NATIONAL UNION OF FOOD, BEVERAGES &		 TOBACCO EMPLOYEES

NATIONAL UNION OF FOOD, BEVERAGES & TOBACCO EMPLOYEES

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
ON THE 27TH DAY OF SEPTEMBER, 2010


SUIT NO. NIC/LA/17/2009

CITATION: NIC (2010) 9 LLER 1

CORAM:
Hon. Justice B. B. Kanyip – Presiding Judge
Hon. Justice F. I. Kola-Olalere – Judge
Hon. Justice 0, A, Obaseki-Osaghae – Judge


BETWEEN

NATIONAL UNION OF FOOD, BEVERAGES & TOBACCO EMPLOYEES

(APPELLANT/CROSS-RESPONDENT)

AND

GUINNESS NIGERIA PLC

RESPONDENT/CROSS-APPELLANT


REPRESENTATION
Adeniyi Adewumi, Tomi Olagunju, T. S. Adewuyi and Miss Francess Ogie, for the appellant/cross-respondent

Oluyemi Shoyooye, for the respondent/cross-appellant,

JUDGEMENT

This matter is an appeal on the award of the Industrial Arbitration Panel (IAP) in respect of the industrial dispute between the parties. It was referred to this court by the Hon. Minister for Labour and Productivity via an instrument titled ‘Reference of Trade Dispute To The National Industrial Court. The instrument is with Reference Number: MLHE/917/CON/1/43 dated June 8, 2009 and signed by one Chinedu C. Dike (Mrs.) for the Hon. Minister. The referral was received in this court on the 11th of June 2009.

The issues in dispute stated in the referral letter are:

1. Wrongful redundancy/retrenchment of Comrade Lekan Makinde, Lagos State Council II Chairman of the National Union of Food, Beverages & Tobacco Employees,

2. Disregard of section 20(l)(b) of the Labour Act Cap. LI Laws of the Federation of Nigeria (LFN) 2004.

The record of proceedings on the dispute was received in this court on the 12th of January, 2010. In accordance with the Rules of this court, this appeal was argued on record. Parties submitted, exchanged and adopted their written addresses. According to the record before us, some members of the appellant/cross-respondent’s union were employees of the respondent/cross-appellant including one comrade Lekan Makinde. In April 2006, the respondent/cross-appellant declared some of its workers/employees redundant. Prior to the declaration of redundancy, the management of the respondent/cross-appellant held a meeting with the appellant/cross-respondent’s union and discussed the company’s intention for the declaration. Eventually 330 employees of the respondent/cross-appellant were

declared redundant including one comrade Lekan Makinde who was at the material time the Lagos State Council II Chairman of the appellant/cross-respondent’s union. The appellant/cross-respondent was not pleased with the turn of events and so declared a trade dispute against the respondent/cross-appellant after all efforts towards amicable settlement failed. The dispute was referred to the IAP, Two issues, same as those referred to this court, were given to the IAP to arbitrate on. After consideration of the memoranda and oral evidence of the parties the IAP made an award which was communicated to the parties by the Honourable Minister of Labour and Productivity in writing. The IAP’s award is as follows:

For the avoidance of doubt the Tribunal finds as follows:

i. There was Rationalization in the 2nd party (Guinness) in 2006 leading to Redundancy of about 330 including comrade Lekan Makinde and 3 other union officials.

ii. In carrying out the redundancy exercise, the 2nd party claimed it complied with section

20 of the Labour Act Cap. 198 LFN 1990. In particular the 2nd party claimed it applied the principle of “last in first out” subject to all factors of relative merit including skill, ability and reliability. In the case of comrade Makinde the 2nd party claimed it not only considered “merit” but “skill”.

iii. The 2nd party on the other hand claimed that the 1st party violated the above mentioned principle in section 20 of the Labour Act and that comrade Makinde was being victimized for trade union activities, [There appeals to be a mix-up in the use of the 1st and 2nd party here given that in the suit at the IAP, Guinness was the 2nd party; so the talk of the 2nd party complaining about the violation of section 20 of the Labour Act cannot be correct for only the 1st party is capable of complaining as such.]

iv. The Tribunal further finds that in the Discussion/Agreement preceding the

Redundancy Exercise on 24th April, 2006, both parties did not mention/define/discuss how these factors (merit, skill, ability and reliability) were to be judged (e.g. appraisal, health etc).

v. in the absence of such definition, the application of the statutory provision on Redundancy has understandably become a matter of speculation and current disputation,

vi. The Tribunal finds that both parties were negligent in the Discussions/Agreement preceding the Redundancy. This is contributory Negligence. Both parties would, therefore, share the blame,

vii. The Tribunal also finds that the international instruments do not provide general immunity.

FINAL AWARD

i. Based on the above findings, the Tribunal makes no Award for Re-instatement of Comrade Makinde.

ii. The Tribunal orders that the final benefit of comrade Makinde be calculated up to the date of the Award.

Dissatisfied with the IAP’s award, both parties filed their objections against it as a result of which the matter was referred to this court for adjudication. From the appellant/cross-respondent’s brief of argument, the grounds of appeal are that:

1. The honourable members of the IAP erred in law when they held that section 20 of the Labour Act could not be applied in respect of the redundancy declared by the 2nd party because the parties did not agree on the modalities for determining merit, skill ability and reliability. The appellant/cross-respondent’s particulars of appeal are that:

a) Section 20 of the Labour Act clearly defines the circumstances upon which a redundancy may be declared by the employer.

b) The respondent did not present any evidence before the IAP in justification of section 20(3) of the Labour Act as to the existence of excess Manpower.

c) The appellant led evidence to show that section 20(1) was observed in the breach thereof by the respondent.

2. That members of the JAP erred in law when they held that failure of the parties to define the criteria for redundancy constitute negligence which denies the appellant the right to insist on full compliance with section 20 of the Labour Act. Reasons are

(a) The non-observance of the principle of ‘last in, first out’ by the Respondent ought to constitute a basis to nullify the redundancy.

(b) The advertisement of the position of the redundant staff almost immediately by the respondent is evidence that the redundancy was declared in breach of section 20(3) of the Labour Act.

3. That the honourable members of the IAP erred in fact when they held that the appellant did not prove that the redundancy of its member was based on union activities contrary to the provisions of section 9(6) of the Labour Act.

a) The evidence led by the appellant’s second witness comrade Makinde on specific harassment by management especially his immediate boss as regards his union activities was not controverted by the respondent.

b) The fact that other members of the union executive were affected by the redundancy is a compelling evidence of victimization on grounds of trade unionism.

The appellant/cross-respondent submitted that there are two issues for determination in this appeal and they are:

1. Whether or not the fact that parties did not agree on the definition of merit, skill, ability and reliability precludes the employer from fully complying with the provision of section 20 of the Labour Act.

2. Whether or not the evidence provided by the appellant did not clearly establish that the redundancy of comrade Makinde by the respondent was done with mala fide intent to warrant an order for reinstatement or compensation in the form of damages.

To the appellant/cross-respondent, the first issue arose from, the first, second, fourth, fifth and sixth findings of the IAP. It submitted that findings (iv), (v) and (vi) are not in consonance with the provision of section 20 of the Labour Act. That by virtue of section 20(1 )(a) and (b) of the Labour Act, the respondent/cross-appellant is required to inform the appellant/cross-respondent before embarking on any redundancy in the company. In other words it was the duty of the respondent/cross-appellant to lay before the appellant/cross-respondent the way and manner staff will be laid off and the procedure to be adopted. It submitted that the IAP having found that the employer did not lay down the procedure to be followed in the redundancy especially as it relates to the issue of merit, skill, ability and reliability, it ought to have determined that the respondent/cross-appellant is in breach of section 20 of the Labour Act, The appellant/cross-respondent referred to the decision of this court in Mix & Bake v. NUFTBE [2004] 1 NLLR (Pt. 2) 247 at

281 D – H and submitted that its evidence at the IAP confirmed the fact that the principle of “last in, first put” contained in section 20 of the Labour Act was not followed by the respondent.

The appellant/cross-respondent further submitted that the finding of the honourable members that there was no agreement between the parties as to procedure for the redundancy is unsupported by the evidence before the IAP. To the appellant/cross-respondent, the honourable members of the IAP were told by the respondent/cross-appellant’s witness under cross-examination that “The 2nd party wrote to the 1st party on the rationalization and had an agreement which had not been contested by anybody till date. In the case of Makin.de, that (sic) management looked at skills not only merit”. It pointed out that the respondent/cross-appellant only stated this fact at the hearing before the IAP but failed woefully to provide any evidence that this information was made available to the appellant/cross-respondent before the declaration of redundancy. It pointed out that the honourable members of the IAP held as follows

From the evidence before the Tribunal, the 2nd party (Guinness) at no time during the said discussion provide any information, on criteria to be used in judging the factors (see page 81 of the record of appeal).

It went further to submit that failure of the IAP to hold that the respondent/cross-appellant is in breach of section 20 of the Labour Act is perverse and ought to be overturned. The appellant/cross-respondent submitted that this court has held in the past that it was the duty of the employer to take the workers into confidence when declaring redundancy. See the case of Chemical & Non-Metallic products SSA v._ BCC [2005] 2 NLLR (Pt, 6) 446 at 475 – 476 F – D, It, therefore, submitted that by the admission of the respondent/cross-appellant’s witness that in respect of comrade Lekan Makinde, the management looked at the skill and it was confirmed that last appraisal, received by the staff retrenched was ‘B’, it then stands to reason that the appellant/cross-respondent’s member could not have been declared redundant on account of skill. The appellant/cross-respondent urged the court to resolve this first issue in its favour by holding that the respondent/cross-appellant failed to discharge the burden placed on it by section 20 of the Labour Act.

To the appellant/cross-respondent, issue two arose from ground 3 of its appeal and pointed out that the honourable members of the IAP held at page 85 of the record of appeal as follows –

From the evidence available to the Tribunal, we find no real case of anti-union activities of the 2nd party.

It submitted that this finding is against the weight of evidence available to the LAP. That in its memorandum before the IAP it stated clearly that the retrenchment of comrade Lekan Makinde was an act of victimization as a result of his trade union activities. That this assertion was further reinforced in the oral evidence of comrade Lekan Makinde on behalf of the appellant/cross-respondent (union). See page 72 of the record of appeal. It pointed out that the allegation that the supervisory officer of comrade Lekan Makinde specifically warned him against his trade union activities and the fact that Mr. Sola Olokode, the Human Resources Manager, also made similar complaints to the appellant/cross-respondent’s Secretary-General were not controverted by the respondent/cross-appellant.

The appellant/cross-respondent submitted that this piece of evidence should have been determined in its favour, the

respondent/cross-appellant having failed to properly rebut same, more so that the respondent/cross-appellant almost immediately after retrenching the appellant/cross-respondent’s members, proceeded to advertise their positions in the media and on the internet. The appellant/cross-respondent pointed out that it is instructive that this piece of evidence was expressly admitted by respondent/cross-appellant at paragraph 18 of its memorandum. See page 1.9 of the record of appeal. That the advertisement placed was attached as annexure B. See page 10 of the record of appeal. That while the very position occupied by the appellant/cross-respondent’s member was advertised by the respondent/cross-appellant, yet the honourable members of the IAP failed to consider this vital piece of evidence in their consideration of the dispute before arriving at the conclusion that the retrenchment of comrade Lekan Makinde was not done with mala fide intent.

In conclusion the appellant urged the court to set aside the award of the IAP and substitute it with an order for reinstatement in order to serve as deterrent to the respondent/cross-appellant and their ilk in the labour market. Alternatively, the appellant/cross-respondent prayed that comrade Lekan Makinde be awarded such compensation as damages as the court deems fit in lieu of reinstatement taking into consideration that the appellant/cross-respondent’s member had put in 17 years of meritorious services in the respondent/cross-appellant’s company.

While challenging the appellant/cross-respondent’s brief of argument, the respondent/cross-appellant pointed out that its management held a meeting with members of the appellant/cross-appellant’s union in its employment on 24th April, 2006 wherein the respondent/cross-appellant discussed the reasons and extent of the anticipated redundancy. It then submitted that the respondent/cross-appellant has carried out the said redundancy exercise in strict compliance with existing laws, principles and mutual agreement between it and the appellant/cross-respondent. As a result of the said redundancy exercise, 330 employees of the respondent/cross-appellant nationwide who were members of the appellant/cross-respondent were affected including comrade Makinde Olalekan Rasheed and two other union officers of the appellant/cross-respondent. The respondent/cross-appellant went on to state that the appellant/cross-respondent declared a trade dispute only in respect of Mr, Makinde which was referred to the TAP for resolution by the Hon. Minister for Labour and Productivity and that at the end of the lAP’s resolution the Hon. Minster communicated the lAP’s finding and award to the two parties. The respondent/cross-appellant went on to state that on receiving its own. copy it filed a notice of objection dated 17th May, 2009 to parts of the findings and award which was eventually referred to this court for adjudication.

Arguing its position, the respondent/cross-appellant framed two issues for determination by this court:

(i) Whether the provisions of section 20 of the Labour Act, Cap LI, Laws of the Federation, of Nigeria 2004 impose any duty on the respondent/cross- appellant and/or on the appellant/cross-respondent to mention/define/discuss how ‘factors of relative merit, including skill, ability and reliability’ are to be adjudged during redundancy exercise.

(ii) Whether from the totality of the evidence led at the Honourable Industrial Arbitration Tribunal, the respondent/cross-appellant’s rationalization and redundancy exercise was a product of anti-union disposition of the respondent/cross-appellant towards officers of the appellant/cross-respondent in its employment.

The respondent/cross-appellant submitted that the answers to the above settled issues are in the negative and urged the Court to so hold. It submitted that issue one arose from Grounds 1 and 2 of the appellant/cross-respondent’s formulated grounds of appeal flowing from the findings and award of the LAP. See pages 86 to 88 of record of appeal. It submitted that there is nothing in section 20 of the Labour Act imposing any duty on the respondent/cross-appellant and/or the appellant/cross-respondent to mention/define/discuss how ‘factors of relative merit, including skill, ability and reliability’ are to be adjudged during the redundancy exercise. It submitted that the following are the duties imposed on the respondent/cross-appellant by the provisions of section 20 Labour Act:

(i) To inform the trade union or workers’ representative concerned of the reasons for and extent of the anticipated redundancy;

(ii) To adopt the principle of “last in, first out” in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability,

(iii) To use its best endeavours to negotiate redundancy payments.

The respondent/cross-appellant submitted that section 20(l)(b) of the Labour Act clearly gives it discretion to determine what constitutes “factors of relative merit, including skill, ability and reliability” and that the said discretion is not exercisesable with the consent or concurrence or interference of the appellant/cross-respondent herein and urged the court to so hold.

It submitted that the ordinary meaning of the word “inform” cannot, by any stretch of imagination, be extended to cover expressions such as “define” and “discuss” as the IAP had purportedly held in its award. It submitted that the sole duty imposed on the respondent/cross-appellant in section 20(l)(a) of the Act is to inform the trade union or workers’ representative concerned of the reasons for and extent of the anticipated redundancy. That to hold otherwise would be tantamount to usurping the rights of the employer to rationalize and adapt to market demands in a time of economic recession with the aim of avoiding going under.

The respondent/cross-appellant referred the court to Qpeola v, Opadircin [1994] 5 NWLR (Ft 34) 368 at 382 A – B in which it was held as follows –

The rule of construction of Acts of Parliament is mat they should be construed according to intent of the parliament which passed the Act. If the words of the statutes are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone do in such a case best declare the intention of the lawgiver.

The respondent/cross-appellant submitted that the necessary intendment of the drafter of section 20 of the Labour Act is to drastically reduce the traumatic effects of the rationalization exercise on employees morale by way of advance notice and to ensure that the attendant involuntary loss of jobs is adequately compensated for so as to encourage workers to accept redundancy without damaging industrial relations. See the text, Nigeria Labour and Employment Law in Perspective, Second Edition, by Oladosu Ogunniyi at pages 61 – 64. The respondent/cross-appellant submitted that the decision of IAP to bring extraneous issue or logic to bear on this case when same was not a bone of contention is of no moment in law because one cannot put something on nothing and expect it to stand.

The respondent/cross-appellant pointed out that it was admitted by the appellant/cross-respondent’s 1st witness, Comrade Eddie Ifie at the proceedings before the IAP, particularly at page 71 of the record of appeal that he was aware that a meeting was held between the appellant/cross-respondent and the respondent/cross-appellant’ in respect of the redundancy exercise in April, 2006. It also pointed out that appellant/cross-respondent’s 2nd witness, Comrade Makinde on behalf of whom this appeal was entered, expressly admitted at page 74 of same record that it was the duty of the management of the respondent/cross-appellant to determine who was to be affected by redundancy exercise. That these admissions were made by officers of the appellant/cross-respondent who are seasoned and well experienced labour leaders, well acquainted with the applicable trade practices and methodology.

The respondent/cross-appellant went on to submit that members of the IAP cannot approbate and reprobate at the same time. That the honourable members cannot in one breath hold that factors usually mentioned in the definition of merit, ability etc. are not generally for negotiation (see page 81, 3rd paragraph of the record of appeal) and then turn around to hold the respondent/cross-appellant for contributory negligence with the appellant/cross-respondent for failing to mention/define/discuss how these factors (merit, skill, ability and reliability) were to be judged (see page 87, paragraph iv of the record of appeal). The respondent/cross-appellant submitted that it would amount to mere academic exercise to require the parties to mandatorily. The respondent/cross-appellant submitted that section 20(l)(b) of the Labour Act clearly gives it discretion to determine what constitutes “factors of relative merit, including skill, ability and reliability” and that the said discretion is not exercisesable with the consent or concurrence or interference of the appellant/cross-respondent herein and urged the court to so hold.

It submitted that the ordinary meaning of the word “inform” cannot, by any stretch of imagination, be extended to cover expressions such as “define” and “discuss” as the IAP had purportedly held in its award. It submitted that the sole duty imposed on the respondent/cross-appellant in section 20(l)(a) of the Act is to inform the trade union or workers’ representative concerned of the reasons for and extent of the anticipated redundancy. That to hold otherwise would be tantamount to usurping the rights of the employer to rationalize and adapt to market demands in a time of economic recession with the aim of avoiding going under.

The respondent/cross-appellant referred the court to Qpeola v, Opadircin [1994] 5 NWLR (Ft 34) 368 at 382 A – B in which it was held as follows –

The rule of construction of Acts of Parliament is mat they should be construed according to intent of the parliament which passed the Act. If the words of the statutes are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone do in such a case best declare the intention of the lawgiver.

The respondent/cross-appellant submitted that the necessary intendment of the drafter of section 20 of the Labour Act is to drastically reduce the traumatic effects of the rationalization exercise on employees morale by way of advance notice and to ensure that the attendant involuntary loss of jobs is adequately compensated for so as to encourage workers to accept redundancy without damaging industrial relations. See the text, Nigeria Labour and Employment Law in Perspective, Second Edition, by Oladosu Ogunniyi at pages 61 – 64. The respondent/cross-appellant submitted that the decision of IAP to bring extraneous issue or logic to bear on this case when same was not a bone of contention is of no moment in law because one cannot put something on nothing and expect it to stand.

The respondent/cross-appellant pointed out that it was admitted by the appellant/cross-respondent’s 1st witness, Comrade Eddie Ifie at the proceedings before the IAP, particularly at page 71 of the record of appeal that he was aware that a meeting was held between the appellant/cross-respondent and the respondent/cross-appellant in respect of the redundancy exercise in April, 2006. It also pointed out that appellant/cross-respondent’s 2nd witness, Comrade Makinde on behalf of whom this appeal was entered, expressly admitted at page 74 of same record that it was the duty of the management of the respondent/cross-appellant to determine who was to be affected by redundancy exercise. That these admissions were made by officers of the appellant/cross-respondent who are seasoned and well experienced labour leaders, well acquainted with the applicable trade practices and methodology.

The respondent/cross-appellant went on to submit that members of the IAP cannot approbate and reprobate at the same time. That the honourable members cannot in one breath hold that factors usually mentioned in the definition of merit, ability etc. are not generally for negotiation (see page 81, 3rd paragraph of the record of appeal) and then turn around to hold the respondent/cross-appellant for contributory negligence with the appellant/cross-respondent for failing to mention/define/discuss how these factors (merit, skill, ability and reliability) were to be judged (see page 87, paragraph iv of the record of appeal). The respondent/cross-appellant submitted that it would amount to mere academic exercise to require the parties to mandatorily.

mention/define/discuss an issue when same is not generally for negotiation. Therefore, the honourable members acted in error when they found the respondent/cross-appellant for contributory negligence of a non-existent duty to “mention/define/discuss how the factors of merit, skill, ability and reliability” were to be adjudged. That the legal principle of ubijus ibi remedium presupposes the existence of a legal right and where there is no breach of any known legal right, there is no remedy. It urged the court to hold accordingly.

The respondent/cross-appellant submitted in conclusion on issue one that the clear and unambiguous provision of section 20 of the Labour Act are devoid of any duty on the respondent/cross-appellant and/or the appellant/cross-respondent to mention/define/discuss how these factors (merit, skill, ability and reliability) were to be adjudged and it urged the court to so hold. The respondent/cross-appellant submitted that the cases of Mix & Bake v. NUFBTE [2004] 1 NLLR (Pt. 2) 247 at 281 D – H and Chemical & Non-Metallic Products SSA v. BCC [2005] 2 NLLR (Pt.

6) 446 at 475 – 476 F – D cited by the learned counsel to the appellant/cross-respondent are misconceived and without bearing whatsoever to the instant appeal. It submitted that it was no where decided in the above mentioned cases that the employer of labour intending to embark on a rationalization exercise must mention/define/discuss how the factors of merit, skill, ability and reliability were to be adjudged. It urged the court to discountenance the said authorities and to find in favour of the respondent/cross-appellant.

Issue 2 is whether from the totality of the evidence led at the IAP, the respondent/cross-appellant’s rationalization and redundancy exercise was a product of its anti-union disposition towards officers of the appellant/cross-respondent in its employment.

The respondent/cross-appellant submitted that the Court of Appeal reiterated the age long principle of law on the attitude of appellate courts to findings of facts by trial courts in the case of Oguejiofor v. Siemens Ltd [2008] 2NWLR (Pt. 1071) 283 at 298 A – C in the following words-

It is well settled that a trial Judge who sees and hears the witnesses giving evidence before him, has the exclusive right to access their demeanour so as to determine whether they are telling the truth or not. He can, in this way, determine the credibility or otherwise of the testimony of every witness who testified before him. If this is done properly, it is not for the appellate court to interfere in any way possible.

The respondent/cross-appellant pointed out that it is particularly instructive to note that there is no where in the appellant’s brief of argument where the records of the proceedings before the IAP, contained in pages 69 to 86 of the record of appeal before this court, was challenged by the appellant/cross-respondent. There is also no affidavit purporting to challenge any section of the said record of proceedings. Consequently, it is safe to address issue 2 from the weight of evidence adduced before and available to the IAP vis-a-vis its findings and award.

The respondent/cross-appellant submitted that the lAP’s finding of no real case of anti-union activities of the respondent/cross-appellant against Comrade Lekan Makinde is on all fours with the weight of evidence adduced at the proceedings in respect of this matter. It submitted that the appellant/cross-respondent failed woefully to substantiate all allegations of victimization on ground of trade union activities against Comrade Lekan Makinde by the respondent/cross-appellant since it is trite law that he who asserts the existence of a fact must prove that the fact exists. The respondent/cross-appellant referred the court to Owoyemi v. Adekoya [2004] 18 NWLR (Pt. 852) 307 and section 135 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990.

To the respondent/cross-appellant, the gravamen of the case of the appellant/cross-respondent on this issue from pages 5 and 70 -74 of the record of appeal are as follows –

(i) That at a briefing organized by the Management of the respondent/cross-appellant,

Comrade Lekan Makinde stood up to oppose the proposal for staff of the respondent/cross-appellant to leave the union.

(ii) That one Mr. Segun Odukomaya, the Line Manager to Comrade Lekan Makinde was being used by the respondent/cross-appellant to torment him.

(iii) That the said Mr. Segun Odukomaya once recalled him from the union NEC meeting in Ibadan sometime in 2005 on the ground that his absence was affecting the job.

(iv) That the General Secretary of the appellant/cross-respondent later met with the respondent/cross-appellant on the matter and that he responded by saying Comrade

Lekan Makinde’s absence affected the job.

(v) That out of the 9 Technical Operators in his Department, he was the only one affected by the redundancy despite his outstanding appraisals.

(vi) That somebody was brought in immediately to replace him.

The respondent/cross-appellant submitted that the evidence adduced by the witnesses to the appellant/cross-respondent in line with the above stated allegations fell short of that required by law. It showed the court the unreliability and illogicality of the assertions of the appellant/cross-respondent from the series of admissions made by Comrade Lekan Makinde himself during cross-examination at page 74 of the record of appeal and the uncontroverted evidence of the Human Resources Services & Solutions Manager of the respondent/cross-appellant, Mr. Olufemi Kolawole. Here is Makinde’s said admission –

That the last position held by him was Technical Operator labeller and that the labeller was under the packaging department made up of: (a) De-palletizer (b) Decrater (c) Washer (d) Empty bottle inspection unit (e) Filling (f) Pasteurizer (g) Labeller (h) Inject coder (i) Re-crater and (1) re-palletizer. The average number of staff on each line was 15 to 16 regular staff and other non- permanent staff. That immediately he left, somebody was brought in to replace him and that later on there was an advertisement for vacancies. The person brought was from within the company. The job title on the advertisement was Technical Operator-packaging. It was possible that all the 40 advertised positions were not for labellers. There was nowhere in the minutes of the meeting of 24th April, 2006 where it was stated that workers who were recently appraised “Good” would not be affected by the exercise on redundancy. That it was the duty of the management of the 2nd party to determine who was to be affected by redundancy exercise.

That in the same vein, Mr. Olufemi Kolawole, the respondent/cross-appellant’s Human Resources Services & Solutions Manager testified inter alia at pages 75 to 78 of the record of appeal as follows –

…There was nothing from the record of the 2nd party concerning the exercise excluding union officials from being affected. He was aware that other executives of the 1s party were affected in the rationalization exercise of April, 2006 and during previous ones. 3 people who were union officials were affected in the April 2006 exercise who were

signatories to the 24th April 2006 resolutions. These were Stephen Okereke and Fredrick Ekhosunnehi. Fie was not aware that comrade Makinde was victimized. He knew Mr. Odukomaya who was the shift manager in the packaging department of the 2n party where Comrade Makinde worked. That there was no protest or record showing protest of victimization by comrade Makinde. Mr. Odukomaya gave ‘B’ to Makinde during the last appraisal…The reasons for the rationalization were poor sales, benchmark against international standards, introduction of modern technology and review of process and procedures. Rationalization and recruitment in the 2nd party were on-going exercise. 16 employees including Comrade Makinde were sent to Germany on training. 3 of these including Comrade Makinde were affected in the exercise. No new employee was recruited to replace Makinde and as part of the review process, another employee who was already in the system was drafted into the same position. The advertisement was not in relation to the job previously occupied by Makinde. That a total of 40 positions in all in the 2nd party packaging halls in Lagos, Benin and Aba locations were advertised in December, 2006 which was 8 months after the redundancy exercise. That Comrade Makinde did not apply even though he was entitled to. The 2nd party has a history of cordial relationship with members of the 1st party and that the current Chairman of the 2n party, Chief Raph Alabi was a union officer. That Comrade Makinde was supported by the 2nd Party when he contested for the state Chairmanship of the 1st party. The only reason why Makinde could not be reabsorbed by the 2″ party was because vacancy no longer existed as the previous 24 positions on the line have now been reduced to 1. That the 2nd party adhered to the law in carrying out the exercise.

Furthermore, the respondent/cross-appellant showed that at pages 84 to 85 of the record of appeal the IAP found inter alia as follows —

.. .In defence, the 2nd party gave a long history of cordial relationship with the 1st party. In particular, the 2n party also gave a rich history of Comrade Makinde’s involvement in trade unionism while in the employment of the 2nd party beginning from unit secretary in 1993 to 1999 up to State Chairman in 2005 to 2006. During this period, he was sent to Germany for training but was promoted to Technical Operator. The current unit chairman of the 1st party was recently promoted by the 2nd party and that the 2nd party was currently sponsoring one of its employees to the highest position in the 1st party. The current Chairman of the 2nd party was once a union officer.

The respondent/cross-appellant then submitted that the sole question begging for an answer from the forgoing is “what would be the decision of a reasonable Tribunal faced with the above stated factsi” It submitted that it is trite that preponderance of evidence is not same as multiplicity of witnesses. It is the quality of evidence adduced in support of a party’s case and not the quantity that tilts the imaginary scale of justice in favour of litigant. The respondent/cross-appellant submitted that the evidence of the sole witness of the respondent/cross-appellant at the IAP satisfies the evidential burden of proof required by law in all the circumstances of this case. It also submitted that rationalization/redundancy exercise is a legitimate right of the respondent/cross-appellant herein and that it is a settled principle of law that where there is a legal right to do a thing, the motive for which it was done is generally immaterial to its validity. See NNPC v. Idoniboye-Obu [1996] 1 NWLR (Pt. 427) 655 at 675 G – H. The respondent/cross-appellant then urged the court to dismiss the appeal of the appellant/cross-respondent as being entered in the worst of bad faith.

In addition to its response to this appeal the respondent/cross-appellant cross-appealed against the lAP’s award. To the respondent/cross-appellant, the members of the IAP erred in law when they ordered that the final benefit of Comrade Makinde be calculated up to the date of the award. Particulars of its cross-appeal are –

(i) The appellant/cross-respondent’s memorandum dated 18th December, 2007 and contained in pages 5 to 8 of the record of appeal did not contain the prayer purportedly granted by the honourable [IAP].

(ii) Regardless of the finding of facts by the honourable members of the [IAP] that it was the rationalization exercise in the respondent/cross-appellant’s company that led to the redundancies that affected Comrade Lekan Makinde and

about 330 other employees,

they still went ahead to make compensatory award of damages against the respondent/cross-appellant.

(iii) The propriety and adequacy of the redundancy package due to Comrade Lekan Makinde was never in issue throughout the proceedings at the Honourable [IAP].

(iv) Redundancies are not appropriate cases for making awards of damages.

The respondent/cross-appellant submitted that the cardinal issue for determination in this cross-appeal is:

Whether the Honourable Members of the [IAP] were correct in law when they ordered that the final benefit of Comrade Lekan Makinde be calculated up to the date of the award.

The respondent/cross-appellant submitted that the answer to the above stated issue is in the negative and urged the court to hold accordingly. This is because the reliefs sought by the appellant/cross-respondent before the IAP as contained in its memorandum dated 18th December, 2007 and specifically at page 8 of the record of appeal are:

The Honourable panel should declare that the termination of the employment of Comrade Lekan Makinde on ground of redundancy is wrongful and illegal.

The Honourable Panel should compel the 2nd party to recall and re-instate Comrade Makinde and to ensure that all his benefits and entitlements during the time of his wrongful termination are paid.

The respondent/cross-appellant submitted that it is trite law that a court of law or tribunal, not being a charitable institution, has no jurisdiction to grant a relief not claimed by the parties before it. That it follows, therefore, that where a court or tribunal in exercise of its jurisdiction makes largesse of a relief not claimed such an award deserves to be rejected by the appellate court and urged the court to so hold. See Nalsa and Team Associates v; NNPC [1991] 8 NWLR (Pt 212) 652 at 679.

The respondent/cross-appellant submitted that “Redundancy” is not in the same category with “Dismissal” and “Termination” of a contract of employment. That “Redundancy” occurs when the services of a worker are no longer required by his employer due to no fault of the worker. In fact, it is an involuntary and permanent loss of employment caused by excess of man-power. See section 20 of the Labour Act Cap. L1 Laws of the Federation of Nigeria 2004.

That in Odimkenmere v. Impresit Bakolori (Nig.) Ltd [1995] 7 NWLR (Pt. 411) 52, the appellant claimed the following reliefs at the trial court –

A declaration that the redundancy the defendant placed on the plaintiff on 20th July, 1987 is contrary to the regulations of the company as contained in the booklet entitled ‘Terms and Conditions of Service for Senior Staff of Impresit Bakolori (Nig.) Limited’ and therefore null and void.

An order of the court that the defendant pay to the plaintiff all unpaid salaries and other entitlements commencing from the period of redundancy, June 1978, up to the date of judgment.

The Court of Appeal while determining whether an employee can claim for unpaid salaries and allowances in redundancy cases held at page 64, paragraph B – D as follows –

No doubt, the question of the payment of unpaid salaries and allowances claimed by the appellant are only relevant in cases of unlawful termination of appointment or dismissal and not in the instant case which is that of redundancy. The learned counsel for the appellant has quite rightly conceded that the ordinary rules of damages relating to the usual case of termination do not arise in this case that the claim for unpaid salaries and other entitlements commencing from 1987 up to the date of judgment should fail. It is in my view that the trial Judge had well and carefully considered the facts before him and the applicable law and came to the right conclusion that the appellant’s remover was neither dismissal nor termination and that it would, therefore, not attract the relief sought.

According to the respondent/cross-appellant it is instructive to state that the appellant/cross-respondent’s memorandum dated 18th December, 2007 and contained in pages 5 to 8 of the record of appeal did not contain the prayer granted by the IAP. That contrary to the finding of facts by the honourable members of the IAP to the effect that it was the rationalization exercise in the respondent/cross-appellant’s company that led to the redundancy that affected Comrade Lekan Makinde and 329 other employees, they still went ahead to make compensatory award of damages against the respondent/cross-appellant and that same should run till the date of the disputed Arbitral Award was pronounced. That it is also instructive to note that the propriety and adequacy of the redundancy package due to Comrade Lekan Makinde was never in issue throughout the proceedings at the Panel. That in fact, the respondent/cross-appellant’s letter dated 27th April, 2006 with which the employment of Comrade Lekan Makinde was determined pursuant to the said redundancy exercise, clearly enunciated the details of the redundancy benefits due to Comrade Lekan Makinde and the effective date thereon. The respondent/cross-appellant submitted that the employment of Comrade Lekan Makinde cannot be determined twice as purported by the IAP.

The respondent/cross-appellant contended that in all the circumstances of this case, the honourable members lacked

the powers to grant the appellant/cross-respondent a relief not sought nor prayed for. It contended further that even the second arm of the reliefs as claimed by the appellant/cross-respondent is not grantable in as much as it touches on “benefits and entitlements during the time of wrongful termination” of an employee affected by redundancy exercise. The respondent/cross-appellant submitted that to hold otherwise would be tantamount to deleting the clear boundaries demarcating “dismissal”, “termination” and “redundancy”. It submitted, therefore, that the said final award of the IAP to the effect that the final benefit of Comrade Makinde be calculated up to the date of the award amount to an infraction of the rights of the respondent/cross-appellant.

Similarly, the respondent/cross-appellant submitted that the submission cum prayer of the learned counsel for the appellant/cross-respondent at paragraph 5.1 of its brief of argument dated 12th January, 2010 for compensation as damages in the alternative is not grantable by this court. It submitted that it is abundantly clear from decided cases that the usual measure of damages in cases of cessation of employment arising from unlawful termination or dismissal, or where a dismissal or termination is declared null and void do not apply in this case which is solely founded on redundancy. It urged the court to set aside the second leg of the final award of the IAP in the interest of justice.

In conclusion, it is the respondent/cross-appellant’s contention that before the court is a case of malicious declaration of industrial dispute where none existed and that it has shown that the alleged grievances leading to this avoidable industrial dispute were misconceived, frivolous, gold digging, malicious, vexatious and reeking in the worst of bad faith. It further contended that it has shown that the appellant/cross-respondent is not worthy of the sympathetic considerations shown to it by the members of the IAP in its award dated 31st November, 2008. That-the award has only succeeded in justifiably making a martyr out of Comrade Lekan Makinde to the detriment of the respondent/cross-appellant.

Finally the respondent/cross-appellant commended the opinion of Oladosu Ogunniyi, the learned author of the legal text, Nigerian Labour and Employment Law in Perspective (supra) at page 63 to the court as follow –

The philosophy behind redundancy payment is that the payment is intended to compensate for loss of security and to encourage workers to accept redundancy without damaging industrial relations. In effect, a redundancy payment can be regarded as compensation for loss of a right which a long-term employee has in his job. In the same way as property owner who is deprived of his property is entitled to compensation, so in his job. He has a right to security which must be protected, and if this is violated by the involuntary violation of his contract, he is entitled to compensation. This right gains value with the years, hence, redundancy payments are normally graduated according to length of service.

The respondent/cross-appellant submitted that it, having shown good faith by exceeding the NJIC agreement on redundancy package in order to further cushion the effect of the involuntary loss of job, deserves better than it got from the award of the IAP and urged the court to dismiss the appellant/cross-respondent’s appeal and sustain the respondent/cross-appellant’s appeal.

In the appellant/cross-respondent’s reply on point of law it submitted that this court has interpreted the provisions of section 20 of the Labour Act in the case of Chemical & Non-Mettalic Products SSA v. BCC [2005] 2 NLLR (Pt. 6) 446 at 475 – 476 E – A. That in respect of its request for reinstatement on ground of victimization for union activities, it submitted that an appellate court is not precluded from re-evaluating the evidence founding a decision of the lower court. To the appellant/cross-respondent it is immaterial that the evidence to be evaluated is the oral evidence of witnesses at the lower court. That this court held in HAPPSSA v. Owena Hotels [2005] 3 NLLR (Pt. 7) 163 at 189 E – G that the court will look at surrounding circumstances of the termination of an employee on grounds of redundancy whether it is as a result of trade union activities.

Responding to the cross-appeal, the appellant/cross-respondent submitted that the complaint of the respondent/cross-appellant is one borne out of malice and a clear misconception of the laws relating to resolution of labour disputes in Nigeria. That section 12(5) of the Trade Disputes Act 2004 provides as follows:

Where a trade dispute referred to an arbitration tribunal under section 9 of this Act involves questions as to wages, hours of work or any other terms or conditions as affecting employment which are regulated by any statutory provisions, the tribunal shall not make any awards that are less favourable to the workers concerned than those provisions.

The appellant/cross-respondent submitted that a simple reading of this section entitles the IAP or this court to make an award that gives effect to the statutory provisions relating to resolution of industrial disputes. It further submitted that since the claim of the appellant/cross-respondent was for reinstatement and the IAP is of the opinion that the award is sufficient compensation for the wrong done the appellant/cross-respondent, this award does not by any stretch of

imagination amount to a Father Christmas award as the respondent/cross-appellant would have the court believe. The appellant/cross-respondent stated that a court is not allowed to grant a relief in excess of what is claimed, not that a court cannot grant a relief commensurate to the wrong committed. The maxim is that “where there is a wrong, there is a remedy”. It submitted that even though the appellant/cross-respondent disagrees with the portion making the appellant/cross-respondent responsible for the breach of section 20 of the Labour Act, the reason for the decision is clearly stated at page 87 of the record of appeal, the sixth paragraph thereof, where the IAP held that “The Tribunal finds that both parties were negligent in the Discussions/Agreement preceding the Redundancy. This is contributory Negligence. Both parties would therefore share the blame “, The appellant/cross-respondent submitted that once the IAP declared the respondent/cross-appellant to have been negligent in complying with the provisions of section 20 of the Labour Act, the power to award compensation in lieu of damages is not in any way fettered.

In the appellant/cross-respondent’s opinion, it is not true that it did not make a claim for payment of entitlement as the second leg of its claim is for payment of all benefits and entitlement of Comrade Lekan Makinde.

The appellant/cross-respondent submitted in relation to the argument that redundancy does not amount to termination that the case of Odimkenrmere v. Impresit Bakolori (Nig.) Ltd [1995] 7 MWLR (Pt. 411) 52 cited by the respondent/cross-appellant did not by any stretch of imagination state that redundancy does not amount to termination of employment. That in fact the converse is he case as redundancy is termination of employment on ground of excess manpower. See Chemical & Non-Metallic Products SSA v. BCC [2005] 2 NLLR (Pt. 6) 446 E-F.

The appellant/cross-respondent further submitted that the National Industrial Court being the inal court in respect of matters of this nature has held in the same case of Chemical and Non-detallic Products SSA v. BCC (supra) that there is a distinction between individual employment isputes in the regular court as opposed to group employment disputes in the National Industrial lourt. The court held further that judicial decisions in respect of individual employment are not necessarily binding on the National Industrial Court in respect of group employment dispute as i the instant case. It, therefore, urged the court to dismiss the cross-appeal as lacking in merit id substance.

In its reply on points of law to the appellant/cross-respondent’s response to the cross-appeal, the respondent/cross-appellant submitted that the totality of the conclusion of the appellant/cross- respondent is premised on the interpretation of section 12(5) of the Trade Disputes Act which is misconceived and without basis whatsoever. It submitted that contrary to the submissions of the appellant/cross-respondent, the provision of section 12(5) of the Trade Disputes Act is limited in application only to the proceedings of the IAP and not that of the National Industrial Court as being canvassed. In the same vein, it submitted that the provision of section 12(5) of the Trade disputes Act is only applicable in situations where the ‘terms or conditions of employment are regulated by statutory provisions and the award relating thereto defined. That in as much as’ action 9 of the Trade Disputes Act is not referable to the National Industrial Court, any attempt to drag this court within the contemplation of section 12(5) of the Trade Disputes Act will be tantamount to putting something upon nothing. It submitted that section 12(5) of the Trade Disputes Act is without bearing whatsoever to this appeal especially when one considers the points in dispute both at the IAP and before this court.

The respondent/cross-appellant then submitted that the said section 12(5) of the Trade Disputes Act is immaterial to this case. It again submitted that the submission of the appellant/cross-respondent to the effect that it is the wrong committed and not the specific prayers of the succeeding party that determines the reliefs to be granted by the court is misconceived and without moment. The respondent/cross-appellant submitted that the law is that a court of law or tribunal cannot grant a relief not claimed by the parties before it. See Nalsa and Team Associates v. NNPC [1991] 8NWLR (Pt. 212) 652 at 679.

In conclusion therefore the respondent/cross-appellant urged the court to discountenance the submissions of the appellant/cross-respondent and find in favour of the respondent/cross-appellant.

In carefully considering this matter and the submissions of counsel, we are of the view that the following are the issues determination –

1. Whether the redundancy of April, 2006, which was declared by respondent/cross-appellant in its company and which

affected Comrade Makinde, was in compliance with section 20(1 )(b) of the Labour Act.

2. Whether Comrade Makinde’s redundancy was caused by the respondent/cross-appellant’s opposition to his union activities.

3. Whether the Industrial Arbitration Panel was right in its findings and 2nd award on this dispute to the effect that Comrade Makinde’s benefits should be calculated up to the date of the award, which was 31st November, 2008.

Regarding the 1st issue, whether the redundancy declared by the respondent/cross-appellant in April 2006 and which declaration affected Comrade Makinde, was done in compliance with section 20(1) of the Labour Act, the said section 20(1) of the Labour Act provides that — In the event of Redundancy:

(a) The employer shall inform the trade union or workers’ representative concerned of the reasons for and the extent of the anticipated redundancy;

(b) The principle of ‘last in, first out’ shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and

(c) The employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section.

According to the record and evidence before the court, prior to the declaration of redundancy by the respondent/cross-appellant, there was a meeting between the parties in which the respondent/cross-appellant informed members of the appellant/cross-respondent of the company’s intention to declare the redundancy. The reasons, extent and severance benefits for those to be affected were fully discussed and representatives of both parties signed the highlights of the minutes of that meeting held on 24th April 2006. This document is at page 12 of the record of IAP proceedings.

However, the appellant/cross-respondent’s position is that the respondent/cross-appellant did not comply with section 20(l)(b) of the Labour Act in that the principle of ‘last in, first out’ was not adopted and that neither did the respondent/cross-appellant consider merit including skill, ability and reliability because if it did Comrade Makinde who scored B in his appraisal grading ought not to have been affected by the exercise. The respondent/cross-appellant claimed that it did, especially as it relates to Comrade Makinde’s redundancy. The LAP at its paragraphs IV – VI of its findings states that at their redundancy meeting of 24th April 2006, the parties did not mention/define/discuss how factors of merit including skill, ability and reliability were to be evaluated. Hence both parties are guilty of contributory negligence.

Are the two parties or either of them under any obligation to mention/define/discuss how the factors of merit, including skill, ability and reliability are to be decided at the pre-redundancy deliberation? Section 20(1) (a) of the Labour Act states that the employers shall inform the trade union or workers of the reasons for and the extent of the anticipated redundancy. While section 20(l)(b) states that the principle of ‘last in, first out’ shall be followed subject to all factors of relative merit, including skill, ability and reliability.

In our considered view, the meeting of the parties held on 24th April 2006 as contained in its highlight at page 12 of the record of proceedings satisfies this provision. The appellant/cross-respondent who alleged non-compliance with that provision was not able to satisfy us with its reasons. We, therefore, hold that the respondent/cross-appellant complied with the provision of section 20(l)(b) of the Labour Act, with its pre-redundancy exercise meeting of 24th April, 2006.

The 2nd issue is whether or not Comrade Makinde’s redundancy was caused by the respondent/cross-appellant’s opposition to his union activities. To the appellant/cross respondent the answer is in the affirmative. In justifying its position, the appellant/cross-respondent stated how the management of the respondent/cross-appellant through Makinde’s immediate boss was harassing him in the company. That at a time when Makinde was attending the appellant/cross-respondent’s NEC meeting at Ibadan he was abruptly called back to the office even though he had earlier been given permission to attend the meeting. That at another time in a meeting within the establishment he stood up and challenged the management when its representative started persuading its workers not to get involved in union activities. And that immediately after Makinde’s redundancy, his position was advertised for in the media.

Challenging and in defence of the appellant/cross-respondent position, the respondent/cross-appellant gave a long history of the pleasant relationship between the two parties and particularly how the respondent/cross-appellant has

accommodated and supported Comrade Makinde in his union activities for about 12 years within which he held different executive positions in the appellant/cross-respondent union and within this same time, the respondent/cross-appellant sent him on overseas training and also promoted him. This is substantial evidence in favour of the respondent/cross-appellant that is not controverted at all in our view. Apart from Makinde’s undisturbed trade union activities for 12 years, the respondent/cross-appellant mentioned names of other active union members and union executives in the respondent/cross-appellant’s company. In addition the respondent/cross-appellant stated that the company is currently sponsoring one of its workers for the highest post in the appellant/cross-respondent union. We note the evidence of the respondent/cross-appellant as to the efforts it made in supporting unionism in the company; but we must point out that all of that amounts to interference with the freedom of the workers to associate and run their affairs in full freedom, independent of the employer.

With all these facts and glaring evidence, it is our considered opinion that the respondent/cross-appellant’s evidence far out-weighs that of the appellant/cross-respondent on this issue. Comrade Makinde was one of the three union executives affected out of a total of 330 workers in the company. We agree with the lAP’s findings on this issue which is to the effect that: “From the evidence available to the Tribunal, we find no real case of anti-union activities of the 2nd party”. And also that the ILO international Convention No. 135 and Recommendation 143 cited by the appellant/cross-respondent do not give general immunity to trade union members or trade union executives. According to the IAP, the Convention only protects them if the only reason for their being so affected was their union activities. See page 85 of the record. Beside, page 10 of the record contains the exhibited advert. On it the job title advertised for is Technical Operator packaging and not technical Operator labeller which was the last post held by Makinde in the respondent/cross-appellant’s company.

We therefore hold that Comrade Makinde’s redundancy effected in April 2006 was not as a result of his trade union activities. The respondent/cross-appellant has not violated in any way the provision of section 9(6)(b) of the Labour Act by effecting Comrade Makinde’s redundancy. The advertisement said to be placed immediately was actually put up in November 2006; that was 8 months after the April 2006 redundancy exercise. In our considered view this cannot be termed to be immediately after the redundancy.

The last issue for discussion is whether the IAP was right by finding and awarding redundancy benefits to Makinde up to 31st of November 2008 when the IAP gave its award.

With our decision on the issues above, it is our considered view that the pre-redundancy exercise meeting was properly held in compliance with the provision of section 20(1) of the Labour Act. None of the parties is under any obligation in that provision to mention/define/discuss how factors of relative merit etc are to be evaluated in redundancy exercise. Hence none of the parties is guilty of contributory negligence as pronoxmced by the IAP in its finding. The parties acted in full compliance with the relevant statute at their meeting on 24th April, 2006. See Agoma v. Guinness (Nig) Ltd [1995] 2 NWLR 672.

Besides, both parties agreed that the dispute arose as a result of redundancy exercise of April 2006. Section 20(3) Labour Act defines redundancy as an involuntary and permanent loss of employment caused by an excess manpower. This in essence means that Comrade Makinde lost his job with the respondent/cross-appellant company due to no fault of his. Therefore, Comrade Makinde is not entitled to additional benefit beyond April 2006 when his redundancy took effect.

We carefully read through the whole proceedings at the IAP and especially the findings and final award. We still could not understand how the IAP arrived at the award of stretching Comrade Makinde’s benefit up to 31st November 2008 when it made its pronouncement. That is well over two years after his employment has been legally determined on ground of redundancy.

In Ativie v. Kabelmetal Nig. Ltd [2008] 8 MJSC 82 at 93 D – F, the Supreme Court held as follows —

A claim is circumscribed by the reliefs claimed. The duty of “a plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.

We, therefore, hold that the 2nd award of the IAP has no basis and it is hereby set aside. We hold-that since the final benefit of Comrade Makinde was not in issue, the LAP had no power to make additional grant on it. We agree with the respondent/cross-appellant’s submission that the IAP had no power to make that order because it was beyond what was asked for.

For the avoidance of doubt we hold as follows –

1. That the redundancy earned out in the respondent/cross-appellant’s company in April 2006 was properly carried out and it was in full compliance with section 20(1) of the Labour Act.

2. That the redundancy of Comrade Lekan Makinde was not done out of the respondent/cross-appellant’s opposition to his union activities. The respondent/cross-appellant has not violated section 9(6) of the Labour Act in declaring Makinde redundant. We uphold the 1st award of the Industrial Arbitration Panel and so refuse to order the reinstatement of Comrade Makinde.

3. We set aside the 2nd award of the IAP and hold that there was no basis for the IAP to stretch the benefit of Comrade Makinde by well over two years when neither of the parties committed any contributory negligence as erroneously found by the IAP. We hold that the benefits of Comrade Makinde shall be calculated up to the end of April 2006 when his redundancy legally took effect.

This appeal is hereby dismissed in its entirety for lacking in merit. The cross-appeal, however, succeeds and, is therefore, allowed.

Judgment is entered accordingly. We make no order as to cost.

Hon. Justice B. B. Kanyip

Presiding Judge

Hon. Justice F.I. Kola-Olalere Judge Judge

Hon. Justice O. A. Obaseki-Osaghae