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JUDGMENT This is an Appeal against the award of the Industrial Arbitration Panel (IAP) made on the 24th day of March 2010 but which was communicated to the appellant on the 6th day of October, 2010. The appellant had objected to the IAP award upon which the Honourable Minister of Labour, acting pursuant to section 14(1) of the Trade Disputes Act Cap. T8 LFN 2004, then referred the matter to this Court vide a letter dated November 15, 2010 with Ref. No. ML.HE/947/CON/I/28 and the accompanying instrument dated 29th October, 2010. By the referral letter, this Court is – To inquire into the trade dispute now existing between the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) and Mobil Producing Nigeria Unlimited over unfair severance or termination of the trade union leaders in Mobil Producing Nigeria Unlimited, Contract Staff Branch. In accordance with the Rules of this Court, parties joined issues and filed written briefs of argument. The appellant raised the six grounds of appeal in its notice of appeal dated the 22nd day of December, 2010 but filed on the 13th day of January, 2011. They are – Ground One The arbitral tribunal misdirected itself in law and on facts when it held that the respondent is not the employer of the appellant’s contract staff members working in the respondent’s locations. Particulars of Record i. There was evidence before the tribunal that the contract staff members of the appellant were employed individually and severally over time directly by the respondent and were then paid directly by the respondent. ii. There was evidence that the contract staff members of the appellant were merely moved over to the Manpower Service (MPS) Contractors (otherwise known as the Forum of Contractors) for administrative convenience only. iii. It is the evidence of the respondent before the tribunal that the Service Outline Agreement No. A2157692 between the respondent and Haiden Nigeria Ltd, for instance, was purportedly executed on October 1, 2008 at the beginning of a two year contract – the previous Service Outline Agreements with other contractors having expired on 30th September, 2008. iv. There was evidence before the tribunal that most of the contract staff members of the appellant have hitherto worked for periods ranging from 5 to 20 years with the respondent. v. There is evidence ex facie that no letter of appointment was received or acknowledged by the contract staff from the said MPS contractors. There was no proof of service of the said letters before the tribunal to inform its decision. Ground Two The tribunal erred in law when it held that there was no privity of contract between the appellant’s contract staff members and the respondent. Particulars of Error i. The tribunal without basis held on page 14 paragraph 2 of the award that We are of the legal opinion that there is no nexus between the MPNU and the employees of the forum as it affects the latter’s rights in the relationship without first going through their employer who are many but put together for administrative purposes under the name forum of contractors. ii. The Forum of Contractors or its members are not in law employers of the appellant’s contract staff members contrary to what was held by the Tribunal. Ground Three The arbitral tribunal erred in law by failing to properly evaluate the evidence presented by the first party/appellant and/or failed to make proper findings on the same thereby coming to a perverse decision. Particulars of Error (i) The main issue of contractual relationship between the appellant and the respondent was not properly determined from the preponderance of documentary evidence before the tribunal. (ii) The status of the contract staff members of the appellant with regard to their employment with the respondent was not determined. Ground Four The Tribunal erred in law by failing to make any categorical pronouncement on the sole issue for determination which came before it by reference from the Honourable Minister of Labour and Productivity, to wit: To inquire into the trade dispute now existing between the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) and Mobil Producing Nigeria Unlimited over the unfair severance or termination of the union leaders in Mobil Producing Nigeria Unlimited Contract Staff Branch. Particulars of Error (i) The tribunal failed to make any pronouncement on it but merely stated: As a general rule also, a contract affects only parties thereto and cannot be enforced by or against a person who is not a party to it or signatory to it (sic)…. Ground Five The tribunal erred in law by failing to consider the principle of agency which was copiously canvassed before it. Particulars of Error (i) Failure to consider the documentary evidence and legal submissions touching on the principle of agency between the respondent and the Forum of Contractors vis-à-vis the employment or otherwise of the contract staff members of the appellant. Ground Six The award of the tribunal is against the weight of evidence canvassed before the tribunal. Relief sought from the National Industrial Court An order setting aside the award of the IAP purportedly made on the 24th day of March 2010 and granting the prayers of the appellant for an order of this Court declaring the termination of the eight union leaders and members of the appellant’s Contract Staff Branch with the respondent as unlawful, illegal, null and void and to order their reinstatement with payment of their salaries and allowances from the date of their wrongful termination up to and including the date of the judgment of this Court. From these six grounds of appeal, the appellant formulated three issues for the determination of this Court, namely – 1. Whether or not there is privity of contract between the members of the appellant and the respondent or, if not, whether or not there is an agency relationship between the Forum of Contractors and the respondent (culled from grounds 1, 2 and 5 of the notice of appeal). 2. Whether or not the employment of the appellant’s members was terminated for reasons of their trade union activities (culled from ground 4 of the notice of appeal). 3. Whether or not there was proper evaluation of the evidence before the tribunal or, if not, whether or not this Court can make proper evaluation and findings (culled from grounds 3 and 6 of the notice of appeal). Regarding issue 1 i.e. whether or not there is privity of contract between the members of the appellant and the respondent or, if not, whether or not there is an agency relationship between the Forum of Contractors and the respondent, the appellant submitted that contrary to the findings of the IAP, there was evidence of the following: i. That members of the appellant were actually employed by MPMU (the respondent). ii. That the respondent actually controlled the conditions of service of the members of the appellant. iii. That the process of recruitment and placement of members of the appellant, including their interview and subsequent employment, were done by the respondent; and that the members of the appellant were only administratively assigned to the Contractors for purposes of convenience. iv. That the Forum of Contractors was a mere strategem employed by the respondent to shield herself from being accused of undue casualisation of workers. v. That the respondent remains the directing mind in the relationship between the appellant’s members and the Forum of Contractors. That the above evidence is contained in the appellant’s Memorandum and Better and Further Memorandum filed and argued before the IAP, the consequence of which is that it is an error of law on the part of the IAP to have held that there was no privity of contract between the members of the appellant and the respondent. The appellant continued that for the avoidance of doubt, they had at the IAP stated and hereby restate as follows: 1. That the appellant commenced negotiations with representatives of the second party under the aegis of Mobil Producing Nigeria (MPN) Labour Contractors Forum on October 10, 2006. 2. That at the end of the quite extensive negotiation, both parties entered into two Collective Bargaining Agreements (CBA) by December 5, 2006. These agreements include firstly, the principle establishing the terms and conditions of employment and secondly, the consequences of implementing the terms. 3. That the first major dispute on the Collective Bargaining Agreements had to do with which one comes first, the implementation of the Collective Bargaining Agreement on the terms and conditions of employment or the consequences of implementing the Collective Agreement as contained in the minutes of the negotiation meetings held on November 29, 2006 and December 4 – 5, 2006 respectively, copies of which minutes are marked as Exhibits A1 and A2, respectively in the records. 5. That the dispute was, however, resolved through the intervention of the Federal Ministry of Labour and Productivity, Abuja on January 27, 2007 where a communique was signed upholding the resolutions reached at the Collective Bargaining Agreement negotiation from October 10 to December 5, 2006. A copy of the said communiqué is marked as Exhibit B in the records. 6. That it is a matter of serious regret that the agreement contained in Exhibit B was flagrantly repudiated by the MPN Labour Contractors Forum upon return from Abuja, on the instruction of the Respondent. As a matter of fact, all the earlier agreements were repudiated and renegotiated by the Forum with serious pressure on the appellant by the respondent to accept the new rates and conditions. 7. That notwithstanding the above, implementation of even the renegotiated Collective Bargaining Agreements suffered series of postponements as shown by the correspondence from the Forum, copies of which are marked as Exhibits C and D respectively in the records. 8. That interestingly, about six items of the 2006 Collective Bargaining Agreement remained unimplemented as at the time of this dispute, notwithstanding that the Forum voluntarily entered into these agreements with the appellant. 9. That it is the contention of the appellant that the non-implementation of the 2006 Collective Bargaining Agreement was due largely to the over-bearing influence of the respondent on the Forum of Contractors both of whom are usually engaged in the argument as to who of the respondent and the Forum of Contractors should implement which component of the Collective Bargaining Agreement between the appellant and the Forum. 10. That this over-bearing influence of the respondent over the employment relations between the Forum of Contractors and the appellant informed the position of the appellant to initiate direct negotiation with the respondent in May 2008 which proved to be more efficient and effective without subjecting the outcomes to repudiations and re-negotiations. A copy of the May 2008 agreement is marked Exhibit E in the records. The appellant then submitted that central to the trade dispute now before this Court is the Collective Bargaining Proposal forwarded by the appellant to the respondent on Equal Pay for Equal Work and Direct Negotiation with the respondent by the appellant on behalf of the MPN Contract Staff Branch in order to harmonise the existing disparities between the direct hire staff and the contract staff of the respondent. A copy of the said proposal is marked as Exhibit F in the records. Continuing, the appellant submitted that its demand for a direct negotiation with respondent on behalf of its Contract Staff Branch was based on the following facts – i. The respondent and the Forum of Contractors were usually at each other on the claims of lack of mandate (from the respondent) by the Forum to enter into such agreements, resulting in lack of implementation or re-negotiation of earlier agreements at the point of implementation. ii. A negotiation on the 2006 Collective Agreement which lasted for about 20 months with the Forum, took only two days (see Exhibit E) when re-negotiated with and on the orders and authority of the respondent, even though to the disadvantage of the appellant. iii. That the Forum of Contractors lacks the capacity to defend agreements it reached with the appellant on behalf of the respondent. iv. That the Forum of Contractors had shown that it had no respect for honouring statutory obligations on Tax (PAYE) and the Contributory Pension Scheme as well as check-off deductions, etc independently of the respondent. For these the appellant relied on relevant documents marked as Exhibits F1, F2 and F3, etc. in the records. That against the background of the above, the appellant had seriously insisted on direct negotiation with the respondent in the circumstance to set out the principle for Collective Bargaining Agreement in respect of the contract staff. To the appellant, it is a fact that the respondent had argued in its letter of August 31, 2009 addressed to the appellant, a copy of which is marked as Exhibit I in the records as it also argued before the IAP that there is no contract of employment or Collective Bargaining Agreement between it and members of the appellant’s Contract Staff Branch. Rather, that the subsisting Collective Bargaining Agreement and in effect, the employment relationship, is between the Contract Staff Branch and their employers, represented by the Labour Employers Forum. The appellant then submitted that this position of the respondent is contradictory in terms. The appellant then restated that – i. For the avoidance of doubt the respondent facilitated the negotiation meetings held on May 13 – 14, 2008 which resolved the stalemate which had lasted for about 2 years between the appellant and the MPN Forum of Contractors as contained in Exhibit E in the records. ii. The appellant relies on other relevant documents including but not limited to minutes of the negotiation meeting between the appellant, NUPENG and the Forum on October 12, 2006 (marked as Exhibit I 1 in the records), minutes of the meeting of November 8, 2006 marked as Exhibit I 2 in the records, minutes of the meeting of November 10, 2006 (marked as Exhibit I 4 in the records), the respondent’s e-mail to the appellant’s Branch Executive Committee dated September 24, 2008 on the subject of 17% wage reopener (marked as Exhibit I 5 in the records), the respondent’s letter dated November 25, 2008 addressed to the Managing Director of Foyak Nigeria Ltd captioned “Re: End of Contract Bonus” (marked as Exhibit 16 in the records), MPN & EEPNL Labour Employers Forum letter dated 23rd October, 2008 addressed to the appellant captioned, “Letter of Assurance to Work with the Existing Collective Bargaining Agreement (CBA)” (marked as Exhibit 17 in the records). That though the respondent contended in paragraphs 8 and 9 of its memorandum that it (the respondent) is not a signatory to the agreement contained in Exhibits A1 and A2 in the records, an examination of the content of the two documents would reveal that the respondent is central to the discussions/negotiations and in effect, the relationship between the contract staff and the Forum of Contractors. The appellant then submitted that the central role of the respondent is as shown in the introductory paragraph where it is recorded that – It was however discovered that progress could not be made by both parties due to the position of the Client Company, Unions and Forum on the issue as summarized below…. To the appellant, as a matter of fact, Exhibit A2 has shown that in the determination of wages and table of rates of the pay of the contract staff, it is the respondent rather than the Forum of Contractors who play the key role contrary to what the respondent urged the IAP to believe. That “in Exhibit A2 attached to the appellant’s memorandum, the respondent accepted the implementation of a new Collective Bargaining Agreement (which for all intents and purposes ought to have been purely between the union and the Forum of Contractors) based on the principle of equal pay for equal work provided the union is ready for the reduction of the workers from 750 to 169 (senior staff) and 903 to 203 (junior staff) – insisting on the downsizing before commencement of the new CBA whereas the Forum of Contractors (whom the respondent urged the IAP to believe represents the various employers of the contract staff) insists that it does not have capacity to discuss the issue of downsizing neither does it want to be associated with it – insisting that it cannot sign-on to the wages engendered by the new CBA until the issue at stake is resolved by the Client Company (respondent) with the union”. It is the submission of the appellant that what Exhibit A2 on record has shown is that the employment of the contract staff and the Collective Bargaining Agreement (CBN) negotiations purported to be between the contract staff and the Forum of Contractors is in fact between the contract staff and the respondent with the Forum of Contractors serving merely as agent(s) of the respondent only and that the whole arrangement was contrived by the respondent to avoid its obligations to the said workers under the relevant laws of the Federal Republic of Nigeria. In this respect, it is the appellant’s contention that the respondent is the one who conducts the process of recruitment and even prescribes the format which the employment letter must take. It is the further submission of the appellant that the respondent participates very clearly in the CBA negotiations between the appellant and the Forum of Contractors contrary to what the respondent urged the IAP to believe. This position is made much more obvious by Exhibits D and E attached to the memorandum of the appellant in the records. That for the avoidance of doubt, Exhibit D contains the resolutions reached and jointly endorsed at the joint meeting of PENGASSAN (MPN Contract Staff Branch, MPN Labour Contractors’ Forum and MPN and (respondent) HR Department from January 29 – 31 and February 7, 2008 respectively. Importantly, that in paragraph 2 of the resolutions in Exhibit D, the MPN Contractors/MPN (respondent) jointly undertook to pay arrears of pension contribution up to January 1, 2005 once the association (appellant) confirms the readiness of its members to pay its own 50% and in paragraph 5, it is provided that “in other to avoid above, Field HR Department (respondent) shall endorse employees entitled to this allowance before payment by a Forum member”. Also, that Exhibit E contains the minutes and the resolutions reached at the end of the joint meeting of the Management Team (respondent), the MPN Labour Contractor’s Forum and PENGASSAN (appellant) on 13 – 14 May, 2008 on categorization of contract staff in MPN (respondent) locations. Quite importantly, that in paragraph 4 of the minutes of 13th May, 2008 in Exhibit D, “the Management team’s position is that agreements reached between these two parties (union and Forum of Labor Contractors) are not binding on the client company (respondent) except when the client company (respondent) has given a mandate to the FORUM (MPN Forum of Labor Contractors) for their discussions with the association (appellant). Mandate was given to the FORUM (MPN Forum of Contractors) to close the 2006 CBA discussions but no mandate was given to close the categorization. The understanding was that both teams will develop proposals for further consideration by the client company (respondent)”. The appellant further submitted that the central role of the respondent in the Collective Bargaining Agreement negotiation process between the appellant and the respondent Forum of Labor Contractors is further elucidated by paragraph 5 flowing from paragraph 4 of the above minutes of 13th May, 2008 in Exhibit D wherein it was stated that – The Zonal Chairman then concluded that since management (respondent) views the signed agreement presented by the forum to the client company (respondent) on categorization as a charter of demand, it would only be fair for the client company (respondent) to present to the association (appellant) their own position on categorization as well as give some time for the association to study the client company’s (respondent) position. Significantly, “that the respondent’s position referred to above was then formally presented for study and for the meeting to reconvene for its discussion the following day i.e. May 14, 2008 attests to the appellant’s contention that the Labour Contractors are merely agents of the respondent for the recruitment of the contract staff and that the employer-employee relationship is actually driven by the respondent. That this contention is further affirmed by the resolutions contained in Exhibit D in the records and particularly paragraph 7 therein wherein the Management (respondent) guarantees that there will be a further review of salaries as part of the 2007 wage re-opener which is now overdue by eleven months”. To the appellant, it is equally significant that Exhibit D in the records was endorsed by two strategic officers of the respondent in charge of industrial relations affirming that the respondent is directly involved in the employment of contract staff contrary to the averments contained in the respondent’s memorandum. The appellant then submitted that the attempt by the respondent, through its memorandum and the annexures, to deny being the employer of the contract staff and or not being involved in the CBA negotiation with contract staff members of the appellant is a fraudulent contraption meant to confuse the facts with the intention of escaping liability in the very obvious circumstances of this case. The appellant drew attention of the Court to Annexure 8 to the memorandum of the respondent, stating that Annexure 8 is the respondent’s letter dated August 21, 2009 addressed to the Manager, First Bank of Nig. Plc, Eket Branch, wherein the respondent warranted that it will reimburse the interest charges on the housing and auto loan facilities for the employees of the Contractors assigned to the respondent on a monthly schedule of payments – giving assurance that such interest payment shall continue to be reimbursed for the term of the loan or the contract expiration of the personnel deployed to work in MPN locations, whichever comes earlier. That in a characteristic ambivalence of its status in the employment relationship with the contract staff, the respondent in one breath stated in paragraph 4 of Annexure 8 that it is the sole responsibility of the Contractors to ensure the security and collection of the principal loan and the remittance of same from their beneficiary employees whereas the respondent in another breath offered to assist in the process, by requiring as a pre-condition for processing payment of invoices of contractors’ reimbursement of monthly salaries of the loan beneficiaries, the submission to MPN (respondent) of documentary evidence of the loan principal repayment to the bank for the previous month and documentary evidence from the bank confirming receipt of same from the Contractor. The appellant further contended that the interest of the respondent in the minute details of the loan arrangement and the process of repayment of the principal and the interest goes beyond the interest of a mere “busy body” or “inter lopper” to underscore the contention of the appellant that the respondent is the real employer of the contract staff members in the respondent and not the Labour Contractors who are merely agents of the respondent, contrary to what the respondent urged the IAP to believe. To the appellant, it had at the IAP invited the tribunal, for a moment, to ponder on what interest the respondent had in whether or not the purported employers of the contract staff assigned to it obtain loans and repay the principal plus the interest as agreed between the Bank and the Contractors independently of the respondent. That this exercise would have unveiled the true relationship of employer-employee between the respondent and the contract staff. It is for this argument and the earlier submission that the Labour Contractors are mere agents of the respondent for the recruitment of staff only, that the appellant invited the Court to critically examine the contents of Annexure 1 to the memorandum of the respondent along with the attachments to the said Annexure 1 in order to see clearly through the veil. The appellant continued that in paragraph 1.2 of Exhibit A in Annexure 1, it is provided that the Contractor, when requested by the Company (respondent), shall match credentials of candidates to the company desired experience and expertise requirement and submit screened candidates to the Company for final selection. That the implication is that while the Contractors screen the candidates for employment, the actual selection is made by the Company i.e. the respondent. Interestingly, that under the same paragraph 1.2, even the screening must allow the Company (respondent) to view the credentials of the Contractors’ personnel being recruited to underscore the contention of appellant that the Contractors are merely recruiting agents for the respondent who is the actual employer of the contract staff, contrary to the assertions in its memorandum and the dubious provisions of the agreement with the said Labor Contractors. Furthermore, that in paragraphs 1.3 and 1.4 of Exhibit A in Annexure 1, it is provided that the Contractor shall provide salary benefits and personal administration and be responsible for all payments including tax and payroll burden. Curiously, this is in conflict with the provisions of Exhibit H to Annexure 1 under Salary Administration/Invoice Processing paragraphs 4 to 11 particularly at paragraphs 10 and 11 which show that the salary payments made to the contract staff by the Contractors are actually reimbursed 100% as reimbursable cost by the respondent. In other words, that the salaries of the contract staff are paid by the respondent and not the Contractors. That in Exhibit B to Annexure 1 (page 40), reimbursable costs is defined in sub-paragraph 1.1 as Gross Total Remuneration (GTR) i.e. Annual Grass Salary, Allowances and Benefits of Contractor’s employees identified in Exhibit B. To the appellant, it should interest the Court that at page 45 of Annexure 1, it is stated that all applicable rates (contained in Exhibit B1) are based on the Collective Bargaining Agreement (CBA) between the Contractor and appropriate trade union(s) that represent their personnel. That this is, nevertheless, in contra-distinction to the provisions of paragraphs 1.16 and 1.17 on page 33 of Annexure 1 to the effect that on hiring personnel, the contractor shall furnish written conditions of service to them, which shall be in line with the approved compensation schedule as listed in Exhibit B1 stating categorically that the Company (respondent) has the sole right to review the compensation schedule in Exhibit B1, wherever required, with the contractor duly notified in writing for implementation. That when set against the above provisions, the Court will see beyond the deception and fraudulent and false claim in paragraph 1.18 on the same page 33 that the contractor is independent and neither the contractor nor any of its personnel shall be deemed for any purpose to be the employee, agent, servant or representatives of the Company (respondent) for the employment process to be valid. The appellant continued that in Exhibit 11 (Request for Service), the itemized procedure for the recruitment and placement of the contract staff by the Labor Contractor starting from paragraphs 1 to 12 thereof show the dominance of the respondent in the entire employment process. For the avoidance of doubt, the Request for Services Form (Attachment H-I) and other relevant forms have to be endorsed by the Field HR Manager/Supervisor Recruiting (of the respondent) for the employment process to be valid. The appellant then submitted that notwithstanding the above elaborate provisions on the process of recruitment, the respondent does the recruitment and forwards the names to the Contractors for administrative convenience only. The appellant went on to submit that contrary to what the respondent urged the IAP to believe, the whole contract of employment was prescribed and dictated by the respondent even though the presence of the respondent is not specifically mentioned. Furthermore, that in order to further underscore the role of the respondent as the employer of the contract staff, it is the respondent who forwards the list of their staff to the Contractors and curiously, it is the same respondent who sends detailed information (including classified ones) on the staff to the Contractors who are expected to be in custody of this same information if they employed the said workers in the first instance. Significantly, that on Exhibit H or page 69 of Annexure 1, even though it is provided in the Contract Agreement that the Contractor is responsible for the performance appraisal of its staff, the respondent stipulated the timetable and processes to be followed while the actual assessment is carried out by the respondent’s departmental manager/supervisor, without any input from the Contractor other than collation of the results of appraisal and forwarding it to the respondent for necessary action. Similarly, that even though it is provided in the Contract Agreement that the Contractor is responsible for the discipline of its staff, it is the respondent who identifies the breach in procedure or policy. It is the respondent that issues a letter to the Contractor for appropriate disciplinary action to be taken with the contractor only communicating the form of disciplinary action to the staff in writing, and where it involves suspension, letters will be sent by the respondent to the Procurement and Purchase Department to ensure salary payment are suspended, thus leaving the Contractor with little or no discretion in the discipline of the staff to whom he is purported to be the employer. The appellant went on to state that in paragraph 13 of Exhibit H, it is provided that upon the written request by the Company (respondent) and at the respondent’s sole discretion, the Contractor will promptly remove and replace at it expenses, all persons whose performances are unsatisfactory to the respondent. That this underscores the contention of the appellant that the Contractors have no control and do not exercise any control over the contract staff of the respondent except through and on the orders of the respondent. Continuing, the appellant contended that “curiously, with regard to the separation of staff, it is either the Client Company i.e. the respondent initiated or contract staff initiated, which is what obtains in a normal employer-employee contractual relationship, where either party is at liberty to bring the contract to an end provided the required notice has been given”. As provided for in Exhibit H at page 71 of Annexure 1, however, there is no provision for the Contractors to bring the contract of employment to an end. Rather, when the separation is initiated by the respondent, the process starts with the Supervisor of the respondent informing HR that the services of the staff are no longer required. The HR then communicates this in writing to the Contractor with a copy to the Procurement Department. The Contractor only serves as a courier to inform the employee concerned in writing and sending his terminal benefits to HR for ratification. The Contractor conducts the exit, interviews staff and gets staff to fill Client Company (respondent) Exit Form which the Contractor sends to HR with a copy to procurement who reimburses the Contractor with the ratified terminal benefits approved by the respondent thereby terminating the separated staff. To the appellant, therefore, discipline and separation of employees is the sole prerogative of the employer. However, that “where the respondent, who claims not to be the employer of the contract staff, played such prominent and decisive role in the discipline and even determination of the contract of employment to which it is purportedly a stranger, speaks volumes more than meets the eyes – a case of fraudulent misrepresentation of facts”. That as it concerns industrial relations, Exhibit H at page 69 of Annexure 1 provides to the effect that the Contractor shall liaise with his staff unions for all industrial relations related issues e.g. collective bargaining, wage re-opener, staff-work related issues but hastens to stipulate that any Agreement entered with their staff unions without prior written approval of the Client Company (respondent) represented by the Field HR Manager shall not be binding on the Client Company (respondent) and shall be at the sole expense of the Contractor. The implication of the above is that the Contractor has an obligation to formally engage the Client Company (respondent) and secure its mandate before negotiating with the contract staff. Only in this way would the respondent be responsible for the implementation of such Agreements, indicating that the respondent is the actual donor of the mandate for the CBA negotiation between the Forum of Labour Contractors and the appellant and not the Contractors, contrary to what the respondent urged the IAP to believe. The appellant then made a strong case of its contention that the Contractors are merely agents of the respondent in its employment relationships with the contract staff members of the appellant in the employment of the respondent and that the respondent exercises control over the recruitment, assignment, appraisal, discipline and separation of the contract staff, including industrial relations processes, collective bargaining, fixing and payment of allowances as well as salary administration and as such, determines the employment status of the contract staff, contrary to what the respondent urged the IAP to believe. The appellant then proceeded to submit that at best, the so-called Independent Contractors are Recruiters purportedly licensed by the Honourable Minister of Labour and Productivity under the provisions of sections 24 and 25 of the Labour Act Cap. L1 LFN 2004 specifically to recruit for the respondent in the specific operational locations of the respondent contrary to what is stated in Annexures 2, 3 and 4 to the memorandum of the respondent being purported letters of employment the existence of which the appellant denies as none of the said letters was ever given to any of the appellant’s members whose names appeared on the purported letters of appointment. The appellant referred the Court to section 26 of the Labour Act, which provides that – No Recruiter shall recruit workers for services with any person – (a) Unless that person is in possession of a valid permit granted under section 24 of the act; or (b) In excess of the number of workers authorized to be recruited by the permit; or (c) From any area or place which is not specified in the permit. The appellant then submitted that the respondent and its Labour Contractors collectively appreciate that the Labour Contractors are recruiters and that explains why in the Services Outline Agreement No. A2157692 at paragraph 1.25 on page 34 of Exhibit A attached to the memorandum of the respondent, it is provided that – On award of contract, Contractor MUST obtain and present a current valid Recruiter’s Licence from the Federal Minister of labour and Productivity prior to contract execution. Failure to produce the Licence will result in the cancellation of the award. The appellant went on to submit that the respondent failed to exhibit the Recruiter’s Licence of the Contractor whose Service Contract was purportedly attached as Annexure 1 to the memorandum of the respondent to corroborate the claim that the Contractor(s) and not the respondent are the employers of the contract staff members of the appellant. That in furtherance of the above, the appellant requested the IAP, in the exercise of its powers under section 36(1)(c) of the Trade Disputes Act Cap. T8 LFN 2004, to compel the respondent to produce the Recruiter’s Licenses of its following Independent Contractors for inspection in order to assist the IAP in the determination of who (the respondent or the Contractor) is the employer of the contract staff, the subject of this trade dispute, which the IAP failed to do before arriving at the perverse decision. The said Contractors include but were not limited to – (1) Grafen Enterprises Limited, (2) Sigmund Engineering Works Ltd. (3) Best Offshore Support Services Ltd. The appellant then urged the Court to call same for inspection in the interest of the justice of this appeal. It was also the contention of the appellant that, assuming without conceding, that the Contractors actually employed the contract staff, if it is the fact that the contract staff were deployed or transferred to the respondent, that while under the control, supervision and direction of the respondent, the contract staff are de facto and de jure, employees of the respondent and entitled to enter into Collective Bargaining Agreement negotiation and entitled to make demands reasonably connected with the terms and conditions of service while working for the respondent including but not limited to the demand for “equal pay for equal work” and any employee benefit plan sponsored by Company (respondent) and/or its affiliates, as employees of the respondent. To the appellant, its contention above is the position of the law as ably held by the Judicial Committee of the Privy Council in A. H. Bull & Co. v. West African Shipping Agency Limited [2004] 1 NLLR (Pt. 1) 172 at 177 A – C that the responsibility for the act of a transferred servant lies on him in whose employment the man was at the time when the act complained of were done. By the employer is meant the person who has a right at the moment to control the doing of the act i.e. “patron moementane”, referring in the process to Donovon v. Laing (1893) 1 QB 629; Bouke v. The White Moss Golliery Company (2 C.P.O.205) and Bain v. The Central Vermont Railway Company [1921] 2 AC 412. That in Donovan v. Laing (1893) 1 QB 629 it was held that generally a transferred servant is a servant of the master who assigns him to a bailee i.e. “patron habitual” but upon practical point of responsibility when he is doing the work of and under the orders of the other employer to whom he is sent, he is, in the eye of the law, the servant of the latter and the latter is, in the eye of the law, his employer. To the appellant, the above position of the law is central to the determination of the trade dispute now before this Court in which the respondent directly enjoys all the rights and privileges of an employer in its relationship with the contract staff members of the appellant but does not want to publicly or directly admit its obligations as an employer to these contract staff. It is for this and the other reasons earlier canvassed that the appellant urged the Court to hold as in Donovan v. Laing (supra) and A. H. Bull & Co. v. West African Shipping Agency Limited (supra) that since the contract staff work directly and fulltime for the respondent, they are, therefore, employees of the respondent who are entitled to CBA negotiations with the respondent through the appellant. The appellant also urged the Court to note, as earlier argued, that the (Forum of) Contractors are Recruiting Agents to the respondent with the recruited staff being retained or “rolled over” by the respondent after the Contractors’ contracts have been terminated such that some of the contract staff members of the appellant have been in the continuous service of the respondent for upwards of between 10 to 20 years with majority of them not being recruited by the present set of Contractors. Exhibit A attached to the Better and Further Memorandum of the appellant is a list of some contract staff working in the respondent locations, showing the demographic distributions of junior or senior staff, the Contractors through which their employments are regulated as well as their length of service with the respondent and not with the Contractors. Importantly, the respondent did not controvert the above Exhibit A and the submission thereon. The appellant further submitted that as further proof of the respondent’s position as the original employer of the contract staff, the renewal of the contracts of employment of the contract staff were done by the respondent rather than the Contractors. The appellant drew the Court’s attention to Annexures 2, 3 and 4 attached to the Memorandum of the Second Party (respondent herein) to be found on pages 238 to 242 in the records. The Annexures dated October 1, 2008 are copies of the purported letters of employment issued by the Contractors to the appellant’s contract staff members in the respondent company. On the face of it, the letters were not executed by the offeree and interestingly what was exhibited do not prove that such letters were ever delivered or brought to the attention of the concerned staff. That this justifies the appellant’s earlier denial of the said letters of employment. It is the appellant's contention that Messrs Bassey Edward ldiokitaha and Peter Obuokefe Apkenka who are purported to be recipients of the fresh letters of employment (Annexures 2 and 4 respectively) from the Contractors, have been in the respondent's employment prior to the said October 1, 2008 employment date, and have been the Branch Secretary and Chairman respectively of the appellant's branch The appellant relied on Exhibits Al and A2 executed on November 29, 2006 and December 4 – 5, 2006, and Exhibits B, D, E and F executed/dated the 25th January 2007, 8th February 2008, 13th and 14th May 2008 respectively. The said Exhibits are attached to the Memorandum of the First Party (appellant herein) and can be found on pages 25 – 28 and 31 – 35 in the records. The appellant further contended that Exhibits I to I 7 attached to the first party/appellant's Memorandum at pages 41 to 59 in the records also show instances of union activities by Messrs Akpenka and Idiokitaha as contract staff of the respondent prior to their purported employment by the Contractors even when there was no evidence of any break in the period of their employment with the respondent. Furthermore, that Exhibits I 5 to I 7 clearly show the dominance of the respondent in the employer-employee relationship between the appellant's members and the Contractors. In Exhibit I 7, for instance, the contractors admitted that they had just signed their contracts with the respondent but pledged their commitment to implement the full terms of the existing CBA which took effect on July 1, 2006 prior to the signing of their own contracts. More importantly, in the said Exhibit I 7, the Contractors also affirmed their commitment to any other future negotiated updates to the CBA to the extent of MPN's agreement. To the appellant, the curious questions are who was/were the employer(s) of the contract staff before these contractors signed their contracts on October 1, 2008? As contained in Exhibit I 6, who decides on the personnel or contract staff to be rolled over to the new contractors? How does a contractor roll over his own employees to another or a totally new contractor that he may not know or even have been aware of? The appellant referred to the Black's Law Dictionary, Sixth Edition, which defines the phrase rolling over in the context of a banking term for extension or renewal of short term loan from one loan period (e.g. 90 days) to another. That applied to the circumstance of this case, the rolling over of the employment of the appellant’s contract staff members may be taken to mean extension or renewal of their contract of employment. The appellant the submitted that if the claim of the contractors is correct that the contract staff members of the appellant are their employees, why would they need to rollover their own employees? And that assuming they have cause to do so, how would they roll them over to new contractors’ after the expiration of their own contracts without offending section 10 of the Labour Act Cap. L1 LFN 2004? That it is obvious, even from Exhibit I 6, that the rollover of employees is done directly by the respondent who assigns the contract staff to its existing contractors for administrative purposes and convenience only but with the motive of avoiding the responsibility of the implication of excessive casualisation of Nigerian workers contrary to the provisions of the Labour Act. In this regard, that the Court will also find, as with Annexures 2, 3 and 4, that even the elaborate provisions contained in Annexure 1 attached to the Memorandum of the second party/respondent, meant to be Services Outline Agreement between the respondent and one of the contractors, was not executed by the contracting parties indicating that it was contrived by the respondent purposely to deny that it is the employer of the appellant contract staff members. To the appellant, it is significant to point out that notwithstanding the volume of documents relied upon by the appellant at the IAP, the appellant subsequently came in possession of additional documents not originally tendered at the IAP but which corroborate the appellant's above submissions on privity of contract and that the respondent is the actual employer of the appellant's contract staff members. Such documents contain information on the name of the staff; position occupied by the staff; client company (respondent) cost center; client company department; date joined client company; current monthly basic salary; current allowances and years of service with the client company; directives issued to the Contractors on the duration or tenure to be stated in the employment letters to be issued to the contract staff; staff list – additions and deletions; extension and renewal of contract of employment of the contract staff; respondent’s mandate to the Contractors on the acceptable rates for the Collective Bargaining Agreement negotiation on salary, rentals, lunch, transport, medical, utility, security, leave allowance, end of service benefits, compassionate and hazard allowances for 2008 and 2009 respectively; performance appraisal and discipline of staff; etc. We must note here that the appellant’s counsel by this assertion is seeking to introduce fresh evidence, not given at the IAP, even when this Court had during the hearing evinced its displeasure at this style of practice to counsel. Since leave of Court was not sought, that attempt must be strongly condemned and so is discountenanced for present purposes. The appellant went on to submit, as a consequence of the above paragraphs, that the respondent is the directing mind of the Forum of Contractors and at the same time being the original employer of the contract staff members of the appellant before they were rolled-over or assigned to the contractors for administrative purposes. The appellant, then urged the Court to hold that privity of contract exists between the respondent and the appellant’s contract staff members, the respondent having been acting in this relationship through the agency of the Contractors or, in the alternative, that the Contractors are the agents of the respondent in its employment relationship with the contract staff members of the appellant. That it is trite that agency exists between two persons when one of them expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties and the other similarly consents to so act thereby creating an actual, express or implied authority. The appellant then submitted that the respondent has by conduct and for all intents and purposes demonstrated and given actual, implied and express authority to the contractors to act as its agents in the employment relationship between the respondent and the appellant contract staff members. For this, the appellant relied on Vulcan Gases Ltd v. GFIG [2001] All FWLR (Pt. 52) 1 at 24 and Bamigboye v. University of Ilorin [2001] ALL FWLR (Pt. 32) 12 at 51. On issue 1, the appellant concluded by urging the Court not to take the respondent's claim that the Contractors are the employers of the appellant's contract staff members on the face of it but to go further to remove the veil in order to clearly see the true face of the real employer, referring the Court to the case of Okon Johnson and ors v. Mobil Producing Nig. Unlimited, unreported Suit No. CA/C/47/2008 delivered on the 21st day of May 2009 where the court declared that the appellants who were security officers were employees of the first respondent (same respondent in this suit) and not the Nigeria Police, notwithstanding that they were trained by the Nigeria Police, wear the Nigeria Police uniform and are called supernumerary police by the respondent. In like manner, the appellant urged the Court to declare that the appellant's contract staff members are employees of the respondent and not of the Contractors notwithstanding that the respondent calls the Contractors employers of the contract staff. Regarding issue 2 i.e. whether or not the employment of the appellant’s members was terminated for reasons of their trade union activities, the appellant contended that the respondent made a heavy weather of the triviality of the termination of the individual contracts of the executive officers of the appellant before the IAP, arguing that it was lawful. That the respondent further argued that the said officers breached the company's policy on acts of harassment against some staff who refused to join the strike of the union. The appellant then submitted that the said harassment policy of the respondent which is a private contractual relationship cannot be elevated to the status of express provisions of the Trade Disputes and the Trade Unions Acts which make it unlawful to apply punitive measures against union members for industrial actions taken or embarked upon in furtherance of a trade dispute as in the present case. Continuing, the appellant contended that the above reasons adduced for the termination of the appellant's branch officers and members by the respondent would have been sufficient to ground an order of the IAP declaring the termination unlawful, illegal, null and void, the termination being for reasons of the trade union activities of the appellant’s branch officers and members. To the appellant, the sole issue for the determination of the IAP, as contained in the instrument of referral, is the “unfair severance of union leaders in the course of labour-management dispute”. Regrettably, that the IAP failed to make any findings on this central issue to the dispute in spite of the preponderance of uncontroversial evidence adduced before it by the appellant. That it is trite law that it is a statutory responsibility of all courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity, referring the Court to the cases of Samba Petroleum Ltd & anor v. UBA Plc & 3 ors [2010] 5 – 7 SC (Pt. II) 22 at 33 – 35 per I. T. Muhammad, JSC and Katto v. CBN [1991] 9 NWLR (Pt. 214) 126 at 149 per Akpata, JSC. The appellant continued that it stated at the IAP that it had insisted on direct negotiation with the respondent who instituted a joint committee of both the appellant and the respondent. The committee commenced its work in earnest with the presentation of the appellant’s proposals on June 24, 2009. The committee members included Comrade Vitus Ugwu, Comrade Williams Ikhenoba and Comrade Kemi Adeniyi Thomas (for the appellant), and Mr. Balarabe Aliyu (Ind.l Rels. Manager), Mr. George Akpan (Legal Adviser) and Mr. Normal Hill (HR Planning Manager), for the respondent. That this fact was not controverted by the respondent. Nevertheless, that by a twist of fate, the respondent turned the negotiation table to a platform for the commencement of a series of intimidating acts to censor the very peaceful demand and conduct of the appellant by – (a) Serial threats of and actual termination of employment of members of the appellant’s branch Executive; (b) Withdrawal of e-mail facilities from the appellant's branch Executives; and (c) Refusal to rollover over 100 members of the appellant contract staff branch under the signed contract with a directive to re-apply for their jobs after two weeks. The appellant then submitted that the above acts of threat and intimidation directed by the respondent essentially against the Executive members of the appellant's contract staff branch, triggered-off the industrial action embarked upon by the appellant's contract staff branch members in the respondent on 24th August, 2009. To the appellant, it is on record that the first party/appellant acted promptly in the wake of the industrial action, against the backdrop of the existing cordial relationship between the two parties, to call for a meeting between the Management of the second party/respondent and the National Secretariat of the appellant on Tuesday, 1st September 2009 at 2.00pm in the respondent's office. That the invitation for a meeting was conveyed through the appellant’s letter dated August 27, 2009 captioned, “Request for a Meeting”, and addressed to the Executive Director (Human Resources Director) of the respondent. In the said letter (a copy is marked as Exhibit H in the records), the appellant identified the union's grievances to include – (1) Job insecurity. (2) Non-Remittance of their tax deductions to appropriate tax authority. (3) Non-remittance of pension deductions to appropriate authorities. (4) Selective implementation of the last Collective Bargaining Agreement. (5) Non issuance of appointment letters. That the said letter also conveyed to the respondent the willingness of the union to call off the industrial action while both parties resume dialogue. That the respondent responded to Exhibit H vide its letter dated August 31, 2009 captioned, “Re: REQUEST FOR A MEETING (CONTRACT STAFF INDUSTRIAL ACTION)” and marked Exhibit I, which highlighted some issues critical to the resolution of the industrial action and other such actions by the appellant’s members, who are contract personnel. The appellant continued that, in a quick reaction to Exhibit I and through its letter dated September 02, 2009 addressed to the Human Resources Director (and marked as Exhibit J), it made some clarifications countering what the respondent had described as an illegal strike describing same action of the workers in using peaceful and non-violent means to ask for a better conditions of service as legitimate and called on the respondent to exercise restraint against processes and actions capable of aggravating the situation. That it was in the midst of these exchanges that the contract staff branch formally reported the acts of intimidation of the appellant's branch Executives and members by the respondent to the appellant through its letter dated September 7, 2009 captioned, “A Case of Victimisation of PENGASSAN Officers and Members” and marked as Exhibit G 1A in the records. That by a copy of Exhibit J endorsed by the appellant to the Federal Ministry of Labour and Productivity, the Honourable Minister intervened by inviting both parties for a meeting in his Abuja office on September 09, 2009. As a follow-up to the above meeting of September 09, 2009 the appellant wrote a letter dated September 18, 2009 captioned, “Victimization of Union Leaders in Mobil Producing Nigeria (MPN) Contract Staff Branch” addressed to the Hon. Minister of Labour and Productivity. A copy of the letter is marked Exhibit K. To the appellant, in Exhibit K, it made some fundamental clarifications of the central issues involved in this trade dispute, which include – i. That the strike action was a genuine and legitimate demand for improved welfare and conditions of service; ii. That Management's reaction prior to and during the action smacks of intimidation and victimization; iii. That though not against the termination of the Labour Contractor (SIGMUND LIMITED), the practice of roll-over of staff to a new contractor should be observed pending any change in policy; iv. That it is anti-union stance of Management by targeting and terminating the employment of union leaders in Lagos, Port Harcourt and Eket, for their roles in the last industrial action; v. That the labour contractors lack the capacity of being called genuine employers and lack the independence to perform statutory roles expected of them; vi. That this led to loss of confidence in these contractors and made the appellant to run to the respondent for resolution of differences; and vii. That the misconception of the motive of running to the respondent for resolution of the crisis led to the industrial action. To the appellant, it concluded the above clarifications in Exhibit K, by calling on the respondent to recall, without further delay, those unjustly terminated due to their participation in union activities, in the interest of peace and the good record of fair labour practice by the respondent. The appellant continued that the Standing Committee on Labour Issues in the Oil and Gas Sector of the Federal Ministry of Labour and Productivity, through its letter Ref: ML.HE/40A/CON.1/11/720 dated October 27, 2009 (the copy is marked as Exhibit L in the records), convened a meeting of both parties on 2nd November 2009 in Abuja. At the said meeting of 2nd November 2009 it was agreed that a tripartite meeting of the appellant, respondent and the Forum of Employers of Contract Staff be held to pursue meaningful resolution of the issues in dispute. However, this meeting was never held and this necessitated the appellant's letter of December 29, 2009 which conveyed the resolution of the National Executive Council (NEC) of the appellant on same dispute to the Managing Director of the respondent. Copies of the appellant's letter of December 29, 2009 and the attached resolution of the National Executive Council (NEC) are marked as Exhibits M and N in the records respectively. That it is against the above and the failure of the respondent to take advantage of the appellant's efforts for an amicable settlement of the dispute that the appellant was left with no alternative than to picket the respondent on February 03 – 04, 2010. The decision to this effect was conveyed to the Permanent Secretary, Federal Ministry of Labour & Productivity in the appellant's letter of January 26, 20l0, a copy of which is marked as Exhibit O in the records. As a follow up to the picketing of the respondent by the appellant, the respondent facilitated negotiation between the appellant and the Forum of Employers of Contract Staff. The said negotiation led to resolution of most of the outstanding 2008 Collective Bargaining Agreement and 2009 Wage Re-Opener negotiation issues between the appellant and the MPN/EEPNL Labour Employers Forum. Copies of the Minutes of the above negotiation as well as the new Collective Bargaining Agreement are marked as Exhibits P and Q respectively. The appellant then contended that the only outstanding issue which is the subject matter of the trade dispute before this Court is the unfair severance or termination of the union leaders in Mobil Producing Nigeria Unlimited Contract Staff Branch of the appellant for the industrial action which took place on 24th August 2009. The appellant submitted that since the picketing was called-off and notwithstanding the intervention of the National Headquarters of the appellant, the respondent has continued to lock-out the appellant's branch Executive Officers and members maintaining that the said Branch Executive Officers and members have been terminated. To the appellant, it is trite that no such prejudice as intimidation, threat of any kind or form of victimization shall be targeted at union members or executives on account of their trade union activities. That this is the full force of section 9(6) of the Trade Unions Act Cap. L1 LFN 2004. The appellant went on to submit that as partly shown in Exhibit G, the union Executives affected by the case of victimization on account of their trade union activities include – 1. Comrade Peter Akpenka - Branch Chairman 2. Comrade Bassey E. Idiokitaha - Branch Secretary 3. Comrade St. James Unuigboje - Industrial Relationship of officer 4. Comrade Inuatang Ekpe - Chairman Lagos Chapter 5. Comrade Helen Ogisi - Ex-Officio Lagos Chapter 6. Comrade Mosobalaje Yusuf Oni - Ex-Officio Lagos Chapter 7. Comrade Yekini Okiri Momoh - Ex-Officio Lagos Chapter 8. Comrade Young J. Nkanang - Ex-Officio Lagos Chapter The appellant then submitted that the termination or severance of the above union executives and members on account of their union activities is contrary to the provision of section 9(6)(b) of the Labour Act Cap. L1 LFN 2004, which provides that no contract shall cause the dismissal of, or otherwise prejudice a worker by reason of trade union membership or because of trade union activities outside working hours or, with the consent of the employer, within working hours. The appellant contended that the respondent has never hidden its prejudice against the Contract Staff Branch Executives of the first party in the company as reflected in the respondent's position contained in Exhibit I in the records. The appellant then noted that the respondent erroneously saw the industrial action as an illegal strike which ought to attract the sort of sanction so delivered. Nevertheless, to the appellant, the action of the union executives and members was legitimate, same being in furtherance of a peaceful and non-violent demand for improved conditions of service. That by the combined effect of the provisions of sections 43 and 44 of the Trade Unions Act, peaceful picketing is not unlawful when it is in furtherance of a trade dispute as in the instant case, urging the Court to so hold. The appellant went on to submit that the consequence of the unlawful termination of the above union officers and members by the respondent is that the act of the respondent in that regard is illegal, null, void and of no effect. That an order of reinstatement is the appropriate order to make in the circumstance of this case where the termination of employment is connected with the employees' trade union activities, citing National Union of Food, Beverage and Tobacco Employees v. Cocoa Industries Ltd, Ikeja [2005] 3 NLLR (Pt. 8) 206 at 218 where the court held that – As a matter of principle two instances exist where courts generally order reinstatement. The first instance is where the employment is statutory and the statutory process for disengagement was not followed. Here reinstatement has always been ordered by the courts. The second is where a worker was disengaged for embarking on trade union activities. This is the product of section 42 of the TDA 1990 and section 9(6)(b)(ii) of the Labour Act, 1990. This court can, therefore, order reinstatement if to its satisfaction, a worker was laid off due to trade union activities. That this decision has also been upheld by this Court in a number of cases including Mix & Bake v. NUFBTE [2004] NLLR (Pt. 2) 247 at 276 – 277, Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Company Plc Suit No. NIC/7/2000 at page 419 DJNIC, S.I.O. Industries Ltd, Asaba v. National Union of Textile, Garment and Tailoring Workers Suit No. NIC/6/90 (incomplete citation) and Hotel and Personal Services Senior Staff Association v. Owena Hotels Limited, Akure [2005] 3 NNLR (Pt. 7) 163 where this Court held that the termination of a worker will be a nullity where the termination was based on trade union activities and such worker is entitled to immediate reinstatement. Consequently, the court nullified the termination of the appointment of the Branch Secretary of the appellant and ordered his reinstatement accordingly. The appellant also referred to the case of Neslte Nig Plc v. NUFBTE [2009] 15 NLLR (Pt. 40) 42 at 75 – 76 where it was noted that – This court has always held that, in appropriate cases, the remedy for the termination of employment where it is found to be for union activities can be the reinstatement of the affected union official(s). This is because of the provisions of section 9(6)(b)(ii) of the Labour Act together with section 42(l)(b) of the Trade Disputes Act. Section 9(6)(b)(ii) of the Labour Act provides that no contract shall cause the dismissal of or otherwise prejudice a worker because of trade union activities outside working hours or with the consent of the employer, within working hours. And by section 42(1)(b) of the TDA, notwithstanding anything contained in the TDA or in any other law where any employer locks out his workers, the workers shall be entitled to wages and any other applicable remuneration for the period of lock-out and the period of the lock-out shall not prejudicially affect any rights of the workers being rights dependent on the continuity of period of employment. The act of terminating the employment of an employee is tantamount to a lock-out since thereby the employee is not afforded the opportunity to report at the workplace. The combined effect of these provisions, therefore, is that an employee is entitled to be reinstated where his or her employment has been terminated because of union activities. It is the appellant’s contention, therefore, that the lock-out of its Branch Executive Officers and members and their subsequent termination, even without letters to that effect, is wrongful, null, void and of no effect, same being contrary to the provisions of section 9(6)(b)(ii) of the Labour Act and section 42(1)(b) of the Trade Disputes Act. That the course of justice would be served if this order of reinstatement is made along with the consequential order of payment of salaries and emoluments due to the affected employees up to the date of the judgment of this Court. Such an order of reinstatement and the consequential order of payment of salaries and other emoluments accord with the legitimacy of trade union membership/activities and the letter and the spirit of section 9(6)(b)(ii) of the Labour Act Cap L1 LFN 2004 to the effect that no contract shall cause the dismissal of or otherwise prejudice a worker by reason of trade union membership, or because of trade union activities outside working hours or, with the consent of the employer, within working hours. That this Court is a specialized court of justice and equity for that matter wherefore the Court is urged to do the justice in this matter by making the order of reinstatement and the consequential orders. The appellant then submitted that when this Court was face with a similar circumstance in Management of Dangote Pasta Plant Ind. Ltd v. National Union of Food, Beverage & Tobacco Employees [2009] NLLR (Pt. 37) 25 at 48 C – G, it ordered reinstatement of the seven union executives who were terminated on account of their trade union activities and the court equally ordered payment of their salaries and allowances from the date of their wrongful termination up to and including the date when judgement was entered. The appellant urged the Court to order likewise. Regarding issue 3 i.e. whether or not there was proper evaluation of the evidence before the IAP or, if not, whether or not this Court can make proper evaluation and findings, the appellant contended that the IAP failed to evaluate the evidence placed before it by the appellant. To the appellant, the IAP in reaching its decision did not take cognizance of or review any of the documents linking the respondent with the appellant in an employer-employee relationship which was the case of the appellant before the IAP. The appellant then submitted that attached to its memorandum before the IAP were 36 Exhibits of 104 pages while its Better and Further Memorandum had 1 Exhibit of 20 pages attached. Nevertheless, that the IAP made passive reference to only Exhibits A, B, C and D i.e. 4 out of the 36 Exhibits attached to the appellant's memorandum while no reference was made to the only Exhibit attached to the Better and Further and Memorandum. The appellant also submitted that only paragraphs 15 and 18 of the 53 paragraphed appellant's memorandum were isolated for consideration by the IAP while the 50 paragraphed Better and Further Memorandum was summarised in 18 lines. Interestingly, that while the IAP admitted that the appellant called on the IAP to carefully consider the contents of Annexure 1 attached to the respondent's memorandum, the IAP failed or neglected to make any reference to the annexure and the copious and quite elaborate references and analyses of the content of the annexure. Furthermore, the appellant contended that the main issue of contractual relationship between the appellant and the respondent was not properly determined notwithstanding the preponderance of evidence laid before the IAP. The appellant then submitted that it is the primary duty of a tribunal in its adjudicating mandate to evaluate evidence put before it and pronounce on its probative value. A tribunal, in its quest to resolve issues between the parties, must put all evidence with the probative value adduced by each side on an imaginary scale to see which side has the upper hand, referring to the case of Dada v. Faleye [2007] All FWLR (Pt. 349) 1134 at 1144 G – H. That in the instance where the IAP abdicates its sacred duty of evaluation of evidence and the approbation of weight thereto, the matter becomes at large for the appellate court to evaluate the evidence as was held per Musdapher, JSC (as he then was) in the case of Gbadamosi v. Dairo [2007] ALL FWLR (Pt. 35) 812 at 862. That this is why it has also been held by the Supreme Court in State v. Azeez [2008] ALL FWLR (Pt. 424) 1423 at 1481 that where a trial court has erred in evaluating the facts found by it, an appellate court can re-examine the whole facts and come to an independent decision as the court of trial. The appellant further referred the Court to the cases of Samuel Omobo v. Commissioner of Police [1965/66] NNLR 42, Fatoyinbo v. Willliams 1 FSL 87 and Benmax v. Aristin Motor Co. Ltd [1955] AC 370, [1955] 1 All ER 326. That more importantly, in Okwejiminor v. Gbakeji [2008] All FWLR (Pt. 409) 405 at 436 – 437, the Supreme Court held that where evaluation of evidence does not involve the credibility of the witness who testified at the trial, an appellate court is in a good position as the trial court to evaluate the evidence on record and where necessary reverse the findings of the trial court particularly where the same are demonstrated to be perverse, referring further to Akinloye v. Eyilola [1965] NMLR, Mogaji v. Odofin [1978] 4 SC 91, Ebba v. Ogodo [1984] 4 SC 84; [2000] FWLR (Pt. 27) 2094, Woluchem v. Gudi [1981] 5 SC 291, Lion Building Ltd v. Shadipe [1976] 12 SC 135 and Sha v. Kwan [2000] FWLR (Pt. 11) 1798; [2000] 5 SC 178. The appellant then submitted that this Court has the powers under section 8 of the National Industrial Court Act, 2006 upon the hearing of an appeal, to evaluate and draw any inference of fact and to vary or set aside the award of the IAP and to enter judgment for the appellant, urging the Court to so act in the circumstance of this case. The appellant then prayed the Court to hold that the IAP erred in law when it failed to evaluate the evidence put before it by the appellant thereby coming to a perverse decision. The appellant further prayed this Court to evaluate same. In conclusion, the appellant prayed the Court for – (i) An order setting aside the award of the IAP purportedly made on the 24th day of March 2010 and granting the prayers of the appellant for an order of this Court declaring the termination of the eight union leaders and members of the appellant's contract staff branch with the respondent as unlawful, illegal, void and to order their reinstatement with payment of their salaries and allowances from the date of their wrongful termination up to and including the date of the judgment of this Court. (ii) Alternatively, an order referring the suit back to the IAP for rehearing. The respondent reacted to the written submissions of the appellant by filing its written address. Aside from the introduction, the respondent gave its own version of the background facts. To the counsel to the respondent, the respondent is a company duly organized in accordance with Nigerian laws licensed to operate in the Oil and Gas sector of the Nigerian economy amongst others and has a contractual relationship with the employers of some of the appellant’s members. The respondent engages independent companies (contractors) or MPS, under which category is the appellant's employers, to provide various services in the course of normal business. These classes of workers are typically auxiliary support services workers, whose employment or disengagement, as the case may be, are not directly negotiated with the respondent but with the contractors who employ such workers under their specific contract of employment agreements. These contract workers are unionized and negotiate their terms and conditions of service with their employers, the MPS contractors. That sometime in January 2006, against laid down rules and regulations, especially in breach of contracts of engagement between the contract workers and their employers, the appellant's contract workers began to agitate for ‘Equal Pay for Equal Work’, with the respondent's regular workers, and sought to directly negotiate their grievance with the respondent, even though the latter is not a party to the employment agreement between the contract workers and their various Forum of Contractors employers and could, therefore, not undertake a review of such agreement nor review the pay conditions of personnel who are not its employees. That the agitation of the appellant's contract workers got to such a disruptive level in 2007 that the Ministry of Labour as well as the in-house regular PENGASSAN members of the respondent and the National union had to step in to urge the appellant's contract workers and their respective employers to follow due process in pursuing their agitation for improved condition of service. In a bid to help find a lasting solution to the lingering problem, the respondent invited the appellant's members and their employers, the Contractors Forum, for a mediatory meeting following which a Collective Bargaining Agreement (CBA) was signed between the appellant's union members and their employers, the Contractors Labor Forum, in June 2007. That it was expected that with the execution of the CBA that the appellant's union members would cease their hostility and resume normal duties since the essence of the CBA was to greatly enhance their conditions of service in all its ramifications with their Forum of Contractors employers. However, in subsequent months after the execution of the CBA, the appellant's union members made a complete u-turn by further agitating that they were no longer interested in the endorsed CBA but wanted instead an implementation of ‘Equal Pay for Equal Work’ policy with regular respondent's workers. The respondent continued that unfortunately and in gross disregard of due process, the appellant's contract workers continued with their disruptive manner and would not be swayed by logical argument and reason, and decided, contrary to their contract of engagement and the respondent's extant rules/regulations, to not only abuse the respondent's established communication channels, by sending unauthorized and inappropriate messages directly to both off-shore and Nigerian Management Executives, they began to also physically harass the respondent's regular as well as contract workers who were not willing to participate in their violent agitations. That this breakdown of law and order thus compelled the respondent to invoke the relevant clause in its agreement with the MPS contractors urging the latter to withdraw their affected personnel from the respondent's premises. That it was against the backdrop of these facts that the appellant filed its memorandum before the IAP seeking for an order to reinstate the contract workers whose services were disengaged by their employers. The respondent then went on to frame two issues for the determination of the Court, namely – 1. Whether or not there is privity of contract between the members of the appellant and the respondent. 2. Whether or not the Manpower Services Contractors, who are employers of the appellant's contract workers, have the right to terminate their employment. The respondent then submitted that the interpretation given by the appellant to the purported existing direct contractual relationship between the appellant members and the respondent is not only constrictive, restrictive but mischievous. That there was no evidence before the IAP to indicate that there was a direct contract of employment agreement executed between the appellant's members and the respondent. Rather, the interpretation given by the IAP with respect to the said relationship is, in our humble opinion, the proper interpretation. Furthermore, that the IAP rightly rejected the respondent’s claim in view of the parties’ memoranda and documentary evidence as well as written submissions before it, the appellant having not proved its case on the preponderance of evidence. Regarding issue 1 as to the proper interpretation by the IAP on whether there was privity of contract between members of the appellant and the respondent, the respondent submitted that it is instructive to note that the portion of the decision of the IAP being challenged by the appellant is contained at pages 19 to 20 of the records. That this issue is directly derived from the findings of the IAP, which held, correctly, that – The Tribunal has carefully studied the facts before it and it has not identified any agreement between the staff of the First Party (appellant) with the Second Party (respondent). The Tribunal further found that – There is no contract between the Second Party (Respondent) and members of the First Party (appellant). That in the case of United Bank for Africa Plc v. Alhaji Babangida Jargaba [2007] 43 WRN 1 particularly at page 19, the Supreme Court gave a detailed definition and application of privity of contract thus – The doctrine of privity of contract is all about the sanctity of contract between the parties to it. It does not extend to others from outside. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to becoming a shield or scapegoat against the non-performance by one of the parties. The respondent then submitted that on the strength of the above decision of the Supreme Court, to infer a special relationship of employee and employer between the appellant’s members and the respondent as the appellant has tried to do, the basis for such an assertion has to pass the objectivity test as propounded by the Supreme Court in the above case. That to argue the way the appellant has done that there was privity of contract between the appellant's members and the respondent without the slightest shard of evidence would amount to an attempt to forcibly graft the appellant's members to the respondent without any legal basis To the respondent, contrary to the position of the appellant, a detailed examination of the exhibits the appellant relied on as forming the basis of the purported privity of contract between the appellant's members and the respondent would reveal that it is a curious and an unsupported position on its part to forcibly impose, albeit surreptitiously, the appellant’s members on the respondent. That a brief examination of some of the appellant’s exhibits would bear testimony to this fact, an example of which could be found in its attached Exhibits A1 and A2. In response to the appellant’s averments and attached Exhibits at the IAP, a position it still maintains and hereby adopts, the respondent had contended that – A cursory examination of the signatories to the First Party’s Exhibits A1 and A2, would reveal without any scintilla of doubt that they are all employees/representatives of the various Manpower Services Contractors who provide manpower services to the respondent and that the said employees are members of PENGASSAN (MPN Contractors’ Staff Branch). Indeed, this issue was holistically addressed in one of the respondent's letters to the appellant’s members when there appeared to be a deliberate obfuscation of the terms spelling out the appellant’s members’ relationship with the respondent. The letter, which is dated May 27, 2009, is herewith attached and marked as Annexure 5. Interestingly, that the above exhibits, which are minutes of meetings the appellant’s members attended in Eket, Akwa Ibom State, was not attended by the respondent, neither was the respondent nor any of its officials signatories to the said minutes. It, therefore, becomes curious as to the far-fetched and brazen interpretation given to the said exhibits by the appellant. The relationship between the appellant's members and the respondent is as defined in the various SOAs executed between it and the appellant’s employers. It is, therefore, untrue and incorrect to declare’ as the appellant has done that the appellant's members were actually employed by the respondent without hard and concrete evidence to back up such an assertion. It is also not true that the respondent controlled the conditions of service of the appellant's members, nor were the processes of recruitment and placement of members of the appellant including their interview and subsequent employment done by the respondent. The respondent then submitted that the appellant’s argument runs contrary to all established mode of creating a binding legal relationship between an employer and an employee. That the respondent's position afore-stated is not the proper basis upon which the IAP would have been expected to declare, as sought by the appellant, that the appellant’s members were the direct staff of the respondent, or that the respondent must implement the policy of “Equal Pay for Equal Work”, for the appellant's members in the absence of any contract of employment between them. The respondent referred the Court to the case of Adetoun Oladeji (Nig) Ltd v. Nigerian Breweries Plc [2007] 15 WRN 1 particularly at page 15, lines 40 – 45, the Supreme Court held per Niki Tobi, JSC that – Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract to give effect to the wishes of the parties as expressed in the contract document. The respondent went on to submit and urge the Court to hold that the contract documents regulating the relationship between the appellant's members and the respondent are the various SOAs, and not any convoluted relationship imported by the appellant's members as allegedly spelling out a non-existent relationship between them. Furthermore, that in the case of National Revenue Mobilisation Allocation and Fiscal Commission v. Ajibola Johnson [2007] 49 WRN 123 particularly at pages 150 – 151, the Court of Appeal held, while construing the binding effect of the terms of contract on parties and the court that – In written contract of service, the provisions are binding on the parties thereto and it is outside the powers of the court to look anywhere else for the terms with regards to the termination of the contract other than in the written agreement”. The Court concluded by holding that – Where the terms of the contract are clear and unambiguous, the parties cannot move out of them in search of more favorable terms. To the respondent, therefore, the appellant’s members cannot move out of the clear and unambiguous contract between them and their employers, the Forum of Contractors, in search of more favorable terms with the respondent. The respondent continued that in it had in its response (also adopted herein) to the appellant’s memorandum at the IAP asserted that – By the various contract of engagement agreements between individual members of the Contractors Forum and the Second Party, it is clearly stated therein (Article 10) which is in pari materia with similar clauses in all the agreements that, “In performing services and other obligations under this Agreement, Contractor shall be an independent contractor and not the agent or employee of Company (Second Party). The relationship of employer and employee shall not exist between Company and Contractor or any of Contractor's employees, if any. Contractor acknowledges and agrees that, with respect to any services provided under this agreement, neither Contractor nor any of its employees is eligible to participate in and shall not receive any benefits from any employee benefit plan sponsored by Company and/or its affiliates”. That contrary to the position of the appellant, what should be the clear point of assessment of the true relationship between an employer and an employee in a contract of employment is and should be the commencement date, mode and agreement relating to such employment. Such a relationship should not be determined by meetings held or mediatory roles played by a non-contracting party midway into the employment period, as the appellant has sought to do both at the IAP and before this Court. We submit, in view of the clear and unambiguous position of the various agreements between the appellant's members and their employers as well as settled position of the law as contained in several decided cases, that it is, therefore, very difficult to comprehend the appellant's challenge to the IAP's decision. At pages 18 and 19 of the records, the IAP considered, in a well thought-out and crystal clear manner, what defined the relationship between the appellant's members and the respondent in the following words – The relationship between parties, to our mind, is clearly defined by separate contracts duly executed at different times and defined different relationships. The MPNU [respondent] has a need of a special class of employees; it approaches the Forum of Contractors who from their own employees supplies this special class of employees, based on agreement between MPNU [respondent] and Forum of Contractors [appellant's members’ employers] without inputs from the employees of the forum [appellant's members], who in any case are engaged separately and at different times. We are of the legal opinion that there is no nexus between the MPNU [respondent] and the employees of the forum [appellant's members] as it affects the latter's rights in the relationship without first going through their employer who are many but put together for administrative purposes under the name Forum of Contractors. The respondent went on to submit that the above holding of the IAP, which represents the correct position as regards the relationship between the appellant's members and the respondent, based on the evidence before the IAP should be held as being correct by this Court. That the appellant has not placed sufficient materials before this Court that could compel the Court to overturn the findings of the IAP. The respondent referred to the case of Honourable Cletus Mbia Obun v. Alex Abang Ebu & 31 ors [2007] 6 WRN 105 particularly at page 157, where the Court of Appeal held that – In determining an appeal on issues of fact, an appellate court would not embark on a fresh appraisal of the evidence where the tribunal has properly evaluated and appraised it. In the instant case on appeal the petition was fought entirely on facts and there is no finding that can be said to be either unreasonable, perverse or not supported by evidence. Therefore, the finding of the tribunal cannot be interfered with as they were rightly made. Continuing, the respondent urged the Court to follow the position of the Court of Appeal in the above case as the issues being canvassed by the appellant on appeal are purely based on facts as to whether the appellant’s members were the direct employees of the respondent or not. That these were the same issues canvassed by the appellant before the IAP, whose decision they are appealing against before this Court. Furthermore, that the appellant’s argument that the MPS members are recruiters to the respondent should be discountenanced by the Court as the appellant has not been able to provide any evidence before the Court establishing such a relationship. That the various SOAs have clearly defined the relationship between the MPS members and the respondent. Regarding issue 2 on whether or not the manpower services contractors, who are employers of the appellant’s contract workers, have the right to terminate their employment, the respondent’s counsel contended that the respondent’s relationship with the appellant’s members is governed by the various SOAs executed between the respondent and signatories to the said SOAs, the appellant’s members’ employers, who are interchangeably referred to as MPS contractors or Forum of Contractors, as the case may be. That the said MPS contractors recruit their workers, who are later sent to the respondent company based on specific job requirement of the respondent. That the respondent has really not denied this position, and has in fact admitted it in their pleadings at the IAP and in their “appellant’s brief”. To the respondent, in tacit admission of the fact that the appellant’s members are the employees of the appellant, it (appellant) stated in clause 15 of the Memorandum (page 33 of the records), that – The First Party (appellant) submits that central to the trade dispute now before this Honourable Tribunal is the Collective Bargaining proposal forwarded by the First party (Appellant) to the Second Party (Respondent) on Equal Pay for Equal Work and Direct Negotiation with the Second Party (Respondent) by the First Party (Appellant) on behalf of the MPN Contract Staff Branch in order to harmonise the existing disparities between the direct hire staff and the contract staff of the Second Party. A copy of the said proposal is attached and marked as Exhibit F. The respondent continued that a careful perusal of the appellant's assertions would show how the appellant on their own clearly distinguished that the appellant's members were contract staff, while the respondent's staff were regular staff. That the logical question then is what makes the appellant's members contract staff and the others regular staff, if not for their mode of employment and who their employers are. Following from the foregoing, can it also not be said that an employer that has the power to hire also has the power to terminate such employment? In the case of Nigerian National Petroleum Corporation (NNPC) v. Benjamin Manager Evwori [2007] 9 WRN 160, the Court of Appeal would seem to have answered the above questions when it held that – By force of law, in the ordinary case of master/servant the master can terminate the contract of service with his servant at any time for good or for bad reasons or for no reason at all. Thus where in a contract of employment there exists a right to terminate the contract given to either party, the validity of the exercise of that right cannot be vitiated by the existence of motive or improper notice. That the Court of Appeal further held in the NNPC case (supra) that an employee who complains that his appointment has been wrongly terminated has the onus to (i) place before the court the terms and conditions of the contract of employment and (ii) prove in what manner the said terms were breached by the employer. The Court of Appeal went ahead to add a rider to the above two criteria by holding that this is because the terms and conditions of the contract are the bedrock upon which an aggrieved employee must found his suit for wrongful termination of employment. In the instant appeal, the respondent submitted that the contract of employment is between the appellant's members and the MPS contractors, which the appellant should have founded their case against instead of the respondent. To the respondent, if it is settled, from decided cases, that an employer of services has the power to terminate the contract of employment of its employee, with or without any reason, then the issue of reinstating the said workers who have been duly disengaged in accordance with due process would be to ask this Court not only to re-write their contract for them, but to also unwittingly impose the appellant's members on the respondent without any prior contract to that effect. The respondent then urged the Court to note that the attempt by the appellant to ascribe an agency connection into the relationship between the MPS contractors and the respondent is also flawed and unsupported by any evidence. Moreover, that the respondent had clearly defined its relationship with the MPS contractor in Article 10 of the SOAs thus – In performing Services and other obligations under this Agreement, Contractor shall be an independent contractor and not the agent or employee of Company (Second Party). The relationship of employer and employee shall not exist between Company and Contractor or any of Contractor's employees, if any. Contractor acknowledges and agrees that, with respect to any services provided under this agreement, neither Contractor nor any of its employees is eligible to participate in and shall not receive any benefits from any employee benefit plan sponsored by Company and/or its affiliates. Services shall be performed under the supervision and control of Contractor, and Company [respondent] shall have no authority to supervise Contractor's employees, representatives or Subcontractors. Contractor shall have no authority to make statements, representations or commitments of any kind or take any other action binding on Company, except as specifically provided in this Agreement. It is expressly agreed that it is not the purpose or intention of this Agreement or of any Order to create, nor shall the same be construed as creating, any partnership or joint operation between Company and Contractor, Contractor's agents, representatives and sub-contractors. The respondent continued that the appellant's members themselves had in several fora admitted the fact that the respondent is not their employer, but nevertheless would want an ‘Equal Pay for Equal Work’ policy implemented by the respondent in their favor. To the respondent, having willfully entered into a contract of employment with individual and separate MPS contractors, the appellant's members cannot willy-nilly attempt to opt out of the said agreement in favour of a better one, which they were initially not a party to. That the attempt by the appellant to ascribe an agency relationship between the MPs Contractors and the respondent vis-à-vis the appellant's members would seem at variance with the clear and unambiguous terms of the SOAs. The respondent then referred to the case of Vulcan Gases Limited v. Gesellschaft Fur Industries [2001] 26 WRN 1 particularly at pages 23 – 24, where the Supreme Court, per Iguh, JSC, enunciated five ways in which an agency relationship could be created, namely – 1. By express appointment, whether orally or by a letter of appointment or, indeed, by a power of attorney; 2. By ratification of the agent's acts by the principal; 3. By virtue of the doctrine of estoppel; 4. By implication of law in the case of agency of necessity; and 5. By presumption of law in the case of cohabitation. That none of the processes outlined above apply to the scenario painted by the appellant as allegedly creating an agency relationship between the parties. In conclusion, the respondent submitted that this appeal is frivolous and is liable to be dismissed and that the decision of the IAP was well thought out and justified on the merit in that – 1. There was no privity of contract between the appellant's members and the respondent as such position is neither supported by existing contract, not could be inferred from the conduct of both parties as the appellant has unsuccessfully attempted to do. 2. As the employers of the appellant's members, the MPS contractors have a right in law to determine who works for it, which right they exercised by terminating the contract of employment of those it felt their services were no longer needed. 3. There is no agency relationship between the respondent and the MPS contractors on the one hand, or the appellant's workers on the other. The respondent then urged the Court to dismiss the appeal accordingly and allow the decision of the IAP to stand. The appellant reacted to the respondent’s submissions on points of law. To the appellant, the dictum of the Supreme Court in UBA Plc v. Alhaji Babangida Jargaba [2007] 43 WRN 1 cited by the respondent is not in support of the respondent’s case but is only in favour of the appellant in this case, as the respondent (a party to a contract with the appellant that was long in existence before the introduction by the respondent of the Manpower Services Contractors) is the party trying to drag a foreigner into the contract that they had had with the appellant, and are using the recruitment contract they later entered into with the Manpower Services Contractors as a shield for their non-performance of their obligations under their original contract of employment with the appellant. Secondly, that reference by the respondent to the case of NNPC v. Benjamin Manager Evwori [2007] 9 WRN 160 to the effect that in the ordinary case of master/servant relationship, the master can terminate the contract of service with his servant at any time, for good or bad reason or for no reason at all is inapplicable in the instant case. This is because no employer has any right or power to terminate the employment of any employee for trade union activities, reiterating section 9(6) of the Trade Unions Act Cap. L1 LFN 2004. Thirdly, that the submission of the counsel to the respondent that the appellant’s members had at several fora admitted the fact that the respondent is not their employer is a product of learned counsel’s imagination as there is no such evidence in any part of the records before the Court. Lastly, that reference to Vulcan Gases Ltd v. Gessellschft Fur Industries Ltd by the respondent regarding the five ways that an agency relationship can be created perfectly supports the case of the appellant on the issue of agency as the agent/principal relationship between the MPS contractors and the respondent was created by three of the ways enunciated, namely – a) By ratification by the principal of the agent’s acts; b) By virtue of the doctrine of estoppel; and c) By implication of law, in the case of agency of necessity. The appellant then urged the Court to so hold. After a careful consideration of all the processes and submissions of the parties in this appeal, some preliminary points are pertinent. In the first place, the referencing (in the written address of especially counsel to the appellant) of the documents annexed in the record of appeal is anything but helpful. In the main, the referencing does not match the documents it seeks to identify. The result is a harrowing experience in trying to identify and match the documents referred to in the address with those in the case file. Secondly, a good number of minutes of meetings and their resolutions are made out in especially the appellant’s written address to be binding collective agreements and the Court is uncritically urged to regard them as such. For instance, the appellant variously hinged its argument at both the IAP and this Court that the Collective Agreement it relies on is as contained in the minutes of the negotiation meetings held on November 29, 2006 and December 4 – 5, 2006 respectively. This raises the question whether minutes of a meeting can be a collective agreement. In this regard, the appellant, for instance, argued that a communiqué signed upholding the resolutions reached at the Collective Bargaining Agreement negotiation from October 10 to December 5, 2006 is tantamount to a collective agreement. That it is a matter of serious regret that the agreement contained therein was flagrantly repudiated by the MPN Labour Contractors Forum upon return from Abuja, on the instruction of the respondent. How minutes and communiqué of meetings can amount to collective agreement beats our imagination. Thirdly, the use of inappropriate language on the part of counsel must be remarked upon. At paragraph 4.60 of the appellant’s brief of argument, the appellant’s counsel referred to the IAP award, which his client objected to, as a “perverse decision”. This is most uncharitable. Members of the IAP that sat on the matter merely performed a duty to the best of their ability. To describe what they did diligently as perverse is to be unfair and disrespectful to them. Even if they were to err in their assessment and judgment, that is no reason to describe their decision as perverse. Counsel must at times note that while language is the hallmark of advocacy, inappropriate language is its undoing. Fourthly, even when the Court had earlier made it clear to counsel to the appellant that this appeal can only be argued on the basis of the processes filed at the IAP and so he will not be allowed to bring in documents not used at the IAP, counsel still sought to do this by first filing a written address and annexing the new documents to it. The Court frowned on this and counsel withdrew the said written address and filed another, the one used in this judgment. Despite this, however, counsel chose to at especially paragraph 4.78 of the appellant’s brief of argument to make submissions regarding the fresh documents that the Court had earlier rejected. This is unbecoming of counsel. This Court cannot condone this and urge counsel to tread carefully next time. Fifthly, there is a good deal of unsubstantiated assertions in the written addresses of both parties amounting to giving evidence from the Bar or at the stage of addresses. For instance, the following submissions of the appellant are all unsubstantiated and speculative since no evidence was led to support them. They are to the effect that – 1. Contrary to what the respondent urged the IAP to believe, the whole contract of employment of its members was prescribed and dictated by the respondent; and that the respondent is the one who conducts the process of recruitment and even prescribes the format which the employment letter must take. 2. The so-called Independent Contractors are Recruiters purportedly licensed by the Honourable Minister of Labour and Productivity under the provisions of sections 24 and 25 of the Labour Act Cap. L1 LFN 2004 specifically to recruit for the respondent in the specific operational locations of the respondent contrary to what is stated in Annexures 2, 3 and 4 to the memorandum of the respondent being purported letters of employment the existence of which the appellant denies as none of the said letters was ever given to any of the appellant’s members whose names appeared on the purported letters of appointment; and 3. The (Forum of) Contractors are Recruiting Agents to the respondent with the recruited staff being retained or “rolled over” by the respondent after the Contractors’ contracts have been terminated such that some of the contract staff members of the appellant have been in the continuous service of the respondent for upwards of between 10 to 20 years with majority of them not being recruited by the present set of Contractors. The argument of the appellant in 2 and 3 above raises the question whether members of the Forum of Contractors are actually Recruiters under the Labour Act as the appellant would want the Court to believe and hold. The appellant actually argued that the Recruiter’s Licence was not exhibited. But who has the duty to tender as evidence the Recruiter’s Licence? The law is that he who asserts must prove. It is the appellant who is asserting here that the members of the Forum of Contractors are actually Recruiters under sections 24 and 26 of the Labour Act. The duty is, therefore, on the appellant to show proof of its assertion in this regard. We did not see any such proof in the documents in the case file. The respondent is not left out regarding the charge of making unsubstantiated assertions at the address stage. Its submission that the appellant's members themselves had in several fora admitted the fact that the respondent is not their employer, but nevertheless would want an ‘Equal Pay for Equal Work’ policy implemented by the respondent in their favor is unsubstantiated and speculative. These remarks made, it will be discerned that only one issue was referred to IAP by the Honourable Minister of Labour for determination, namely – To inquire into the trade dispute now existing between the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) and Mobil Producing Nigeria Unlimited over unfair severance or termination of the trade union leaders in Mobil Producing Nigeria Unlimited, Contract Staff Branch. It is this same issue that was also referred to this Court for determination when the award of the IAP was objected to by the appellant. The key issue for determination as can be discerned is, therefore, the question of ‘unfair severance or termination of trade union leaders in Mobil Producing Nigeria Unlimited, Contract Staff Branch’. The critical issue is one of unfair severance or termination. The reference to ‘trade union leaders in Mobil Producing Nigeria Unlimited, Contract Staff Branch’, however, introduces the ancillary issue (which incidentally took the larger part of the appellant’s submissions), namely, whether or not the union leaders in issue are even staff of Mobil Producing Nigeria Unlimited (MPNU) in the first place. The talk of ‘Contract Staff Branch’ in framing the issue in dispute is simply an attempt to rope in the union leaders talked of as being staff of MPNU. Arguments regarding the existence or otherwise of agency relationship were also geared towards this end. So, the two central issues in dispute in this appeal are: whether the union leaders in issue are employees of MPNU; and whether the employments of the said union leaders were terminated as a result of union activities to warrant their being reinstated. In between these two issues are no doubt the veiled issues of the legality or otherwise of the incidence of outsourcing, etc. The first issue to be determined, therefore, is whether MPNU is actually the employer of the sacked members of the appellant. Given the submissions of the appellant, and although only MPNU was sued, there are actually three parties involved in the dispute, namely, PENGASSAN, MPNU and the Forum of Contractors. A look at the actual relationship of the members of the appellant vis-à-vis MPNU and the Forum of Contractors will reveal that the relationship yields to what the International Labour Organisation (ILO) terms disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers). See generally the ILO Report titled, The Scope of the Employment Relationship (ILO Office: Geneva), 2003 at pages 24 – 25. In the instant case, the disguised employment relationship of the parties comes in the form of a triangular employment relationship (paragraph iii of the “Conclusions Reached at the end of a Mediatory meeting between PENGASSAN/NUPENG and MPN Labour Contractors Forum”, which held at the Minister of Labour’s Conference Room, Abuja on 25th January 2007 attests to this). By triangular employment relationship is meant a relationship that occurs when employees of an enterprise (the ‘provider’) perform work for a third party (the ‘user enterprise’) to whom their employer provides labour or service. The triangular employment relationship comes in a variety of forms the best known of which (and which relates to the instant appeal) is the use of contractors and private employment agencies. See The Scope of the Employment Relationship at pages 37 – 39. To the ILO – The determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. This is known in law as the principle of the primacy of facts, which is explicitly enshrined in some national systems. This principle might also be applied by judges in the absence of an express rule. The ILO concluded by advising that the judge must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship. See generally The Scope of the Employment Relationship at page 23. In Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 4 – 5 SC (Pt. II) 117, the Supreme Court, for instance, held a contract for the supply of security guards by the appellant to the 1st respondent in consideration of a monthly payment of an agreed amount per security guard to be a contract of service/employment. The Supreme Court at pages 128 – 130 laid down the following factors to guide courts in determining which kind of contract the parties entered into – 1. If payments are made by way of “wages” or “salaries” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “fees”. In like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service. 2. Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress, that indicates that it is a contract for service. 3. In a contract of service/employment, it is inconsistent for an employer delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties thereunder, it becomes a contract for services. 4. Where the hours of work are not fixed it is not a contract of employment/of service. See Milway (Southern) Ltd v. Willshire [1978] 1 RLR 322. 5. It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises. However, a contract which allows the work to be carried on outside the employer’s premises is more likely to be a contract for service. 6. Where an office accommodation and a secretary are provided by the employer, it is a contract of service/of employment. Of course, what was before the Supreme Court was the relationship between the appellant and the respondents, not that of the security guards supplied with either appellant on the one hand or the respondents on the other hand – the latter issue being the issue at stake in the instant case. Yet the factors laid out by the Supreme Court are relevant for present purposes. In appropriate cases, the courts have upheld the fact of co-employer status between two employers in relation to an employee. In Onumalobi v. NNPC and Warri Refining and Petrochemical Company [2004] 1 NLLR (Pt. 2) 304, the Supreme Court held that where an employee is under the control of a subsidiary company of his employer and his appointment is terminated by the subsidiary acting upon the written instruction of the parent company, the letter of termination by the subsidiary company precipitates the cause of action. The import here is that the Supreme Court regarded both companies as employers of the appellant. The question, therefore, becomes: on the facts and the evidence presented to the IAP, is MPNU the employer of the sacked members of PENGASSAN to warrant the granting of the reliefs the appellant seeks? A number of facts deducible from the processes before the Court need to be noted here. The facts are – 1. The IAP at page 13 of its award found as a fact that there was no agreement placed before it between members of the union/the union and MPNU. We searched through the maze of documents in the case file and could not find any such agreement. 2. At pages 14 – 15 of its award, the IAP found that it is the contractor that is responsible for the performance appraisal of the staff. We did not see any contrary evidence to this finding. 3. We found as a fact that the collective agreement filed by the appellant is one between the union and the Forum of Contractors. The MPNU is not a signatory to the collective agreement. This raises the question whether at the point of signing the collective agreement the union did not know that the MPNU was not a signatory. 4. It is also a fact that the union is aware of the full nature of the triangular employment relationship; hence the label of its branch union as “PENGASSAN (Contract Staff Branch) in MPN & EEPNL Locations”. It is under this name that the collective agreement of July 1, 2008 was entered into with the “MPN & EEPNL Labour Employers’ Forum”. This collective agreement specifically recognizes and describes the MPN & EEPNL Labour Employers’ Forum as “employers” of the contract staff members of the appellant. Now, the point deducible from all of this is that the union knew before hand of the nature of the relationship its members entered into and the terms and conditions of the collective agreement governing the relationship. The ILO as we indicated earlier had enjoined the principle of the primacy of facts in the determination of the existence of an employment relationship. This determination should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. The pertinent question, therefore, is whether sufficient facts were presented to the IAP to enable it arrive at a different conclusion. We do not think there was. As it is, no employment contract of any of the contract staff members of the appellant was exhibited in order to know the exact terms and conditions upon which they were engaged. Incidentally, it does not seem that oral testimony was adduced at the IAP in order to ascertain the actual status, job description and other relevant facts, such as the factors laid down by the Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors (supra), that would assist in the determination of the employment status of the contract staff members of the appellant. One vital point must be noted here. The ILO does not brand as invalid or unlawful or as wrong the triangular employment relationship; neither had it even branded the practice of outsourcing or contracting out as an unfair labour practice as the appellant made it out in some of its communications with the Ministry of Labour regarding this matter. All the ILO enjoins is that the respective laws of members States on the issue should be respected and applied. The more recent Court of Appeal cases in the United Kingdom (UK) such as Dacas v. Brook Street Bureau (UK) Ltd [2004] IRLR 358 and James v. London Borough of Greenwich [2008] IRLR 302 are pretty specific in relying on the facts of each case in determining whether an employment relationship exists in a tripartite setting. To these cases, a contract of service cannot even be implied with the end user in the tripartite setting of an agency worker under contract with and agency, which also has a contract with the end user in the absence of a finding on the relevant facts by the trial court. In fact, the implication of a contract of service between the end user and the worker in a tripartite agency situation cannot just be simply in the case of a long term agency worker situation. The outcome must depend on the facts found by the trial court in the particular case. And that although the contract of service was implied in Cable & Wireless Plc v. Muscat [2006] IRLR 354, the case was not a tripartite agency case. Reviewing these UK decisions, the duo of Richard W. Painter and Ann E. M. Holmes in their book, Cases & Materials on Employment Law (Oxford University Press), 8th Edition, 2010 at page 62 asserts that – …a contract will only be implied between an agency worker and the end-user in the most exceptional of circumstances – only where it is necessary to do so in order to explain the work undertaken by the worker for the end-user. This does not depend on the length of service with the end-user…or on the degree to which they have been integrated into the workforce, but instead is likely to be relevant mainly in cases where the agency relationship itself can be regarded as a sham, or where there have been direct negotiations on terms and conditions between the end-user and the agency worker. This means that few agency workers will have unfair dismissal rights against the end-user unless and until Parliament legislates otherwise (see also Muschett v. HM Prison Service [2010] IRLR 451). On the facts and on the evidence before the Court, therefore, there is nothing to warrant the Court disturbing the findings of the IAP in this regard; and we so hold. Neither was there any evidence before the IAP to warrant a finding of privity of contract between the appellant and/or its members on the one hand and the respondent on the other; or a finding of agency between the Forum of Contractors and the respondent. The appellant had argued as an alternative argument by urging the Court to hold, as in Donovan v. Laing (supra) and A. H. Bull & Co. v. West African Shipping Agency Limited (supra), that since the contract staff work directly and fulltime for the respondent, they are, therefore, employees of the respondent who are entitled to CBA negotiations with the respondent through the appellant. The argument of the appellant in that regard was that as transferred staff to the respondent, the members of the appellant union concerned in this matter must be read and seen as employees of the respondent. The cases of Donovan v. Laing (supra) and A. H. Bull & Co. v. West African Shipping Agency Limited (supra) cited by the appellant were, however, cases dealing with the question whether a master can be held liable in vicarious liability for the injury caused by a servant. Now, the modern treatment of vicarious liability treats the subject in the context of employer/employee relations, not master/servant relations. In this sense, the tendency is to confuse the determination of an employer/employee relationship for purposes of vicarious liability with that for the purposes of determining whether employment-protection rules apply. In this sense, the term ‘employment’ may become ambiguous since an employee may be employed either as an employee or as an independent contractor. We notice an element of bifurcation in the submissions of the counsel to the appellant especially in his treatment of the cases regarding this issue. The duo of B. S. Markesinis and S. F. Deakin in their book, Tort Law (Clarendon Press: Oxford), Third Edition, 1996 at p. 498 identified three levels at which the existence of an employer/employee relationship is relevant for liability purposes: the first level relates to determining the applicability of employment-protection laws; the second relates to determining the incidence of tax liability; and the third relates to vicarious liability. Depending on the context of the dispute in issue, a judicial authority may relate to any of these three levels. In this sense, it must be cautioned that it will serve no useful purpose if a mechanical use of cases rendered in one context is adopted for another without first determining the context of the dispute in issue. What the counsel to the appellant has done with the authorities of Donovan v. Laing (supra) and A. H. Bull & Co. v. West African Shipping Agency Limited (supra) is to uncritically urge this Court to apply their ratio (which relates to vicarious liability) to the present dispute at hand, a dispute relating to determining the employment relationship of the parties in dispute for purposes of determining the applicability of employment-protection rules. The danger posed here is illustrated by the case of O’Kelly v. Trusthouse Forte Plc [1984] QB 90, a case that held that casual staff ‘dismissed’ allegedly for belonging to a trade union, were not employees for the purposes of the employment-protection laws. This result would surely have been different had the issue been that the casual staff spilt wine on a customer and the employer/employee relationship was being investigated for the purposes of rendering the employer liable to the customer. The issue before the Court is not one of vicarious liability and so the cases cited by the counsel to the appellant in that regard are not helpful for present purposes. They are consequently discountenanced. Having held that, on the facts and evidence before the Court, there is no basis for disturbing the findings of the IAP, it remains the second issue, namely, whether the employments of the affected union officials were terminated because of union activities. The collective agreement of July 1, 2008, which we referred to earlier and which binds the Forum of Contractors and the contract staff members of the appellant, describes the MPN & EEPNL Labour Employers’ Forum as the employers. The present suit is against the MPNU and not the MPN & EEPNL Labour Employers’ Forum. There is nothing the IAP could have done having been presented with this fact; almost a fait accompli. The MPN & EEPNL Labour Employers’ Forum was not even joined as a party to enable the IAP determine appropriately the real/exact nature of the employment relationship and the rights that may flow from that. On this issue, we once again find no reason to disturb the finding of the IAP. On the whole, and on the facts and evidence before the Court as well as for all the reasons given, we hold that this appeal lacks merit and is hereby dismissed. The IAP award is confirmed. We make no order as to cost. Judgment is entered accordingly. ………….………………………….. Hon. Justice B. B. Kanyip Presiding Judge ………………………………………. ...…………………………………. Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge