JULIUS BERGER (NIG) PLC v. EMMANUEL (2020)

JULIUS BERGER (NIG) PLC v. EMMANUEL

(2020)LCN/14179(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/C/491/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

JULIUS BERGER NIGERIA PLC. APPELANT(S)

And

NNENAYA EMMANUEL RESPONDENT(S)

RATIO

WHETHER OR NOT AN EMPLOYER HAS THE RIGHT TO SUMMARILY DISMISS HIS EMPLOYEE FOR ACTS OF GROSS MISCONDUCT

It is trite that in any employment whether statutory or that predicated on a master servant relationship, an employer has the right to summarily dismiss his employee for acts of gross misconduct, but and provided the employee is given an opportunity of fair hearing. See Patrick Ziideeh vs. Rivers State Civil Service Commission (2007) LPELR – 3544 (SC), Arinze vs. First Bank of Nigeria Ltd (2004) 12 NWLR (pt. 888) 663.
In the case of Yusuf vs. UBN (1996) 6 NWLR (pt. 457) 41, the apex Court on whether it is the law that an employee accused of a crime must of necessity be tried before a Court of law, reasoned that even though such a course may not be necessary, before an employer can summarily dispense with the services of his employee for acts of gross misconduct under the common law, the employee need not be tried before a Court of law, but all the employer needs to do is to afford the employee an opportunity of being heard before exercising the power of summary dismissal, and this also applies even where the allegation for which the employee is being dismissed involves accusation of crime. PER BARKA, J.C.A.

FACTORS TO JUSTIFY THE DISMISSAL OR TERMINATION OF APPOINTMENT OF AN EMPLOYEE

Further submits that to justify the dismissal or termination of appointment of an employee, the employer must prove three elements enunciated in Oloruntoba-Oju & ORS. vs. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83, and where a wrongful termination or dismissal carries with it some stigma on an employee’s character, the employee shall be entitled to substantial damage far beyond the amount the employee would have earned.

Further responding to the issue, it was argued that to justify the dismissal or termination of appointment of an employee, the employer must establish that:
i. That the allegation was disclosed to the employee.
ii. That he was given a fair hearing
iii. That the employer believed that the employee committed the offence after hearing witnesses.
The cases of Oloruntoba-Oju vs. Abdul-Raheem (2009) 13NWLR (pt. 1157) 83, and Bamgboye vs. University of Ilorin (1999) 10NWLR (pt. 622) 290 were cited in support of the legal principle. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal seeks to challenge the judgment of the National Industrial Court, Calabar Judicial Division, holden at Calabar, and manned by Justice E. N. Agbakoba. In the said judgment delivered on the 14th of July 2016, the Court found for the respondent having ordered as follows:
i. The defendant shall pay to the claimant the sum of N4,348,801.44 (Four Million, three hundred and forty-eight thousand, eight hundred and one naira, forty-four kobo) only being damages/compensation for wrongful dismissal.
ii. Cost of this action is put at N50,000.00 (fifty Thousand Naira) only payable by the defendant to the claimant.
iii. All these sums are payable within 30 days of this judgment, failing which they shall attract interest at 10% per annum until they are fully paid.

It should be recalled that the respondent as claimant before the lower Court, took out a writ of summons against the appellant on the 16th of January, 2014, seeking for the following reliefs:
1. A declaration that the termination of the claimants employment by the defendant is wrongful without giving him one

months’ notice or payment in lieu of such notice in accordance with ARTICLE 9 (b) of the internal conditions of service between Julius Berger Nigeria Plc and NUCECFWW 2011.
2. The claimant is entitled to severance benefit of his monthly wage being N120,800,04 (One Hundred and Twenty Thousand Eight Hundred Naira four kobo) based on his total emoluments comprising of basic salary/wage, rent subsidy, transport and meal subsidy allowances at 12.5% in accordance with ARTICLE 10(a) (iii) of the internal conditions of service between Julius Berger Nigeria Plc and NUCECFWW 2011.
3. The claimant is entitled to Ex-gratio payment in addition to severance benefit at 40% of his monthly basic salary of N120,800.04 (One hundred and twenty thousand eight hundred naira four kobo) for each year of service being thirty (31) years in accordance with ARTICLE 10 (b) (iii) of the internal conditions of service between Julius Berger Nigeria Plc and NUCECFWW 2011.
4. A declaration that the claimant sustained industrial accident in the course of his employment with the defendant on the 6th day of August, 2010.
5. A declaration that the claimant is entitled to

the sum of N20,000,000.00 (Twenty Million Naira) as general damages for the permanent disability arising from industrial accident, sustained in the course of performing his duty for the defendant on the 6th day of August, 2010.

The claimants case was anchored on facts set out establishing the cause of action. In brief, it was the claimants case that he was until his disengagement by the appellants, an employee of the appellant’s company as headman operator employed on the 9th of November, 1979, and issued with an identity card and tally number 1.135387 as well as a certificate of service dated the 15th of October, 2005. He states that he was subsequently issued with other identification documents by the defendant, and claimed that he bagged the prestigious long service award of the defendant in the years 1989 and 2005. He equally has a testimonial for honesty and industry issued to him on the 22nd of July 1993.

With all these bright credentials to his name, claimant states that he continued to perform his lawful duties to the defendant, a civil engineering and construction company until on the 6th day of August, 2010 when he sustained an

industrial accident in the course of his work at the quarry site Awi, Akamkpa local Government Area of Cross River State. He goes on to state that owing to the industrial accident of that day, he experienced severe pains and difficulty in walking which rendered him permanently disabled and incapacitated since the day of the accident. It is his further case that prior to his alleged wrongful dismissal, without any benefit, salary, emolument and other entitlements, he was placed on light duty on the recommendation of the defendant’s medical practitioner, but later declared unfit to work upon the recommendation of another medical practitioner. That he was disengaged without giving him one month’s notice or payment in lieu of notice, and his salary stopped, His medical treatment, and severance benefits were also stopped and not paid contrary to Article 10(a) (iii) and 10 (b) (iii) of the internal conditions of service between the defendant and NUCECFWW 2011.

He complained that he was abandoned to his fate without benefits or emoluments in spite of his meticulous services to the defendant, and whereas he continued to suffer constant pains and

permanent disability from the damage to his thoracic and lumbar vertebrae caused by the intense operation of heavy duty equipment’s, further complained that he suffers momentarily from mental, psychological and economic losses as a result of his wrongful disengagement without any benefit, emoluments and other entitlements as well as medical treatment and the difficulty of caring for his family. Consequent upon all these, he was constrained suing the defendant and seeking for the reliefs listed above.

In the statement of defense filed on the 21st day of May, 2014, defendant denied the claimants claim, and in particular denied that there was any industrial accident to their knowledge which affected the claimant, but rather claimed that the claimant was disengaged pursuant to Article 23 (d) (iv) of the internal conditions of service, after the claimant tested positive for the unlawful use of Tetrahydrocannabio, popularly known as cannabis sativa(Indian Hemp) during a yearly routine check on the claimant. The Court was urged to dismiss the claim with substantial costs as the conduct of the claimant which caused his dismissal is against public policy and

equity; and issues having been joined, the case proceeded to a protracted trial.

The claimant in proving his case gave evidence and tendered 17 documents in evidence. The respondent called two witnesses and tendered 6 documents. At the close of trial, written addresses were ordered, filed and adopted. The vexed judgment was delivered on the 14th of July, 2016.

Dissatisfied with the judgment of the lower Court, appellant filed a Notice of Appeal on the 17th of October, 2018, pursuant to the leave of Court granted on the 16th of October, 2018. The record of appeal was duly transmitted to this Court on the 14th of December, 2018. Appellants brief filed on the 30th of September, 2019 but deemed properly filed on the 11th of March, 2020 with the leave of Court granted on the same date. The respondents brief filed on the 28th of January, 2020 was consequentially deemed on the same 11th of March, 2020.

When the appeal eventually came up for hearing on the 11th of March, 2020, parties identified their respective briefs of argument and adopted same in urging the court to grant their respective prayers.

In the Appellants brief settled by B. N. Kumbe,

particularly at pages 3, thereof, four issues were identified for the resolution of the appeal as follows:
i. Whether the trial Court acted perversely by not properly evaluating the clear provisions of Exhibit C17 (the Internal Conditions of Service between the parties) but rather introduced and relied on the issue of lack of fair hearing beyond the context of Exhibit C17 and other established facts, in considering the dismissal and/or termination of the Respondent’s employment? (distilled from ground 1).
ii. Whether the trial Court erred in law when it applied the principle of malpractice and stigma in determining the termination of Respondent’s employment and invoked the aforesaid principle to award the sum of N4,348,801.044 as damages/compensation and the sum of N50,000.00 as cost against Appellant even when malpractice and stigma were not pleaded? (distilled from ground 2).
iii. Whether the trial Court breached the Appellant’s constitutional right to fair hearing and never exercised its discretion judicially and judiciously by invoking and misapplying the provisions of Section 14 of the National Industrial Court Act, 2006

to justify the award of damages/compensation and cost in favour of the Respondent (distilled from ground 3); and
iv. Whether the judgment of the Court below is against the weight of evidence adduced at the trial? (ground 4).

The respondent on his part, at pages 3 – 4 distilled four issues for resolution. They are as follows:
i. Whether the trial Court acted perversely by not properly evaluating the clear provisions of Exhibit C17 (the Internal Conditions of Service between the parties) but rather introduced and relied on the issue of lack of fair hearing beyond the context of Exhibit C17 and other established facts, in considering the dismissal and/or termination of the Respondent’s employment? (distilled from ground 1).
ii. Whether the trial Court erred in law when it applied the principle of malpractice and stigma in determining the termination of Respondent’s employment and invoked the aforesaid principle to award the sum of N4,348,801.044 (Four Million, Three Hundred and Forty-eight Thousand, Eight Hundred and One Naira), Forty-four Kobo) as damages/compensation and the sum of N50,000.00 as cost against Appellant even

when malpractice and stigma were not pleaded? (distilled from ground 2).
iii. Whether the trial Court breached the Appellant’s constitutional right to fair hearing and never exercised its discretion judicially and judiciously by invoking and misapplying the provisions of Section 14 of the National Industrial Court Act, 2006 to justify the award of damages/compensation and cost in favour of the Respondent (distilled from ground 3); and
iv. Whether the judgment of the Court below is against the weight of evidence adduced at the trial? (ground 4).

Clearly as can be seen, parties are at ad idem on the issues to be resolved in the appeal, and I have no problem determining this appeal upon the issues formulated by the appellant and adopted by the respondent.

Issue One.
Whether the trial Court acted perversely by not properly evaluating the clear provisions of Exhibit C17 (the internal conditions of service between the parties) but rather introduced and relied on the issue of lack of fair hearing beyond the context of exhibit C17 and other established facts, in considering the dismissal and/or termination of the respondent’s employment.

With respect to this issue argued from pages 3 – 8 of the brief, whether the trial Court properly evaluated exhibit C17, concerning the dismissal and or termination of the respondents employment, it was contended that the decision of a Court of record in any proceedings must be predicated upon the pleadings of the respective parties. He argued that from the pleadings of the parties, to which the Court is also bound, the relationship of the appellant and the respondent was regulated by Exhibit C17, the internal condition of service between Julius Berger Nigeria Plc. and NUCECFWW 2011; being a collective agreement. He submits that a collective agreement is recognized by our laws under Section 19 of the Labour Act Cap.L1 Laws of the Federal Republic of Nigeria, 2004. Further submits that by article, 23 (d)(iv) of Exhibit C17, which stipulated that any employee, of the appellant caught or found using or taking Indian hemp, (cannabis sativa), or any hard drug for that matter will lead to immediate dismissal without notice and without terminal benefits, and further submits that as part of the internal condition of service, all employee of the

appellant are obligated to undergo routine medical examination to ascertain their health and fitness while on the job, contended that during one of such routine examinations conducted on the 6/03/2012, traces of Indian hemp were discovered in the urine sample taken from the respondent as indicated in exhibit D5 – D5(1), and the respondent declared medically unfit to continue in the appellants employment, which decision was communicated to the respondent. He faults the lower Courts conclusion to the effect the that allegation of using Indian hemp was never communicated to the Claimant, having held earlier on, as can be seen from page 213 of the record that the allegation of the use of cannabis based on the result of a routine medical check was promptly communicated to the respondent by one DR. Sautter in the presence of DW2.

It was further submitted that the respondent’s employment was that of master and servant devoid of any statutory flavor, and appellant had the right to terminate the appointment of the respondent without giving any reason within the walls of exhibit C17.

He argued that had the Court examined Article 32 and 23 (d)(iv) of

exhibit C17, it would have inevitably come to the conclusion that appellant waived his right to be fairly heard by the appellant via the procedure provided by Article 32 of exhibit C17, and therefore invited the Court to examine Article 23(d)(iv) and 32 of exhibit C17 and to hold that the respondent was bound by the provisions of the said exhibit C17.

Relying on the case of FRN vs. Nwosu (2016) 17 NWLR (1541) 226 @ 302-303, Learned Counsel submitted, that on the state of pleadings and the evidence led, the grouse of the respondent was that he was not given one month notice or payment in lieu of notice and not that his termination was wrongful, and the Court cannot in the circumstance ascribe to parties what was not claimed. He urged the Court to hold that since the respondents termination was in line with Article 23 (d)(iv) of exhibit C17, and respondent having failed to activate the grievance procedure accorded him under Article 32 of exhibit C17 his disengagement cannot be said to be wrongful.

Responding to the issue, learned counsel for the respondent alluded to the decision in Hamza vs. Kure (2010) 10 NWLR (Pt. 1203) 630, Mogaji vs. Odofin (1978)

4 SC 91, and Sections 13 and 19 of the National Industrial Court Act 2006, to argue that an employee cannot be dismissed for a specific misconduct in the absence of adequate opportunity afforded him to justify or explain same. The case of Yusuf vs. Union Bank (1996) 6NWLR (Pt. 457) 41 – 42 was referred to.

Submits that the trial Judge properly and correctly evaluated and examined the pleadings and evidence from the parties, and further analyzing the various aspects of the parties pleadings and evidence adduced, it was contended that the allegation of the dismissal of the respondent by the appellant involved accusation of crime and evidently respondent was not afforded the opportunity to be heard.

On the contention, that respondent did not activate the grievance procedure under Article 32 of Exhibit C17, counsel posits that by the provision of Section 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria, the respondent’s right of access to Court has been guaranteed, and the respondent need not actualize article 32 as contended.

It seems clear to me that the area of friction between the parties has been narrowed down to

whether in dismissing and or disengaging the respondent, appellants conformed with the stipulations of exhibit C17, the internal condition of service between the appellant on one hand and the NUCECFWW 2011, being a collective agreement which also binds the respondent. It is clearly beyond argument that exhibit C17 being a collective agreement, has been duly recognized by Section 19 of the Labour Act Cap. L1 Laws of the Federal Republic of Nigeria 2004. The law is equally clear and thereby well established that a Court of trial before reaching a decision one way or the other, has the duty of examining the totality of the evidence, oral and documentary, before and placing same on an imaginary scale of justice with a view of seeing which of the two sides preponderate. The cases of Hamza vs. Kure (2010) 10 NWLR (pt. 1203) 630 and Mogaji vs. Odofin (1978) 4 SC 91 are apt on the point.
Examining critically the root cause of the appellants termination of appointment deducible from the statement of facts establishing the cause of action and the statement of defense filed, the respondent who was an employee of the appellant was disengaged sometimes in the month of

March, 2012, without one months’ notice or payment in lieu of such notice. His monthly salary and medical treatments were discontinued, and all other emoluments due to him not given to him. The respondent on the other hand while disputing some of the facts averred by the claimant, posited that claimant was not entitled to the benefits stated by the claimant as contained or pursuant to the provisions of Article 10 (a) (iii) and 10 (b) (iii) of the internal conditions of service between the defendant and NUCECFWW, as claimant was dismissed pursuant to article 23 (d) iv of the aforesaid condition of service. In other words, the appellants are contending that respondent having breached his terms of engagement was not entitled to the benefits due to him. Indeed the contention of the appellants before the lower Court was that respondent was guilty of being in possession of prohibited hard drugs, in this case cannabis sativa, which fact was alleged to have been discovered after testing his urine sample.
Naturally, respondent denied ever smoking not only any prohibited hard drugs, but that he never indulged himself in smoking ordinary cigarettes, alcohol or

dangerous and prohibited drugs for that matter. The respondent further showed surprise that his urine tested positive to the alleged drug as he was not shown how the test was conducted and or shown the result of the urine test. The question begging for resolution at this stage is how can the respondents contract of employment be determined?. To this question I would agree with the appellants, that the respondents contract of employment is that captured in exhibit C17, which contract binds both the parties, and the cases of CBN vs. Archibong (2001) 10NWLR (pt. 721) 492, and Kato vs. CBN (1996) 6NWLR (pt. 607) 390, cited by the appellant’s counsel are apposite.
In the stated condition of service, contains a proviso to the effect that consumption of hard drugs by any employee is prohibited and punishable by instant dismissal. The determinant question then would be to my mind, whether the respondent breached that aspect of his terms of employment and thereby liable for the termination of his employment. Dw2 under cross examination was heard as saying that:
Claimant counsel. are you aware that claimant was dismissed solely for testing positive to

THC (cannabis test).
Answer … Yes I know that claimant was dismissed because he fail (sic) THC dip test conducted by the defendant.
The law with regards to the relationship between a master and his servant, which indeed is the xxx relationship between the parties.
It is basic that where an employer alleges any wrong doing against an employee, the employer has the bounden duty of proving such allegation, more so where the employee denies committing the offence alleged. In the instant case, even though the appellant are heard as saying that one Dr. Sauthers did inform the respondent that his urine analysis indicated that he had failed the THC dip test, there is no evidence on record that respondent was confronted with the said result, was found to have offered no explanation and based upon which he was summarily dismissed.
The lower Court rightly in my view alluded to the case of Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83 to hold that the allegation ought to have been disclosed to the employee and who must be given the opportunity to respond to the allegation against him, and further that from and on the basis of the

accusation and explanation offered, the must do believe that the employee did infact commit the offence alleged. It is trite that in any employment whether statutory or that predicated on a master servant relationship, an employer has the right to summarily dismiss his employee for acts of gross misconduct, but and provided the employee is given an opportunity of fair hearing. See Patrick Ziideeh vs. Rivers State Civil Service Commission (2007) LPELR – 3544 (SC), Arinze vs. First Bank of Nigeria Ltd (2004) 12 NWLR (pt. 888) 663.
In the case of Yusuf vs. UBN (1996) 6 NWLR (pt. 457) 41, the apex Court on whether it is the law that an employee accused of a crime must of necessity be tried before a Court of law, reasoned that even though such a course may not be necessary, before an employer can summarily dispense with the services of his employee for acts of gross misconduct under the common law, the employee need not be tried before a Court of law, but all the employer needs to do is to afford the employee an opportunity of being heard before exercising the power of summary dismissal, and this also applies even where the allegation for which the

employee is being dismissed involves accusation of crime.
In the instant case, there is no indication whatsoever that respondent was afforded any opportunity to be heard in respect to the misconduct alleged against him, and that being the case, the lower Court cannot be faulted in concluding that respondents dismissal was not in accordance with the tenets of the law, and therefore wrongful in the circumstance. This issue is thereby resolved against the appellant.

Issue Two.
Whether the trial Court erred in law when it applied the principle of malpractice and stigma in determining the termination of respondent’s employment and invoked the aforesaid principle to award the sum of N4,348,801.44 (Four Million, Three Hundred and Eight Hundred and one Naira, forty–four kobo) as damages/ compensation and the sum of N50,000.00 (fifty Thousand Naira) as costs against Appellant even when malpractice and stigma were not pleaded.

Learned Counsel with respect to this issue drew the Court’s attention to paragraph 19(1) of the statement of facts, whereof respondent and Claimant sought for a declaration that the termination of his

employment was wrong on the ground that he was not granted one month salary in lieu of Notice or payment of one month salary, contending that parties are bound by their pleadings. Akande vs. Adisa (2012) 5 SC. (Pt. 1) 1, Addah vs. Ubandawaki (2015) 1 MJSC 44 @ 55 and Okuleye vs. Adesanya (2014) 12 NWLR (Pt. 1422) 521 @ 535.

Submits that from the pleadings of the parties, there is nowhere the principle of malpractices and stigma was pleaded, and where an employee complains of wrongful termination of employment, the onus lies on him to prove, contending that all parties being at ad-idem that Exhibit C17 regulates their relationship, by the stipulation of Article 23 (d)(iv) of Exhibit C17, the appellant is empowered to terminate the employment of any staff found in possession or having taken hard drugs such as (cannabis sativa). He contended that appellant having paid the respondent one month salary in lieu of notice and relying on the case of Nitel vs. L. D. Akwa (supra) at 240, insists that appellant was right to have terminated the employment of the respondent.

Submits that where the respondent was said to be entitled to a one month salary in lieu of

notice which had already been given to him, contended that the decision of the trial Court premised on malpractice and stigma was not pleaded, and the reliance on same perverse, and the Court wrong to have relied on the authority of Airways vs. Makanjuola (1993) 8 NWLR (Pt. 311) 276.

Submits that since the principle of malpractice and stigma are not in tandem with the facts pleaded, the reliance on same by the trial Court to award damages/compensation is perverse. It was the argument of the learned counsel for the respondent, responding to the arguments proffered that from the pleadings of the parties, and the evidence adduced during the trial, the respondents summary trial was attributable to the use of Indian hemp by the respondent, and argued that appellant having failed to prove that respondent was lawfully dismissed in accordance with Article 23 (d)(iv) of exhibit C17, as the dismissal of the respondent on the basis that he tested positive to instant urine test in Indian hemp carries serious and grievous stigma to his character.

Further submits that to justify the dismissal or termination of appointment of an employee, the employer must prove

three elements enunciated in Oloruntoba-Oju & ORS. vs. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83, and where a wrongful termination or dismissal carries with it some stigma on an employee’s character, the employee shall be entitled to substantial damage far beyond the amount the employee would have earned.

Submits that where a wrongful termination or dismissal carries with it some stigma on the employees character, the employee shall be entitled to substantial damages far beyond what the employee would have earned for the period of the notice. The case of British Airways vs. Makanjuola (1993) 8 NWLR (pt.

311) 276 and J. A. Irem vs. Obubra District council (2003) 14 NWLR (pt. 945) 457 were cited on the point. Learned counsel submitted that from the pleadings and evidence led, the respondent’s dismissal was as a result of the allegation that the respondent tested positive for consuming Cannabis sativa, popularly known as Indian Hemp, which the appellants failed to prove to the satisfaction of the Court, and therefore the dismissal not in accordance with article 23 (d) (iv) of the internal conditions of service between the appellant and NUCECFWW.

The issue of whether the dismissal of the respondent was lawful or not has been resolved in the resolution of issue 1. It has been argued by the appellants relying on the authority of Nitel vs. L. D. Akwa (2012) 1NILR 205 @ 228, that where an employee’s appointment is terminated wrongly or otherwise, all he is entitled to is what he would have earned over the period of the notice required to lawfully terminate the employment. Further that the case of British Airways vs. Makanjuola (1993) 8 NWLR (pt. 311) 276, cannot apply in the instant case in that the principle of malpractice and stigma were not

pleaded and proved by credible evidence. I do not think that the appellant is altogether correct. Even though Respondent’s action was based on statements other than malpractice and stigma, the appellant by their reply to the complaint by the respondent as claimant, introduced the fact that respondent’s termination of appointment was predicated on the fact that he was found guilty of having tested positive to hard drugs, and therefore the onus shifted to the appellant before the lower Court to prove that respondent in fact was in possession or guilty of having taken the drug in question. Failing to so prove the allegation, and having proceeded to terminate the appointment of the respondent based on the unproven allegation, the lower Court was right to have applied the principle inBritish Airways vs. Makanjuola (supra).

Interestingly, appellants did argue that respondent waived his right to fair hearing after being told that he tested positive for the hard drug and his employment terminated, when he failed to activate the arbitration clause embedded in exhibit C17. Counsel sought to fortify his argument on the authority of Ediru vs. FRSC

(2016) 4NWLR (pt. 1502) 209 @ 242. I must dutifully point out that the position of the law as elicited from the case cited, might not be helpful to the appellant. Indeed, even though fair hearing is an inviolable right of a party as entrenched in Section 36 of the Constitution, and further that the principle is personal and is available to that party afforded the opportunity to exercise his right of fair hearing. The judgment under review goes further to assert that thus, the moment the party is given the chance to utilize his right to fair hearing, it transforms to personal right from public right. I totally agree with that position of the law. The question is how does it apply to the present situation, where respondents employment was terminated without his being afforded the opportunity to be heard. Does the right to fair hearing innur after the event. The fact that Almighty God, the all-knowing, asked Adam, did you take of the forbidden fruit, before he was sentenced, talks volumes on the principle of fair hearing. The principle does not apply after the event, but before the event. The appellant having been dismissed from his employment, given the

circumstance in which he was so dismissed, his resort to legal redress is in consonance with the principle of law. See Kayili vs. Yilbuk (2015) LPELR – 24323 (SC) per Ogunbiyi JSC:
“The constitution has provided an opportunity for aggrieved persons to ventilate their grievances in a Court of law which is empowered to determine any civil proceeding in which the existence of a legal right, power, duty, liability interest, obligation or claim is in issue. This right is guaranteed and cannot be taken away or be made subject to any other legislation whatsoever”.
My humble view therefore is that given the circumstance where respondent was summarily dismissed from his appointment over the allegation that he was found or tested positive to hard drugs contrary to, and pursuant to Article 23 (d) (iv) of exhibit C17, without affording the respondent an opportunity of a hearing on the issue, infringed his right to fair hearing, and the trial Court’s application of the principle in the case of British Airways Vs. Makanjuola (supra) apt in the circumstance. I fail to see why the decision of the lower Court in that regard can be faulted, and

thereby resolve the issue against the appellant.

ISSUE THREE
Whether the trial Court breached the Appellant’s constitutional right to fair hearing and never exercised its discretion judicially and judiciously by invoking and misapplying the provisions of Section 14 of the National Industrial Court Act, 2006 to justify the award of damages/compensation and cost in favour of the Respondent.

The contention of the learned counsel with regards to this issue is anchored on the trial Court’s invocation of the provisions of Section 14 of the National Industrial Court, 2006 to justify the award of damages and compensation as well as costs in favor of the respondent. Learned counsel relying on the case of First Fuels Ltd vs. NNPC (2007) 2 NWLR (pt. 1018) 276 @ 298, argued that the exercise of the Court’s discretion was not founded on sound principles for its application. He alluded to the pieces of evidence adduced before the trial Court, and submitted that the Court misapplied the constitutional right to fair hearing, as well as the case of British airways vs. Makunjuola (supra) in arriving at its decision. He urged the Court to

interfere with the trial Court’s perverse decision since a trial Court is not a father Christmas granting a relief not asked for. He therefore urged the Court to vacate the order that appellant pay the sums awarded and to resolve the issue in its favor.

The learned counsel for the respondent however is of the view that by the provision of Section 14 of the National Industrial Court Act, the Court is empowered and has powers to grant all remedies whatsoever as any of the parties may appear to be entitled to. He maintained that the lower Court exercised its discretion judicially and judiciously based on the principles of equity promoted by Section 15 of the National Industrial Court Act, 2006. Further argued that based on the facts placed before the Court, and the provisions of the law cited, the exercise of the Courts discretion cannot be faulted.

Now Section 14 of the National Industrial Court Act 2006 provides that:
The Court shall in the exercise of the jurisdiction vested in it by or under this act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies

whosoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.
Also relevant to the determination of the issue is the provision of Section 15 of the same act, which runs thus:
Subject to the express provision of any other enactment, and in all matters not particularly mentioned in this act in which there was formerly or there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in the Court so far as the matters to which those rules relate are cognizable by the Court.
The lower Court in its judgment, particularly at pages 219 of the record, reasoned that:
“I am satisfied that the claimants summary dismissal was as a result of Indian Hemp, see paragraph 3 (b) of the defendant’s statement of defense and paragraph 10 of DW 2’s sworn deposition. This

allegation of Indian hemp was never presented to the claimant at any time before this trial thereby precluding him his opportunity to respond thereto, neither was it satisfactorily proved by the defendant to this Court in line with the provisions of article 23 (d) (iv). Relying on British Airways vs. Makanjuola supra, therefore the claimant is entitled to substantial damages way above the payment of salary in lieu of notice was not adequate compensation to the employee for the wrongful termination of his appointment”.
Its apparent therefore as contended by the respondent that the substance of the two sections of the law, empowered the lower Court to grant such remedies to any of the parties according to its entitlement with respect to any legal or equitable claims. It would seem inequitable to me for the appellant as employer having terminated the employment of his employee, who he is entitled to dispense with his services in any case, at any time, and without giving reasons, to label such an employee with a heinous crime, (consumption of Cannabis sativa is a crime), and without affording him any opportunity to react to such an allegation, terminate

his appointment without much ado. I am not enthused by the argument that a certain medical personnel in the presence of a subordinate informed the employee that he tested positive to hard drugs. The action of the appellants to my mind is inhuman, mean and unbecoming of an organization of the appellants standing. In the circumstance, the lower Court was right to have awarded compensation to the respondent for denting his name with an unproven allegation. I agree with the lower Court in its finding and the resolution thereof, that respondent having been stripped of his employment based on an allegation which stigmatized him, the award of damages to the respondent was supportable in view of its powers under Section 14 of the National Industrial Act, 2006. I also determine this issue against the appellant.

ISSUE FOUR.
Whether the judgment of the Court below is against the weight of evidence adduced at the trial.

It is the contention of the learned counsel for the appellant that the trial Court’s decision was against the weight of evidence. Relying on the cases of Okafor vs. Effiong (2017) 11 NWLR (pt. 1577) 519 @ 538, counsel submitted that

the evaluation of evidence is the primary responsibility of a Court of trial, and how he goes about the evaluation. He submits that the trial Court in the case at hand failed to evaluate the circumstances that led to the termination of the respondent’s employment vis a vis articles 23 (d) (iv) and 32 of exhibit C17. Submits also that the decision of the trial Court with regards to relief 19 (1) in the respondent’s statement of fact was not based on the credibility of evidence but solely on the appraisal of documentary evidence. He argued that the trial Court suo motu raised the issue of fair hearing outside the terms of exhibit C17, thus wrongly applying the principle of malpractice and stigma which were neither pleaded nor addressed upon. Further relying on the case of Mafimisebi vs. Ehuwa (2007) 2NWLR (pt. 1018) 385 @ 433, learned counsel reiterates that the trial Court failed to evaluate the evidence led before the trial Court and thereby invited this Court to do so.

It its brief response to the issue, learned counsel for the respondent argued that where a Court of trial evaluates evidence and appraises facts, it is not the duty of the

Court of appeal to substitute its own views to that of the Court of trial. The case of Awoyoolu vs. Aro (2006) 4MJSC 134 was referred to. He argued that the Court of trial having carefully and dutifully examined the entirety of the evidence in reaching its decision in line with the decision of the Apex Court in Hamza vs. Kure (supra), and found that the evidence tilted in favor of the respondent, the Court should appropriately hold that the lower Court evaluated the evidence before it and thereby resolve the issue against the appellant.

With the resolution of the three earlier issues against the appellant, there is no gainsaying that the Court carefully and diligently examined the evidence placed before it in arriving at its decision, the consequence of which is that I see no reason interfering with the well-considered reasoning of the trial Court. Having also carefully analyzed the evidence adduced both oral and documentary, and do agree with the respondent counsel that the lower Court evaluated the evidence without blemish, appraised the facts without blemish and arrived at a just and equitable judgment, thus presenting justice as it should be. I

further agree that the findings of the Court below are rooted upon sound and established principles of law represented in sound judicial authorities, and thereby resolve this issue against the appellant.

In the event, this appeal in my humble but firm view is devoid of any scintilla of merit, and I accordingly dismiss the same. The decision of E. N. Agbakoba J, of the National Industrial Court, Calabar, in suit No. NICN/CA/04/2014, delivered on the 14th day of July, 2016, is hereby affirmed.

The respondent shall have costs assessed at N100,000.00 only.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA. My learned brother has adequately dealt with the four (4) issues nominated for the determination of the appeal. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and should be dismissed.

I abide with the consequential order and the order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: My learned brother Hamma Akawu Barka, JCA afforded me the opportunity of reading in advance, a

draft copy of the judgment just delivered. I totally agree with the resolution made therein.

I am of the ardent view that this appeal delivered on the 14th day of July 2016 by Justice E N. Agbakoba has no syntilla of merit and ought to be dismissed. I hereby dismiss it accordingly.

Appearances:

N. Kumbe Esq. For Appellant(s)

B. Eni Esq. For Respondent(s)