IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE THEIR LORDSHIPS:

HON. JUSTICE M. N. ESOWE                                      Presiding Judge

HON. JUSTICE A. N. UBAKA                                        Judge

HON. JUSTICE ELIZABETH A. OJI                           Judge

 

DATE:  TUESDAY 4^TH MARCH 2025                 APPEAL NO: NICN/LA/177/2023

 

BETWEEN

MARITIME WORKERS UNION OF NIGERIA      -           APPELLANT

AND

INTELS NIGERIA LIMITED                                        -           1^ST RESPONDENT

ASSOCIATE MARITIME SERVICES LIMITED     -            2^ND RESPONDENT

 

Representation:

B C Anyanwu (Mrs) with E F. Obidiegwu for the Appellant

Lawrence S. Oko-Jaja (SAN) with M. A. Bisong and S. Micheal for the 1^st Respondent

Godfrey Niger for the 2^nd Respondent

 

JUDGMENT

Introduction:

1.   This matter came to this Court by way of a Referral from the Minister of Labour and Employment in accordance with section 14(1) of the Trade Disputes Act, Cap T8, Laws of the Federation of Nigeria (LFN) 2004.  The Referral Letter is dated 20^th May 2023. In the Referral Letter, the Minister noted that “an objection has been raised by Maritime Workers Union of Nigeria (MWUN) to an Award made by the Industrial Arbitration Panel (IAP) in a dispute between Maritime Workers Union of Nigeria (MWUN), Intels Nigeria Limited and Associated Maritime Services (AMS).  The Referral Instrument itself is dated 25^th May 2023, and signed by the Honourable Minister of Labour and Employment.  The matter was thereafter assigned to be heard by this Panel in Lagos on 2^nd June 2023.  The matter was first mentioned on 26^th October 2023 and further mentioned before this Panel on 22^nd February 2024.  On the said 22^nd February 2024, the panel ordered parties to file their briefs starting with the Appellant.  The matter was adjourned to 25^th April 2024 to hear the appeal.  On the 25^th April 2024, the Appellant had filed its brief of argument.  The 2^nd Respondent informed the panel that it had filed a Notice of Preliminary Objection.  The matter was adjourned to enable the Appellant to respond to the 2^nd Respondent’s objection.  On the next adjourned date; 30^th May 2024, the 1^st Respondent also filed a Notice of Preliminary Objection.   The panel informed the parties of its intention to take the two objections, alongside the appeal; and all the parties consented to it.  The matter was therefore adjourned to the 10^th of December to hear the objections and the appeal. The objection was heard first, thereafter parties adopted their briefs of arguments and the matter was adjourned for ruling and judgment.

 

The Case of the Appellant:

2.   The Appellant is a duly registered trade union with the jurisdiction to unionise among others, all workers employed in the manning of ocean going, inland waterways, coastal and habour vessels or crafts afloat and all dock workers engaged in rendering dock services in the ports in Nigeria.  The Appellant’s members numbering six hundred and ten (610) dockworkers who had worked for the 2^nd Respondent (Intels Ltd) through the 2^nd Respondent(Associated Maritime Services) and other Stevedoring companies namely Ntel International Ltd, later Faitone Stevedoring Services Ltd, Joesco and Toresco Stevedoring Services Ltd as well as Modern Stevedoring Ltd had their employment terminated not in accordance with the termination of contract between the Respondents, thereby rendering the dockworkers redundant. The termination of the contract between the Respondents resulted in the laying off of 610 dockworkers at the terminals operated and run by the 1^st Respondent, without paying the terminal benefits that were due to the said dockworkers. The said Appellant members were laid off from their employment on 28^th February, 2021 following the termination of the stevedore service provision contracts between the 2^nd Respondent (the 1^st Respondent’s labour management contractor) and Modern Stevedoring Services Ltd and Faitone Stevedoring Services Ltd  (both of who were contracted to supply the 1^st Respondent with stevedore labour/ services. The nature of services rendered by the said six hundred and ten (610) dockworkers (members of the Appellant) to the 1^st Respondent at its Ports Terminals include loading and offloading of general cargoes and oil related cargoes.  It was the 1^st Respondent that instructed the 2^nd Respondent to terminate the contract agreement which resulted in the loss of employment of the six hundred and ten (610) dockworkers. It was the Appellant’s case before the IAP that the relationship between the affected dockworkers, the 1^st Respondent and the stevedoring companies is tripartite employment relationship. The 1^st Respondent is the employer of the affected dockworkers while the stevedoring companies and the 2^nd Respondent are its agents in the employment relationship, with the 2^nd Respondent serving as its employment manager. (Refer to paragraph 3(b),(c) and (i) of the 3^rd Party’s Memorandum at pages 834-835 of the record). 

 

3.   It was the Appellant’s case before the IAP that it is the dock labour industry standard for the  ports terminals operators to pay terminal benefits to severed dockworkers that served in their ports and that the said dock labour industry minimum standard was set up by the National Joint Industrial Council (NJIC) of the Maritime industry which consist of all the key players in the maritime industry to wit;  representatives of the 1^st Party, the Seaport Terminal Operators Association of Nigeria (STOAN), the Nigerian Maritime Administration and Safety Agency(NIMASA), the Nigerian Ports Authority (NPA) , the National Association of Stevedoring Companies and private Jetty operators.  The said Minimum standard for dock labour industry is incorporated and is contained in the collective bargaining Agreement between the Appellant and Seaport Terminal Operators Association of Nigeria (STOAN) 2020-2023 which the 1^st Respondent is a member of.  The Ports Terminal operators are recognized as the master stevedores for their respective terminals by the regulatory agencies (Nigerian Ports Authority and the Nigerian Maritime Administration and Safety Agency (NIMASA) and the ports concession agreements. As such dockworkers serving in any port terminal are deemed employees of the terminal operator irrespective of whether or not the terminal operator subcontracts its stevedoring activities to third parties. The 1^st Respondent being the concessioner and terminal operator of the Ports in which the Appellant’s six hundred and ten (610) members affected by this trade dispute worked, has the responsibility to pay terminal benefits to the said 610 dockworkers  as prescribed by the dock labour industry standards and the Collective Agreement between STOAN and the Appellant.  By the above stated STOAN and Appellant’s CBA, the minimum redundancy benefit for dockworkers who have worked for 10 years and above for general cargo terminal is N750,000 per dockworker to be paid by the terminal operator while the same terminal benefit due to any dockworker  who worked the same length of time for container terminal is N1,000,000.00.  Each of the affected dockworkers rendered their services to the 1^st Respondent since 2009 and 2010 and all have served the 1^st Respondent for over a period of 10 years and as such are entitled to be paid at least a minimum of N750,000 per dockworker as redundancy benefit by the 1^st Respondent.  It is the refusal by the 1^st Respondent to pay the dock workers their redundancy benefit that gave rise to this trade dispute

 

Appellant’s Argument

4.   The Appellant submitted four (4) issues for just determination by the Court; to wit:

 

(i)    Whether the Industrial Arbitration Panel (IAP) was right when it held the claim that the six hundred and ten (610) disengaged dockworkers were employees of the 1^st Respondent was not established and as such the 1^st Respondent is not liable to pay the six hundred and ten (610) dockworkers any terminal benefits?

 

(ii) Whether the Industrial Arbitration Panel was right when it held that the contracts of the stevedoring companies by virtue of which the  six hundred and ten (610) disengaged dockworkers worked at the 1^st Respondent’s terminal  was terminated  by effluxion of time and as such the resultant disengagement of the 610 dockworkers does not amount to redundancy?  

 

(iii)                 Whether the Industrial Arbitration Panel (IAP) was right when it held that the Appellant herein did not prove that the 1^st Respondent is a member of Seaport Terminal Operators Association of Nigeria (STOAN) to be bound by the Collective Agreement between the association and the Appellant? 

 

(iv)                 Whether the Industrial Arbitration Panel (IAP) was right when it dismissed the claim for payment of severance/redundancy benefits for the six hundred and ten (610) dockworkers?

 

5.   Issue one - Whether the Industrial Arbitration Panel (IAP) was right when it held the claim that the six hundred and ten (610) disengaged dockworkers were employees of the 1^st Respondent was not established and as such the 1^st Respondent is not liable to pay the six hundred and ten (610) dockworkers any terminal benefits?  The Appellant submits that assuming without conceding that there was no direct or disguised employment relationship between the 1^st Respondent, the 2^nd  Respondent and the 610 dockworkers, the Appellant having shown that binding collective agreement  between  the Appellant and the Seaport Terminal Operators Association which the 1^st Respondent is a member of (and which contains the industry minimum standards), imposed the responsibility of an employer to wit: to pay redundancy and retirement benefits  to dockworkers working in any seaport on the terminal operator, the IAP was therefore wrong in holding that the Appellant did not establish that 1^st Respondent is the employer of the said 610 dockworkers  and as such  the 1^st Respondent is not liable to pay the six hundred and ten (610) dockworkers any terminal benefits and we urge the Court to so hold and set aside this finding of the IAP.

 

6.   Issue two - Whether the Industrial Arbitration Panel was right when it held that the contracts of the stevedoring companies by virtue of which the  six hundred and ten (610) disengaged dockworkers worked at the 1^st Respondent’s terminal  was terminated  by effluxion of time and as such the resultant disengagement of the 610 dockworkers does not amount to redundancy.   The Appellant submits that the law is trite that a contract for a fixed duration automatically comes to an end on the date it is scheduled to expire. This principle is premised on the fact that, upon the coming into effect of the expiration date, the rights and obligations of the parties under it become extinguished and the agreement is no longer executor; so on 28^th February, 2019, the said stevedoring contracts which were scheduled to expire on that date automatically elapsed. The Appellant argued that there is equally ample evidence that after the expiration of those stevedoring contracts on 28^th February, 2019, the  Stevedoring companies were allowed to  continue to render dock services to the 1^st Respondent and they continued to carry out the work with the said 610 dockworkers and payments were also made by the 1^st Respondent through the 2^nd Respondent for the said services until 28^th February, 2021 (a period of two years) when the 1^st Respondent through the 2^nd Respondent terminated the stevedoring contracts resulting in the laying off of the workers.   The Appellant submits that the implication of the continued services is that fresh contracts were created by the parties through their conduct or put in another way, the expired contracts were renewed by operation of law through the conduct of the parties.  The Appellant referred to the case of Johnson v. Mobil Prod, (Nig) Unltd. (2010) 7NWLR (Part 1194) at 462 particularly at 504-505 paras. H-A. The Appellant argues that since the stevedoring contracts which were scheduled to terminate on 28^th February 2019 automatically came to an end on that date, it cannot be said to have been terminated on 28^th February, 2021 as claimed by the 1^st and 2^nd Respondents. Rather, what was terminated by the Respondents on 28^th February 2021 were the fresh contracts created by conduct of the parties and the  reason for the termination was  clearly stated to be  a cost saving measure that  led to the said contraction of workforce to wit; the laying off of the dockworkers specifically engaged for the 1^st Respondent’s dock services.

 

7.   Issue three - Whether the Industrial Arbitration Panel (IAP) was right when it held that the Appellant herein did not prove that the 1^st Respondent is a member of Seaport Terminal Operators Association of Nigeria (STOAN) to be bound by the Collective Agreement between the association and the Appellant.  The Appellant argued that established the 1^st Respondent’s membership in STOAN by the emails exchanged between the secretary of STOAN Uzamot Boye and Usaini Garba of the 1^st Respondent via his official email address; usaini.garba@intelsservices.com with the subject “TERMINAL OPERATORS ASSOCIATION DUES” conveying invoice for the 1^st Respondent’s membership dues and monthly operational exigencies and a printed out copy of another email from the same secretary of STOAN Uzamot Boye  communicating the outcome of terminal operators meeting to STOAN’s members and the 1^st Respondent is among the members communicated to (through usaini.garba@intelsservices.com). They referred he Court to these email communications at pages 134-136 of the record of appeal. They argue that 1^st Respondent on its own simply made an evasive denial of the fact that it is a member of STOAN without more neither did it deny those were email correspondences between it and STOAN.  The Appellant submits that having shown communications between the STOAN and the 1^st Respondent evidencing the 1^st Respondent membership of STOAN, the Appellant has discharged the burden on it to prove that the 1^st Respondent is a member of STOAN and urged the Court to so hold and set aside the IAP finding that the Appellant failed to prove that the 1^st Respondent is a member of STOAN to be bound by the collective agreement.

 

8.   Issue four - Whether the Industrial Arbitration Panel (IAP) was right when it dismissed the claim for payment of severance/redundancy benefits for the six hundred and ten (610) dockworkers? The Appellant argued that it is the termination of the stevedoring contracts of Faitone Stevedoring Services Ltd and Modern Stevedoring Services Ltd that resulted in an involuntary and permanent loss of employment of the six hundred and ten (610) dockworkers affected by this trade dispute and as such a redundancy of the workers occurred. They argue that this Court has in a plethora of its decisions in cases of mass loss of employment such  as the present case held that where the  Court finds that workers did not voluntarily withdraw their services, but were locked out and dismissed, and the employer is not prepared to reinstate them, then the workers will be entitled to redundancy benefits in the circumstances. See Grizi (Nig) Ltd v. Grizi (Nig) Ltd and Group of Companies Workers (1978-2006) at page 2 particularly at page 4. The Appellant argues that the 1^st Respondent as a concessioner and terminal operator of the Ports in which the Appellant’s six hundred and ten (610) members affected by this trade dispute worked, has the responsibility to pay terminal benefits to the said six hundred and ten (610) dockworkers affected by this trade dispute as prescribed by the dock labour industry standard and the STOAN and Appellant’s Collective Agreement; as per  Article 6(a) of the CBA between the Appellant and STOAN 2020 to 2023.   The Appellant submits having shown that the 1^st Respondent is a member of STOAN, the 1^st Respondent is therefore a beneficiary of the collective agreement between the Appellant and STOAN and as such, it is bound by the said collective agreement and is under obligation to pay the 610 dock workers affected by this trade dispute redundancy benefits in accordance with the applicable scale in the collective agreement. 

 

The Case of the 1^st Respondent

9.   The 1^st Respondent as the concessionaire of Onne Federal Ocean Terminal (FOT) and Federal   Lighter   Terminal(FLT),Warri  and Calabar Ports manages the Ports by providing equipment, facilities  and generally, manages the Ports to the benefit of end users such as  Stevedore,Chandelier, International  Oil Companies (IOCs), Shippers, Importers and Vessels that berth at the Ports.These companies also have their offices and staff within the Ports including the 2^nd Respondent.  When  ships  berth at the  Ports, the  1^st Respondent  is  responsible for the provision of facilities for the smooth operations of the vessels,however in such areas where other companies have competency,it engages such companies to carry out the assignment on   contract   basis.  Hence   in   2018, the   1^st Respondent   being   the   concessionaire entered into agreement with the 2^nd Respondent a Stevedore Company.  Apart  from  the  said  agreement, the 1^st Respondent  from  time  to  time  engages  the services  of  the  2^nd   Respondent  who  is  a  Licensed  Labour  Services  Company  to provide Labour Services to the 1^st Respondent.    As  a  result  of  the  COVID-19  Pandemic  and  the  Federal  Government  Policy which declassified the Ports i.e.not reserving certain Ports for berthing of oil Tanker Vessels at Onne and other Designated Ports only but all the Ports in Nigeria; these vessels no longer berth at Onne Ports,but Lagos Port which is nearer and cheaper for the IOCS. This resulted in the loss of revenue by the 1^st Respondent and consequentially, the 1^st Respondent terminated  the  manpower  supply  contract  of  1998.  As  usual  the  2^nd  Respondent through the Appellant went on  industrial action  by embarking on strike. This resulted in action between the 1st Respondent and the Appellant at the National Industrial  Court, in NICN/PHC/155/2020 Between: Intels Nigeria Limited v. Comrade Mohammed Yunusa & 14 Ors (for themselves and representing disengaged members of Maritime  Workers Union of Nigeria).  The  agreement  for  manpower  supply of 1998 and the Stevedore Contract of 2018 between the 1^st and 2^nd Respondents  are  different. It is the stevedoring contract of 2018 that is the subject of this appeal emanating from  Arbitration and not the 1998 Manpower Supply Contract. Prior to 2006-2007,the Appellant Members were all casual workers without being employed by any  company.With  the  privatization,this  practice  was  abolished.  Each  company  now employs dockworkers they can afford, hence the existence of abour and  manpower supply companies like the 2^nd Respondent who employs members of the Appellant and deploys them to companies with whom they  have  labour contract with  like the  1^st Respondent.  As  a  Stevedore  and  Labour  Contractor  duly  licensed  by  the  Federal  Government, following the abolition of casual  labour, the 2^nd Respondent employed  the  Appellant’s members.  On  being  employed, the  person  now  registers  with  the  Appellant. When bidding for contract as in this case, the labour companies quote the number of persons they will use, the amount they will pay each based on the tonnage of cargo involved.This  was  what  was   done   by  the   2nd  respondent  in  this   case.  The  total contract sum involved is based on the cumulative of the various heads of charges and commission.  The  company  engaging  the  services  of  the  Labour Contractor have no dealings with members of the Appellant.  Such companies deal with the labour companies just as  1^st Respondent dealt only with 2^nd Respondent.   Having   quoted  so   much  as  the   number  of  personnel  they  will   use, whether  they actually  use  that  number,the  1^st Respondent  does  not  know  and  this  is  how  the  2^nd Respondent actually makes its money.  It is the 2^nd Respondent  as  a stevedoring  company  that  uses  the  services  of  the Appellants members while the 1^st Respondent is merely the concessionaire of the port providing  and  maintaining  facilities  for  all  port  users.  The   1^st Respondent’s  duty  also includes  receiving  vessels  that  berth  at  the  port,  thus  when  there  is  a  downturn  in respect  of  traffic   of  vessels   that   berth  at  the  port, it  affects  the   1^st Respondent negatively.  It also affects the 2^nd Respondent because the 1^st Respondent will not have any job for the 2^nd Respondent who engages its members for the jobs.

10.   It was the 1^st Respondent's case before the Industrial Arbitration Panel that in respect of  this particular contract the subject of this matter before this Court between the 1^st and 2^nd  Respondents,  the commencement date as per exhibits M1 clause 6 at  page 898 of the Record of Appeal is 1^st January 2018 and the completion date is 2^nd  January 2019.  In otherwords, the terminal date of the contract by effluxion of time is 2^nd January 2019.  For annexure N1 as per clauses 6, at page 912 of the Record of Appeal  the  commencement  date  is  23^rd  January  2019  and  the  completion  date  23  January 2020,  In otherwords the terminal date of the contract by effluxion of time is 23 January 2020.  Thus  the  Stevedore  contract  between  the   1^st  and  2^nd Respondents  ended  by  effluxion of time.  It is this termination of the said contract by efluxion of time that necessitated the 2^nd Respondent issuing termination letters to the members of the Appellant and to the other stevedoring companies engaged by the 2^nd Respondent to do some of its work as can be evidenced in the letters from the 2^nd Respondent to Jesco and Tonesco Enterprises at page 896 of the Record of Appeal and the letter from the 2^nd Respondent to Faitone Stevedoring Services Limited at page 897 of the Record of Appeal.

 

1^ST RESPONDENTS ARGUMENT

11.   The 1^st Respondent raised three issue for determination in this appeal, to wit:

(i)             Whether the Industrial Arbitration Panel was right when it concluded its findings and  gave  its  award  that  the  1^st Respondent  is  not  liable  to  pay  the  610 dockworkers  any  terminal  benefits,they  not  being  employees  of  the   1^st Respondent.

(ii)          Whether  the  Industrial  Arbitration  Panel was  right when  it  held in its award that the  contract  between  the  2nu  respondent  and  the  stevedoring  companies  was terminated  by  effluxion  of time  and therefore the  1st  respondent  is  not  liable  to pay  any  redundancy  benefit  to  the  staff  of  the  said  stevedoring  companies,the 15 respondent not being party to the said contract.

(iii)       Whether  the  Industrial  Arbitration Panel was right when it held that the appellant did  not  prove  that  the  1s  respondent  is  a  signatory  to  the  collective  Bargaining agreement  or  a  member  of  the  Seaport  Terminal  Operators  Association  of Nigeria(STOAN)and    therefore     not     bound      by    the     collective     bargaining agreement  between  the  association  (STOAN)and  the  appellant.

12.   On issue one, “Whether  the  Industrial  Arbitration  Panel  was  right  when  it  concluded  its  findings and  gave   its  award  that  the   1^st Rrespondent   is   not   liable   to   pay   the   610 dockworkers   any   terminal   benefits, they   not   being   employees   of   the    1^st Respondent”.  The 1^st Respndent submits that the  claim of the appellant  sinks  or  swims  on  whether  they  are  able  to  prove  that they were employed by the 1^st Respondent and that the 1st Respondent denied the averments of the appellant on this issue.  The 1^st Respondent argued that the issue of Casual Workers in the pool of the appellant came to an end in 2007 when the Ports were privatized or concessioned.  The 1^st Respondent further submits that with the failure of the appellant to exhibit the employment letters of the 610 so called employees of the  1^st Respondent as emanating  from  the  1^st Respondent, their case is bound to fail.  The 1^st Respondent further submits that the letters of employment of the 610 dockworkers, that is the bundles of letters of employment as can be found at pages 145-757 of the record of appeal  do  not  support  the  argument. 

13.   Issue two – Whether Industrial Arbitration Panel was right when it held in its award that the contract between the 2^nd respondent and stevedoring companies was terminated by effuxion of time and therefore the 1^st respondent is not liable to pay any  redundancy  benefit  to  the  staff  of  the  said  stevedoring  companies, the 1^st respondent not being party to the said contract.  The 1^st Respondent submits that the Industrial Arbitration Panel was right in its award when it held that the contract of the stevedoring company was terminated by effluxion of time and  was  never  revived  as  against  the  argument  of  the  appellant   before  this Honourable Court in paragraph 5.3 of the Appellant's brief of argument and thus the 1^st Respondent is not liable to pay any redundancy benefit.  The 1^st Respondent submits that it could  not  have  declared  the members  of  the  appellant  redundant  because  the  members  of  the  appellant  were  never employees of the  1^st respondent and therefore could not have been declared redundant   by   the    1^st  respondent.  Rather, it   was   the    2^nd Respondent   who    had a contractual relationship with Faitone stevedoring services limited, Joesco and Tonesco Enterprises and Modern stevedoring services Limited and that contract between the 1^st   respondent and the named companies were terminated on the 28 February 2019 as  can be seen at clause 6.1 at page 44 of the Record of Appeal. The 1^st Respondent also submits that a claim of redundancy amounts to a claim for special damages and that the law   is  that   such  claim   must   be particularized  and  proved.  See  the  case  Johnson  v. Mobil  Producing  (Nig)Ltd  (2010) 7NWLR  (Pt.1194)P 462  @p.506  Para  G-507  Para  F).  The 1^st Respondent submits that Counse's brief or address cannot take the place of pleadings no matter how well prepared.  That, the Appellants having failed to particularize the claim for special damages, the court cannot at this appellate level begin to consider the issue of special damages based on particulars not pleaded but subsumed in the appellant's addrcss.  That it was based on this lack of particularization that the  Industrial Arbitration Panel at paragraph 4.6 to 4.7 at page 974 of the record of appeal found that:

4.6 The 18 party also merely dumped the condition of service of OSBAS annexure 5 of the further and better memo on the panel without explaining the entitlement of each dockworker.Moreso,we do not find how the said document relates to the 2m party.We agree with the view of the 2"party that this is not the job of the panel to engage jn mathematical gymnastic by calculating the entitlement of each of the 610.

14.   Issue three - Whether the Industrial Arbitration Panel was right when it held that the appellant did not prove that the 1^st respondent is a signatory to the Collective Bargaining Agreement or a member of the Seaport Terminal Operators Association of Nigeria (STOAN)and     therefore     not     bound     by     the Collective Bargaining Agreement between   the   association   (STOAN)and   the   Appellant.  The 1^st Respondent argues that it is not a member of Seaport Terminal Operators Association of    Nigeria (STOAN) and not  bound by the collective Bargaining Agreement. The 1^st Respondent submits that there    is nothing   before   this    Court to show the 1^st Respondent's membership of STOAN.  The 1^st Respondent referred to the Appellant’s brief (paragraph   6.3) where it referred   this Court  to the email    communications between Uzamot Boye, secretary of STOAN and Usaini Garba, as evidence of the 1^st Respondent's membership of the Seaport Terminal Operators Association of Nigeria (STOAN).  The 1^st Respondent argues that the said email communications are  annexures 10A  and   10B  which  can  be  seen  at  pages   134  -136 of the  Record  of  Appeal.  The 1^st Respondent argues that the Annexure    10A  and 10B are neither an official or unofficial communication from the Seaport Terminal Operators   Association of Nigeria (STOAN) in  the  sense  that:

(a) Annexure   10A is a forwarded message dated 15 February 2008 by an unknown person to Uzamot   Boye.  The said Uzamot Boye received annexure 10A in his private  email  box  uzamotboye@gmail.com who  now  forwarded  the  same   message to usainegarba@yahoo.com and CC to usaine.garba@intelservices.com       .

(b)Neither Uzamot Boye nor Unsainegraba@yahoo.com acted either for STOAN nor the   1st   respondent.  That the Annexure 10A did  not carry the letterhead paper of STOAN.

(c) A    look    at   Annexure    10B    at    page    136    of    the    Record    of    Appeal    captioned “OUTCOME    OF    MEETING  OF TERMINAL OPERATORS  OF    TUESDAY  26^TH MARCH 2013” shows that it is a forwarded message by  “tessy.kuagbecha@enlco     …”who now forwarded the said email message on the 27  day of march to various email addresses.  This  forwarded  email   is  also  a  private email ommunication which also has no bearing or connection with the 1^st Respondent.

(d)            Annexure  10A  and  10B  were   made  on  the   15th  day  of  February  2008  and  27"day of  March  2013  respectively  whereas  the  contract, the  termination  of  which  and  the quest  for  the  redundancy  benefit  was  terminated  in  2019 (in  annexure  2b  at  page 44  and   annexure  F1  at   page  866  of  the   record  of  appeal).  Thus  the  said   annexure 10AB  and  10  has  nothing to  show that  as  at  2019 the  1^st respondent  was  a  member of  the   Seaport  Terminal  Operators  Association  of  Nigeria  (STOAN).

(e) Annexures 10A and 10B were not signed by anybody as to give it some sort of legitimacy that it is coming from a known person.

15.   The 1^st Respondent therefore submits that Annexure 10A and 10B have no evidential value in this case and have no relationship whatsoever with the 1^st respondent in proof of 1^st respondent’s said membership of STOAN.The appellant also relied on annexure 7 at page 87 of the record of appeal which is the collective bargaining agreement between STOAN and the appellant, Maritime WUN to show that the appellant is a member of STOAN and therefore bound by annexure 7.  The 1^st Respondent submits that annexure 10A and 10B not having been signed by anyone cannot be said to bind the 1^st respondent as it was neither sent to the 1^st respondent or  showed to have been sent by an officer of STOAN and signed as such.  The 1^st Respondent points to the position of  the law that unsigned documents have no probative value in law, and submits that the said annexures in no way proves that the 1^st Respondent is a member of the Seaport Terminal Operators Association of Nigeria (STOAN). 

16.   The 1^st Respondent also argued that it must also be shown that the CBA entitles individual members to bring an action for and against based on the collective agreement; and that in law collective agreements are not binding  and  its  contents  cannot  be  enforced  in  the  law  courts  except  through negotiation and reconciliation.  The 1^st Respondent submits that it is therefore out of place for the appellant to base part of their heads of claim on a collective agreement that in law is unenforceable.  The 1^st Respondent referred to the cases of Osoh v Unity Bank Plc (2013)9 NWLR(Pt 1358)P.26 Para H to p.27 Para A which held that; “collective  agreements between an employer  and  employees, or between an employer and union of employees are not intended to create any legal relations  giving  rise  to  any  contractual  obligations  and  are  therefore  not justiciable.”  The case of U.B.N Ltd v Edet (1993)4 NWLR (Pt 287)(P.298,Para C;H), and Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR(Pt.642)(P.613,Para  C).

The Case of the 2^nd Respondent:

17.    The 2^nd Respondent is a duly registered indigenous and independent stevedoring company in Nigeria under the Companies and Allied Matters Act and a licensed Labour recruiter agent of the federal Ministry of Labour and Employment and a registered dock labour employer and Stevedoring company by the Nigerian Maritime Administration and Safety Agency (NIMASA) the regulatory agency of the maritime industry established under the Nigerian Maritime Administration and Safety Agency Act 2007. The Appellant on behalf of its members (Dockworkers) usually negotiates with the 2^nd Respondent, the terms of employment and conditions of service of the dockworkers which evidenced in the Collective Bargaining Agreement (CBA) endorsed by both parties to the agreement, for a four-year term which is subject to future negotiations upon expiration. (see pages 77-84, 924-931 of the Records of Appeal).  The 1^st Respondent sometimes engages the services of the 2^nd Respondent on a contract of service to carry out stevedoring services at its operational terminals, cargoes, boats and barges, at an agreed fee as its remuneration. The first contract between the 1^st and 2^nd Respondent was for the 2^nd Respondent to provide stevedoring services on board ocean going vessels at Onne, Calabar and Warri ports from the 1^st of January 2018 – 2^nd of January 2019. (see pages 898-911 of the Records of Appeal). The second Stevedoring contract between the 1^st and 2^nd Respondents, was for the 2^nd Respondent to provide stevedoring services on board ocean going vessels for cargoes of Dangote Petrochemical Refinery and fertilizer project, from the 23^rd of January 2019- 23^rd January 2020. (see pages 912-920 of the Records of Appeal). The third stevedoring contract between the 1^st and 2^nd Respondents, was a tripartite joint venture agreement with Modern Stevedoring Services Limited, an indigenous stevedoring company duly registered and recognized dock labour employer by the Nigerian Maritime Administration and Safety Agency(NIMASA) and the stevedoring agreement, was a guideline on how the three entities were to discharge the bulk liquid cargoes at the Federal Ocean Terminal Onne, from the 1^st of January 2018 – 31^st December 2018. (see pages 932-935 of the Records of Appeal). That in other to meet up with its contractual obligations with clients, the 2^nd Respondent entered into a stevedoring contract with other independent stevedoring companies and dock labour employers, duly registered and recognized by the Nigerian Maritime Administration and Safety Agency, to carry out stevedoring services for its clients on a one off basis for an agreed fee as its remuneration.  Some of those stevedoring companies and dock labour employers includes; Nted International Limited now known as Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises. The first stevedoring contract between the 2^nd Respondent and Nted International now known as Faitone Stevedoring Services Limited was on the 1^st of January 2004, for the company to carry on the stevedoring services of Loading of Coated Pipes at the Federal Ocean Terminal (FOT) and the Federal Light Terminal (FLT) Onne at an agreed fee as its remuneration on a one off bases. (see pages 8-9, 877-879 of the Records of Appeal). Thhe second stevedoring contract between the 2^nd Respondent and Nted International Limited now known as Faitone Stevedoring Services limited was for the company to carry on stevedoring services on board service boats and barges at the Federal Ocean Terminal (FOT) and the Federal Light Terminal (FLT) Onne, from the 1st of March 2018,with an expiry date of 28th February 2019, at an agreed fee of Thirteen Million Naira ( N13,000,000) as its remuneration on a one off basis, (see pages 33-54, 884-895 of the Records of Appeal).

 

18.   After the stevedoring contract between the 2^nd Respondent and Nted International Limited now known as Faitone Stevedoring Services Limited had elapsed by effluxion of time on the 28^th of February 2019, the Stevedoring company continued to provide stevedoring services to the 2^nd Respondent, and was paid for the additional stevedoring services, but on the 10th of February 2021, the 2^nd Respondent terminated the additional stevedoring services rendered by the stevedoring company, and reminded the stevedoring company the fact that the contractual obligations each party owed the other had been determined by effluxion of time on the 28th of February 2021. (see pages of the Records of Appeal) With regards to Tonesco & Joesco Enterprises, the first stevedoring contract between the 2^nd Respondent and Tonesco & Joesco Enterprise was on the 2^nd of January 2003, for Tonesco & Joesco Enterprise to provide stevedoring services and maintenance at the federal Ocean Terminal (FOT) and Federal Light Terminal (FLT) Onne, Warri and Calabar Ports, on a one off basis, at an agreed fee as its remuneration. (see pages 858-861 of the Records of Appeal).  The second stevedoring contract between the 2^nd Respondent and Tonesco & Joesco Enterprise commenced on the 1st of March 2018 and elapsed on the 28th of February 2019, and the contract was for Tonesco & Joesco Enterprise to provide stevedoring services on board ocean going vessels at Onne, Warri and Calabar ports, on a one off basis at an agreed fee of Ten Million Naira (N10,000,000.00), (see pages 866-894 of the Records of Appeal). The stevedoring enterprise continued to render additional stevedoring services to the 2^nd Respondent, which were acknowledged and paid for by the 2nd Respondent, but on the 10^th  of February 2021, the 2^nd Respondent terminated the additional contractual relationship between the patties reminding the Stevedoring enterprise the fact that the main contractual obligations each party owed to the other had been determined by effluxion of time on the 28th of February 2021. Few months after the 2^nd Respondent had officially written to Nted International Limited now known as Faitone Stevedoring Services Limited and  Joesco & Tonesco Enterprises, terminating the additional stevedoring services rendered by the two entities, after the expiration of the main stevedoring contract on the 28^th of February 2019, the Appellant wrote the 2^nd Respondent vide a letter referenced MWUN/MD/AMS.HQ/RPTB.2/4.21 and dated the 20^th of April 2021, claiming that 270 dockworkers in the employ of Joesco & Tonesco now known as Faitone Stevedoring Services Limited were laid off from their jobs at the instance of the 2^nd Respondent, demanding that the 2^nd Respondent pay the terminal benefits of the 270 disengaged dockworkers.  Based on the documents exhibited by the Appellant at the Industrial Arbitration Panel, the 2^nd Respondent got to know that similar notices of demand were made to the 1^st Respondent, with respect to 210 dockworkers claimed to have worked for Modern Stevedoring Services Limited vide a letter referenced MWUN/MD/INTELS/RP.5/HQ.8, dated the 30th of July 2021.(see pages 122-123 of the Records of Appeal), and another demand letter referenced MWUN/MD/INTELS/RP.6/HQ.8, dated the 15th of February 2022 with respect to 69 dockworkers of Joesco & Tonesco Enterprises, 270 dockworkers of Faitone Stevedoring Services Limited and 210 dockworkers with respect to Modern Stevedoring services Limited. (see pages 124-125 of the Record of Appeal).  In furtherance to the above demands, the Appellant wrote to the Permanent Secretary, Federal Ministry of Labour and Employment vide a letter referenced MWUN/PM/FL&E.1/P/8, and dated the 9^th of August 2022 informing the Permanent secretary of a looming industrial unrest in all the nations port terminals, jetties and oil and gas platforms, due to the unfair labour practice of the 1st and 2^nd  Respondents and their refusal to pay dockworker their statutory terminal benefits.  Based on the above letter, the Honourable Minister of Labour and Employment appointed a mediator to settle the matter between the parties, but when mediation failed, the Honourable Minister of Labour and Employment on the 3rd of October referred the matter to the Industrial Arbitration Panel in the exercise of the powers conferred on him in section 9 of the Trade Disputes Act, Cap T8 LFN 2004, for the Industrial Arbitration Panel to enquire into the trade dispute between the parties over the disengagement and non-payment of the terminal benefits to 610 dockworkers who are members of the Appellant.(see pages 976-977 of the Record of Appeal). 

 

19.   At the hearing of the trade dispute before the Industrial Arbitration Tribunal, it was the Appellant’s claim and submission that its members numbering six hundred and ten (610) that worked for the 1st Respondent at the 1st Respondent’s port terminal between the period of 2009 to the 29th of February 2021 as dockworkers, were laid off from their employment following the termination of the stevedoring contract between the 2nd Respondent and Modern stevedoring services Limited and Faitone Stevedoring Service Limited.  That the contract was terminated on the instructions of the 1^st Respondent, because the 2^nd Respondent is the labour manager of the 1st Respondent and that the relationship between the affected dockworkers and the 1st and 2nd Respondent is a tripartite employment relationship. That the termination of the stevedoring contract between the 2nd Respondent and Modern Stevedoring Services Limited, resulted in the dockworkers becoming redundant, but that the 1 st and 2nd Respondents have refused to pay the 610 redundant dockworkers their redundancy/terminal benefits.  That based on the dock labour industrial minimum standard set up by the National Joint Industrial Council which consist of all the key players in the maritime industry such as the NPA, NIMASA and STOAN, that terminal operators are recognized as the master stevedores of their respective port terminals and as such dockworkers working at their operational port terminals are deemed the employees of the terminal operators and the terminal operators the employers of the dockworkers irrespective of the fact that such jobs had been contracted out to other third parties. That based on the dock labour industrial minimum standard set up by the National Joint Industrial Council, the minimum standard benefits payment for dockworkers who have worked for ten (10) years and above for general cargo terminal is Seven Hundred and Fifty Thousand Naira (N750,000.00) per dockworker. That the 1st Respondent being a member of the Seaport Terminal Operators Association of Nigeria (STOAN), is bound by the Collective Bargaining Agreement (CBA) between the Appellant and the association on the conditions of service which has the contents of the dock labour industrial minimum standard set up by the National Joint Industrial Council.   It was the submission and averment of the 1^st Respondent at the Industrial Arbitration Tribunal, that it was not a member of the Seaport Terminal Operators Association of Nigeria (STOAN) and therefore not bound by the Collective Bargaining Agreement between the Appellant and STOAN, that the 2nd Respondent was not the agent of the 1st Respondent as such the 2nd Respondent did not terminate the stevedoring contract with Modern stevedoring Services Limited and Joesco & 6Tonesco Enterprises on the instructions of the 1st Respondent, and finally that the 610 disengaged dockworkers are not its employee and that it’s not liable to pay them any terminal benefits. It was the submission of the 2nd Respondent at the Industrial Arbitration Tribunal, that the contract between it and Modern Stevedoring Services Limited, Faitone Stevedoring Services Limited and Joesco & Tonesco Enterprises had elapsed by effluxion of time, and that the stevedoring companies it entered into a contract with, were independent contractors who were responsible for the recruitment of their personnel, and that there were well remunerated. That the 1^st and 2^nd Respondents are not liable to the Appellant for the payment of the terminal benefits to the 610 disengaged dockworkers, that those who should be held liable should be Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises who are their employers and those who also laid them off from their work.  At the conclusion of hearing, the Industrial Arbitration Panel made its findings and gave its award, which was communicated the parties by the Honourable Minister of Labour and employment through the Director of Trade and Industrial Relations, Federal Ministry of Labour and Employment, vide a letter dated the. The Industrial Arbitration Panel in its award held that the Appellant failed to establish that the 610 disengaged dockworkers were the employees of the 1st Respondent and that the determination of their employment is redundancy that entitles them to be paid redundancy benefits. Dissatisfied with the findings and Award of the Industrial Arbitration Panel, the Appellant based on the exhibit attached to its counter-affidavit and written address in response to the preliminary objection of the 2nd Respondent dated the 16th of April 2024, raised an objection to the Honourable Minister of labour and Employment, against the award of the Industrial Arbitration Panel vide a letter reference MWUN/HM/FML & E/MTML/2023, and dated the15th of May 2023.

 

2^ND RESPONDENT’S ARGUMENT

20.   The 2^nd Respondent raised four issue for determination in this appeal, to wit:

(a) Whether the Industrial Arbitration Panel was right to have held in its award, that the Appellant had failed to establish its claims against the 1^st and 2^nd Respondents.

 

(b) Whether the 2^nd Respondent and the Stevedoring contractors namely; Nted International Limited now known as Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises can be classified as independent contractors, self-employed persons and vendors.

 

(c) Whether the stevedoring contract between the 1^st and 2^nd Respondent and the Stevedoring contractors namely; Nted International Limited now known as Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises can be classified as contract for service.

 

(d) Whether the National Industrial Court of Nigeria has the jurisdiction to entertain matters that border on contract for service.

 

21.   Issue one -  Whether the Industrial Arbitration Panel was right to have held in its award, that the Appellant had failed to establish its claims against the 1^st  and 2^nd Respondents.  The 2^nd Respondent submits that the Industrial Arbitration Panel was right to have held in its award that the Appellant failed to establish its claims against the 1^st and 2^nd Respondent, based on the fact that the information contained in the bundle of employment letters exhibited by the Appellant, at pages 145-757 of the records of Appeal, are inconsistent and contradictory to the Appellants claims and its exhibits in pages 120- 127 of the records of appeal. That while the Appellant claimed that its members (610 disengaged dockworkers) were employed by the 1^st and 2^nd  Respondent in 2009, information on those employment letters has Modern Stevedoring Services Limited and Faitone Stevedoring Services Limited as the employers. The 2^nd Respondent further submits that the Industrial Arbitration Panel was right to have held in its award that the Appellant failed to establish its claims against the 1st and 2nd Respondent, based on the fact that the information contained in the bundle of employment letters exhibited by the Appellant, at pages 145-757 of the records of Appeal, were dumped on the Panel by the appellant, without explaining or tying the employment letters to its case.

 

22.   On issue two - Whether the 2^nd  Respondent and the Stevedoring contractors namely; Nted International Limited now known as Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises can be classified as independent contractors, self-employed persons and vendors.   The 2^nd Defendant argues that an independent contractor refers to a self- employed individual or entity contracted to perform work or provides services to another person or entity as a non-employee, it also refers to a person or entity hired to do work, and who controls how work is done. The 2^nd Respondent argues that the stevedoring contract between the 1^st and 2^nd Respondent, placed the obligation for the supply, control and management of dockworkers on the 2^nd Respondent as an independent contractor; and that the 2^nd Respondent as an independent contractor, had the unfettered power to control, supervise and manage all the dockworkers engaged in the provision of stevedoring services to the 1^st Respondent in the stevedoring contract between the 1^st and 2^nd Respondent as per clause 2,3,4,6,9 and 18 of  appendix 1 at pages 915-916 of the Records of Appeal). The 2^nd Respondent then submits that it was an independent contractor in the Stevedoring contract between the 1^st and 2^nd Respondent.  The 2^nd Respondent further submits that the stevedoring contract between the 2^nd Respondent, and Modern stevedoring services Limited, Nted International Limited now known as Faitone Stevedoring Services Limited, and Joesco & Tonesco Enterprises; were contracted between independent and separate entities that are duly registered in Nigeria by the Corporate Affairs Commission (C.A.C), because the NIMASA ACT 2007 requires Stevedoring Companies and Dock Labour employers to submit their incorporation documents with the body for them to be registered and issued with licenses to operate as stevedoring companies within the maritime industry in Nigeria.

 

23.   Issue three - Whether the stevedoring contract between the 1^st and 2^nd Respondent and 2^nd Respondent and the Stevedoring contractors namely; Nted International Limited now known as Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises can be classified as contract for service, and whether the National Industrial Court of Nigeria has the jurisdiction to entertain matters that border on contract for service. The 2^nd Respondent referred to the case of Shena Security Co. ltd v. Afropak (Nig) Limited & 2 others (2008) 18 NWLR (pt.1118) 77 SC; and argues that the case laid down factors that should guide courts in determining the kind of contract parties have entered into.  The 2^nd Respondent restated the nature of the relationship between the parties, but without a conclusion whether the NIC has jurisdiction to entertain this suit or not.

 

24.   Issue four - Whether the National Industrial Court of Nigeria has the jurisdiction to entertain matters that border on contract for service. The 2^nd Respondent here submits that the jurisdiction of the National Industrial Court only covers disputes relating to contract of service and does not cover matters relating to contract for service; that cases involving independent contractors, self-employed persons or vendors engaged for a fee to carry out an assignment or project, are not justiciable before the National industrial court.

 

APPELANT’S REPLY TO THE RESPONDENTS’ BRIEF OF ARGUMENT

 

25.   In response to the Respondents’ separate arguments, the Appellant argued that in its argument in support of its issue 1, and the 1^st Respondent’s denial at the IAP that it was not the employer of the 610 affected members of the Appellant; the Appellant failed to produce employment letters issued to the said workers by the 1^st Respondent and as such the Appellant failed to establish by credible evidence its claim that the said 610 disengaged dockworkers actually worked for the 1^st Respondent from 2009 to 2021 and were its employees.  That the 2^nd Respondent equally argued in paragraph 4.3 of its brief that the Appellant alluded to an agency relationship between the 1^st and 2^nd Respondent in the employment of the 610 dockworkers but failed to adduce credible evidence before the IAP to prove the existence of that agency relationship and equally failed to prove that the stevedoring contracts  between 2^nd Respondents and the stevedoring companies were terminated by the 2^nd Respondent based on the instructions of the 1^st Respondent.  The Appellant submits that the above stated arguments of the 2^nd Respondent are misconceived; and that the 2^nd Respondent cannot approbate and reprobate at the same time. The Appellant submits that both the 1^st and 2^nd Respondents did not deny that the 610 dockworkers affected by this trade dispute worked for the 1^st Respondent in its port terminals by virtue of the above stated stevedoring contracts; and also clearly admitted the fact of its agency in the working relationship between the 1^st Respondent and the affected 610 dockworkers/the stevedoring companies that engaged them. The Appellant’s case is simply that the said 610 (six hundred and ten) dockworkers are deemed employees  of the 1^st Respondent  by the dock labour industry minimum standard  owing to the fact that they all rendered their dock services  in the 1^st Respondent’s Port Terminals for over a period of 10 years until the termination of the stevedoring contracts of Faitone Stevedoring Services Ltd and Modern  Stevedoring Services Ltd on the said terminals on 28^th  February, 2021 and by virtue of the Collective Bargaining Agreement between the Seaport Terminal Operators  Association of Nigeria (STOAN) which the 1^st Respondent is a member of which vest the responsibilities of an employer in such circumstances  on terminal operators and the 1st Respondent is the operator of the terminals in which the said 610 dockworkers rendered dock services.  On 1^st Respondent’s argument that there is no nexus between the 1^st Respondent and annexure 6 attached to the Appellant’s memorandum before the IAP(the email stated by the Appellant in its Memorandum to have been written by the 1^st Respondent to the 2^nd Respondent instructing for the termination of the stevedoring contracts of Faitone Stevedoring Services Ltd and Modern Stevedoring Services Ltd under which the 610 dockworkers worked.  The Appellant argues that annexure 6 is a private document between Husseine Usman and one Mike (surname unknown) and that the duty of this Court is to do justice and not to dwell on technicalities. 

 

26. On 2^nd Appellant’s argument that that the National Joint Industrial Council is unknown to law  and does not have the legal capacity to make regulations or set up a minimum standard for entities operating in the maritime industry, the Appellant submits that this argument is misconceived, as the NJIC is a body established pursuant to Section 18 of  the Wages  Boards and Industrial Council Act 1973 for different industries in Nigeria for the purpose creating collective agreements for workers and employers within the industry; and further submits that the provision for payment of redundancy benefit contained in Clause 6 of the STOAN and MWUN CBA is cogent , credible or verifiable and clearly prescribes for payment of redundancy benefit/ payment of retirement benefit to aged dockworkers and those with health issues. On the legal capacity of the Seaport Terminal Operators Association of Nigeria (STOAN); an entity registered under Part F of the Companies and Allied Matters Act 2020 to enter into a binding and enforceable contract with other entities under the name and style of Seaport Terminal Operators Association of Nigeria relying on the case of Fawehinmi v. NBA, the Appellant responded that while the case of Fawehinmi v. NBA deals with the legal capacity of unincorporated associations to sue or be sued, the 2^nd Respondent’s argument deals with the capacity of such association registered under Part F of CAMA to enter in contracts. The Appellant argues that the Labour laws in Nigeria recognize the legal status of employers’ associations which STOAN is one of to enter into collective bargaining Agreements. On the argument of the 2^nd Respondent that the Appellant dumped the employment letters on the IAP without explaining or tying the employment letters to its case, the Appellant submits that the letters are self-explanatory as to the purpose for which they were tendered.  On the 2^nd Respondent’s argument that that the stevedoring contracts between the Respondents and the Stevedoring companies is classified as contract for service and as such this Honourable Court lacks the jurisdiction to entertain the Appellant case, the Appellant submits that it is the Claimant’s (in this case the Appellant) case as shown in his originating processes that determines the jurisdiction of the Court; and that in this case, their case is that the Respondents conduct affected the Appellant’s members; hence the subject matter of the present dispute bothers on labour dispute that relates to the interpretation and application of a collective agreement which this Honourable Court is clearly vested with jurisdiction to entertain under Section 254C(1)(a) &( j). 

 

 

THE PRELIMINARY OBJECTION

27.  The Respondents each brought a preliminary objection against this suit.  The 1^st Respondent’s objection was filed on 16^th April 2024; while the 2^nd Respondent’s objection was filed on 20^th May 2024.  The two objections seek basically the same reliefs and are founded on almost identical grounds.  We shall therefore take the two objections together.  The two applications are brought pursuant to Order 17 Rule 9 and order 50 Rule 1(1)of the National Industrial Court of Nigeria  (Civil  Procedure)Rules  2017,Article  30(6)Industrial Arbitration  Rules 2021, section  13(2)and section  14(1)of  the Trade Dispute Act and under the inherent jurisdiction of the Court.  The 1^st Respondent seeks for an Order to striking out the appeal for not coming before the Court initiated through the laid down due process of the law; and for such further Order(s) as the Honourable Court may deem fit to make in the circumstances.  The 2^nd Respondent on its part seeks for:

1.  AN   ORDER   DISMISSING/STRIKING   OUT  the  appeal by the Appellant/1^st  Respondent against the Award delivered by the  Industrial Arbitration Panel on the 22"day of February 2023  in Suit   No.IAP/HP/3924 in the matter of a trade dispute  between  Maritime  Workers  Union  of  Nigeria  vs.Intels  Nigeria  Limited and  Associated  Maritime  Services  Ltd, as  the  Honourable  Court  lacks  the jurisdiction to entertain the appeal brought by the Appellant, having not complied with the rules.

28.   The grounds upon which the application is brought are:

a.             That this matter was commenced at the Industrial Arbitration Panel sitting at Lagos wherein the Panel made its award and same was communicated to the parties by the  Director,Trade  Union  Services  and   Industrial   Relations  on   behalf  of  the Minister  of  Labour  and  Employment  on  the  4h  day  of  May  2023  in  line  with section 13(2)of the Trade Dispute Act,Cap T8 LFN 2004.

b.            That  the Appellant  without  complying  with  the  provisions  of  section  13  (2)of  the Trade Dispute Act,Cap T8 LFN 2004 by raising an objection to the Minister of Labour   and   Employment   against   the   said   award   within    7   days   of   the communication of the award compiled and transmitted a record of appeal on the 27 day of November 2023.  

c.             That there is no evidence of the Appellant raising an objection to the award, hence this court has no jurisdiction to entertain the matter having failed to comply with the provisions of section 12(2) of the Trade Dispute Act nor Article 30(6) of the Industrial Arbitration Rules 2021.

29.  In addition, to the fact of non-objection to the award, the 2^nd Respondent also raises the issue that:

d.     the referral of the Minister of this dispute to the National Industrial Court, was never communicated to the 2^nd Respondent.

e.      The 2^nd Respondent was left in the dark over this appeal before the Court, as it was not notified by the office of the Hon. Minister of Labour and Employment that the award had been objected to and that the matter had been referred to the NIC, till it was sered with the records of appeal from the IAP by the Appellant/Respondent on the 19^th of January 2024, and

f.       That the National Industrial Court never served the 2^nd Respondent with the Court’s hearing notice, wherein it would have attached the referral instrument from the Hon. Minister of Labour and Employment.

30.  In support of the the objection, the 1^st and 2^nd Respondents deposed to affidavits supporting the grounds of objection stated above.  Both Objectors also filed written addresses in support of their objection.  Being founded on the same grounds, the arguments in support of the objections are also based on the same legal basis.  The 1^st Respondent raised a sole issue for determination; which is, “whether this  Honourable  Court  has the jurisdiction to  entertain this  matter being that the matter is brought without following due process of law, and submits that due process demands that the parties conduct their case according to the laid down rules and principles of the court; that the laid down process necessary for one who desires to appeal in a trade dispute matter is provided for in the Industrial Arbitration Rules 2021, the National Industrial Court of Nigeria(Civil Procedure)Rules 2017 and the Trade Dispute Act CAP T8 LFN 2004.  The Respondents refer to Article 30(6) of the Industrial Arbitration Rules 2021, Order 50 Rule 1(1) of the National Industrial Court Rules 2017, section 14(1) of the TDA and section 13(2) of the TDA.  The Respondents argue that there is no notice of appeal before this Court, which notice would have drawn its strength from the notice of objection, had any been raised by the appellant.That nothing precluded the Appellant from following the due process of filing and serving a notice of appeal which gives life to the appeal.  See the case of Aderibigbe &Anor V.Abidoye (2009)LPELR-140(SC)(Pp.27 paras.C)where the supreme court held that “….the Notice of Appeal is the spinal cord of an appeal.  It does not only place the appeal in its proper perspective, it is the cynosure or fulcrum of the appeal. There cannot be a valid appeal without a Notice  of Appeal  or  more  accurately  without  a  valid  Notice  of Appeal.”

31.  The Respondents also argue that apart  from  the  notice  of  appeal, the referral instrument  by  the minster is also an originating process that forms a mode of commencing of this  appeal.  See Order 3 Rule 1(1)of the National Industrial Court of Nigeria (Civil  Procedure) 2017 which provides that a referral instrument is one of the modes of commencement of action before the National Industrial Court.  The Respondents submit on this premise that this court has no jurisdiction to entertain this matter as there is no notice of objection,or a notice of appeal or a referral  from the Minster of Labour and Employment to the National Industrial Court of Nigeria.   They argue that assuming but not conceding the fact that there is a referral from the minister, same was not served on the 1st respondent as required by section 13 (2)(a)(b)&(c)of  the  Trade  Dispute  Act  CAP  T8  LFN  2004.  See the case of Aondoakaa v. Obot & Anor(2021)LPELR-56605(SC)(Pp.14-15  paras.D)that “It is well settled beyond any equivocation,that the service of an  originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication.  It goes to the root of the  Court's  competence  and jurisdiction   to  entertain  the suit”.  The Objectors also submit that,assuming but not conceding that there was a notice of objection made to the Minster,this objection must be made within seven (7)days, the time stipulated under section 13 of the Trade Dispute Act CAP T8 LFN 2004 and which  the  Appellant's  time  lapsed  on  the  15  May  2023  from  the  date  of communication of the award which is 4^th May 2023. 

32.  Furthermore, the Objectors submit that the Appellant was out of time to compile and transmit the record of appeal,as they failed to compile and transmit the record of appeal within the thirty(30)days as stipulated by Order 50 Rule 1(1)of the National Industrial Court of Nigeria (Civil Procedure)Rules 2017 which elapsed on the 6 April 2023 from the date the award was made which is 22md February 2023.  The Appellant rather compiled and  transmitted  record  on  the  27^th of November 2023  and no motion of extension of time was filed to that effect.

33.  The Appellant filed two nine paragraph counter affidavits in response to the two preliminary objections on 9^th May 2024 and 27^th May 2024, averring the same facts, in opposition to the preliminary objections.  The deponents aver that the Appellant received the award of the IAP on the 11^th day of May 2023, and communicated its objection to the Award to the Minstry of Labour on 16^th May 2023.  Upon receipt of the notice of objection, the Minister referred the matter to the National Industrial Court.  In their address in support of the counter affidavit, the Appellant raised the issue “whether the Respondents are entitled to the relief sought?  The Appellant submits that they met the requirement of section 13(2) of the TDA by annexures A and B to their counter-affidavit; the notice of award received on 11^th May 2023 and the notice of objection delivered on 16^th May 2023. 

34.  In Reply on Points of Law, the 2^nd Respondent conceeded that the Appellant annexed the notice of award showing it was received on the 11^th of May 2023, and that the notice of objection was lodged on the 15^th of May 2023.  The 2^nd Respondent however argues that the Appellant failed to exhibit the referral instrument grom the Minster of Labour and Employment.  On its part, the 1^st Respondent replied that the Appellant/1st Respondent's did not deny  that  both  the  notice  of objection it purported to have filed, notice of appeal challenging the award  made  by  the  Industrial  Arbitration  Panel  and  the  Referral Instrument by the Honourable Minister referring this matter to this Court  (if any), were not served on the Respondents; which failure preponderate to admission of non-service of the said processes on the Applicant, but appears to contend to the effect that the failure of service of the said processes on the Respondents has been cured by the purported Referral Instrument which, having been purportedly transmitted to the Honourable Court, activated the jurisdiction of the Honourable Court,without more. 

 

RESOLUTION OF THE PRELIMINARY OBJECTION

 

35.  We have gone through the processes filed in this application, the exhibits tendered and the argument of Counsel.  After going through these processes, we find that the main issue for contention is;

·        Whether this appeal was initiated by the due process of the law.

36.  The Applicants’ contention is that this appeal was not commenced by due process of law, robbing this Court of jurisdiction to hear this appeal.  The Applicants/Respondents contend that there is no notice of objection to the award of the AIP, or a notice of appeal or a referral from the Minster of Labour and Employment to the National Industrial Court of Nigeria.   They also argue that assuming but not conceding the fact that there is a referral from the minister, same was not served on the Respondents as required by section 13 (2)(a)(b)&(c)of  the  Trade  Dispute  Act  CAP  T8  LFN  2004.

37.  The Trade Disputes Act, Cap T8, LFN, 2004 provides for the machinery for the resolution of trade disputes in Nigeria.  The machinery set up by the Act, includes a referral to the Industrial Arbitration Panel under section 9.   Under section 13 (1)(b) of the Act, after an Award is made, the IAP shall “forthwith send a copy thereof to the Minister, and shall not communicate the award to the parties affected.  Subject to subsection (3) of section 13(1), on receipt of a copy of the award of the tribunal, the Minister shall immediately cause to be given to the parties or their representatives; a notice—

 

            (a)       Setting out the awards;

(b)      Specifying the time (not being more than seven days from the publication of the  notice) within which the manner in which notice of objection to the award may be given to the Minister by or on behalf of either party to the dispute; and

(c)      Stating that, except where notice of objection to the award is given within the time and in the manner so specified by one or both of the parties, the award will be confirmed by the Minister.

 

38.  The crux of the Respondents/Objectors’ argument is that there is no proof of an Objection by the Appellant/Respondent, enabling the Minister to make the Referral.  According to the Respondents/Objectors, since they did not receive the Notice of the Appellant/Respondent’s Objection; the implication is that the provision of section 14(1) has not been complied with.

 

Section 14(1) of the TDA provides that:

(1) If notice of objection to the award of an arbitration tribunal appointed under section 9 of this Act is given to the Minister within the time and in the manner specified in the notice under section 13 (2) of this Act, the Minister shall forthwith refer the dispute to the National Industrial Court established by this Act.

 

39.  The vital issues before this Court to determine the competence of this Referral are three pronged; whether indeed there was an Objection to the Award, made to the Minister of Labour and Employment by the Appellant/Respondent; and if there was; was it made within the 7 days stipulated by the letter of the Minister; and if it was, were the Respondents served with notice of the referral? 

 

40.  The Appellant/Respondent attached two documents; marked A and B.  Annexure A. dated 4^th May 2023 is the Notice of Award from the Minister of Labour and Productivity to the Appellant.  It was received on the 11^th of May 2023. Annexure B, is the Notice of Objection to the Award dated 15^th May 2023, and received on the 16^th of May 2023.  Mathematically, the notice of objection to the award was made and received within the 7 days stipulated in section 13(1) of the TDA.  The Applicants/Respondents, after receiving these documents in the counter affidavit, did not challenge their authenticity.  Rather, in their Reply on Points of Law, the Respondents acknowledged the annexed Notice of Award showing it was received on the 11^th of May 2023, and that the notice of objection was lodged on the 15^th of May 2023.  The Respondents thereafter hinged their argument on the failure of the Appellant to exhibit the referral instrument from the Minster of Labour and Employment, to this Court.  From annexures A and B, to the Appellant’s counter affidavit to the Respondents’ preliminary objection, the Appellant has established that it entered objection to the Award of the AIP, within the time stipulated by law.

 

41.  The remaining issue is the service of the referral to the Respondents.  The Respondent/Applicants did not cite the law that provides that it is the responsibility of the Appellant to serve them with the Minister’s Referral of the dispute to the National Industrial Court.  Section 14(1) of the Trade Disputes Act requires the Minister to “refer the dispute to the National Industrial Court”.  The very first process in the proceedings in this suit is the Referral Letter dated 20^th May 2023 signed by Emmanuel Igbinosun, Director Trade Union Services and Industrial Relations, accompanied by the Instrument of Reference dated 25^th May 2023, and the Award of the Industrial Arbitration Panel (IAP).  Paragraph 3 of the Referral letter indicated that “copies of the instruments have been forwarded to the disputants whose addresses are as follows…”  The addresses of the three parties before the IAP, the parties in this appeal, followed.  Upon the constitution of this panel by the President of this Court, the Court ordered hearing notices to be served on the parties to the suit, with the understanding that parties had been served the instrument of referral.  By the 22^nd of February 2024, hearing notices having been issued; all the parties were in Court, whereupon the Court gave directions on how processes were to be filed.  Parties thereafter filed their respective Briefs.  We therefore do not agree that the Respondents were not aware of the referral.  By the provision of section 167 of the Evidence Act, this Court may presume the existence of any fact which it deems likely to have happened; regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case. 

 

42.  The parties having come before the Court, and the Court having ordered for the filing of their briefs on the well founded presumption that the Minister copied the referral letter to the parties herein, the Respondents assertion of none service of the referral letter (assuming that is the case) begs a lot unto technicalities.  This suit, having not been commenced under Order 50 Rule 1(1)of the National Industrial Court of Nigeria (Civil Procedure)Rules 2017 is not regulated as such, rather by the Trade Disputes Act.  Thus the argument that the Appellant was out of time to compile and transmit the record of appeal, in failing to compile and transmit the record of appeal within the thirty(30)days as stipulated by Order 50 Rule 1(1)of the National Industrial Court of Nigeria (Civil Procedure)Rules 2017, does not apply to this proceedings; which is governed by the Trade Disputes Act.  We therefore hold that this suit is proper before this Court, that this Court has jurisdiction to entertain this matter as there is notice of objection, and referral from the Minster of Labour and Employment to the National Industrial Court of Nigeria. Further, the referral letter indicates that it was to be served on the parties, by the Minister; which this Court by section 167 of the Evidence Act, can presume was done. 

 

RESOLUTION OF THE SUBSTANTIVE APPEAL

43.  We have considered the processes filed in this appeal, the exhibits attached, the argument of counsel, and the referral of the Minister of Labour and Productivity.  The Referral of the Honourable Minister of Labour and Productivity to this Court is:

To inquire into the trade dispute existing between Maritime Workers Union of Nigeria and Intels Nigeria Limited and Associated Maritime Service Limited (AMS) over the following issue:-

 

Non-payment of terminal benefits to six hundred and ten (610) disengaged workers of Intels Nigeria Limited.

 

44.  We have deciphered five issues for determination, in order to resolve the inquiry referred to this Court; as arising from the issues identified by the parties in this appeal:

1.     Whether the National Industrial Court of Nigeria has the jurisdiction to entertain matters that border on contract for service.

 

2.     Whether the Industrial Panel was right when it held that the 1^st Respondent was not the employer of the 610 disengaged dockworkers.

 

3.     Whether the Industrial Arbitration Panel (IAP) was right when it held that the Appellant herein did not prove that the 1^st Respondent is a member of Seaport Terminal Operators Association of Nigeria (STOAN) to be bound by the Collective Agreement between the association and the Appellant. 

 

4.     Whether the Industrial Arbitration Panel was right when it held that the contracts of the stevedoring companies by virtue of which the  six hundred and ten (610) disengaged dockworkers worked at the 1^st Respondent’s terminal  was terminated  by effluxion of time and as such the resultant disengagement of the 610 dockworkers does not amount to redundancy.

 

5.     Whether the Industrial Arbitration Panel (IAP) was right when it held the claim that the six hundred and ten (610) disengaged dockworkers were employees of the 1^st Respondent was not established and as such the 1^st Respondent is not liable to pay the six hundred and ten (610) dockworkers any terminal benefits.

 

45.  Issue one - Whether the National Industrial Court of Nigeria has the jurisdiction to entertain matters that border on contract for service.  This issue arises from the contention of the 2^nd Respondent that it, alongside the Stevedoring contractors namely; Nted International Limited now known as Faitone Stevedoring Services Limited, Modern Stevedoring Services Limited and Joesco & Tonesco Enterprises are independent contractors, self-employed persons and vendors, and that their contracts should be classified as contracts for service, excluding this Court from exercising jurisdiction over their conduct.  The 2^nd Respondent referred to the Supreme Court decision in Shena Security Co. ltd v. Afropak (Nig) Limited & 2 others (2008) 18 NWLR (pt.1118) 77 SC; and submits that this Court is robbed of jurisdiction over them.  The 2^nd Appellant, in making that argument, forgets that this Court’s jurisdiction is guided by subject matter.  As stated in section 254C of the Constitution of the Federal Republic of Nigeria:

 

54C. Jurisdiction

(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise

jurisdiction to the exclusion of any other court in civil causes and matters-

 

(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

 

(b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.

 

j) relating to the determination of any question as to the interpretation and application of any-

(i) collective agreement,

(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute,

 (iv) term of settlement of any trade dispute,

(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement,

 

46.  See also section 7 (1) of the National Industrial Court Act 2005.  The facts of this case show clearly that it is related and connected with labour, employment, trade unions and industrial relations matters.  It relates to the determination of interpretation of a collective agreement and an award of an arbitral tribunal.  It is also connected and arising from the Trade Disputes Act and the Appellant is a trade union, representing the interest of its members in this trade dispute.  Clearly, there is no other Court in this country that has jurisdiction to hear the subject matter of this suit.  We agree with the finding of the Industrial Arbitration Panel, that:

 

We find in support the case of National Union of Food, Beverage and Tobacco Employees of Cocoa Industries ltd reported in Digest of Judgment of National Industrial Court (1978-2006) at page 486. Where the National Industrial Court (NIC) affirmed the Award of the lAP that a case of wrongful termination handled by a union on behalf its members who were aggrieved falls within the definition of the trade. dispute under section 47 of the Trade Disputes Act Cap 432 of the laws of Federation of Nigeria, 1990.

 

47.  With respect to the status of the parties, it is the right of the Claimant/Appellant that must often determine capacity before the National Industrial Court.  The Respondents are persons under the law, and can be sued before this Court.  On the issue of contract of service or contract for services, this Court has held in Suit No: NICN/LA/416/2020 Bukonla Abimbola (Trading under the name and style of Bukky Joy-Bright Ventures) v. Nigerian National Petroleum Corporation & Anor judgment delivered on 3^rd July 2024 that:

 

14.  I hold this view because, as can be seen in the decision of the Supreme Court of Nigeria in Shena Security Co. Ltd v Afro Pak (Nig) Ltd & 2 others (2008) 18 NWLR (Pt. 1118) p. 82, where the Court was faced with the issue of whether the contract to supply security guards and supervisors by the Appellant to the Respondents was a contract of service or one for service to qualify the Appellant as a worker; the Court restated the meaning of a worker under the Labour Act as referring to any person who has entered into or works under a contract with an employer whether the contract is for manual or clerical work or is expressed or implied oral or written and whether it is a contract of service or a contract to personally execute any work or labour.  Such a contract, according to the Supreme Court is commonly referred to as contract for service.  In that matter, the Court held that the Appellants were workers contemplated by the Labour Act.   

 

We hold that this Court has the jurisdiction to hear this appeal. 

 

48.  Issue two - Whether the Industrial Panel was right when it held that the 1^st Respondent was not the employer of the 610 disengaged dockworkers.  The cardinal consideration in this appeal and which is the bedrock of the Appellant's case is that its members are the employees of the 1^st Respondent.  To determine this, we have to consider if the essential elements of employment exist, either expressly or by implication, between members of the Appellant, and the 1^st Respondent.  The case of the Appellant is that the Appellant’s members who  are  affected  by  this  suit  are  dockworkers recruited by the 2^nd Respondent from its pool and sent to 3^rd Party companies namely modern  Stevedoring  Services  Limited  and   Faitone  Stevedoring  Services Limited for the purpose of using them to provide Stevedoring Services for the 1^st Respondent.  The Appellant claims the existence of a triangular employment.  The 1^st Respondent contends that it never employed any member of the Appellant and sent to any company including Modern Stevedoring Services Limited and Faitone Stevedoring Services Limited.  The 1^st Respondent also states that it is not a recruitment/employment agency, nor is it licensed to do so, thus  it  does  not  recruit  dockworkers  and  send  to  3^rd party  companies  as alleged; but that each dockworker is now an employee of a specific company, who issues such dockworkers employment letters.

 

49.  A worker is defined by the Labour Act as any person who has entered into or works under a contract with an employer whether written or unwritten and whether it is a contract of service or a contract personally to execute any work or labour (section 91 of the said Act).  Where there are no written instruments of employment, Courts would look at the conduct of parties to determine whether a contract of employment exists between the parties.  However, in ambiguous contract of employment relationships, as laid down by international labour jurisprudence, this Court applies the primacy of facts in determining employment relationship.  This is as laid down in the ILO Report titled: The Scope of the Employment Relationship; ILO Office: Geneva, 2003 at page 24 and 25).  This principle has been applied by this Court in many cases.  See for instance the case of PENGASSAN v. Mobil Producing Unlimited Suit No. NIC/LA/47/2010 delivered on 21^st March, 2012 by B.B Kanyip and O.A. Obaseki-Osaghae J.J, and Stephen Ayogu & 16 Ors v Mobil Producing Nigeria Unlimited & Anor Suit No.NIC/LA/38/2010 Ruling delivered on 13^th December 2012.  The principle of primacy of facts in our view, is also consistent with the definition of contract of employment in section 91 of the Labour Act which recognised “agreement, whether oral or written, express or implied.   The implication of this definition is that it is the facts that determines when a person is in a contract of employment or not, and not only the presentation of a contract document.

 

50.  In this case, there is a contract document; and indeed, the  letter  of  appointment  of  an  employee  is the bedrock of his/her contract of employment.   We have considered letters of employment as  found in the record of appeal.  None of the letters emanated from the 1^st Respondent.  Modern Stevedoring Services Limited issued separate letters to separate individuals, at each page from page 145 to 644 of the record of proceedings.  Faitone Stevedoring Services Limited issued letters shown at pages 645 - 757 of the Record of Proceedings.  These letters shows Modern Stevedoring Services Limited and Faitone Stevedoring Services, as the employers of the 610 dockworkers.  The letters appointed them to work in the 1^st Respondent; but, there is no contractual relationship shown to exist between the 1^st Respondent and these two stevedoring companys.  None of the contractual documents relied on by the Appellant shows a contract between the employers of the members of the Appellant, and the 1^st Respondent, whom the Appellant wants to bear the termination liabilities of the Appellant’s members.  If there was a triangular employment in the circumstances of this case, the 1^st Respondent is certainly not in that triangle.  Rather, from Annexure 2(b) at page 44 of the record of appeal, it is the 2^nd Respondent that had agreement with the the Stevedoring  companies(see pages 44 to 54).  Page 866 of the record of appeal shows another stevedoring contract between the 2^nd Respondent and Joesco and Tonesco Enterprises.  The only document we see with 1^st Respondent, 2^nd Respondent and a 3^rd party stevedoring company is at page 55 of the record of proceedings(Memorandum of Agreement).  However, this document is signed by the 1^st and 2^nd Respondents, only.  Modern Stevedoring Services Ltd did not sign the document.  We agree with the  Industrial  Arbitration  Panel,  in  its  finding  on Appellant’s submission that “the said 610 dockworkers sent to various ports' terminal were from the pool of 2^nd Party's dockworkers supplied by the 3rd Party under the 2nd Party's instruction to Faitone and Modern Stevedoring companies”. The AIP held that:

1.4      Our findings is that the letters of employment of the dockworkers- bundle of letters of employment do not support the above assertion instead it is the Modern Stevedoring Services ltd and Faitone Stevedoring services ltd that employed the 610 dockworkers.

1.5      Again, a cursory look at Annexure 2(b) of the 1^st Party's Memo, the Agreement between the 3rd Party and Faitone to supply Stevedoring Labour on Board Service boats and barges does not lend credence that 610 dockworkers came from the pool of 2^nd Party's dockworkers and supplied to the 3^rd Party on the instruction of the 2^nd Party to Faitone or Modern instead, however, it is an agreement between the 3^rd Party and Faitone.

1.6      A closer examination of the Appendix 1 of Annexure 2(b) (see paragraph 15.4) above goes to show that the Faitone is an independent contractor and shall exercise control, supervision, management and direction as to the method and manner of obtaining good result.

1.7      The contention by the 3rd party of tripartite employment does not hold water.

1.8      Firstly, Annexure 2(b), Appendix 3 is very explicit that the supplier (3^rd Party) is independent, that the 3^rd Party has no right to claim for additional payment for services assigned to him and shall be deemed to have included the following items in its price.

1.9    "Provision for all necessary labour, staff and management (i.e payment of all salaries, wages, allowances, pension, administration and overhead costs, medical expenses housing (if any) transport cost, all applicable taxes incidental and miscellaneous items" See paragraphs 8-G of Appendix 3 for other items. In all these there is no involvement of the 2^nd Party in it.

 

51.  Furthermore, there is no evidence that the 1^st Respondent issued any letter of termination or redundancy to any of the Appellant’s members.  Therefore, there is no basis on which this Court can conclude  that  the 1^st Respondent declared 610 members of the Appellant redundant.  We resolve this issue two and hold that the Industrial Panel was right when it held that the 1^st Respondent was not the employer of the 610 disengaged dockworkers. 

52.  Issue three - Whether the Industrial Arbitration Panel (IAP) was right when it held that the Appellant herein did not prove that the 1^st Respondent is a member of Seaport Terminal Operators Association of Nigeria (STOAN) to be bound by the Collective Agreement between the association and the Appellant.  The Appellant’s basis for asserting that the 1^st Respondent should bear the liability of paying its members redundancy benefits is founded on annexure 7; the Collective Bargaining Agreement between STOAN & MWUN.  The 1^st Respondent’s case is that it is not a member of STOAN.  As evidence of the 1^st Respondent’s membership of STOAN, the Appellant relies on annexures 10A and 10B.  Annexure 10A is an email communication between the secretary of STOAN Uzamot Boye and Usaini Garba of the 1^st Respondent via his official email address; usaini.garba@intelsservices.com with the subject “TERMINAL OPERATORS ASSOCIATION DUES”  conveying invoice for the 1^st Respondent’s membership dues and monthly operational exigencies and a printed out copy of another email from the same secretary of STOAN Uzamot Boye  communicating the outcome of terminal operators meeting to STOAN’s members and the 1^st Respondent is among the members communicated to (through usaini.garba@intelsservices.com). These email communications are found at pages 134-136 of the record of appeal.   We agree that those two documents are inadequate to prove the 1^st Respondent’s membership of STOAN.  We agree with the 2^nd Respondent that the best evidence to adduce in proving that the 1^st Respondent is a member of the Seaport Terminal Operators Association of Nigeria (STOAN) is by exhibiting the membership number and certificate as well as the date of admission of the 1^st Respondent into the Seaport Terminal Operators Association of Nigeria (STOAN).  In the absence of certificate of membership, a communication showing membership might suffice.  However, annexures 10A and 10B relied on by the Appellant, fall short of that.    A forwarded email to several emails, including that belonging to an individual with 1^st Respondents email, is not enough to conclude that the 1^st Respondent is a member of STOAN.  There is no evidence that the request for payment of dues made in annexure 10A was paid by the 1^st Respondent.  We are therefore of the view, that the Appellant has not given convincing evidence of membership of the 1^st Respondent in STOAN.  The  Industrial Arbitration Panel was therefore correct when it held at paragraph 4.1 to 4.3  at page 193 of the record of appeal that:

4.1      The 1^st Party submits that the 2^nd Party is a member of Seaport Terminal Operators Association of Nigeria (STOAN) therefore the 2^nd Party is bound by the Collective Bargaining Agreement (CSA) of STOAN. The 1^st Party relied on its Annexure 10A and 1 DB. The 2^nd Party denied it.

4.2      The said Annexure 10A of the 1^st Party's Further and Better Memorandum of claim, is an invoice to the 2^nd Party described as "being payment for monthly operational exigencies, Exhibit 10B is the outcome of minutes of the meeting of terminal operators. There is no where it was stated that the 2^nd Party is a member of the Terminal Operators.

4.3      The above Annexure 10 did not also show that the 2^nd Party paid for the membership fee.

4.4      It is our considered view that for the Collective Agreement to be binding on the 2^nd Party, it must be shown that the 2^nd Party is a signatory to it. See National Union of Hotels and Personal service workers (NUHPSW) V. Whassan Eurest (Nigeria Limited (1978-2006) Digest of Judgments of National Industrial Court page 452 at 453.

 

53.  However, assuming it is established that the 1^st Respondent is a member of the STOAN(which is not the case), yet, the said collective agreement relied on, does not contain any provision that operators of terminals, such as the 1^st Respondent, are to pay the terminal benefits of members of the Appellant.  The Appellant referred to Article 6 of the CBA as placing responsibility to pay redundancy/retirement benefits for dockworkers on their respective terminal operators.   However, in reproducing the said article 6, the Appellant omitted a clause in the provision.  This is what the Appellant reproduced in paragraph 7.5 of its Appellant’s Brief:

 

7.5           For the purpose of emphasis, Article 6(a) of the CBA between the Appellant and STOAN 2020 to 2023 provides thus:

 

 “That payment of redundancy/retirement benefits shall be the responsibility of terminal operators as follows:

 

(a) Redundancy/retirement of 10 years and above for general cargo terminal shall be increased to N750, 000.00……”

 

54.  However, the full and correct provision of Article 6 of the Collective Agreement between STOAN and the Appellant is:

 

That payment for redundancy/retirement (for aged dockworkers and those with health problems) benefits shall be the responsibility of terminal operators as follows:

 

55.  In our view, the words in bracket capture the class of persons the provision is intended to cover.  The Appellant has not shown that the 610 members, over whom this action was commenced, fall under the class of aged dockworkers and those with health problems.  The removal of that clause is clearly intended to mislead this Court. We so hold.

 

56.  From the findings of this Court on issues one to three, there is no need to consider issue for “whether the Industrial Arbitration Panel was right when it held that the contracts of the stevedoring companies by virtue of which the six hundred and ten (610) disengaged dockworkers worked at the 1^st Respondent’s terminal was terminated by effluxion of time and as such the resultant disengagement of the 610 dockworkers does not amount to redundancy”.  This is because, we have already found that there is no employment relationship between the members of the Appellant, and the 1^st Respondent, either directly or impliedly.  A consideration of this issue will merely be academic.

 

57.  On the basis of issues one to three, we are of the opinion that the Industrial Arbitration Panel (IAP) was right when it held the claim that the six hundred and ten (610) disengaged dockworkers were employees of the 1^st Respondent was not established and as such the 1^st Respondent is not liable to pay the six hundred and ten (610) dockworkers any terminal benefits.  We so hold.

 

58.  Before we draw the curtain on this judgment, we find a need to address the Defendant’s argument that for the Collective Agreement to be binding on the 2^nd Party, it must be shown that the 2^nd Party is a signatory to it.  The Respondents’ argument is clearly founded on the common law, which is no longer the applicable position.  In the case of Chima Ezechukwu v. Tecon Oil Services Nigeria Limited Suit No: NICN/LA/27/2017, judgment of which was delivered on 25/3/21, this Court, relied on the Third Alteration Act, and the affirming position of the Court of Appeal, per Ogakwu JCA on the implication of the provision of section 254C(2) in Sahara Energy Resources Limited v. Mrs Olawunmi Oyebola (2020) LPELR-51806(CA).  Ogakwu JCA in that case, recognised and reiterated the potentials of the section to change the application of legal principles, from what it used to be.   This Court found that collective agreements have become applicable into employees’ contract without need for incorporation.  It was the argument of the Defendant in that case that the “Condition of Service for Senior Staff 2010/2012” which the Claimant relied on was made between the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) and the Defendant, and is totally unconnected and unrelated to the Claimant’s contract of employment; that the said condition of service for Senior Staff 2010/2012 was not incorporated into the Claimant’s contract of employment with the Defendant and that the Claimant’s employment was a non-union, non-permanent and not a senior staff. Aside from relying on some of the earlier decisions of the NIC on the point, this Court found reliance also on the power of the Court, (the National Industrial Court of Nigeria) to pronounce on unfair labour practice and international best practice in labour and industrial relations. This Court held that:

The Defendant in this case, has again raised this vexed issue in arguing that exhibits C4 and C12 cannot apply to the Claimant without express incorporation.  The Defendant cited a long list of decisions of our appellate courts that took this position.  The Defendant in making that submission conceded to the existence of the Third Alteration Act to the Constitution of the Federal Republic of Nigeria.  Counsel however argued that nothing is changed by the Third Alteration Act, and that collective agreements must need still be incorporated into an individual contract before becoming enforceable.   

24.  Two issues stand out for deliberation in this case; first is whether by virtue of section 254 (C) (J) (i) of the Constitution of Nigeria 1999 (as amended by the 3^rd Alteration) collective agreements continue to be binding in honour only and only enforceable upon incorporation; and second, whether in the present case, the collective bargain agreement had become enforceable in favour of the Claimant.

28.  Once a valid collective agreement is shown to have been entered into between legal parties; that agreement becomes applicable, in favour of those expressed to be covered by the said instrument.  In the interpretation and application of collective agreements, this Court is enjoined to go beyond itself, and apply international law and practices.  The power having been granted prior to section 254C(1)(j) by section 254(1)(f & h). 

33.  Applying all the above authorities of this Court in this case, first, it has been established that the collective agreement was executed between legal persons and second, that the Claimant was a member of the bargaining trade union.  I find therefore that exhibit C4/CC1 is applicable to the Claimant.

 

59.  International labour standards and best practices are geared towards the enforcement of collective agreements.  Practices by other countries are further proof of this, and exist as evidence of international best practices.  (See Oji E A, “The New Face of Collective Agreements in Nigeria Labour Jurisprudence” in Essays in Honour of Hon. Justice Mary Ukaego Peter-Odili, CFR, DSSRS (Rtd) Justice of the Supreme Court (FIDA Nigeria, 2022).  Respondents’ position is therefore no longer the position of the law.  It must be noted however that in this case, we have not found proof of membership of the 1^st Respondent to STOAN; therefore the issue of enforceability of the collective agreement; cannot arise.

This appeal fails, and is dismissed.

Judgment is entered accordingly.  Parties are to bear their individual costs.

 

 

HON. JUSTICE M. N. ESOWE

Presiding Judge

 

 

 

HON. JUSTICE A. N. UBAKA                            HON. JUSTICE E. A. OJI                                  Judge                                                                     Judge