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The claimant took up a complaint dated and filed on 1st February 2012. By an amended complaint dated 13th March 2012, the claimant is claiming for the following reliefs – 1. A declaration that [the] claimant has the constitutional right to counsel of his choice under section 36, and freedom under section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to associate with other staff to make a demand for the handbook commonly referred to in the company letters of appointment, being a statutory document also provided for by section 7 of the Labour Act LFN 1990. 2. A declaration that the demand as referred to in relief 1 above is not anti-organizational, and thus the measure taken by the defendant to terminate [the] claimant’s appointment [in] pursuance thereof is unconstitutional and contrary to section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 7 of the Labour Act. 3. An order setting aside the defendant’s letter of termination of [the] claimant’s appointment dated 16/8/2010. 4. An award of N10,000,000.00 (Ten Million Naira) only as general damages for defendant’s wrongful termination of [the] claimant’s appointment, and/or for the infraction of his right to brief counsel, and associate with his co-staff to make a demand for the handbook commonly referred to in the company’s letters of appointment. In support of the amended complaint are the amended statement of facts, list of witnesses, the new statement on oath of the claimant, list of documents and copies of the documents marked during trial as Exhibits C1 – C4). Exhibits C5 and C6 were later added when the originating processes were amended. The defendant entered appearance by filing a memorandum of appearance, the defendant’s statement of defence, list of witness, list of documents and copies of the documents marked at the trial as Exhibits D1 – D7. Exhibit D8, a copy of the 2004 edition of the defendant’s Staff Handbook, was later added. In reacting to the claimant’s amended originating processes, the defendant filed an amended statement of defence dated 4th May 2012 for which the claimant filed a reply to statement of defence dated 16th May 2012. The complaint taken by the claimant had been against two defendants but at the Court’s sitting of 24th May 2012, parties confirmed that the 2nd defendant, Mr. Kefas Zakka, left the services of Dangote Cement Plc, the 1st defendant. The parties then urged the Court to strike out the name Mr. Kefas Zakka from the suit. The Court granted the prayer and ordered that all processes be amended to reflect this fact. The parties complied by amending all the originating and defence processes. The claimant additionally filed a formal notice of discontinuance against Mr. Kefas Zakka as the 2nd defendant. The defendant had all this while not filed any witness statement on oath. When finally the defendant did vide a witness deposition of Mr. Babajide Omisore, this was without leave of Court. However, at the trial, the defendant elected not to call any witness but to argue the case on record relying on the processes already filed. See paragraph 1.10 of the defendant’s written address. The claimant did not object to this prayer subject to his right during address to raise issues of relevancy, weight and probative value. At the trial, the claimant testified on his behalf as CW. The defendant elected not to call any witness. The case of the claimant is that he was a permanent staff of the defendant company by virtue of a letter of employment dated 5/12/2002. The defendant gave impression in the said letter of appointment that the terms and conditions of claimant’s employment were as contained in the Company Employment Handbook. The claimant on resumption of duty found that the information above was a ruse as no such handbook ever existed in the company at the time of his employment in 2001. That after several demands of the handbook to no avail, leaders who were then existing staff of the defendant, on behalf of the workers briefed a solicitor, to write formally to demand the Handbook from the defendant. That despite the letter aforesaid, the defendant failed, neglected and/or refused to issue the said handbook to the' staff. Instead, the defendant began to intimidate the claimant and the other arrowheads through serial termination of their appointments. The claimant continued that a query dated 11th August 2010 (Exhibit C5) was issued on him by the defendant which was followed by a termination of appointment letter dated 16th August 2010. That the allegations contained in the query were that claimant went about deceiving staff into paying N2,000.00 for the settlement of solicitors, coupled with his purported involvement in other anti-organizational activities. That these were the reasons why his appointment was terminated. To the claimant, there is no handbook containing terms and conditions of service from which his entitlements/severance benefits could be worked out from because he was already out of the defendant’s employment at the time the defendant’s handbook (Exhibit D2) came into effect on 1/11/2012. The claimant went on that the defendant does not allow union activities at all. That it sacked all its workers and closed down business at the Apapa branch on or around 3rd December 2001, following a peaceful protest organized by the staff to demand enhanced pay packet, among others, referring to Exhibit C6. The case of the defendant is that the claimant’s employment was terminated in accordance with his terms of contract of service with the defendant; and his entitlement/severance benefits were worked out in accordance with the contract of service but the claimant refused/failed to collect them as advised by the defendant. Consequently, the claimant is not entitled to the reliefs sought for in suit. The claimant framed three issues for the determination of the Court. They are – 1. Whether the claimant has the constitutional right of association with his co-staff to brief counsel of their choice, and to demand the handbook referred to in their letters of appointment which the defendant company failed, neglected and/or refused to give to them. 2. Whether the termination of the claimant’s appointment by the defendant pursuant to the staff collective demand for a handbook is not a punishment inflicted on the claimant for the exercise of his right under sections 36 and 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). 3. Whether the claimant is not entitled to general damages for the defendant’s wrongful termination of his appointment for the sake of the exercise of his fundamental rights under the Constitution of the Federal Republic of Nigeria 1999 (as amended). Regarding issue 1, the claimant contended that section 36(1) of the 1999 Constitution (as amended) guarantees his right to brief counsel (Agbapuonwu v. Agbapuonwu [1991] 1 NWLR (Pt. 165) 33 at 38) and to assemble freely and associate with other persons (in this case, his co-staff) for the protection of his interest as per section 40 of the Constitution, which provides that – Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest. That this position of the law has again been judicially restated by Akpabio, JCA in the case of Anigboro v. Sea Trucks Nig. Ltd [1995] 6 NWLR (Pt. 299) 35 at 62 – 63. The claimant went on that there is a common interest sought to be collectively protected by the claimant and his co-staff, (that is, the Handbook that spells out the terms and conditions of their employment). That he was victimized by termination of his appointment for agitation to protect this interest, referring to Exhibits C2, C3, C4 and C5. That the Handbook referred to is a statutory document which the defendant ought to have provided for the claimant within three months of employment under section 7(1) of the Labour Act Cap. L1, LFN 2004. That section 7(1) of the Labour Act 2004 makes it compulsory for the defendant to give to the claimant within three months of employment a written statement specifying – (a) The name of the employer or group of employers, and where appropriate of the undertaking by which the worker is employed. (b) The name and address of the worker and the place and date of his engagement. (c) The nature of the employment. (d) If the contract is for a fixed term, the date when the contract expires. (e) The appropriate period of notice to be given by the party wishing to terminate the contract due regard being had to section 11 of this Act. (f) The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages. (g) Any terms and conditions relating to – (i) hours of works, or (ii) holidays and holiday pay, or (iii) incapacity for work due to sickness or injury including any provisions for sick pay; and (h) Any special conditions of the contract. To the claimant section 7(1)(g) and (h) makes it mandatory for the defendant to specify to him any terms and condition relating to (i) hours of work, (ii) holidays and holiday pay, or (iii) incapacity for work due to sickness or injury including any provisions for sick pay; as well as any special conditions of the contract. The claimant then submitted that not all the particulars listed in section 7(1) of the Labour Act are contained in claimant’s letter of appointment. Hence reference was made to the Company Employment Handbook by the defendant. The defendant stated in its letters of appointment issued to several staff of the company that: “All other conditions of service as contained in our employment Handbook shall be applicable to you”. That this Handbook containing the special terms which the claimant was entitled to as a matter of law was not given to him. Hence the exercise by the claimant of his right under sections 36 and 40 of the 1999 Constitution (as amended) to associate with his co-staff to brief counsel of their choice to demand the said Handbook which the company failed neglected and/or refused to provide for them, referring to Exhibits C3 and C4. That the defendant could not provide any handbook that was existing in the company as at 2001 when the claimant was employed. This is a statutory document under section 7(1) of the Labour Act 2004, which makes the claimant’s demand for the said Handbook through his counsel legitimate. The claimant, therefore, urged the Court to declare that he has the constitutional right of association with his co-staff to brief counsel of his choice to make collective demand for the said Handbook referred to in his letter of appointment which the company failed, neglected and/or refused to provide for him. Regarding issue 2, the claimant submitted that the termination of claimant’s appointment by the defendant as a result of staff collective demand for the employment Handbook amounts to punishment inflicted on him for the exercise of his fundamental right under sections 36 and 40 of the 1999 Constitution (as amended). To the claimant, the relevant facts pleaded by him upon which the above submission is made are as follows – a) That the defendant referred to an employment Handbook in his letter of employment dated 5/12/2001 (Exhibit C1). b) That on resumption of duty he found that there was no such Handbook in the defendant company. c) That after several demands for the said handbook to no avail he and other co-staff briefed a solicitor to demand from the defendant the said Handbook, referring to Exhibit C2. d) That this demand led to intimidation and serial termination of the appointments of the arrowheads of the struggle by the defendant, referring to Exhibits C3 and C4. e) That a query dated 11th August 2010 was issued on him by the defendant, referring to Exhibit C5. f) That in the said query he was given 24 hours to show cause why disciplinary action would not be taken against him for going about “deceiving” staff into paying N2,000.00 for the settlement of solicitors, coupled with his purported involvement in other “anti-organizational activities”. g) That the so-called N2,000 was the individual contribution made by the staff to enable their solicitor take action on the Handbook which the defendant failed, neglected and/or refused to make available to the staff despite repeated demands. h) The purported anti-organizational activities refer to the collective resolve of the staff to brief counsel of their choice to demand the said handbook, referring to paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Amended Statement of facts dated 15th June 2012 and paragraph 10 of the Reply dated 30/7/12 and also Exhibit C5. The claimant went on that the evidence he led on the above averments were not controverted by the defendant. That he was not cross-examined on the aforesaid averments/evidence; and the defendant did not also call any witness to rebut the said evidence. That it is trite law that where a party fails to call evidence on an issue, the evidence called by the other side on that issue ought to be believed and acted upon by the Court, referring to Alhaji Jibran Babale v. Mr. Innocent Eze [2011] 11 NWLR (Pt. 1254) 48 at 71 and Globe Fishing Industries Ltd v. Coker [1990] 7 NWLR (Pt. 162) 265. That the effect of the unchallenged evidence of a witness is that same is deemed admitted and should be acted upon, citing Dr. Fayemi v. Oni [2010] 17 NWLR (Pt. 1222) 326 at 342. That in the words of Uwaifo, JSC in Asafa Foods Ltd v. Alraine Nig. Ltd [2002] 52 WRN 1 at 5 – Evidence on material facts which is not contradicted under cross-examination and not rebutted by defence remains unchallenged and must be accepted by the trial judge. The claimant continued that he averred in his pleadings and evidence that he had no knowledge of Exhibits D1 and D8. That he was not cross-examined on this statement. Even if they exist (which is not conceded), it was the submission of the claimant that the said documents have no relevance to the issue of termination of the claimant’s appointment which is the crux of the case. That the question is not whether Exhibits D1 – D8 do exist. What the claimant is contending in this suit is that he and other co-staff collectively briefed their solicitor to demand the company employment Handbook and in consequence of this demand, his appointment was terminated by the defendant. That having established the circumstances that led to the termination of claimant’s appointment, the termination of claimant’s appointment by the defendant is to avenge him for the exercise of his fundamental right to counsel of his choice, and of freedom to associate with his co-staff to collectively demand the company employment handbook which is a statutory document he is entitled to possess as of right under “S. (91) of the Labour Act, Cap L1, laws of the Federation of Nigeria, 2004”. The claimant then urged the Court to infer from the uncontradicted facts he enumerated earlier to declare that the demand for the handbook is not anti-organizational, and thus the measure taken by the defendant to terminate claimant’s appointment is unconstitutional and contrary to section 40 of the 1999 Constitution (as amended) and section 7 of the Labour Act 2004. Regarding issue 3, the claimant contended that general damages are those damages which the law implies in every breach and every violation of a legal right, referring to NDIC v. K.B & C.S Ltd [2007] All FWLR (Pt. 357) 916. That they are the losses that flow naturally from the defendant’s act; and their quantum need not be pleaded nor proved because they are generally presumed by law, citing Gari v. Sairafina Nig. Ltd [2008] All FWLR (Pt. 399) 434 at 477 and Rockonoh Property Co Ltd v. NITEL [2001] FWLR (Pt. 67) 885. That in calculating the amount payable by the defendant as general damages – (a) The court shall use the test of a reasonable person, acting with reference to the special circumstances of the case, citing UBA Plc v. Samba Petroleum Company Ltd [2003] FWLR (Pt. 137) 1199. (b) The court shall also take into account the defendant’s conduct and motive, to see whether the claimant’s injury is aggravated thereby. (c) The court shall further consider the greatest loss that naturally flows or would naturally flow from the act or omission complained of, citing UBN Plc v. Ntuk [2003] 16 NWLR (Pt. 845) 183. The claimant then submitted that the special circumstances that call for an award of general damages in this case are – 1. The defendant by itself assured claimant that his employment is regulated by the company employment Handbook (which in any case never existed at all when the claimant was employed). 2. The said Handbook is a statutory document which the defendant had a duty to provide for the claimant as a matter of law, citing section 7(1) of the Labour Act 2004. 3. The said document was not provided for the claimant by the defendant despite repeated demands. 4. The failure by the defendant to provide the said Handbook led the claimant and his co-staff to employ the services of a counsel to formally make a demand for the document in exercise of their rights under sections 36 and 40 of the 1999 Constitution (as amended), referring to Exhibit C2. 5. The exercise of the right aforesaid led to victimization and serial termination of the claimant’s appointment by the defendant, referring to Exhibits C3 and C4. 6. Following the collective agitation for the handbook, the defendant issued a query on claimant directing him to show cause within 24 hours why disciplinary action will not be taken against him for (1) purportedly going about deceiving staff to collect N2,000.00 to pay solicitor, and (2) for purportedly partaking in “anti-organizational activities”, referring to Exhibit C5. 7. The disciplinary action that followed was the termination of claimant’s appointment for the reasons given in the query (Exhibit C5). The claimant continued that the motive of the defendant in the termination of claimant’s appointment stem from the collective agitation for a Handbook by the workers of the company, a right which the law guarantees them under sections 36 and 40 of the 1999 Constitution (as amended). That the natural consequence of defendant’s action is that the claimant has been thrown into the unemployment market to suffer grave hardship. The claimant then urged the Court to award aggravated damages of N10,000,000.00 (Ten Million Naira) against the defendant for punishing the claimant because of the legitimate exercise of his fundamental right of association to press for better working conditions of service. In conclusion, the claimant urged the Court to grant his reliefs on the grounds that – (i) The Handbook, the subject matter of claimant’s agitation, is a statutory document which the defendant was duty bound to provide for him as of right, referring to section 7(1) of the Labour Act 2004. (ii) The claimant’s agitation and demand for the said Handbook collectively with his co-workers is legitimate and that the punishment meted on him by the defendant following the exercise of that right is wrongful and an infringement of his fundamental right of association with his co-workers to press for better working conditions of service. It is as well a breach of his right to counsel of his choice under section 36 of the 1999 Constitution (as amended). (iii) The claimant is, therefore, entitled to general damages for the punishment meted on him by the defendant as a result of his legitimate demand for the Handbook referred to in his employment letter. The defendant first of all reacted to the three issues raised by claimant before framing only one issue for the determination of the Court. In general, however, the defendant contended that issues 1, 2 and 3 as formulated by the claimant and the argument thereto are not only totally misconceived, they are also highly misleading. Regarding the claimant’s issue 1, counsel to the defendant adopted and agreed with the submissions of the claimant that the claimant has the constitutional right of association with his co-staff to counsel of their choice and to demand for a Handbook and that the provision of a Handbook by an employer of labour is a statutorily imposed obligation by the virtue of section 7 of the Labour Act Cap. L1 LFN 2004. But to counsel to the defendant, the claimant’s claim and his counsel’s submission that the defendant failed to provide the said Handbook and that the claimant’s employment was terminated to avenge him for the exercise of his fundamental right to counsel of his choice and of freedom to associate with his co-staff to collectively demand the company’s Handbook is unsubstantiated and baseless. Counsel to the defendant went on that the defendant has staff strength of more than 25,000 people nationwide and that it is an aberration for any person to claim that a company of such magnitude is operated without set down rules and procedure. To counsel, the claimant’s claim that he made a demand of the said Handbook is false and unsubstantiated as he did not show or place anything/material before the Court to substantiate his claim thereof. That the said Handbook, which is periodically reviewed and upgraded, has always been accessible and available to members of staff of the defendant to abreast themselves of the conditions/provisions therein at the human resources department of the defendant upon application, referring to Exhibit D2, the reviewed and upgraded version of Exhibit D8. The defendant went on that it is in recognition of the necessity for staff to know their working conditions/benefits that it refers its employees at point of employment to its handbook. Placing reliance on Exhibits C1, D1, D2, D3, D4, D8, and paragraphs 3 and 4 of the defendant’s amended statement of defence dated 22nd June 2012, counsel to the defendant submitted that contrary to claimant’s claim and averments, the defendant has at all material times had a staff Handbook which governs or regulates the relationship between the defendant and its employees, including the claimant herein and which is periodically reviewed and upgraded in line with modern day needs and international best practice to make for better enhancement and work environment ultimately aimed at maximizing staff welfare and growth of the defendant company. Regarding the claimant’s issue 2, the defendant referred the Court to Exhibit C5, particularly the first and last paragraphs wherein it is provided thus – Report reaching the undersigned reveals that you have been abdicating your duty post not minding the detriment to our production process as you are always under the influence of alcohol while on duty. It was also reported that you went about deceiving staff into paying N2,000 for the settlement of solicitors and coupled with your involvement in other anti-organizational activities. In view of the above, you are to write to the undersigned within the next 24 hours why disciplinary action should not be taken against you. Counsel to the defendant then submitted that there is nothing in Exhibit C5 issued to the claimant that is suggestive of the fact that the defendant was out to avenge him on account of the exercise of his fundamental right to counsel of his choice and of freedom to associate with his co-staff to collectively demand the company’s Handbook. Referring the Court to the provisions of Chapter 8, specifically paragraphs 8.3 and 8.10(b) as contained at pages 42 and 44 respectively of Exhibit D8, counsel to the defendant submitted that the misconduct for which the claimant was queried are contained therein. Furthermore, that the claimant failed/refused to provide answers as required of him and advised in Exhibit C5 issued by the defendant’s officer to him. Counsel further placed reliance on paragraph 7 of the amended statement of defence dated June 22, 2013 and submitted that the claimant’s contract of service with the defendant was not terminated to avenge him for the exercise of his fundamental right to counsel of his choice and of freedom to associate with his co-staff to collectively demand the company’s Handbook but because his services were no longer required and the said contract was terminated in accordance with the terms of contract of parties as contained in Exhibits C1, D2 and D8. To the defendant, it is not sufficient for the claimant to allege that his employment with the defendant was terminated to avenge him for the exercise of his fundamental right to counsel of his choice and of freedom to associate with his co-staff to collectively demand the company’s Handbook without placing materials before the Court to substantiate his claim/averments thereof. That it is incumbent on the claimant to substantiate his allegation that his contract of employment was terminated to avenge his purported struggle and freedom to associate with his co-staff to demand for the Handbook. Counsel to the defendant referred the Court to Akinfosile v. Ijose [1960] 1 NSCC 129 at 133 where Abbot, FJ posited thus – The person who makes allegations in a pleading is by ordinary rules of pleadings bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading. Finally on these issues, counsel submitted that it is trite law that he who asserts must prove. That by virtue of section 133(1) of the Evidence Act 2011, the burden of proof generally rests/remains with the claimant. Counsel then commended the authority of Archibong v. Ita [2004] 13 WRN 1 at 21, where the court held that where, for instance, a party makes positive assertions in his pleadings, the burden of proving those assertions will lie on him. Also referred to the Court are the cases of Olasa v. Ezimuo [2003] 17 NWLR (Pt. 848) 129 at 147; Hussaini v. Ogbuokiri [2004] 7 NWLR (Pt. 873) 542 at 544; and Ordia v. Piedmont Nig. Ltd (1995) 2 NWLR (Pt. 379) 571. That it is trite that the Court is not allowed to speculate and it is not sufficient for a party to make assertions/allegations without placing materials before the court upon which the Court is enjoined to make its finding of fact, citing Princewill v. State [1994] 6 NWLR (Pt. 353) where it was held that “the court cannot speculate on possible explanations which were not supported by any evidence”. Counsel went on that it is trite that an applicant seeking the Court’s discretion must ensure that he supports the application with all necessary evidence. That the claimant, having failed to show or place any material evidence before the Court to substantiate his allegation/assertion that the defendant does not have a staff Handbook and that his contract of service with the defendant was terminated to avenge him for the exercise of his fundamental right to counsel of his choice and of freedom to associate with his co-staff to collectively demand the company’s Handbook, his claim must necessarily fail, referring to Solanke v. Somefun [1974] 1 SC 141. Regarding claimant’s issue 3, the defendant submitted that no breach has been occasioned by the termination of the claimant’s contract of service with the defendant to entitle him to damages as claimed. That the claimant’s contract of employment with the defendant was terminated in accordance with the terms of their contract of employment as encapsulated in Exhibit C1. Counsel referred the Court to Exhibit D4 and submitted that upon termination of their contract of service, the defendant has provided one month’s salary in lieu of notice and other benefits therein as provided in defendant’s Staff Handbook. That by the terms of parties’ contract as shown in Exhibit C1 either party can terminate the contract on the conditions therein stated; and having satisfied the said conditions, the defendant has not committed any breach in terminating its contract of service with the claimant. To the defendant, both parties being at liberty to terminate their contract at all material times, the claimant would still have rightly terminated the said contract of employment if he so wished, provided it is done within the conditions stated in Exhibit Cl. Counsel then submitted that damages are only awarded where and when breach has occurred, referring to Union Beverages Limited v. Owolabi [1998] 2 NWLR (Pt. 68) at page 128; and Ajayi v. Texaco [1987] 3 NWLR (Pt. 62) at page 577. That the defendant is not in breach of its contract of service with the claimant. The defendant then urged the Court to refuse/discountenance the argument of the claimant in support of his third issue for determination. The defendant then turned to the single issue it framed, namely: whether the claimant has made out a case to entitle him to the reliefs sought in this case. In this regard, the defendant submitted that the claimant’s contract of employment with the defendant was terminated on 16th August 2010 vide the defendant’s letter also dated 16th August 2010. That in line with parties’ terms of contract as provided in Exhibit C1, the claimant was advised vide Exhibit C3 to proceed to the Accounts Department of the defendant to collect his terminal benefits, which advise he failed to comply with. Relying on Exhibit D4, the defendant submitted that in consonance with the terms of parties’ contract as enunciated in Exhibit C1, the claimant’s terminal benefits included his one month’s salary in lieu of notice and other benefits as provided/contained in defendant’s Staff Handbook, particularly in section 7.2 and 7.2.1 as contained at pages 40 and 41 of Exhibit D8. The defendant further relied on paragraph 7 of the defendant’s amended statement of defence dated 22nd June 2012. Counsel to the defendant referred the Court to British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276 at 286 – 287 where Ubaezeonu, JCA said – An employer of labour under a common law contract of service is entitled to terminate the services of his employee in accordance with the terms of the contract. Once the master complies with the terms and conditions of the contract with regard to termination of the servant’s services, the servant or employee cannot complain – see Taiwo v. Kingsway Stores Ltd (supra). Counsel further referred to Nigeria Airways Limited v. Ahmadu (1991) 6 NWLR (Pt. 198) 492 at 499 where Mohammed, JCA stated thus – Mr. Johnson, quite rightly submitted that a master may terminate the appointment of a servant for any reason or for no reason at all, upon due notice or payment of salary in lieu of notice thereof. Even if the employment of a servant is improperly terminated or dismissed, he can only recover damages to be calculated as his rightful entitlements in lieu of notice. See Ridge v. Baldwin [1963] 2 All ER 66 and Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9). Counsel then referred the Court to Exhibit C1 particularly paragraph 2 of page 2 of the said exhibit, where it is provided thus – This appointment can be terminated by either party during the period of probation by giving two weeks’ notice or pay the basic salary for the two weeks in lieu of notice and one month on either side or pay the monthly salary in lieu after your termination. All other conditions of service as contained in our Employment Handbook shall be applicable to you. Thereafter, the arguments of the defendant in paragraphs 7.7 – 7.15 of its written address were simply repetitive of earlier arguments proffered when the defendant was reacting to the three issues raised by the claimant. There is, therefore, no need repeating the arguments of the defendant here. In conclusion, the defendant urged the Court to refuse the claimant’s claims with substantial costs to the defendant and to order the claimant to proceed to collecting his merited terminal benefits from the defendant’s accounts department, notwithstanding that he did not claim that relief in this suit. The claimant reacted to the defendant’s submissions by filing a reply on points of law dated. To the claimant, the admission of the defendant in paragraph 4.3 of its written address that the claimant has the constitutional right of association with his co-staff to counsel of his choice and to demand for the handbook in question (which the claimant rightly did via Exhibit C3, the claimant solicitors’ letter dated 7th May 2010) and that provision of a handbook by an employer is a statutory obligation by virtue of section 7 of the Labour Act 2004 substantially resolves the issues in controversy. That the facts of the existence and service of the claimant’s counsel’s letter of formal demand of the company Handbook (Exhibit C3) was not denied by the defendant throughout the trial. The claimant went on that paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the amended statement of facts dated 1st June 2012, paragraph 10 of the claimant’s reply dated 30th July 2012 and Exhibit C5 all give a detailed account of the consequential effect of service of the said letter on the claimant, pursuant to his legitimate demand for the company Handbook with his co-staff through his solicitor. That similarly, these facts were not denied; hence the claimant was victimized and his appointment terminated. That what the law says when facts are not denied, challenged or controverted by the defendant is that all such facts are deemed admitted and ought to be acted upon by the Court, referring to Dr Fayemi v. Oni [2010] 17 NWLR (Pt. 1222) 326 at 342. The claimant continued that the defendant seems to miss the point that the claimant’s claim was not premised on the usual common law of contract of employment. That under the common law, where wrongful termination of appointment is established, the aggrieved employee can only recover damages calculated on his rightful entitlements in lieu of notice, referring to Nigeria Airways Ltd v. Ahmadu [1991] 6 NWLR (Pt. 198) 492 at 499. But that the case at hand is premised on breach of claimant’s fundamental right to counsel of his choice, and of association with his co-staff to demand the company Handbook, which is a statutory document provided for by law, citing section 7 of the Labour Act 2004. It is trite law that where a party acted contrary to, infringes or violates any of the provisions of the Constitution, such action is null and void, and of no effect whatsoever, referring to Knight Frank & Rutley Nig. v. AG, Kano State [1998] 7 NWLR (Pt. 556) 1 at 19. Thus, that where breach of the claimant’s fundamental right is established, as in this case where he was issued a query because he collected money from his co-staff to brief a counsel of his choice to demand the company Handbook, which act the defendant erroneously termed “anti-organizational”, and for which his appointment was terminated after 24 hours warning, is an infringement or violation of sections 36 and 40 of the 1999 Constitution (as amended) and, therefore, null and void. That the claimant is accordingly entitled to damages for the violation. The claimant then urged the Court to grant the reliefs as sought. Court’s Decision In considering the merit of this case, I must point out that the facts of the case are pretty settled and agreed upon by the parties. It is not in doubt that the claimant was an employee of the defendant. It is not in doubt that the claimant was queried and his employment terminated by the defendant. The case of the claimant is that in terminating his employment, the defendant infracted on his right to brief counsel and to associate with his co-staff to demand for the Staff handbook commonly referred to in the company letters of appointment. The case of the defendant, on the other hand, is that it terminated the employment of the claimant in accordance with his contract of employment, and that there is no case of infringement of his right of association or to brief his counsel or even that section 7 of the Labour Act 2004 was infringed. I must state right away that Exhibits C3 and C4 are two letters written by the solicitors of the claimant to the defendant. This means that the claimant actually briefed his counsel on this matter. How then did the defendant infract on the right of the claimant to brief his counsel? The argument of the claimant is that in Exhibit C5, the query issued to him by the defendant, the defendant accused him of “deceiving staff into paying N2,000.00 for settlement of Solicitors….” Since the claimant actually briefed his counsel, which he chose himself, I do not know how it can be said that the defendant infracted “the right of the claimant to brief his counsel”. The claimant cited section 36 of the 1999 Constitution, as amended, as the authority for arguing that his right to brief his counsel was infracted on by the defendant. Now, section 36 of the 1999 Constitution, as amended, deals with the right to fair hearing in a court or tribunal. It is in the context of a person enjoying his right to fair hearing that the right to counsel of choice is provided for under section 36 of the Constitution; even here the right is couched specifically so only in section 36(6)(c) and (d) dealing with criminal trials. The said subsections provide that – (6) Every person who is charged with a criminal offence shall be entitled to – (a) ………. (b) ………. (c) defend himself in person or by legal practitioners of his own choice; (d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution. In the case of civil trials, section 36(2)(a) merely guarantees that the person whose rights and obligations may be affected is given the opportunity to make representations before a decision is taken on the issue in question. So, how querying the claimant for “deceiving staff into paying N2,000.00 for settlement of Solicitors” among other things amounts to “infraction of his right to brief counsel” is what I cannot fathom. I do not, therefore, think that the claimant has made out any case of infraction of his right to brief counsel in this case; and I so find and hold. Before addressing the claimant’s claim for infraction of his right “to associate with his co-staff to make a demand for the handbook commonly referred to in the company letters of appointment”, I need to sort out some general issues that are implicit in the submissions of the claimant. In the first place, the claimant in relief 4 of the amended complaint and amended statement of facts claimed for N10,000,000.00 only as general damages for defendant’s wrongful termination of the claimant’s appointment, and/or for the infraction of his right to brief counsel, and associate with his co-staff to make a demand for the handbook commonly referred to in the company’s letters of appointment. It should noted here that only the claimant’s letter of appointment, Exhibit C1, was exhibited in proof; no other letter of appointment was exhibited to, therefore, warrant the phrase, ‘commonly referred to in company letters of appointment’. Secondly, the claimant in paragraph 4.3.04(v) of his written address talked of “serial termination of the claimant’s appointment by the defendant”, citing Exhibits C3 and C4, which are letters from the claimant’s solicitor to the defendant. A solicitor’s letter is not proof of the contents of the letter; at best, it is hearsay of what is stated in the letter. In Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, this Court held that: …Document 6 (the letter of the claimant’s solicitor to the defendant dated 25th May 2010) cannot be used to prove the statements contained therein. We agree with the defendant that its weight and probative value as proof of its content is suspect. At best, the said letter only proves that the claimant demanded for his entitlement from the defendant. It cannot be used as proof of the entitlement of the claimant to the amount claimed as accrued performance bonus earned by the claimant. Regarding the entitlement of the claimant to the sum of Ninety-Nine Thousand United States Dollars claimed, document 6 goes to no issue and so is discountenanced for that purpose. In the instant case, Exhibits C3 and C4 cannot be proof of serial termination of the employment of anyone. Except for Exhibit C2, which evidences the termination of the claimant’s employment, there is no other evidence before the Court of the termination of any other employee by the defendant. So, how the termination of the employment of the claimant became ‘serial’ is what I cannot once again fathom. Thirdly, the claimant throughout his submissions (see, for instance, paragraphs 2.03, 4.2.02 and 4.3.04 of the written address) kept emphasizing that the reasons for the query (Exhibit C5) issued to him were that he went about deceiving staff to collect N2,000.00 to pay their solicitor and that he partook in “anti-organizational activities”, he never for once disclosed to the Court in his written address the opening words of Exhibit C5, which are – Report reaching the undersigned reveals that you have been abdicating your duty post not minding the detriment to our production process as you are always under the influence of alcohol while on duty…. Counsel to the defendant rightly alluded to this part of Exhibit C5 in his argument. I shall in due course address the merit of Exhibit C5. Lastly, in paragraph 4.3.05 of his written address, the claimant complained that “the natural consequence of defendant’s action is that the claimant has been thrown into the unemployment market to suffer grave hardship”, yet there is no pleading whatsoever and evidence that the claimant sought to mitigate his damage. I now turn to the complaint of the claimant that his right to associate with his co-staff to demand for the Staff Handbook was infracted by the defendant. Section 40 of the 1999 Constitution, as amended, dealing with the right to peaceful assembly and association, provides that – Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition. And section 45 of the 1999 Constitution, as amended, dealing with restriction on and derogation from fundamental rights, the goes on to provide that – (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons. Within the context of labour law, the right to associate must be understood in its proper context. Every worker no doubt has the right to assemble freely and associate with other persons, but in the context of the workplace, this right finds expression in the formation of or belonging to any trade union for the protection of his interests. It is for this reason that section 9(6) of the Labour Act 2004 provides that – No contract shall – (a) make it a condition of employment that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union; or (b) cause the dismissal of, or otherwise prejudice, a worker – (i) by reason of trade union membership; or (ii) because of trade union activities outside working hours or, with the consent of the employer, within working hours; or (iii) by reason of the fact that he has lost or been deprived of membership of a trade union or has refused or been unable to become, or for any other reason is not, a member of a trade union. What all of this portends is that freedom of association includes the right to refuse to be a member of an association alongside the right to be a member. This right does not often specify any consequential rights such as the right to engage in collective bargaining or the right to strike, or in the instant case the right to demand for the Staff handbook. But does the phrase ‘for the protection of his interest’ generally used in the Constitution imply these consequential rights especially the right to associate with co-staff to demand for the Staff Handbook? The case of Sea Trucks (Nig.) Ltd v. Pyne [1999] 6 NWLR (Pt. 607) 514 was quite emphatic in holding that the phrase “for the protection of his interest” does not give a citizen unrestrained freedom to join any trade union as a person proposing to join a trade union must show it protects his interest. The point being made is that the claimant is complaining that he right to group with his co-staff to demand for the Staff Handbook was infracted on by the defendant. The act of grouping with co-staff to demand for the Staff Handbook among other demands is an incidence of unionism and what trade unions were permitted to do in the first place. See section 1(1) of the Trade Unions Act (TUA) Cap. T14 LFN 2004 which defines a trade union as – …any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members. Section 2(3) of the TUA then goes on to criminalise the doing of an act that can only be done by a registered trade union when such is not being done by a registered trade union. The truth of the matter is that when the claimant complained that his right to associate with his co-staff was infracted on by the defendant, the complaint was actually one of the denial to associate and function as a trade union. Instead of the claimant coming to Court under this reality, he simply for expedience came under the façade of grouping for the need to make a demand for the Staff Handbook. The testimony of CW and the written address of the claimant all point to the fact that the real complaint of the claimant is that he was not allowed to group with his co-staff as a union. For instance, paragraph 17 of the additional statement on oath of the claimant is to the effect that The defendant does not encourage Labour/union meetings and has no registered trade/labour unions. It gags its workers from making agitation for better working conditions. No union dues are paid by the workers of the defendant’s company, and no union executive was ever inaugurated at the Apapa branch of the defendant company until its closure in April 2012. And in paragraph 2.05 of his written address “defendant does not allow union activities at all” and then gave the example of the sacking of staff and closure of the Apapa branch of the defendant on or around 3rd December 2001. In paragraphs 4.1.01 – 4.1.03, the claimant argued that the defendant denied him the right under section 40 of the 1999 Constitution, as amended, to associate with other persons for the protection of his interest. And in paragraph 4.3.07 of his written address, the claimant urged the Court to award aggravated damages of N10,000,000.00 (Ten Million Naira) against the defendant for punishing the claimant because of the legitimate exercise of his fundamental right of association to press for better working conditions of service (the emphasis is the Court’s). See also paragraph 5.0 of the claimant’s written address. In fact, under cross-examination, the claimant affirmed that the defendant does not have trade unions. In essence, these are also the complaints that formed the basis of Exhibit C3, one of the letters written by the claimant’s solicitors to the defendant. In Exhibit C3 would be found complaints as to termination of staff, double standards in treating staff, non-review of salary by the defendant, failure to provide the Handbook and victimization of staff. These are issues appropriately reserved for formal trade union agitation. My take then is that these are the real issues underlying the present case, which the claimant simply for his expedience couched as breach of the right to counsel of his choice and of association with his co-staff to demand the Staff Handbook; and I so find and hold. Now, if this is the reality of this case, what it then means is that the claimant can only make his agitation under a formal trade union so as to be subjected to the regulation of the law especially section 9(6)(b)(ii) of the Labour Act 2004 which enjoins that trade union activities within working hours has to be with consent of the employer. Exhibit C5, the query issued to the claimant, asked the claimant to explain, amongst other things, why he abdicated from his duty post not minding the detriment to the defendant’s production process, and why he went about deceiving staff into paying N2,000 for the settlement of Solicitors. To collect money from staff for a cause is in itself not a wrong; but when the cause is the agitation for better working conditions then it becomes a collection for unionism cause(s). This fact added to the fact that the claimant was absent from his duty post as per Exhibit C5 (the claimant did not even make an issue of this; neither is there even proof before the Court that he even replied the query) suggests that the claimant did not seek the appropriate permission or consent of the defendant to be away from his duty post. All of these are entitling and justifying reasons the defendant to dismiss (not just terminate) the claimant’s employment. The freedom to associate is not absolute. Section 45 of the 1999 Constitution, as amended, permit its derogation. Section 9(6)(b)(ii) of the Labour Act, for instance, provides that for workers to associate in the workplace for trade union purposes the consent of the employer first had and received is needed. I found earlier that the substance of the agitation of the claimant is actually unionism. There is no direct proof before the Court that the claimant and his co-staff corresponded with recognized trade unions to establish a branch in the defendant company. The nearest evidence before the Court relates to paragraphs 12 and 13 of the claimant’s reply to the amended statement of defence, where the claimant pleaded with Exhibit C6 as the supporting evidence (and confirmed under cross-examination of CW) that the defendant does not allow union activities at all; and that the defendant sacked all its workers and closed down business at Apapa branch around 3rd December 2001 following a peaceful protest organized by the staff to demand enhanced pay packet, among others. Even this, however, is not proof that the claimant approached any recognized trade union to establish a branch in the defendant company. Neither is there any evidence before the Court that the claimant applied to the Registrar of Trade Unions for registration as a trade union to warrant the agitation that he complained of against the defendant. So in embarking on the agitation that the claimant complained of, the claimant was embarking on unlawful acts; and I so find and hold. I now turn to the legality or otherwise of the demand for the Staff Handbook itself. In his reply on points of law, the claimant argued that the defendant in his final written address made some admissions in this regard which should resolve all the issues in favour of the claimant. Both parties cited copiously the provisions of section 7 of the Labour Act but none referred to subsection (6) of section 7. I intend first to deal with the issue contended by the claimant that the defendant admitted that the provision of a handbook is a statutory obligation in virtue of section 7 of the Labour Act. The manner in which the claimant argued seems to suggest that parties can admit to something outside of the law or even something that may be illegal. To draw analogy from the rules pertaining to admissibility of evidence, the rules are that it is not within the competence of the parties to a case to admit by consent or otherwise a document which by law is inadmissible. See Lawson v. Afani Const. Co. Ltd [2002] 2 NWLR (Pt. 752) 585 Ratio 17 CA and Yero v. Union Bank of Nigeria [2000] 5 NWLR (Pt. 657) 470. Also, evidence which is absolutely inadmissible by virtue of a statutory provision will be rejected on appeal even if no objection was raised to its admissibility. See Anyaebosi v. R.T. Briscoe (Nig.) Ltd [1987] 6 SCNJ 9 at 20, Garba Audu & anor v. Salmanu Ahmed [1990] 5 NWLR (Pt. 150) 287 at 298 and Alade v. Okukade [1976] 7 SC 183 at 183 – 190. Furthermore, the Court will not act on any evidence made inadmissible by express provision of a statute or law even with the consent of the parties. See Kale v. Cooker [1982] 12 SC 252 and Biameri v. Federal Mortgage Bank [2002] FWLR (Pt. 121) 1858. From these authorities it may be deduced that parties cannot admit to an arrangement that is against the provision of the law. In the instant case, therefore, parties cannot agree to an arrangement that goes counter, for instance, to section 7(6) of the Labour Act 2004. There is no argument that section 7(1) of the Labour Act provides for the written particulars of terms of employment that must be given a worker within three months of commencing a worker’s period of employment. But section 7(6) states that the provisions of this section in respect of written statements shall not apply if – (a) a worker has a written contract of employment which covers each of the particulars mentioned in subsection (1) of this section; and (b) he has a copy of that written contract. Exhibit C1, the claimant’s letter of appointment, contains terms and conditions of the claimant’s employment. The name of the employer, the name and address of the claimant as well as the place and date of his engagement, the nature of his employment, the period of notice to be given in the event of termination of the employment contract by either the claimant or the defendant, the fact of probation and the salary and allowances of the claimant, all of which are the requirements stipulated by section 7(1)(a) – (f) of the Labour Act. The requirements in paragraphs (g) and (h) of section 7(1) dealing with hours of work, holidays and incapacity for work as well as any special conditions of the employment contract are the only conditions that are not reflected in Exhibit C1; even at this, paragraphs (g) and (h) talk of “any…conditions” suggesting that these conditions may not be absolute requirements. Subsection (2) provides for changes in the terms for which the employee shall be informed within one month of the change(s). And in subsection (3), a statement under subsection (1) or (2) may, for all or any of the particulars to be given by the statement, refer the worker to some other document which the worker has reasonable opportunities of reading in the course of his employment or which is made reasonably accessible to the worker in some other way. It is in this context that Exhibit C1 stated that all other conditions of service are as contained in the Employment Handbook, which shall be applicable to the claimant. If, in spite of all this, section 7(6) of the Labour Act still stipulates that the provisions in subsections (2) – (5) in respect of written statements shall not apply if a worker has a written contract of employment which covers each of the particulars mentioned in subsection (1) of this section; and he has a copy of that written contract, can it be said that the requirements in section 7 as to the particulars of terms of contract of employment are absolute? Certainly not. Can the failure to comply with the requirement of section 7 of the Labour Act give rise to the kind of agitation that the claimant engaged himself in? I do not think so. If anything, it reinforces my finding that it merely served to clothe the façade of associating with co-staff to make a demand for the Staff Handbook. The claimant, since he could not sustain an action for anti-unionism against the defendant, merely used the demand for the Staff Handbook (which is not even an absolute requirement of law) as the convenient excuse to justify coming to Court; and I so find and hold. In any event, section 7 of the Labour Act does not even provide any civil remedy for not adhering to the provisions of section 7(1) – (5). Only the criminal sanction, upon conviction, of a fine not exceeding N800 or, for a second or subsequent offence, to a fine not exceeding Nl,500 is provided by section 21(1)(c) of the Labour Act where an employer contravenes section 7 of the Act. The claimant asserted throughout his submissions that he demanded severally for the Staff Handbook. Under cross-examination, he testified that on several occasions, he applied to the HR (Human Resources) and Admin. Manager, Mr. Kefas, for the Handbook, but that he was not given the handbook as requested. On being asked the manner of the application, he answered that he applied orally for the Handbook. There is no written evidence before the Court that the claimant applied for the Staff Handbook. If the claimant sincerely placed any premium on the Staff Handbook, the demand for it would have been evidenced in writing. Once again, this only goes to reinforce my finding that the demand for the Staff handbook is merely a ruse to hide the real agitation as one for unionism. In all, and for the reasons given, I hereby hold that the claimant failed to establish his case. His claims for the reliefs as per his amended complaint and amended statement of facts, therefore, fail and are accordingly dismissed. The defendant acted within the confines of the law when it terminated the contract of employment of the claimant. Judgment is entered accordingly. Cost is put at Fifty Thousand Naira (N50,000) only payable by the claimant to the defendant. …………………………………… Hon. Justice B. B. Kanyip