire at the age of 60 years (page 7, paragraph 2 of the IAP award). Further, that under re-examination of Mr. Shittu, the IAP award quoted him as follows:- On re-examination of Comrade Shittu ... on the difference between Retrenchment and Early Retirement, Comrade Shittu explained that retrenchment exercises were preceded with consultation and negotiation between the management and the Union before they were carried out, but in the case of early retirement, the management had no consultation with the Union (page 11, 1st paragraph). The appellant then submitted that it is also instructive to appreciate the exposition of this dichotomy in the evidence of Mr. Uaboi Agbebaku, Legal Affairs Manager of the appellant when he explained as follows: ... Mr. Shittu's retirement was in accordance with the provisions of Art. 25 of the Company Employees' Handbook which provides that the Company may place an employee on early retirement with gratuity and pension on reaching the age of 50 years provided the employee has served the Company for not less than 15 years (page 11, paragraph 1 of the IAP award). That even more succinct is the observation of the IAP made and recorded at page 26 of the award, the last paragraph to the 1st paragraph at page 27, thus: The Tribunal finds that the second party was conscious of the fact that "the Early Retirement of Mr. J. Shittu would cause him to vacate his position as the National Treasurer of the First party ... " That further evidence brought out the distinction more lucidly. For instance, that Mr. Oludare Olufunmise testified in this manner: " ... the difference between Redundancy and Early Retirement was that retrenchment of workers during periods of redundancy was never carried out without consultation and negotiation with the Union as it was an implied condition of service as contained in the Company Employees' Handbook." That the IAP in its award demonstrated a proper understanding of this dichotomy but attempted to shy away from the proper application and impact. To the appellant, the IAP noted as follows: ... It should also be noted that no evidence has been adduced by the second party to assert that Mr. J. Shittu' s Letter of Appointment has specifically stated that he would go on early retirement. ... neither has any evidence been presented to the tribunal by the second party to affirm any instance of Mr. J. Shittu's low productive efficiency or his violatiers'of Company policy." ... The provision for early retirement in this regard is neither mandatory nor definitive but speculative as it is based on the concept of a conjectural contemplation of a probability as a precondition for early retirement (page 33, paragraph 1 of the IAP award). That in pronouncing the award, the IAP stated as follows: The Tribunal upholds the principle that the second party is compelled to comply with the provisions of section 20(1) of the Labour Act, CAP 198, Laws of the Federation of Nigeria, 1990 which prescribes that - in the event of a redundancy ... the employer shall inform the Trade Union of the reasons and extent of the anticipated redundancy and the principle of last in, first out shall be adopted in the discharge of the affected workers. The appellant went on to state that it is, however, remarkable that in spite of the foregoing overwhelming evidence, the IAP at certain points in its award demonstrated a total lack of conception of the issues especially when it pretended that there is no distinction between Early Retirement and Redundancy as it affects the case of Mr. J. Shittu. For instance, that at page 23, paragraph 3, the IAP stated as follows: The Tribunal observes that the first party was vehemently opposed to the premature retirement of the National Treasurer and hence the declaration of the Trade Dispute on the ground that he was victimized over his Trade Union activities and his early disengagement from service constitutes a strategic plan of the second party to frustrate and destabilize effective administration of the First Party especially as the early retirement would cause Mr. Joseph Shittu to vacate his position as the National Treasurer of the First Party ... " The appellant then went on to refer the court to legal authorities on the dichotomy or otherwise between Early Retirement and redundancy. First is the case of N.N.B. Plc v. Osoh [2001] 13 NWLR (Pt. 729) 232 at 262 - 263 para. F - B where the Court of Appeal held that where an employee is declared redundant, the determination of his employment is not wrongful and he would not be entitled to damages. Further, that in Ishemo v. Julius Berger (Nig) PIc [2003] 14 NWLR (Pt. 840) 289 at 305 - 306 paras. H - A, the Court of Appeal held as follows:- Redundancy is a form unique only to its procedure whereby an employee is quickly and carefully relieved of his post. Such type of removal from office does not carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared redundant. ... The appellant continued that it is pertinent to reiterate the trite position of the law as it concerns contracts of employment. That in Strabag Construction (Nig) Ltd v. Adeyefa [2001] 15 NWLR (Pt. 735) 1 at 21 - 22, the Court of Appeal held as follows:- The provisions of a written contract of service are binding on the parties thereto and it is outside the powers of the Court to look elsewhere for the terms with regards to the termination, dismissal or retirement of an employee other than the written contract agreement unless it is ambiguous. The court was then referred to the case of Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 SC. On issue 2, the appellant submitted that its determination will revolve - around finding the IAP advanced reasons for Shittu's retirement as they relate to the award. That there is no doubt that in advancing reasons for Mr. Shittu's retirement, the IAP exhibited gross bias in their finding. For instance, that the IAP found as follows:- The second party on being aware of Comrade Shittu's intention to contest for the post of National Treasurer of the First Party colluded with some interest groups in the Union to threaten Comrade Shittu with proposal for early retirement, so as to frustrate his plan to contest for the post of National Treasurer of the First P31ty ... (page 4, last paragraph to page 5, first paragraph): To the appellant, it is pertinent that throughout the proceedings at the IAP, the evidence of the witnesses never alluded to any collusion between the Second Party and any persons. That this is a gross demonstration of bias on the part of the IAP. The appellant went on to state that the IAP was recorded again as finding as follows:- The Tribunal has observed with dismay the inconsistent, conflicting and contradictory evidences (sic) presented to it by the Second Party in its two Memoranda dated s" November, 2004 and 22nd February, 2005 respectively. The Second Party has stated at page 2 ... that Mr. Shittu was not the only one involved in May, 2004 retrenchment exercise as approximately 138 employees were discharged and 25 of them were from the same location (Ibadan) as Mr. Shittu, including the then Human Resource Manager, Ibadan Brewery, Mr. J.C. Nnaji, but at page 4 of the Final Memorandum of the Second Party dated 22nd February, 2005 the Management had stated that early retirement of Messrs Shittu, Nnaji and Akpe were isolated cases (page 28 paragraph 2 of the IAP award). Further at page 29, the 1st paragraph, that the IAP continued as follows: The Tribunal has also observed from the letter of Notice of Early Retirement issued to Mr. J.C. Nnaji, Appendix NBA that Mr. Nnaji's terminal leave commenced with effect from 1st October, 2003. It is paradoxical to note that the same Mr. Nnaji, purportedly on terminal leave, was the one who issued to Mr. Shittu letter of notice of Early retirement, Appendix NB3 Ref. No. lBHRMIl018/0504 dated 19th November, 2004. Therefore Appendix NBA and Appendix NB3 submitted by the second party are self contradictory. Thirdly, that the IAP continued – The Tribunal has also observed inconsistent evidence presented by the second party in respect of payment of pension and gratuity to retired employees. This is contained in Art. 25. 2 of the Company Employees Handbook ... The second party had testified that junior employees who were of age 50 years and above and who had served the Company for 15 years and above were on early retirement entitled to pension and gratuity but Art. 25. 2 of the Company Employees Handbook states that for an employee to qualify for pension on retirement, he must have served for 20 or more years in a pensionable position .... The appellant then submitted that it is trite Law that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. That when it is said that two pieces of evidence contradict each other, it means that they are by themselves inconsistent. That a discrepancy may occur when a piece of evidence stops short of or contains a little more than what another evidence contains, some minor differences in the details, referring to Owena Bank Pic v. Olatunji [2002] 13 NWLR (Pt. 781) 259 CA at 340 paras. C - D. On issue 3, i.e. whether the court would make an order of specific performance of a contract of service, the appellant submitted that after considering the evidence of the parties and their witnesses, the IAP held as follows: In view of the foregoing, Mr. Joseph Shittu, the National Treasurer of the First Party should forthwith be re-instated to his former position of Auto Mechanic in the Engineering Department of Nigeria Breweries Plc, Ibadan branch without loss of earnings and seniority (page 36, paragraph 2 of the IAP award). The appellant then argued that it is trite law that the court will not order specific performance of a contract of service, referring to Ifeta v. SPDC (Nig) Limited [2006] 8 NWLR (Pt. 983) 585 SC at 505 - 506 paras. A - G, where the Supreme Court put the issue beyond controversy in the following dictum: The traditional common law rule which has been adopted and applied by many decisions of the Courts in this country is that the Courts will not grant specific performance in respect of breach of contract of service. A master can terminate the contract with his servant any time and for any reason or for no reason at all. But if he does so in a manner not warranted by the particular contract under review he must pay damages for the breach. If the master wrongfully dismisses the servant either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. The appellant then concluded that where there has been a purported determination of a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made, referring to Bankole v. NBC [1968J 2 ALL NLR 372. To the appellant, from the foregoing it follows that even if it was wrong in sending Mr. Shittu on early retirement, the best relief he can obtain from the Court has been resolved in the Court of Appeal decision in C CB (Nig) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114 at 135 - 136 E - C, where the court held as follow: The measure of damages in cases of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salaries up to retirement age. If no period of notice is prescribed, the common law rule will apply, namely, that a reasonable period would be given usually, one month or three months depending on the category of staff involved. That the principle is further adumbrated in the Court of Appeal decision of Evans Bros (Nig.) Publishers Ltd v. Falaiye [2003] 13 NWLR (Pt. 838) 564 at 589 paras F - H where the Court held as follows:- The question of reinstating an employee whose appointment has been terminated to his employment does not arise in cases of employment without statutory favour. This is because no servant can be imposed by the Court on an unwilling master, even where the master's behaviour or motive for getting rid of the employee is wrongful, unjustifiable, unfounded or repulsive. All that the Court would do in any of such situation would be to award appropriate damages if there is need to do so. The appellant then submitted that the IAP veered off its permitted one to apply some extraneous legal provisions which are not relevant to the matter placed before it. For instance, that the IAP, in searching for a landing base for is misconceived award, sought solace on International Conventions when it held as follows:- Further, the Tribunal relies on global jurisprudence as epitomized by ILO Convention 135 and Recommendation No. 143 on Protection of Workers' Representatives. The appellant then contended that this appeal has been argued on the three issues distilled from the grounds of objection. That put succinctly, the controversy centered on the misconception on the part of the IAP in confusing the contractual terms under which the appellant relieved Mr. Shittu of his employment status. That therein lay the error of the IAP when it treated the situation of "Early Retirement" as if synonymous with Redundancy. The appellant continued that the IAP also made findings that are not supported by the printed records. That whereas the appellant retired Mr. Shittu under the provision of "Early Retirement", the IAP ignored the overwhelming evidence to this effect by substituting its own views not supported by the records and this led it into abysmal error. The appellant concluded by contending that its appeal also considered the common law principle of master and servant, which preserves the dignity of labour to the effect that the court would not impose a servant on an unwilling master. That by reason of this, the , IAP award which ordered specific performance of a contract of service is an order which judicial authorities have held to be null and void. To this extent, the appellant urged that the findings of the IAP ought to be set aside. The respondent, in reacting to the appellant's written address, adopted the issues framed by the appellant but with modification to issue 1. The modified issue 1 is- Whether any injustice was occasioned by the decision of the IAP which held that the exercise under which comrade Joseph Shittu was relieved of employment was not a situation of early retirement but that of redundancy. On issue 1, the respondent contended that what the appellant seeks to question in the grounds adumbrated on this issue is simply whether Comrade Shittu retired or was disengaged by a redundancy exercise. To the respondent, it should be noted that the dispute before the IAP was that a union member was prematurely retired on account of his trade union activity. That the appellant in{defending the action resorted to raising the issue of redundancy carried out by the Company in May, 2004 to justify the retirement. That this was appellant's defense: we humbly submit that a court of law must give consideration to any defense raised in answer to claim before it, no matter how frivolous or unmeritorious, referring to Ebong v. Reicon Co. Ltd [1998J 4 NWLR (Pt. 547) 655 CA at 664 paras. D - E. The respondent continued that the appellant having raised the redundancy as a defence and led copious evidence on it (3 witnesses as against respondent's sole witness), it accords with the interest of justice that the v must pronounce on the defense so set up. That it is in this context that one can appreciate the pronouncement of the IAP which the appellant reproduced in its written brief. The respondent then submitted that it is not open to appellant who raised the defence to turn around on appeal to complain that the JAP gave consideration to the defence of redundancy. The respondent then referred the court to Ibori v. Agbi [2004] 6 NWLR (Pt. 868) 78 at 122 per Ejiwunmi, JSC where the court stated- ... where counsel appearing for the party decided to adopt a procedure for the prosecution of the case of that party which he thought to be advantageous to that party, and that procedure turned out negatively, he cannot be allowed to deny that approach which [was] adopted of his own volition. The party he represented and the counsel must be prepared [to] acknowledge whatever resulted for their plan and strategy which they had conceived as a quick and convenient resolution of the dispute. To the respondent, what is open to the appellant is to demonstrate that the IAP misconstrued the defense or misdirected itself in cognizing the defense and that by so doing a miscarriage of justice was done to appellant. It is immaterial that the TAP used certain inapt phrase or term to express its decision in the award if ultimately the decision arrived at is correct in law, referring the court to Wab Ltd v. Savannah Ventures Ltd [2002] 10 NWLR (Pt. 775) 401 at 427 - 528 per Ayoola, JSC. This case turned on whether the choice of wrong phraseology to express a decision was enough to overturn the judgment, and the Supreme Court held: I am of the opinion that the emphasis placed by counsel for the defendant in this appeal and in the appeal in the court below and by the court below itself, on the trial Judge's use of the phrase "parity of reason" to describe his reasoning is, with respect, much ado about nothing. What an appellate court should primarily be concerned with is not the particular phrase or term used by the trial Judge to describe his process of reasoning qt thought process but whether his reasons as discerned from the judgment are clear and lead reasonably to the conclusion he arrived at. His going out of his way to categorize his reasoning process and perhaps, in the process doing so poorly, will not by that categorization alone make his reasons faulty or his conclusion flawed. Applying the above citation to the issue raised, the respondent submitted that the final decision on the question submitted to the IAP was rightly answered having regard to the evidence led and accepted. That the IAP ultimately found as a fact that the appellant prematurely retired Comrade Shittu for trade union activities. To the respondent, bearing the final decision in mind, it is purely academic to be labour the issue whether the disengagement was expressed by way of redundancy or by early retirement. In fact as a matter of linguistic expression, redundancy and premature retirement are but metaphors for the same object - the involuntary disengagement of an employee. On this note, the respondent urged the Court to be mindful as it has always been of its power and judicial duty to do substantial justice by looking at the merit of the ultimate decision reached by the IAP. That the court being so directed will find no merit whatsoever in the arguments so stressed by the appellant on this issue. The respondent continued that all the authorities cited by appellant on the distinction between redundancy and premature retirement are totally of no relevance to this issue. That those cases were fought on the basis of wrongful or unlawful termination and or retrenchment exercise without compliance with contractual terms of employment. That the IAP was not called upon to determine any such issue in this matter. That what the IAP was called upon to determine was whether the termination of the employment of Comrade Shittu by whatever name called amounted to unfair labour practice - same having been effected to frustrate the employee in his bid to actualize his trade union rights to contest for national office. That the IAP answered the question in unequivocal terms thus: The second party on being aware of Comrade Shittu's intention to contest for the post of National Treasurer of the' First Party colluded with some interest groups in the Union to threaten Comrade Shittu with proposal for early retirement, so as to frustrate his plan to contest for the post of National Treasurer of the First Party. To the respondent, 'it is true that the IAP held inter alia that Comrade Shittu's employment was brought to an end by a declaration of redundancy; while, the appellant now contends that Comrade Shittu's employment was brought to an end through early retirement as by his contract was permissible' . That the appellant, in respect of this distinction, has urged upon this court a proposition which is valid on its own but was misapplied to the facts of this case. That the case of NNB Plc v. Osoh cited in appellant's address does decide the question that arose in this case; whether the forced early retirement of Comrade Shittu was effected to victimize him for his trade union activity. That with such an allegation the complexion of the case takes on a character totally different from simple breach of contract of employment - it becomes a trade union dispute which only the trade union could ordinarily prosecute in the appropriate court or tribunal other than the normal High Courts. It is therefore not surprising that all the cases wrongly cited in appellant's address on this matter arose from the High Courts and were prosecuted by the employees in their personal capacities. That by contrast, the instant case was initiated by the respondent (a trade union) in protection of its rights to unionize and prevent victimization of its members for their union activities. The respondent then urged that issue 1 be resolved against the appellant by being answered in the negative. On issue 2 i.e. whether the findings of the IAP as to the reasons for Mr. Shittu's retirement are supported by the evidence on the printed record, the respondent submitted that as demonstrated by appellant in its written address, even if unwittingly, evidence on the record abounds to justify this finding. The respondent then proceeded to give some examples – 1. That before the notice of early retirement was ever made formal or public, the union got wind of it and pre-empted it with an advance written protest. This was tendered and admitted in evidence and is presently attached to the respondent's memorandum as Appendix IV. Appendix IV is dated 17/11/2003 and reads in its first paragraph as follows – It has come to the notice of this State Council Secretariat about Management preparedness to retire Comrade Joseph Shittu, the State Chairman of this Council and a contestant of one of our highly placed position at the National level in which the election will hold on Friday 28th November, 2003 is therefore political. That the said letter further went on to question the proposal on the following issues – (1) Is Comrade Shittu sick and unable to perform his functions at his work place effectively? (2) Is the intending retirement on poor health ground? (3) Is he corrupt that the company property is no longer safe? Are avarice and cupidity ruling his mind in a way that strongly affects his job? Is he not contented with the position he holds at the floor of Nigerian Breweries Plc? (4) 1s the law of diminishing return affecting the able and indefatigable State Chairman to warrant his unjustified retirement? (5) Is he the only one in the Brewery presently at the age of 50 years and there is more 55 years at the service of the company presently? (6) Why only Joseph Shittu out of the 40 staff in his department? …………………………………………… In view of these, this State Council viewed this intending retirement as unjustified act perpetrated by a single man in collaboration with the Management staff of the Company on Comrade Joseph Shittu. The issue of Trade Union is never a management issue and should not be taken to the work place, the management of the brewery should as matter of urgency leave both parties alone to contest on a neutral ground, so that democracy will prove itself or else the Management will be accused of Bias, anti union, tribalism and insincere to let, natural justice rule the game of trade unionism in NUFBTE . ................................................................................... . The Union will go to any legal length to protect her member from act of victimization and unjust treatment. ... 2. In corroboration of the above threat, evidence was led of frantic efforts to ensure that Comrade Joseph Shittu was given the letter of early retirement notice dated 19th November, 2003 in the week following the union protest and preceding the 28thNovember, 2003 date when the Union election was slated to hold and did hold. The IAP noted that the letter was curiously sent to Comrade Shittu not through the personnel department as should be the case but by prepaid Courier. 3. Further letters were tendered on the same line of protest by the National secretariat of the Union over the so called early retirement. 4. The records show the testimony of the drama which the appellant staged, but unsuccessfully to get the said Comrade Shittu sign for the letter before he proceeded to the conference for election so that he could be disqualified from contesting. 5. To the preceding weighty evidence, all that the appellant offered by way of answer was to insist that it acted in accordance with the conditions of service which permitted it to determine the employment of any staff without assigning any reasons. 6. The further futile attempt to discredit these pieces of evidence of calculated victimization landed the appellant in a web of contradictions, when they pleaded a subsequent redundancy exercise carried out with due consultation with the Union, in May, 2004. That exercise was by means punitive. On the contrary the Union staffer called by appellant testified that those affected were paid far in excess of their ordinary terminal benefits to provide them with a cushion for soft landing. See evidence of Issa Sule and Oludare for the 2nd party. See also the modified condition of retirement as per Exhibit Oludare 1 (U). Again, an innocent employee is granted extraordinary benefits over and above what he would be entitled to if placed under early/forced retirement. See Exhibit Oludare 3(U). 7. Conversely, the Human Resources Official of the appellant who was subpoenaed by the IAP to throw light on the distinction between redundancy and early retirement confirmed that the latter option deprives the affected employee of a bumper package that he would have enjoyed had he not been placed on compulsory early retirement. To the respondent, the question that the appellant could answer was: why place Comrade Shittu on compulsory early retirement notice as far back 10th November, 2003 to take effect in June 2004, when the company already contemplated a mass redundancy in May, 2004? That the IAP, having not been assisted with contrary evidence by appellant was left with no other choice but to rely on the credible evidence led by the respondent to draw the necessary inference to ground the findings which the appellant is attacking in this appeal. The respondent submitted that the inference drawn from the established facts by the IAP were well reasoned and articulated. That this court is sitting on appeal on the award and will, therefore, not disturb such finding of facts on the specious contention without supporting evidence on the record that the IAP made its findings erroneously. That an appellant court is handicapped in reevaluating evidence that is partly oral and partly documentary led in a trial court. For this reason, that such finding would not be supplanted or substituted with a different or contradictory one unless it is patently made out by an appellant that the decision of the lower tribunal was perverse, referring to Osun State Govt. v. Dalami (Nig.) Ltd [2003] 7 NWLR (Pt. 818) CA 72 at 97 para. F. On what constitutes a perverse finding, the respondent submitted that it has been held by the Supreme Court that such a finding will have to be " ... a finding of fact which is merely speculative and not based on any evidence before he court. A perverse finding is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge" Uwuoha v. NIPOST Ltd [2003] 8 NWLR (Pt. 82) SC 308 at 344 para A). The respondent then submitted that nowhere throughout the whole gamut of the appellant's written address was any perverse finding set out against the evidence on the records. That on the above premises, issue 2 ought to be resolved against the appellant by an answer in the negative. On issue 3 i.e. whether the decision of the IAP did amount to forcing an employee on an unwilling employer and, therefore, illegal, null and void, the respondent contended that the general position of the law is that employment is a contact of personal service; and so either party is at liberty to terminate same for good or bad or no reason at all on pains of an award in damages. That no specific performance of such contract will, therefore, be decreed as a remedy for its breach. That the rule nevertheless admits of exceptions, principal amongst which are where the contract has statutory f1avour and where the breach constitutes an infraction on the right to belong or participate in a trade union by an employee, as guaranteed under section 40 of the 1999 Constitution. The respondent then referred the court to Mix and Bake v. NUFBTE [2004J 2 NLLR (Pt. 2) 247 at 281 paras. E - F, where this court held that- It is trite learning that reinstatement can be ordered under labour laws of this country in two cases. The first is where the employment has statutory flavour and the processes enjoined by the statute for terminating an employment were 110t followed. This is not the case before us. The second is whether the termination is a product of union activities on the part of the employee, which section 9(6) of the Labour Act and 42 (1) (b) of the TDA all frown at (the emphasis is the respondent's). ,: Also referred to the court is the case of Chemical and Non-Metallic Products Senior Staff Association v. BCC [2005] 2 Nl.LR (Pt. 6) NIC 446 at 475 paras. A - C where this court held that- ... Where workers are terminated because of union activities and this fact is established, the termination is illegal and unlawful and so this court can order reinstatement. See for instance, section 42(1) (b) of the TDA 1990. The respondent then went on to submit that the appellant missed the point when it cited the case of Strabag Construction to pray in aid the axiomatic proposition of the law that" ... the provisions of a written contract of service are binding on the parties thereto and it is outside the powers of the court to look elsewhere for terms with regards to the termination, dismissal or retirement of an employee other than the written contract unless it is ambiguous." That the Strabag case applies to breach of contract as a ground for contesting unlawful or wrongful termination of employment. It has no application to breach of statutory law as a ground for challenging unfair termination of employment, or any infraction of conditions of work. That the law is settled that parties cannot by an agreement contract out of the law made to protect the public at large, referring to Eghobamien v. FMBN [2002J 17 NWLR (Pt. 797) SC 488 at 501. To the respondent, in this present case, the combined provisions of section 42(1)(b) of the TDA 1990 and section 9(6) of the Labour Act, as judicially interpreted in the Mix and Bake line of cases, is a complete answer to the arguments canvassed against reinstatement of Comrade Joseph Shittu by the appellant under this issue. That if there is further doubt about the power of the court to re-instate an employee terminated for legitimate trade union activities, then a comparison with similar laws in other jurisdiction will obviate the doubt. The respondent then commended to the court the United Kingdom, New Zealand, South Africa and Australia which present typically analogous legislation under which a distinction is made between unlawful termination and unfair termination or dismissal. To the respondent; in these jurisdictions, the unfair dismissal jurisprudence has advanced beyond protection of trade union rights alone. That the jurisprudence proceeds on the basis that an employer can dismiss an employee for a perfectly valid reason, but the way in which it was handled opens the door for unfair dismissal claim to be pressed. That the remedy invariably includes reinstatement, notwithstanding the common law rule that a willing employee cannot be forced upon an unwilling employer. He argued that the position of, the.' law of unfair dismissals in the United Kingdom is perhaps most instructive. To the respondent, the law as explained in Wikipedia world free encyclopedia summaries the point thus: Unfair dismissal is the term used to describe an employer's action when terminating an employee's contract unfairly. Normally the employee's contract and employment legislation protect the employee from being dismissed unfairly, and allow recourse in law. Where an employee has grounds to believe that he has been discriminated against in being dismissed, other laws may be relevant, such as (in Britain) the Race Relations Act, the Disability Discrimination Act (1995) and the Sex Discrimination Act. Where the employee resigns or terminates his contract (without notice) due to some action on the part of the employer which is in breach of the contract, this is known as constructive dismissal. Most employees have a right to complain of unfair dismissal to an "employment tribunal". Trade Unions may support employees' claims and independent arbitration and conciliation services may be called upon. Dismissal is normally fair if the employer can show that it is for one of the following reasons: 1. A reason related to the employee's conduct. 2. A reason related to the employee's capability or qualifications for the job. 3. Because the employee was redundant. 4. Because a statutory duty or restriction prohibited the employment being continued. 5. Some other substantial reason of a kind which justifies the dismissal. And that the employer acted reasonably in treating that reason as sufficient for dismissal. To the respondent, these questions are similar to those posed by the union's pre-emptive letter of 17th November, 2003 to the appellant. That the appellant could not address the issues beyond invoking its contractual right to hire and fire. The respondent then went to submit that a purposive interpretation of the Labour Act and the Trade Disputes Act will conveniently accommodate the above guidelines under the Nigerian Labour Law. That the authorities set out in the judgment of this court have illuminated the path. To the respondent, that guide was followed by the IAP in this case when it ordered reinstatement of Comrade Joseph Shittu in its award. The respondent then submitted that the reinstatement was well considered and ought to be upheld by this Court. The respondent went on to submit that issue 3 ought to be answered in the negative. In conclusion, the respondent contended that this appeal is a fishing expedition in the sea of technicality; it seeks to upturn merit and crown injustice as the reason for the decision of the IAP has not been faulted. That all the issues canvassed against the award are not supported by the evidence on the record. That the only issue that sounds in some substance is not open to the appellant to rely on because they introduced the extraneous issues in the TAP thereby casting a burden on the IAP to pronounce on the issues. That the facts on record show that the findings of the IAP on victimization of Comrade Shittu for his union activities i.e. to contest for union office were anchored on cogent and credible evidence backed with documents. To the respondent, it is a misconception for the appellant to contend that reinstatement is not available in the case, where an employee has established that he was severed from his employment on account of his trade union activities, an injury which a unionist is protected from by section 9(6) of the Labour Act and section 42(1) (b) of the TDA as judicially interpreted in the case of Mix and Bake v. NUFBTE. The respondent finally urged that the appeal be dismissed and that compliance with the IAP award should proceed without any further delay. The appellant reacted on points of law to the submissions of the respondent. In the first place, the appellant contended that issue 1 as modified by the respondent did not indicate which ground or grounds of objection it covers. Instead it merely raised subsidiary questions as to whether any injustice was occasioned. That the said issue 1 as modified falls outside the ambit of issue I as framed by the appellant. To the appellant, issues framed for determination in an appeal must be related to or predicated upon the grounds of appeal in the matter; for if an issue has no bearing with the ground of appeal, it becomes irrelevant and so the issue and the argument canvassed in its support would be struck out for want of competence, referring to Tukur v. Govt of Taraba State [1997] 6 NWLR (Pt. 710) 549 at 570 and AP Ltd v. Owodunni [1991] 8 NWLR (Pt. 210) 391 at 423. That if the respondent does not cross-appeal, he must formulate issues for determination in the appeal with reference to the grounds filed by the appellant, referring to the Court of Appeal decision in Ehikhamwen v. Iluobe [2002J 2 NWLR (Pt. 756) 151 at 164 paras. C - F which followed the Supreme Court decision in Adigun v. Ayinde [1993] 8 NWLR (Pt. 313) 516 at 538 paras. F - G. to the appellant then, the entire argument. of the respondent regarding its modified issue 1 goes to no Issue and so this court should discountenance it. On issue 2, the appellant contended that the respondent's argument I never joined issues with the appellant's brief but ran a straight and parallel course of its own. That all that the respondent did was to quote mere statements made obiter by the IAP which do not represent the ratio of the issue under consideration by the IAP. The appellant continued that the respondent failed to address the questions raised in issue 2 and as such all the arguments canvassed by the respondent in that regard fell short of the standard required in the respondent's brief. That the argument of the respondent ought to be struck out, referring to Godwin v. CAC [1998] 14 NWLR (Pt. 584) 162 SC at 174 paras. E - F. On issue 3, the appellant urged that section 9(6) of the Labour Act should be closely considered. The said section provides as follows- No contract shall – (b) cause the dismissal of, or otherwise prejudice a worker- (i) by reason of trade union membership, or (ii) because of trade union activities outside working hours or, with the consent of the employer, within working hours (the emphasis is the appellant's). That the import of this provision was explained by this court in NUFBTE v. Cocoa Industries Ltd, Ikeja [2005] 3 NLLR (Pt. 8) 206 at 218 - 219 paras. C - A where it was held that- For section 9( 6)(b )(ii) [of the Labour Act] to be applicable, the trade union activities for which the worker is penalized must be one outside working hours or, with consent of the employer, within working hours. None of these conditions was shown by the appellant to exist for this court to apply section 9(6)(b)(ii). Consequently, we hold that section 9( 6)(b) (ii) of the labour Act is not applicable to the present case. (The emphasis is the appellant's.) The appellant then reiterated that Comrade Shittu was placed on voluntary retirement on 19/11/2003 in accordance with Art. 25.2 of the Conditions of Service. That other staff were equally placed on early retirement. That the IAP held that the motive for the retirement was because to the knowledge of the appellant Comrade Shittu was due to contest election to the post of Treasurer of the union. That the IAP proceeded to hold that the appellant was conscious to the fact that the early retirement of Mr. Shittu would cause him to vacate his position as National Treasurer of the respondent union. To the appellant, this view was taken despite the uncontroverted evidence that Comrade Shittu and other union members within the employment of the appellant were released to go for the delegates' conference. That in taking this view, the lAP proceeded to ground its findings on the motive for the early retirement of Comrade Shittu. To the appellant, in law, motive for retiring a staff is irrelevant, citing Idoniboye- Obu v. NNPC [2003] 2 NWLR (Pt. 805) at 589; Umoh v. ITGC [2001] 4 NWLR CPt. 703) at 281; Chukwu v. NITEL [1996] 2 NWLR (Pt. 430) at 290; Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) at 577; and Agbo v. CBN [1996] 10 NWLR (Pt. 478) 370 at 377. To the appellant then, for section 9(6)(b)(ii) to be invoked, the action of the applicant must be shown to be within the precincts of that section. That a community reading of that section shows that it prohibits an employer from taking action against an employee for belonging to a trade union, or for participating in a trade union activity. That the particular facts of this case show that the appellant's action did not prevent the respondent from engaging in union activity. That the respondent's grouse with his early retirement is that it would make him to cease to hold office as the Treasurer of the union mid way into his tenure. To the appellant, the JAP ruling creates a dangerous precedent in labour law because it posits that an employee who is an executive of a trade union cannot be sacked, retired and or terminated while he is occupying that position in the union. That this runs contrary to the clear provisions of sect 11 of the Labour Act. That Comrade Shittu contested and won election, assumed office and tried to use his official position to get the appellant to rescind its decision. That the respondent failed to lead evidence to show how the action of the appellant was prejudicial to Comrade Shittu because it was done outside working hours or, with the consent of the employer, within working hours. The respondent then urged the court to hold that section 9(6)(b)(ii) of the Labour Act is inapplicable, citing NUFBTE v. Cocoa Industries Ltd, supra. To the appellant then, the rule of a trade union cannot override the contract of employment between the parties, referring to Elufioye v. Haliyu [1993] 6 NWLR (Pt. 301) 581 at 621 - 622 where the Supreme Court held that the constitution of an association cannot alter a rule of law. The appellant then went on to refer to the two decisions of this court cited by the respondent, namely, Mix and Bake v. NUFBTE and Chemical and Metallic Products Senior Staff Association v. BCe;. In particular, that in the BCC case at pp. 475 - 476, it was held that- The law regulating the question of redundancy in Nigeria is section 20 of the Labour Act 1990 ... Section 20 does not require a formal declaration of redundancy-before it can be termed as such as the respondent would want the court to believe. Neither does section 20 decree re-instatement as the remedy where the rules on redundancy are flouted. All the section does is to lay down the procedural rules governing a state of redundancy in an employment. .. As indicated earlier, section 20(1) of the Labour Act 1990 does not contemplate re-instatement. Instead, it contemplates the payment of appropriate severance benefits, (The emphasis is the appellant's.) The appellant then submitted that if the case of the respondent were hinged on section 20 of the Labour Act, then re-instatement could not be the appropriate order of the IAP. That though re-instatement can be ordered under section 9C 6) of the Labour Act, the case of the respondent cannot fall under that section either as the conditions therein were not met. In conclusion, the appellant submitted that the references to ILO conventions that have not been domesticated does not help the respondent, referring to the Court of Appeal decision in Medical and Health Workers Union of Nigeria v. Hon. Minister of Labour and Productivity and 2 ors [2005J 17 NWLR (Pt. 953) 120, which applied the Supreme Court decision in Abacha v. Fawehinmi [2000] 6 NWLR (Pt. 660) at 228 to the effect that- An international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly ... Before its enactment into law by the National Assembly, international treaties have no force of law as to make its provisions justiciable in our courts ... Domestic courts have no jurisdiction to construe or apply a treaty, nor would unincorporated treaties change the law of the land. The appellant then urged the court to discountenance 111 its entirety the arguments of the respondent and allow the appeal. In considering the submissions of the parties in this matter, a preliminary remark is necessary. The dispute in issue arose in 2004 and it was then referred to the IAP. Even when the IAP made its award and it was objected to, the matter was referred to this court in January 2006, months before the NLC Act was promulgated. This means that the matter can only be resolved on the basis of the law as at the time the cause of action arose. The first issue that must then be resolved is whether the copious reference and reliance on ILO conventions by both the respondent and the IAP in determining this matter is proper. The IAP, for instance, at p. 24 of its award held as follows: A situation whereby the Second Party has two types of compulsory retirements, one forced on employees at age of 50 years and above and the other at the ripe "age of 60 years has the distinction of impairing the principle of equality of treatment of workers in employment as prescribed in ILO Convention III concerning Discrimination in Respect of Employment and Occupation which has been ratified by Nigeria since 2002. In like manner, the respondent made submissions to the effect that it is no longer fashionable to terminate or dismiss without reason and urged the court to take a cue from what obtains in other jurisdictions. All of this would be tenable if counsel had come under section 7(6) of the National Industrial Court (NIC) Act 2006. Unfortunately, this Act was not in existence when the present cause of action arose and so that provision cannot be called in aid. As pointed out by the appellant, ILO conventions are applicable only to the extent that they are domesticated. The respondent did not show that prior to the passing of the NIC Act 2006, there was such domestication. Quite recently, in a cause of action that arose in 2003, the Supreme Court in The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria and ors unreported Suit No. SC.20 112005 delivered on January 11, 2008 reiterated that in so far as an ILO Convention has not been enacted into law by the National Assembly it has no force of law in Nigeria and so it cannot possibly apply, relying on Abacha v. Fawehinmi. What this means then is that reliance on ILO conventions without indicating how they have been domesticated in Nigeria is wrong. The IAP had held at p. 37 of the award that- The evaluation of the negative consequences that the [respondent] would suffer as a result of the early retirement of Mr. Shittu and his vacation of the post of National Treasurer of the [respondent] compels the Tribunal to classify the [appellant's] action as anti-union activity. Before arriving at this conclusion, the IAP at p. 36 of the award held that the affirmation of the appellant that the early retirement of Mr. Shittu would cause him to vacate his position as the National Treasurer of the respondent union is an indication of the fore knowledge of the detrimental consequences which the retirement of the National treasurer of the respondent union would impliedly have on the effective administration and operation of the respondent as an instrument for collective defence and protection of its members. The IAP continued that the post of National Treasurer carries with it enormous responsibilities including statutory prescription under sections 37 and 38 of the Trade Unions Apt (TUA) Cap. 437 LFN 1990 on rendition of annual financial returns and audited accounts of the respondent to the Registrar of Trade Unions before 1st June in each year. That any failure by the National Treasurer to comply with the above-mentioned statutory requirement carries with it severe sanctions including the cancellation of the Certificate of Registration of the respondent by the Registrar of Trade Unions. We must remark that this holding by the IAP is not only too sweeping and generally, it begs further questions and sets quite a dangerous precedent. Are we to assume, as the appellant posits, that an official of a trade union cannot be relieved of his employment without the risk of the employer being cited for wrongful termination of employment? Alternatively put, would membership of the executive council of a trade union not then translate an employment to one in perpetuity? It was argued that the appellant knew that Mr. Shittu will be contesting for the position of National Treasurer; and to pre-empt this, he was then put up for early retirement. This argument is blind to the converse scenario, which is that the respondent knew of the impending early retirement of Mr. Shittu (note that the respondent's written address acknowledged that the union got wind of the proposed retirement of Mr. Shittu and pre-empted it with an advance written protest dated 17/111/2003 - Appendix IV attached to the respondent's memorandum) and yet put Mr. Shittu up for election so as to perpetuate his employment. All of this is conjecture but it goes to show how thin the statement of principle that the IAP seeks to lay down in holding that simply because the early retirement of Mr. Shittu would impact negatively on his role as National Treasurer of the respondent union, the act of early retirement is necessarily an anti-union activity. We now turn to the main ground of the objection to the IAP award, namely, whether the retirement of Mr. Shittu is wrongful for which re- instatement should be ordered. A number of authorities were cited by the parties to support their respective contention. In particular, decisions of this court were also referred to. In Chemical and Non-Metallic Products Senior Staff Association v. BCC, this court held that where workers are terminated because of union activities and this fact is established, the termination is illegal and unlawful and so this court can order reinstatement. The crucial factor here is that it must be established that the termination is as a result of union activities. Even at this, subsequent cases have established that termination because of union activities has to be within the context of sections 42 of the TDA and 9(6) of the Labour Act. Neither at the IAP nor before this court was any case made as to the termination of Mr. Shittu coming' within the context of these two sections to warrant his re-instatement. There is consequently no basis for the finding of the IAP that the early retirement of Mr. Shittu was as a result of union activities. Because the cause of action in this matter arose prior to the passing of the NIC Act, the union activities envisaged for purposes of re-instating a staff who has been relieved or his employment must be within the context of sections 42 of the TDA and 9(6) of the Labour Act. Argument was also made that Mr. Shittu was retrenched and so the provision of section 20 of the Labour Act should apply; and that on the principle of 'last in, first out', Mr. Shittu ought to be recalled to work. However, in Chemical and Metallic Products Senior Staff Association v. BCC, this court held that section 20(1) of the Labour Act 1990 does not contemplate re-instatement; instead, it contemplates the payment of appropriate severance benefits. We do not, therefore, see how helpful section 20 of the Labour Act is to the cause of Mr. Shittu. We, therefore, hold that the IAP applied it in error. It is inapplicable to the instant case. The appellant acted appropriately within the limits of the law and the Conditions of Service governing its staff. In consequence, this appeal succeeds and the award of the IAP is hereby set aside. No order as to cost. Judgment is entered accordingly. ………………………… Hon. Justice B.A. Adejumo President ……………………….. …………………………………. Hon. Justice B.B. Kanyip Hon. Justice M.B. Dadda Judge Judge