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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Judge Hon. Justice F. 1. Kola-Olalere Judge Hon. Justice O. A. Obaseki-Osaghae Judge Hon. Justice J. T. Agbadu-Fishim Judge Date: 16th July, 2008 SUIT NO. NIC/18/2002 BETWEEN Food, Beverage and Tobacco Senior Staff Association - Appellant AND Royal Salt Limited, Kirikiri Lighter Terminal, Apapa, Lagos - Respondent REPRESENTIONS; Ade A. Ola-Joseph represents the applicant. Paul C. Obi Esq. for the respondent. JUDGMENT This is a matter referred to this Court by the Hon, Minister of Employment, Labour and Productivity acting pursuant to section 13(1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990. The referral instrument, dated 29u1 August 2002, was forwarded to this Court by a letter with Reference No. ML.HE./809/CON.1/1/44 of 2nd Sept. 2002. The Industrial Arbitration Panel (IAP) had entertained the matter and made an award, which was objected to by the appellant. Attached to the referral instrument are copies of the IAP award and the notice of objection by the appellant. The issues to be determined by this Court according to the referral instrument are as follows:- (I) Threat to employment of members of the Union on account of Trade Union activities contrary to the provisions of Labour Act Cap. 198 LFN section 9(6) A & B. (2) Disregard for Trade Unions Act CAP 437 LFN 1990 Section 24(1) and refusal to recognize the Branch Association in the company. (3) Failure to adhere to the provision of the Trade Unions (Amendment) Act No 4 of 1996 which classified spices (salt) under Food Union. This matter commenced in this Court in May 2002. As the matter was being heard, a member of the panel hearing it retired. Another panel was constituted to hear the matter and the case started de novo. On the 3rd of April 2008, the Court ordered the parties to submit written addresses. The Court also ordered that the parties, in the circumstance, should front-load their processes, documents or any evidence to be relied upon together with the record of proceedings from the IAP. In brief, the facts of this case are that a dispute arose between the parties given that the management of the respondent, a company that manufactures refined iodized salt (table salt), refused to recognize the appellant as the appropriate union to unionize the senior workers of the respondent company. In the past, several trade unions had requested that the respondent should recognize them. This made the respondent to write to the Ministry of Employment, Labour and Productivity vide Exhibit A for guidance on the appropriate union to recognize especially considering the company's operation and production. In response, the Ministry, vide Exhibit B, stated that the proper union that the respondent should recognize is the National Union of Chemical, Footwear, Rubber, Leather and Non-Metallic Workers; otherwise known as chemical union, because the respondent is a salt manufacturing company. In consequence, the Chemical Union later unionized the junior workers of the respondent. The junior workers' arm of the appellant attempted to unionize the junior staff of the respondent but this was resisted by the respondent and the junior workers. Later, the appellant somehow found its way into the respondent company and unionized its senior staff. The appellant then wrote to the management of the respondent to inform them of their existence in the company, intimate them with the officers of the association in the respondent company and demanded for deduction of union dues from their members. The management of the respondent out-rightly refused to recognize the appellant and this led to exchange of some unpleasant correspondence between the parties. The matter was referred to the Ministry of Employment, Labour and Productivity to be resolved but to no avail. The Ministry then referred the matter to the IAP. The IAP award favoured the respondent. The appellant was dissatisfied and so objected to the award, hence the referral of the matter to this court. In its written address, the appellant submitted that Royal Salt Limited is a company registered in Nigeria as a manufacturer of refined iodized salt (table salt) which is food. That the company is a manufacturer of table salt IS clearly shown in the respondent's letterhead (Exhibit I) attached to the address. The appellant also submitted that refined iodized salt is used in some food items; hence the company manufacturing it should belong to the food industry. The appellant then pointed out that the Nigerian Stock Exchange rightly classified salt manufacturing company under the food industry as it is done in the Trade Unions (Amendment) Act No.4 of 1996. That the Certificate of Product Quality issued by the Standards Organization of Nigeria (SON) for the respondent, dated 13th October, 2001, issued in respect of "Uncle Palm Iodized Salt (food grade salt)", shows clearly that the respondent's product is food (see Exhibit 2). Therefore, the appellant submitted that the activities of the respondent fall within the food industry and that their senior staff should be unionized by the appellant. The appellant then prayed the court to: (a) Declare that. refined iodized salt is classified under food, hence companies manufacturing it should belong to the food industry; in keeping with the provisions of the Trade Unions (Amendment) Act No. 4 of 1996, and consequently that the senior staff are rightly organized under the Food, Beverage and Tobacco Senior Staff Association. (b) Order that management should desist forthwith from all forms and manner of threat to members of the Food, Beverage and Tobacco Senior Staff Association on account of their belonging to the union. (c) Order that management should immediately allow the existence of our Branch Association in the company while implementing our existing Collective Agreements. In the respondent's written address, the respondent pointed out that the issue for determination by this Court can be succinctly put as follows- can iodized salt (which is the product of the respondent,) be classified as spice in which case it qualifies as food under the Trade Unions (Amendment) Decree 4 of 1996; thus making the appellant (the 1st party) proper union to be recognized by the 2nd party (the respondent) or; it cannot be so classified, thus justifying the non-recognition of the 1st party by the 2nd party? The respondent pointed out that the only reason why the appellant is arguing that salt is food is as a result of their conception that salt is a spice. The respondent argued that this issue can best be tackled by having recourse to the definition of the following words: spice, salt and chemical from various dictionaries. In all, the respondent stated definition of these words, including their components and analysis from four difference dictionaries, and two encyclopedias. The respondent submitted that iodized salt is neither food nor spice, but it is a chemical (sodium chloride) which is used upon refining and iodization as an additive to food for flavour or for preservation of food. That it is not food. The respondent went on to submit that all spices are seasonings but not all seasonings are spices. He pointed out that for a seasoning to qualify as a spice, it must be of vegetable origin. That salt is not of vegetable origin like all spices but strictly a chemical substance. On the appellant's submission in respect of the classification of the salt as food by such bodies as Standards Organization of Nigeria SON, National Agency for Food and Drug Administration and Control (NAFDAC) and the Nigerian Stock Exchange (NSE), the respondent pointed out that these bodies so classified the product for administrative convenience and that this has nothing to do with legal definition of the product or the product's proper classification and that the company so classified has no input in the classification nor anything to gain or loose by it. The respondent went on to refer to the definition of food from various dictionaries and analyzed its components. The respondent then emphasized that food is anything that can be eaten by people and animals or used by plants so that they can live and grow. The respondent pointed out that the nutritional constituents of food are protein, vitamins, minerals, fat and oil. The respondent submitted that salt is not food but it is a mineral deposit (sodium chloride) which is refined by being processed into iodized salt. That was why the Ministry of Labour through Exhibit B rightly advised them to recognize the chemical workers union as the appropriate union for its workers. The respondent pointed out that it never advertised its product as food but as being good for addition to food to enhance the taste of food. See Exhibit 2U. The respondent further contended that its manufacturing activities placed them under the chemical union as well as the chemical nature of the product and classification of the company by the Ministry of Labour through Exhibit B. The respondent pointed out that the appellant merely asserted in its submission that salt is a spice without substantiating it. That this amounted to building without a foundation which must definitely crumble, because courts have held severally that one cannot put something on nothing and expect it to stand, referring to Macfoy v. UAC [1952] AC 61. The respondent went on to submit that he who asserts must prove, referring to the cases of Mogaji v. Odofin [1978] 4 SC 65, Agballa v. Nnamani [2005] All FWLR (Pt. 245) 1052 and Nwodogwu v. Nnadozie [2001] 12 NWLR (Pt. 727) 315. The respondent then submitted that the appellant has failed woefully to prove that salt is a spice either in law or in logic, and so its action must fail and be dismissed with heavy cost because it is frivolous, vexatious and a waste of the valuable time of the court. The respondents stated that salt is not of a vegetable origin and thus cannot be called a spice. That it is not food but chemical, urging the court to so hold. The respondent pointed out that in this case, there is no wrong it did; relying on the Supreme Court decision in Thomas v. Olufusoye [1986] 1 NWLR (Pt. 18) 669 to the effect that a court can only redress wrongs. In considering the submissions of parties in this matter, can we say that because the SON, NAFDAC and the NSE classify salt manufacturing companies under food in their various categorisations, the respondent company ought to have recognized the appellant as the rightful union to unionise senior staff of its company? The appellant's answer to this question is in the affirmative. Argument has been raised as to the proprietary or otherwise of relying on the classification of salt as food in terms of the regulatory functions of SON, NAFDAC and NSE. But the point has to be made that the question whether a product is food for purposes of the regulatory functions of these agencies is not the same as the question whether an industry belongs to a particular group for purposes of unionization. In large measure, unionization in Nigeria is industry based. Salt could be industrial salt or table salt. As a matter of fact, the respondent produces both. Industrial salt is in no way edible. Table salt is edible only when added to food, but certainly not on its own. It should be noted that even as food graded salt, table salt still retains its chemical character as sodium chloride. This presupposes that on balance, salt must be treated as a chemical product despite the contrary categorisation by the regulatory agencies mentioned above. For purposes of unionization, therefore, reliance on "'the view of the regulatory agencies that salt is food is inappropriate. Salt is not food and so workers in the salt industry cannot be unionized by the appellant. As a chemical product, it is only the National Union of Chemical, Footwear, Rubber, Leather and Non-Metallic Workers Union that can unionize workers in any company that mainly produces salt. Our finding that salt is not food finds support in the ordinary meaning of salt. In this regard, although the appellant did riot offer any definition of salt, the respondent at page 4 of its address referred to four different dictionaries for the definition of salt. These definitions are to the effect that - (l) By the Cambridge International Dictionary of English Low Price Edition page 1390, salt is a common white substance found in sea water and in the ground which is used especially to add flavour to food or to preserve it. (2) By the shorter Oxford English Dictionary, salt is a substance, sodium chloride, extensively prepared for use as a condiment for preservation of animal food and in various industrial processes as an adjunct of food. (3) By the Chambers 20th Century Dictionary 1981, salt is 'a chloride of sodium', occurring naturally' as a mineral (well salt) and in solution in seawater, brier springs, etc. (4) By the New Lexicon Webster's Encyclopedia Dictionary Deluxe Edition, 1983, salt is a white crystalline compound which occurs widely in nature both as seasoning and as a preservative. The Microsoft Encarta Dictionary 2008 edition defines salt as small white tongue- tasting crystals consisting largely of sodium chloride. The sources are: seawater and mineral deposits. It is used for food seasoning and preservative. The components of salt are essentially sodium chloride and iodine. It is an adjunct to food and it is additive to food. As an adjunct or additive to food, it cannot equate to food. In its written Address, the appellant urged the court to allow its appeal, in compliance with the provisions of the Trade Unions (Amendment) Act 1996. The Third Schedule to this Act is very relevant here. Part A of the Schedule contains a list of 29 re-structured trade unions. Part B of the Third Schedule of the same Act specifies the jurisdictional scope of each of the 29 re-structured trade unions. The jurisdictional scope of the appellant union under item 11 of Part B of the said Schedule is stated to be, ''workers engaged in the manufacture of food for human consumption and of related products such as chewing gum, spices, etc". A critical look at this provision shows that it does not expressly provide that companies or industries manufacturing table salt should belong to the food union. One of the reasons why the appellant is making this claim is because of its view that salt is a spice. The appellant did not give any definition of what spice is. The respondent gave the definition of spice from various dictionaries. From the Cambridge International Dictionary of English low price Edition page 1390 spice is defined as a powder or seed from a plant used to flavour food e.g. ginger and cloves. The Oxford English Dictionary 3rd Edition 1968 defines spice as one or other of various strongly flavoured or aromatic substance of vegetable origin obtained from tropical plant commonly used for condiments etc. The Chambers 20th Century Dictionary defines spice as an aromatic and pungent vegetable substance used as condiment and for seasoning food; for example, pepper, nutmeg, vanilla and ginger. The new Lexicon Webster's Encyclopedia Dictionary Deluxe 1983 defines spice as any of many vegetable substances, mostly plant parts from which the essential oil have not been extracted, used to impact their strong and aromatic flavours to food and finally to preserve foodstuff from decay. The Food Encyclopedia explains that seasoning is the process of adding to or improving flavour of food. Seasoning includes herbs, spices and all other condiments. Seasonings are detected through tasting and it is not made from plant or vegetable like some spice. From all these definitions, spices are seasonings but not all seasonings are spices because it is not all seasonings that are made from vegetable or plant. We, therefore, hold that salt is not spice but a seasoning. All of this reinforce the fact that salt is a chemical. We agree with the reasoning of the respondent regarding the conception of a chemical. To the respondent, according to the Cambridge Dictionary, chemical is any substance which is used in or produced by a reaction involving changes to atoms or molecules. Also, in the Microsoft Encarta Dictionary 2008, chemical is defined as an atomic or molecular structure that results from or takes part in, reactions involving changes in its structure, composition and properties. From the IAP award, the evidence of one Mr. Bakare is apposite. Part of his testimony under cross-examination that the composition of Uncle Palm iodized calcium table salt, which is the product of the respondent, is 99.5% sodium chloride. Sodium chloride is a chemical and so salt must be a chemical. The appellant could not debunk this piece of vital evidence and so we find no reason to disturb same. Item 8 of Part B of the Third Schedule to the 1996 Act provides inter alia that, workers from all companies and industries that are producing organic and inorganic chemicals shall belong to the National Union of Chemical, Footwear, Leather and Non-Metallic Products Employees. At page 25 of its record of proceedings the IAP made award as stated below: The Tribunal after examining the submission from the two parties finds that salt, though seasoning, is not spice since spice must be of vegetable origin. Salt is not of vegetable origin. It is essentially sodium chloride which is chemical. We are of the opinion that the IAP was correct in this finding and so we affirm same. From the totality of the evidence before this Court, the facts in the dispute, the record of proceedings of the IAP and the submissions of the parties including the documentary evidence attached, definitions from various dictionaries and the decided authorities cited, we find that the appellant has failed to establish its claims that salt is food in order for workers in the respondent company to belong to its union. We, therefore, agree with the respondent's submission that since there was no wrong carried out in this case either by the respondent or the IAP there is nothing to redress. Our considered view is guided by the Supreme Court decision in Thomas v. Olufusoye [1986] 1NWLR (Pt. 18) 669 We hereby hold that the product of the respondent is not food but chemical and so the appellant has no right to unionize the workers in the respondent company. The respondent acted rightly in refusing to recognize the appellant union. Therefore, the question of the respondent acting in disregard of section 24(1) of the Trade Unions (Amendment) Act No 4 of 1996 Cap. 437 LFN 1990 does not arise at all. The respondent acted appropriately in accordance with the provisions of the Act. In concluding its written address, the respondent urged the Court to dismiss this appeal for being frivolous, vexatious and lacking in merit. We do not agree with the respondent. The issues that called for determination were not frivolous or vexatious. The appellant pursued the matter within the limits of the law. On the whole, therefore, we hereby affirm the decision of the IAP. This appeal is hereby dismissed. We make no order as to cost. Judgment is accordingly entered. …………………………………………… Hon. Justice B. B. Kanyip Presiding Judge ……………………………… …………………………………… Hon. Justice V. N. Okobi Hon. Justice F. I. Kola-Olalere Judge Judge ……………………………………… …………………………………… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge