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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice.B. B. Kanyip Presiding I Ion. Justice V.N. Okobi Judge Hon. Justice F. I. Kola-Olalere Judge Hon. Justice O. A. Obaseki-Osaghae Judge Hon. Justice J. T. Agbadu-Fishim Judge DATE: APRIL 2, 2009 SUIT NO. NIC/25/2008 BETWEEN The Management of Nestle Nigeria Plc llupeju, Lagos. Appellant AND National Union of Food, Beverages and Tobacco Employees Respondent REPRESENTATION Dr. Joseph Nwobike and with him is B. Ohunadike Esq., for the appellant. Lady E. Uduji and with her is Mr. Festus Ukomadu, for the respondent. JUDGEMENT This case is a referral from the Honourable Minister of Labour and Productivity acting pursuant to the powers conferred on him under section 13(1) of the Trade Disputes Act (TDA) Cap. 432 Laws of the Federation of Nigeria 1990. By a covering letter to the referral instrument dated 17th March 2008 with Ref: No. ML.HE/895/CON/1/30 and the referral instrument dated 3rd March, 2008, this court is resolved the following issues in dispute:- (a) Wrongful termination of appointment of the union unit Chairman; and (b) Unfair labour practice. The matter r had earlier been referred to the Industrial Arbitration Panel (IAP), which considered the dispute and gave its award. The appellant, dissatisfied with the IAP award, entered an objection which gave rise to the reference of the matter to this court. The IAP award, with the Notice of Objection raised by the appellant, was attached to the referral instrument. To state the facts briefly as extracted from the records of the IAP award, the respondent has a branch union in the appellant's premises and its duly elected Chairman at all times was one comrade O. 0. Okunuga who was also a Production Operator I in the appellant company. The dispute herein arose from the purported termination of the appointment of the Branch Chairman of the respondent union on the 3rd January 2000. The circumstances that led to the termination of the unit Chairman's appointment were that the said Chairman Comrade O. O. Okunuga was verbally informed by the management of the appellant that he and four other members of the branch union have been nominated to attend an industrial relations related seminar organized by the Dept. of Adult Education, University of Ibadan. That they were nominated by virtue of the position they held in the Branch Union. That the seminar's aim was to promote better management/union relations through the exposure of union of officials to new and beneficial industrial relation practices. They were dully sponsored to the Seminar. No specific guideline or conditions were attached to the sponsorship except that participants were expected to make return of their expenses. Comrade Okunuga attended the seminar and upon his return rendered account of the expenses he incurred to the company accountant and receipt issued to him. Four weeks later, the management of the appellant rejected the said retirement and insisted that every item of expenditure must be receipted. In January 2000, the appellant announced the termination of employment of the said Mr. O.O. Okunuga, the Branch Chairman as a result of which members of the union in the branch embarked on a protest against the decision to the appellant. The appellant thereupon locked out the workers until the National Secretariat of the respondent intervened and apprehended the dispute. At the trial, evidence was led to show that-of the several union members sponsored to the seminar, Mr. 0. O. Okunuga spent the least; other members who spent more than him were cleared. At the trial, the appellant had complained about Mr. Okunuga's aggressive style of trade unionism and so were no longer comfortable with him. At the conclusion of the proceedings, the IAP delivered its award on the 28th of August, 2004 and communicated to the Honourable Minister of Labour and Productivity in accordance with the provisions of section 13(l)(b) of the Trade Dispute Act Cap T8 LFN 2004. The IAP made the following findings:- 1) Mr. O. O. Okunuga had no problem with the appellant prior to his election as the Branch Union Chairman. Having been elected as Chairman, the appellant complained of his confrontational and unusual style of unionism. 2) That the training at Ibadan was only a rule contrived by the appellant to gel Mr. Okunuga to be dealt with. (3) That more than one month after Mr. Okunuga' successfully retired his expenditure, the appellant curiously re-opened the ease against him. 4) That Mr. Okunuga did not instigate any of the appellant staff to go on strike. 5) Unfair labour practice was established against the appellant. Based on these findings, the IAP made the following award - 1) That Mr. Oluwaseun Oladipupo Okunuga, the Agbara unit Chairman of the union be re-instated to his post with no loss of seniority, increment and promotion, and be paid his accrued salaries, allowances and or any other emoluments from the period he was purported to have been terminated to date. 2) The other three union members terminated along with Mr. O. O. Okunuga be also re-instated to their posts and to be paid all their entitlements from the time of.their purported termination to date if they returned to work. If they did not show up, their benefits, if not already paid to them, to be computed and be paid to them. Upon the receipt of the award, the Honourable Minister of Labour communicated the award to the appellant vide a notice of award dated 1st February, 2008. Dissatisfied with the award, the appellant entered an objection, which made the Minister of Labour to refer the matter to this court. The appellant formulated three issues for determination - 1) Whether or not the panel acted within its terms of reference in making its findings and awards and if not, whether the findings and awards are perverse, and ought to be set aside. 2) Whether the order for the reinstatement of Mr. O. O. Okunnga and others is justified having regard to the evidence, before the panel and the applicable law. (3)Whether or not the appellant was right in terminating the appointment of Mr. Okunuga as a result of his failure to properly account for the appellant's money in his custody. On the 1st issue, as to whether or not the 1AP acted within its terms of reference in making its findings and award, and if not, whether the .findings and awards are perverse and ought to be set aside, the appellant contended that, in the notice of reference of the dispute to the panel issued pursuant to section 8 of the 'Trade Disputes Act, the terms of reference for the panel was as follows: To inquire into the trade dispute existing between the National Union of Food, Beverages and Tobacco Employees and the Management of Nestle Foods Nigeria Plc, llupeju, Lagos over the following: a) Wrongful termination of appointment of union Chairman, and b) Unfair Labour practice. The appellant pointed out that there is a common ground that the power of the Minister to refer trade disputes to the panel is statutory; it, therefore, follows that the panel is bound to determine only the points referred to it by the Minister in exercise of his statutory powers. 'That from the terms of reference, the only issue for consideration relating to termination is as it relates to the termination of Mr. O. O, Okunnga, who was the Chairman of the Agbara union. That the notice did not refer to the purported termination of any other person apart from the union Chairman. The appellant argued that where' a tribunal acts outside the powers conferred on it such an act would be null and void, referring the court to Fayemi v. L.G.S.C., Oyo State [2005] 6 NWLR (Pt. 921) 280 at 305. That in the case at hand, the IAP made the following Awards, amongst others 2. The other 3(three) union members terminated along with Mr. O. O. Okunuga to also be REINSTATED to their posts and to be paid all their entitlements from the time of their purportedly termination to date if they returned to work. And if they did not show up, their benefits, if not already paid to them, to be computed and be paid to them. The appellant then submitted that this award is perverse as same neither arose from the terms of reference nor the issues submitted by the parties to the dispute and so the panel had no power to make those awards. The appellant also referred the court to the reliefs sought for by the respondent in paragraph 5.1 of its memorandum dated 23RD July, 2001 in which no relief was sought for the reinstatement of any other person other than in respect of Mr. O. O. Okunuga. In other words, the union never claimed for the reinstatement or even the payment of any monetary compensation to any other party. Similarly, that in its written submission dated 23rd July 2001, the respondent never applied for the reinstatement of any other person apart from Mr. O. O. Okunnga. 'The appellant pointed out that the respondent did not seek for the reinstatement or monetary compensation for the three (3) union members purportedly terminated along with Mr. O. O. Okunuga, referring the court to Gabriel Ativie v. Kablemetal Nig. Limited [2008'] 10 NWLR. (Pt.1095) 399 at 422, where Onnoghen, JSC, succinctly, put the position of the law as follows: On the other hand, it is settled law that a party cannot be awarded a relief he did not seek and where such is awarded an appellate court's duty is to set same Aside upon an appeal to that effect. That the same point was made by the Court of Appeal in the case of Chief M, O. Olalunji v. Owena Bank of Nigeria Plc and anor [2002] 15 NWLR (Pt.790) 272 at 286 where the court held per Okunola, JCA that - The Supreme Court in recent decisions emphatically deprecated courts granting reliefs outside that on the body motion. -The court held that it is beyond the jurisdiction of the court to recast, rearrange or reconstruct the reliefs in a motion with a view to granting it at all cost. That courts do not grant a party a relief not asked for under the guise of granting a consequential order, citing the ease of Akinbola v. Plisson Fisko Nig. Ltd. and 2 ors [1991] 1 NWLR (Pt. 167) 270 at 288, where Nnaemeka-Agu, JSC, held that- A consequential order is not one merely incidental lo a decision but one necessarily flowing directly and naturally from and inevitably consequent upon iu It must be giving effect to the judgment already given, not by granting a fresh and unclaimed, unproved relief. i That in this case, the respondent did not ask for the re-instatement or any monetary compensation for any other person outside O. O. Okunuga. The appellant then submitted that the order made by the IAP in that respect is one not claimed for by the parties and urged this court to set same aside, referring to Ekpeyong and ors v. Inyang Nyong and ors (1975) 2 SC 71 at 80 and Union Beverages Ltd. v. Owolabi [988] 2 NWLR. (168) 128. The appellant submitted further that since one of the grounds upon which the appellant objected to the implementation of the IAP's award is on this issue, which this court in its appellate jurisdiction can set aside. One other ground of law upon which the appellant urged this court lo set aside the IAP award is that parties, particularly the appellant, were not-afforded an opportunity to address the panel on the issue of whether or not it was appropriate to order reinstatement and or monetary compensation for the three (3) union members purportedly sacked along with Mr. 0. 0. Okunuga. That a careful perusal of the processes filed by the parties would show that they were not given an opportunity to address the panel on that issue. That from the records, it is clear that the IAP raised the issue suo motu and decided it without calling on the parties to file further written addresses or amend their respective memoranda, referring this court to Raphael Ejezie and anor v. Christopher Amnvu and 3 orx (2008] All FWLR (Pi. 422) 1005 at 1049 where Ihe Supreme Courl deprecated Ibis type of procedure adopted by the 1AP when it held that- The settled principle of law is that no court has the authority to raise an issue xuo motu and relying thereon, decide the case one way or the oilier without inviting the parties to be heard. Such a procedure would be a fundamental flaw and a mistrial in breach of the rule of fair hearing. See Rekku Fulani & anor v.Eprahim Danladi Idi [1990] 5 NWLR (Pi. 150) 311 at 318, Ugo v. Obiukwe |1989| 1 NWLR (Pt.. 99) 556. The appellant submitted further that since the rights and civil liberties of the parties were in issue before the IAP, it was bound to apply the principle of fair hearing as contained in section 36(1) of the 1999 Constitution. The appellant then urged the court to resolve this issue in favour of the appellant and set aside the aforesaid award made by the IAP. On the 2nd issue, that is, whether the order for the reinstatement of Mr. O. O. Okunuga and three others is justified, having regard to the evidence before the panel and the applicable law (and the justification for payment of monetary compensation having regard to the evidence before the IAP), the appellant's contended that the allegation that Mr. Okunuga's termination of appointment was due to his union activities was not in cue; that the termination of Mr. O. O. Okunuga's appointment was clue to his refusal to comply with laid down procedures and rules of the company. That the evidence before the IAP clearly showed that, although Mr. Okunuga was the Branch Chairman of the union, the position did not place him above the rules and regulations of the appellant as contained in the employees' handbook. Thai Mr. Okunuga attended training relevant to his position but persistently disregarded directives lo properly account for the expenses he incurred whilst on the said training lour to Ibadan, in accordance with laid down rules that expenses must be supported with receipts. That Mr. Okunuga also incurred some expenses which he classified as places of interests visited and miscellaneous expenses incurred on personal effects which are not allowed by the appellant's policy. The appellant further submitted that although the respondent alleged that the issue of the refusal of Mr. Okunuga to account for the expenses he incurred was a smokescreen to terminate his employment, it never provided any justification why the terms of the employees' handbook should not be applied to Mr. Okunuga. That the IAP did not, in its observations and findings, determine, whether the failure of Mr. Okunuga. to render a detailed account of the expenses made in the course of the workshop that he attended in Ibadan was sufficient for his appointment to be terminated; and that rather, the JAP took the view that the purpose of the demand for the account was only lo justify a design to terminate the employment of Mr. Okunuga. The appellant went on to submit that it was the duly of the respondent to prove that the termination of Mr. Okunuga's employment came within the ambit of sectipn 9(6) of the Labour Act Cap. 198 LFN 1990, referring the court to Osawumi v. Ezcnrikti |1978] 6 -7 SC 135, and section 137(1) of the Kvidenee Act Cap. H 14 LFN 2004. That in Ellas v. Disu [1962] 1 All NLR 214, the Supreme Court held that the burden is on the plaintiff to' prove or show that he is entitled to the relief sought for in an action and that the burden does not shift until discharged. Also that in Nigeria Airways Ltd v. Ahmadu [1991] 6 NWLR (Pt. 198) 492 at 499, the Court of Appeal staled that -- Where an employee alleges that his master has wrongfully terminated his employment, it is his duly to prove that he was wrongfully removed from office. That in this case, the respondent did not prove that the termination of the employment of Mr. Okunuga was in any way inconsistent with the terms of his employment or that the allegations made against him by the appellant cannot ground his termination. Instead, that the only point which was consistently made and unfortunately accepted by the IAP was that there was malice. The appellant continued that when Mr. Okunuga gave evidence at the IAP he stated that he rendered account of how he spent the money advanced to him to undertake the trip. That upon further request to provide the details, he felt that it was a witch html against him since the others who attended the same course were not requested to provide, further details of their respective expenditures. 'That the appellant contended that the expenses incurred by Mr. Okunuga were not within the profile of expenses which he was entitled to make. That there was no iota of evidence from Mr. Okunuga or the respondent demonstrating the alleged victimization by the appellant. The appellant then submitted that the finding of the 1AP to the effect that Mr. Okunuga's employment was terminated on grounds of his labour activities is without any evidential support, citing the case of Incar (Nig) Ltd v.-Bolex Ent. (Nig) [2001] 12 NWLR 646 at 670, where the court held that any judgment which is not derived from the evidence established before it is perverse and will be set aside. The appellant, therefore, urged the court to set aside that finding of fact by the tribunal. The appellant submitted further that the order for (he reinstatement of Mr. Okunuga is not justified. That there is common ground that Mr. Okunuga was a staff of the appellant, which relationship was clearly contractual, particularly as contained in the agreement dated 1/7/1998. That there is also a common ground that there is an employee Handbook which empowers the appellant to terminate the employment of Mr. Okunuga or, indeed, any other staff for a wide range to reasons or for no reason at all. : To the appellant, whereas in this case parties entered into a contract of service, which gives each party the right to terminate, the position of the law, as rightly staled by Obaseki, JSC in Ajayi v. Texaco Nigeria Ltd [1987] 3 NWLR (Pt. 62) 577 at 593 is as follows - Where in a contract of employment there exists a right to terminate the contract given to either party, the validity of the existence of that right cannot be vitiated by the existence of malice or improper motive. It is not the law that motive vitiates the validity of the exercise of a right to terminate validly an employment of the employee. There must be oilier considerations. The exercise is totally independent of the motive that prompted the exercise. Submitting, therefore, that since there was no finding of fact that the termination of Mr. Okunuga was inconsistent with the terms of his employment, the appellant argued that it is clearly not in breach of the agreement it had with Mr. Okunuga. Thai it is only where the termination of an employee is not consistent with the terms of his employment that the court or the 1AP as in this case, can declare the termination wrongful, citing Onalaja v. African Petroleum Ltd [1991 ] 7 NWLR (Ft. 206) 691. To the appellant, there is no evidence before the court to show that Mr. Okunuga's employment was regulated by statute. That such was not even canvassed by either of the parties. That it..is instructive to contend in this .case that section 9(6) of the Labour Act Cap. 198 LFN 1990 does not relate to termination of employment in cases where there is compliance with the terms of employment. In (he first place, that section 9(6) of the Labour Act clearly specifies the provisions which a contract of employment must*hot contain and that it has nothing lo do with the way and manner an employment may be terminated; and in the second place, section 9(6) of the Labour Act does not regulate the power of an employee terminate the employment of an employee. Furthermore, the appellant pointed out that, in the interpretation of statutes, courts are bound to give effect to the ordinary meaning of the statutes. Thai Karibi-Whyte, JSC, in Kunsu v Udom (1990) 1 NWLR (Pt. 127)421 at 44 1 staled (he proper rule of interpreting statute when he said that - It is both elementary and fundamental principle of the interpretation of statutes that where the words of provisions are clear and unambiguous, effect should be given to them. The cases of Salami v. Chairman LEDB (1989) 5 NWLR (Pt. 123) 539 at 555, Nnubiu v. AG, Rivers State and anor (1999) 3 NWLR (pt. 593) 82 at 105 and AG Bendel v. Aideyan and ors (1989) 4 NWLR (Pt. 118) 646 at 668 were also cited in support. The appellant also urged the court to construe section 9(6) of the Labour Act Cap. 198 LFN 1990 literally hold that it does not regulate the termination of employment of the employees but sets out the terms which ought not to be included in an employment contract; and in the circumstance, that this court should hold that the finding of the 1AP to the effect that the termination of the employment of Mr. Okunuga was in breach of section 9(6) of the Labour Act is unjustified. The appellant argued further that even if the IAP is right (which is denied) that the termination of the employment of Mr. Okunuga was in breach of section 9(6) of the Labour Act, his remedy will not lie in reinstatement but rather in damages. The appellant noted that although in the recent past, the IAP has been making orders for them Reinstatement of employees whose employment had been wrongfully terminated, it is, however, a trite position of the law that an employee whose employment is unjustly, wrongfully or unlawfully terminated is not entitled to reinstatement except where his Employment and termination are regulated by statute, citing Geidam v. NEPA [2001] 2 NWLR (Pt. 696) 45 at 57 and Co-operative & Commerce Bank (Nig) Ltd v. Nwankwo (1993) 4 NWLR (Pt. 286) 159 at 174. The appellant further argued that even if the IAP was right in finding that the termination was wrongful (which is denied), that on the body of consistent decisions of the superior courts in Nigeria, Mr. Okunuga’s remedy does not lie in his reinstatement but in damages, referring to Ativie v. Kablemetal (Nig.) Ltd, supra. The appellant also drew the court’s attention to the fact that the employment of Mr. Okunuga was terminated with effect from 27/12/1999 and that the award of the IAP ordering his reinstatement was made on the 28/8/2004 and communicated to the appellant on 7/2/2008, about four years after the termination. That the appellant is a company engaged in the production of a wide range of products. That Mr. Okunuga was employed by the appellant in 1997 as a junior staff at its Agbara factory. That obviously, his position has been replaced by another person and that even the technology and systems being operated by the appellant at that time have all changed, meaning that he will need to be trained specifically; which means that the appellant would have to incur costs to fly in experts to now re-train Mr. Okunuga specifically. The appellant contended that tills presents an excellent situation where this court will exercise its powers to set aside that order for the reinstatement of those individuals on grounds of length of lime, change of circumstances and impracticability. That this court has applied this power in several instances, citing Nigerian Sugar Company Ltd v. National Union of Food, Ueven.ige.fi and Tobacco employee's [1978 - 79] NICLR. 69, where this court set aside the order for reinstatement made by the 1AP on grounds of lapse of lime. Thai a similar decision was reached in the eases of Industrial Cartons Ltd v. National Union of Paper and Paper Products Workers 1980 - 81] NICLR 54 and Nigerian Tobacco Co. Ltd v. National Union of Food, Beverages and Tobacco Employees [1982 - 83 | NICLR 164. The appellant, therefore, urged the court to refuse the order for the reinstatement of the union officials including Mr. Okunuga. The appellant submitted further that apart from the unjustified order of reinstatement of Mr. Okunuga and the other three persons, the order was based on the treatment of their termination as null and void hence the aforesaid orders. Thai arising from the decision in Geidam v. NEPA, supra, the treatment of the termination of employment, without any statutory favour, as null and void is not supported by law; and since their employment was terminated, they are at most only entitled to damages within the context of the employees' handbook and or the agreement between the appellant and Mr. Okunuga. That it is an improper exercise of discretion for the IAP to make the aforesaid award since same is not supported by law, hence it should be set aside, citing Agbo v. CBN [1996] 10 NWLR (Ft. 478) 370 at 380 where Uwaifo, JCA, as he then was, held that - It has been held that even if an employee of the type of the Appellant has been dismissed in breach of his contract of employment, he cannot choose to real the contract as subsisting and sue for account of profits (i.e. salary, gratuity and other allowances) which he would have earned to the end of the contractual period, lie is only entitled to what he would have earned for the period of notice necessary to determine his employment in form of damages and whatever other entitlements that have accrued to him and he must mitigate his damages as far as he reasonably can. The appellant on this issue finally urged this court to apply this authority and resolve the issue in its favour and allow this appeal, On issue 3, that is, whether or not the termination of Mr. Okunuga's employment by the appellant is justified having regard to his failure/refusal to properly account for his expenditures at the workshop he attended, the appellant pointed out that the evidence before the IAP shows that Mr. Okunuga was employed by the appellant on the terms and conditions contained in the letter of employment and the agreement between the parties. Therefore, that the relationship between Mr. Okunuga and the appellant was governed by these documents. The appellant then submitted that, as in this case, where parties have entered into a contract of service, they are bound by those terms, citing the case of Ezekiel v. Westminster Dredging Lid [20001 9 NWLR (Pt. 672) 248 at 256 - 257 where Ibeyeye, JCA held as follows - The contention of the learned counsel for the Appellant in order to sustain this appeal was largely based on exhibit D. It is trite law that where a contract of employment is in writing, the parties thereto are bound by the express terms and conditions stipulated therein. See Lyase v. University of Benin Teaching Hospital Management Board [2000] 2 NWLR (Pt. 643) 45 at 59 and Olaniyan & ors. v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 at 669. It is appropriate at this stage to consider the Appellant's letter or terms of appointment vis-a-vis exhibit .1) (the Employees Handbook). The appellant argued that in the instant ease, the question of whether, in view of the letter of appointment and agreement between the appellant and Mr. Oknnuga, the termination of the appointment of Mr. Okunuga on the ground that he persistently failed or refused to render proper account of the appellant's funds given to him to attend a workshop in lbadan is proper. Thai there is a common ground that Mr. Okunnga was given N20,000 to attend a workshop in Ibadan on industrial relations. That there is also a common ground that the appellant's conditions of service (as contained in the Employees' Handbook) contains items of expenses which may be incurred by staff in the class of Mr. Okunuga. To the appellant, there was evidence before, the IAP that Mr. Okunnga was, through the appellant's Internal Memorandum dated 29/10/1999, advised to refund the sum of N6,540 on or before the 9/11/1999, following the inability of his revised expenses statement to justify a number of expenses incurred during the training workshop. Also that there was no evidence before the IAP demonstrating that Mr. Okunuga refunded the N6,540.00 to the appellant or that the expenses were consistent with the conditions of service. Furthermore, the appellant submitted that it was on the basis of the refusal of Mr. Okunuga to comply with the directives of the appellant that led to the termination of his employment. That once it is shown that an employee is either in breach of the conditions of service or displays clear insubordination to his employer, the employer will be justified to terminate his employment. That in this case, the respondent alluded to the fact that the motive for termination of Mr. Okunuga's employment was due to his union activities, without first demonstrating the impropriety of his termination, referring to Slnihag Construction Nig. Ltd v. Adefula [2001] 15 NWLR (Pt. 735) 1 at 30. Thai the motive for the termination of an employment is immaterial in so far as the termination was properly made. That in this instance, the appellant properly terminated the appointment of Mr Okunuga in accordance with the contract of service existing between them and that the reason for the termination of his appointment is valid, and clearly had nothing to do with his union activities. The appellant argued that it would have been different it Mr. Okunuga had not breached the conditions of service. That on the contrary, he breached the conditions of service and also refused to refund the sum N6,540.00 when advised to do so but rather, Mr Okunuga chose to unionize a very simple administrative mailer. The appellant then urged the court to resolve this issue in favour of the appellant considering the fact that the appellant had the right to terminate the employment of Mr. Okunnga in the particular circumstances presented in this case. Concluding its submission, the appellant in summary urged this court to – (i) Hold that the IAP exceeded its powers and terms of reference when it ordered the reinstatement and monetary compensation for the three union workers purportedly sacked together with Mr. O. O. Okunuga. (ii) Set aside the order for the reinstatement of Mr. O. O. Okunuga and the other three union of officials. (iii) Set aside the order for the payment of arrears, emoluments, etc to Mr. O. O. Okunuga and the other three union officials. (iv) Hold that no proof of unfair labour practice was adduced against the appellant. (v) Hold that the appellant was right in terminating the appointment of Mr Okunnga due to his failure to properly account for the expenses he incurred out of the money he collected from the appellant in order to attend the workshop in Ibadan. The appellant in conclusion urged the court to allow this appeal and set aside the entire Undines and award of the IAP. On its part, the respondent reacted by formulating the following three issues for determination, winch to the respondent are more or less an adoption of the issues raised by the appellant with slight modification lo die third issue. i. Whether or not the IAP acted within its terms of reference in making its findings and award; if not, whether the findings and award are perverse and ought to be set aside. ii. Whether the order for re-instatement of Mr. Okunuga and three others is justified. (sic) having regard to the evidence before the 1AP and the applicable iii. Whether or not the appellant was right in terminating the appointment of Mr. Okunuga as a result of his failure to properly account for the appellant's money in his custody and whether the termination was not tainted with malice, borne out of active trade union activities of Mr Oknnuga. Arguing the 1st issue, the respondent contended that the parties in this dispute are the appellant and the respondent, and this is evident from all the processes used in die IAP and presently before this court. That it is not an action by Mr. O. O. Okunuga in his personal capacity. That it is unarguable that the respondent is a registered trade union safeguarding the interest of Us members, who are workers or employees of the appellant and in that capacity they are representatives of their members in any mailer (sic) pertaining to their employment as in the instant case. Thus they stand in that capacity on their behalf for the purpose of this action, referring to section l(i)(2) of the Trade Unions Act and section 47(1) of the Trade Disputes Act, and C.A.C v. AURCTRE [2004] 1 NLLR (Pt. 1)1. That it is trite that parties in a representative action include both those named and unnamed because every member of the class represented by the named partly will be bound by the eventual decision in the action, citing Ibigbemi v. Military Governor of Ekiti State (2004) 4 NWLK (Pt. 663). The respondent continued that generally, to determine the propriety of an action instituted' in a representative capacity, consideration should be had to whether those represented have a common interest or grievance, or whether the relief sought is beneficial to all being represented, '['he respondent referred to the eases of Utapo v. Sunmonu 11987] 2 NWLR (Pt. 58) and Atanda v. Olarewaju and ors [1975] 12 SC 137 and submitted that the dismissal of Mr. Okunuga alongside three other members of the Union was a common grievance which gave them a common interest in the action and so the decision of the IAP to reinstate them is also a relief which is beneficial to all. On the strength of this argument, the respondent submitted that the appellant's contention that the IAP award exceeded its limit is not tenable; that the subject matter of this action, a trade dispute, having been referred to the IAP, the IAP is duly bound to do a proper study of the cause of dispute in order to determine the dispute between the concerned parties. Thai the IAP was not wrong to determine the ease of the other three union members even though they were not expressly named in the terms of reference but were part of the dispute. To the respondent, this attitude tallies with the principle that there shall be an end to litigation. That the relief given by the IAP is contained in two different paragraphs of the award in that one was granted in favour of Mr. Okunuga while the other which is consequential, was granted in favour of the other three union members, Thai the IAP award was given consequent upon a thorough evidential valuation and findings and same cannot be said to be perverse as erroneously submitted by the appellant's counsel. As regards Mr. Okunuga, the respondent submitted that the relief awarded by the IAP was sought for by the respondent in their memoranda dated 23rd July, 2001, and so the IAP cannot be accused of granting a relief that was not sought for as contended by the appellant. Also, as regards the relief granted lo the three union members, the respondent submitted that it is consequential in nature and a court or panel can always grant a consequential order even when not sought for by a partly. That, assuming without conceding, that the IAP ought not to have granted the relief, That that alone without more, is not enough to make this court set aside the entire award as prayed by the appellant. That at best it is only that portion/paragraph of the award that may be liable to be struck out should the court find that the relief ought not to have been granted. i The respondent, therefore, submitted that the IAP was not bound lo grant all the reliefs sought; that it may grant those found to be meritorious and refuse those found not lo be meritorious, referring to Obasanjo v. Yusuf [2004] 9 NWLR (Pi. 877) SC 144 at 187 C-K. To the respondents, selling aside the whole award would amount to grave injustice, The respondent then urged this court to resolve this issue in its favour and dismiss the appeal on ibis ground. On the second issue, the respondent pointed out that the proceedings before this court is not regulated by any formal requirements or the rules of evidence. That the 1AI1 can determine any dispute referred to it based on the memoranda of the parties submitted lo it without calling for either oral evidence or address by counsel. That in this case, evidence was led by both parties and final addresses were delivered. The respondent then submitted that cases are normally not decided on addresses but on credible evidence. That addresses are designed to assist the court and when the facts are straight forward and in the main not in dispute, the trial judge can dispense with final addresses, referring to' MAN Ltd v, Aswani Textile Industries [1991] 2 NWLR (Ft. 176) 639 at 675. The respondent then asked if assuming, without conceding, that in such circumstance the addresses of the parties ought to be heard, whether such failure is fatal to the award; and then referred to Oshiomole v. FGN [20071 6 NWLR (Ft. 1035) 65, Ajao v. Ashiru [1973 ] NSCC 525 and Umar v. NGG Ltd [2007] 7 NWLR (Ft. 32) 125. The respondent continued that from the above cited decisions, the court is not moved to set aside an award as a matter of course, but the appellant must discharge the burden by showing that there was a miscarriage of justice against it. That this unfortunately is lacking in the appellant's brief. The respondent submitted further that the issue raised and decided suo motu by the IAP was an issue of law and invariably the same issue referred to it for determination; that where the IAP has sufficient documentary evidence before it, it can decide a matter based on that without calling for additional evidence or address. The respondent then submitted that it was not a denial of the appellant's right to fair hearing or a miscarriage of justice when the IAP did not call for addresses. On the 3rd issue, the respondent submitted that contrary to the contention of the appellant, the list of instances where a court can order reinstatement is not exhaustive. That what the authorities have established is that where the contract between the parties creates a special relationship over one of a master and servant known to common law, then a reinstatement can be granted, referring the court to NEPA v. Ango [2001] 17 WRN 142 at 164. 'That the altitude of the court in granting reinstatement to employees dismissed on account of union activities in furtherance of the provision of section 9(6) of the Trade Unions Act has over the years constituted a special circumstance, citing Mix and Bake Flow Mill Industries Ltd v. National Union of Food, Beverages and Tobacco Employees [2004] 1 NLLR (Ft. 2) 247, where it was held that "...reinstatement can be ordered under the labour law statutory favour and the processes enjoined by the statue for terminating an employment was not followed [this quotation appears to have been wrongly made. The second is where the termination is a product of union activities on the part of the employees,..." Additionally, the respondent referred the court to the cases of National, Union of Food, Beverages'and Tobacco Employees v. Cocoa Industries Lid, Ikeja |2005| 3 NLLR (Ft. 8) 206 and S. I. O, Industries Ltd, Asaba v,-National Union of Textile, Garment and Tailoring Workers D1N1C 309. That from the memoranda of the parties submitted to the 1AF, the 1AF had found that Mr. 0. 0. Okunuga was dismissed on account of his trade union activities which amounted to unfair labour practice. That "a proper study of the appellant's memorandum will reveal that 7 out of 8 of the facts relied on in terminating Mr. O. O. Okunugas' employment is hinged on his union activities". Also that the laws of Nigeria prohibit termination on account of or as punishment for trade union activities, relying on the provision of section 9(6) of the Labour Act. To the respondent, granted that an employer can terminate an employee's appointment without giving any reason, but that once a reason is given, the management has the duty to vindicate its reason. That the evidence of the management as contained in the record of appeal strongly manifest that the substance of this dispute lies in the appellant's dissatisfaction with the respondent's unit chairman's union style; and that this is what the IAP rightly observed in its award. That it was in the light of the above facts, that the IAP held the allegation of refusal to render account as a smokescreen to terminate their employment, hence the award for the reinstatement. The respondent then urged the court to uphold the finding of the 1AP and dismiss the appeal on this ground. On the final issue for determination, the respondent contended that the employees' handbook of the appellant states that the employment of any employee may be terminated for any serious misconduct with appropriate notice or pay in lieu of notice in accordance with his conduct (sic) of employment, That in Ajayi v. Texaco Nigeria Ltd |1987| 3NWLR (Pt. 62) at 579, the Supreme Court held that "there is no fixed rule of law defining the degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of a grave and weighty character as to undermine the confidence, which should exist between him and the master." To the respondent, granted that the list of misconduct justifying dismissal is not exhaustive, the authorities are unanimous that such misconduct should be of grave and weighty character; and that in this case, the alleged ground for the dismissal of Mr. Okunuga does not in any way fall under the category of misconduct warranting dismissal. The respondent submitted further that the alleged ground was not in breach of the conditions of service; that the employee was sent on a job-related course and not on trade union training, referring to Article 3.3.1 of the employees' handbook. Even then, that it made no provision or guideline as to how money advanced should be applied. That since there is no such rule, there can he no transgression. That where there is no law (here can be no sin. In any event, that on returning from the seminar; the expenses were July approved until one month later when it was reopened through a query by the Human Resources Manager. The respondent, therefore, submitted that whatever misgiving the management might have over the expense statement of Mr. O, 0. Okunuga, it cannot properly be made the subject of disciplinary action against him as an employee in good conscience or at all. Concluding its submission, the respondent urged the court to uphold the award of the IAP and dismiss the appellant's appeal for lacking in merit based on the following - a) That the issues determined by the 1AP were properly within its terms of reference. b) That the IAP was right in raising and deciding on issues without calling for address by parties neither did it occasion any miscarriage of justice against the appellant. c) That the order for reinstatement and payment of entitlements to Mr. O. O. Okunuga and the three other union members was right under the applicable law and circumstance of the case. In reply on points of law, the appellant submitted that the arguments contained in paragraphs 3.00 to 3.01 of the respondent's brief of argument are not relevant to this appeal. That it is significant to point out that the duly of the IAP, as well as this court is to administer justice between the parties in accordance with the applicable laws. As regards the submissions of the respondent contained in paragraphs 5,02 to 5.07 of its brief, the appellant submitted that this action was not commenced by the respondent in a respective capacity. In other words, that the points of dispute between the parties were very clear and definite that at no time did the respondent claim reliefs or submit points of dispute on behalf of unnamed individuals or members of its union. To the appellant, the position of the law is that where a party files an action in a representative capacity, it must from the onset slate so and name specifically the persons it purports to represent, referring the court to Atanda and anor v. Akunyun and ors, ex-parte Daramola Olawore and anor [1998] 10-11 SCNJ 11 sat 21. That in this case, the respondent never purported to represent any other person outside Mr. O. 0. Okunuga and, therefore, urged the court to reject the respondent's argument in that regard. The appellant argued further that in any event, the reliefs sought were also clear and had nothing to do with any other person apart from Mr. O. O. Okunuga; and that the argument of the respondent is, therefore, misconceived because it was never raised at the lower tribunal. With reference to the submissions contained in paragraphs 5.06 to 5.11 of respondent's brief, the appellant submitted that the case of the parties was never founded on the dismissal of the other members of staff; that nothing was urged on the IAP on that point by the parties or their counsel. Also, that the orders made by IAP in favour of the other members of staff cannot, by any stretch of imagination, constitute a consequential order which a court or tribunal can make at the conclusion of a trial, referring to the case of Hon. Muyiwa Inakoju and 17 ors v. Hon. Abraham Adeleke and 4 ors |2007| 4 NWLR (Pt. 1025) 427 at 708 - 709 where the Supreme Court held that - a consequential order, is one giving effect to a judgment or order or it is one directly traceable to or flows from that other judgment or order duly prayed (or. In other words, it is one which has bearing with the main relief or reliefs brought by a party. It needs be emphasized that a consequential order can only relate to matters adjudicated upon. The appellant then urged the court to apply the principles in this case, submitting thereby that the orders made by the IAP in favour of the three other members of staff did not arise from the reliefs sought by the respondent at the lower tribunal. That the case of Obasanjo v. Yusuf, supra cited by the respondent is not applicable to this case. Furthermore, referring to the submissions in paragraph 6.01 to 6.07 of the respondent's brief, the appellant submitted that he respondent's arguments are totally inconsistent with the state of the law on the point. The appellant finally submitted that the relationship between Mr. O. 0. Okunuga and the appellant was not governed by statute; hence an order for reinstatement is not an appropriate legal remedy. That there is nothing in section 9(6) of (he Trade Unions Act (cited by the respondent) which gives the lower tribunal power to reinstate an employee whose employment was terminated by the employer; and so the cases cited by the respondents not being judgments of the Supreme Court or the Court of Appeal, do not bind this court. The appellant finally urged the court to allow this appeal. We have carefully considered all the facts in dispute, the proceedings at, and the award of, the IAP, including the parties' briefs of argument, and the exhibits and authorities cited. To our minds the issues in dispute in this appeal are whether the IAP acted within. Its terms of reference in making its findings and awards as regards the three (3) union members and whether or not the order for the reinstatement of Mr. O. O. Okunuga Ys justified having regard to the evidence before the IAP and the applicable law. To the appellant the IAP is bound to determine only the points referred to it by the Minister in exercise of his statutory powers. We agree with the appellant that the only issue for consideration relating to termination is as it relates to the termination of the employment of Mr. O. O. Okunuga who was the chairman of the Agbara union. As a matter of fact, in the notice of reference of the dispute to the IAP pursuant of section 8 of the TDA, the terms of reference to the IAP is as follows - To inquire into the trade dispute existing between the National Union of Food, Beverages and Tobacco Employees and the management of Nestle Foods Nigeria Plc, llupeju, Lagos over the following:- a. Wrongful termination of appointment of union chairman and b. Unfair labour practice. It is clear from the said terms of reference that the only issue before the IAP was that, of the termination of appointment of Mr, O. O Okunuga, the branch union chairman. The reference letter did not reflect any other person or persons. It is also true that throughout the proceedings at the IAP, no evidence was led in respect of the three other union members. We, therefore, agree with the appellant that there was no relief which sought for the reinstatement of any other person other than Mr. O. O. Okunuga neither was any monetary compensation claimed for them. We do not agree with the argument of the respondent that the order was a consequential order. The authorities cited by the appellant to the effect that courts do not grant reliefs outside what is sought for before them are clear and binding; consequential orders must (low directly and naturally from the claim. See the authorities of (Gabriel Ativie v. Kablemetal Nig. Limited supra, and Chief M.O. Olatunji v. Owena Bank Nigeria Plc and anor, supra, cited by the appellant. A perusal of the records of the IAP shows that the issue of the three other union members was raised suo motu by the IAP as there was no evidence led on it. It is trite that where a court (in this case the IAP) raises an issue suo motu counsel in the matter are normally given the opportunity to address the court on the issue before a decision can be taken based on it. We are, therefore, of the considered view that the IAP having failed to do so is a breach of the fair hearing principles. We disagree with the respondent that some three unnamed union executives, because they are said to have a common interest in this matter, can be smuggled into the findings and award of the IAP even when they were not named in the terms of reference to the panel. The IAP, in its arbitral functions, must keep within the terms of the referral instrument in each case. Failure to do this would mean going beyond the bounds of its jurisdiction in the particular case at hand. In the instant case, the LAP went beyond its jurisdiction in considering and making an award regarding the three union officials not mentioned in the referral instrument. The IAP was, therefore, wrong to have made a finding and award on the reinstatement of three unnamed union officials whose ease was not before the IAP in the first place. The finding and the award of the IAP as regards the three union members is hereby set aside. What remains is the issue whether the IAP was right in ordering the reinstatement of Mr. 0. O. Okunuga, having regard to the evidence before the IAP and the law. The appellant ( had argued that the termination had nothing to do with Mr. Okunuga's union activities, but because of his refusal or failure to account: and or retire the expenditure he incurred when he was sponsored to attend a workshop in Ibadan. From the record of the proceedings at (he IAP, (here is evidence that the appellant was not comfortable with Mr. ' O. O. Okunuga's style of unionism. We have not been shown any reason why we should disturb this piece of evidence. We, therefore, agree with the findings of the IAP that the issue of non-retirement of the expenditure was used as a smokescreen to get rid of Mr. Okunuga who the appellant discovered was a thorn in their llesha. More so, from the records of the award, there is evidence that other skiff who went with Mr. Okunuga to the: said workshop, incurred similar heads of expenditures, which were even higher than those of Mr. Okunuga, but were neither queried nor their appointment terminated as was the case with Mr. Okunuga, 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(1 )(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 (lie consent of the employer, within working hours. And by section 42(l)(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. The authorities cited by the appellant to the effect that reinstatement cannot be ordered by this court, are not authorities dealing with the question of termination of employment as a result of union activities. This court, in National Union of Food, Beverages and Tobacco Employees of Coca Industries Limited, Ikeja [2005] 3 NLLR (Pt. 8) 206 at 218 D, held inter alia that as a matter of principle, there are two main instances where the courts generally order re¬instatement. The first instance is where employment is statutory and the statutory process for disengagement was not followed, here reinstatement has always been ordered by the courts. The second leg is where a worker was disengaged for embarking on trade union activities. See also the cases of Mix and Bake v. NUFBTE, supra, Chemical and Non Metallic Products Senior Staff Association v. Benue Cement Co. Plc [2005] 2 NLLR (Pt. 6) 446, Hotel & Personnel Services Senior Staff Association v. Owena Hotels Ltd, Akure [2005] 3 NLLR (Pt. 7) 163 and Management of Dangote Industries Ltd, Pasta Plant} Ebute Ikorodu, Lagos v. National Union of Food, Beverage and. Tobacco Employees unreported Suit No. NIC/2/2008 delivered on 28lh January 2009. On the issue of the time factor between the time of the purported disengagement by the worker and now, this court has held in the Management of Dangote Industries Limited, Pasta, Ebute Ikorodu, Lagos v. National Union of Food, Beverages A Tobacco Employee, supra, restating its position as earlier decided in Tram International Bank Plc' v. National Union of Banks Insurance and Financial Institutions Employees unreported Suit No. NIC/17/2000 delivered on May 3, 2007 where this court acknowledged that (he remedy for reinstatement is not absolute but held regarding the time factor as follows – This court reiterated the fact that it recognized the fact that time factor may affect the decision to reinstate but that this is not an absolute proposition. The court found that the appellant in that case did not abide by the process in which termination may be effected as provided for by (he conditions of service. This court found that the appellant, therefore, acted in contravention of section 9(6)(1) of the Labour Act. The court held that the termination was wrongful and hence null and void. It ordered re-instatement of the sacked officers without loss of benefit and salaries. The termination of the employment of the workers in the Trans International Bank case was effected on 1711' May, 1996 and that judgement was delivered in May 2007. If this court did not think that eleven (11) years time lag between the termination and judgement was too long to have adversely affected the order of reinstatement and payment of salaries and other benefits, we see no reason to depart from that position regarding the present dispute.... We are of the view that the same principle is applicable in this case and we have been shown no reason to change our position in this case. For all the reasons given above, we hereby hold that the appellant's appeal succeeds in part and fails in part as follows - 1. The award of the IAP reinstating the three union officials is hereby set aside. The 1AP erred in considering and making an award in that regard given that the issue was not part of the terms of reference referred to it by the Minister of Labour. The IAP had no jurisdiction entertaining same. 2. The award of the IAP reinstating Mr. 0, 0. Okunuga without loss of salary and other emoluments is hereby affirmed. Judgment is entered accordingly. Hon Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Judge Hon. Justice F. I. Kola-Olalere Judge Judge Hon. J. T. Agbadu-Fishhn Hon. Justice O. K. Obaseki-Osaghae Judge Judge