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National Industrial Court

Union Bank of Nigeria Plc -VS- Mrs Benedicta Uzoamaka Marchie

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

 

Suit No: NICN/LA/48/2014

 

 Petitioner: Union Bank of Nigeria Plc

 

 Respondent: Mrs Benedicta Uzoamaka Marchie

 

 Date Delivered: 2017-03-30

 

 Judge(s): HON. JUSTICE B. B. KANYIP

 

 Judgment Delivered REPRESENTATION

Benjamin Obiora, for the claimant. Opeyemi Usiola-Kuti, for the defendant.

JUDGMENT

  1. The claimant had filed this action on 4th February 2014 vide a Complaint together with the statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the documents; as well as a reply to the statement of defense and a supporting deposition on oath. The defendant entered appearance and filed its defense processes in opposition to the claimant’s case. By the statement of claim, the claimant is seeking for the following reliefs ‘ (1) A declaration that the purported dismissal of the claimant for unspecified act of gross misconduct on the 12th March, 2010 with retroactive effect from the 15th March, 2009 is wrongful and by its circumstance amounts to the determination of the claimant’s employment on the ground of redundancy.

(2) A declaration that the purported dismissal of the claimant for unspecified act of gross misconduct on the March 12, 2010 with retroactive effect from the 15th March, 2009 has caused stigmatization of the claimant’s career and life.

(3) A declaration that the claimant’s employment having been brought to an end suddenly by the obvious circumstance of redundancy is entitled to payment of emolument in lieu of notice of determination, monetary compensation for the determination, the pension benefits as is due to her position in the Bank at the time of determination and compensation/damages for stigmatization.

(4) An order compelling the defendant to pay to the claimant the following entitlements:

(a) Three (3) month’s salary in lieu of notice of termination (redundancy) = N1,500,000.00 (One Million Five Hundred Thousand Naira).

(b) Redundancy compensation – Four (4) months total emolument for each completed year. For 23 years, 4 months (Twenty-Three years, Four months) = N46,666,667 (Forty-Six Million, Six Hundred and Sixty-Six Thousand, Six Hundred and Sixty-Seven Naira).

(c) Arrears of monthly pension in the sum of N149,553.00 per month from the month of April, 2010 to 31st January, 2014 = N6,879,438.00 (Six Million, Eight Hundred and Seventy-Nine Thousand Four Hundred and Thirty-Eight Naira).

(d) Monthly pension in the sum of N149,553.00 or any increment thereto from the month of February, 2014 until the end of the life of the claimant.

(e) Damages/compensation for stigmatization of the claimant’s banking career and life = N50,000,000.00 (Fifty Million Naira).

(f) 21% interest per annum on all the claimant’s entitlements from the year 2010 until the judgment and thereafter 10% interest on the judgment sum until the same is finally liquidated. TOTAL CLAIM = N105,046,105.00 (One Hundred and Five Million, Forty-Six Thousand, One Hundred and Five Naira).

  1. At trial, the claimant testified for herself as CW, while Mr. Yusuf Adekunle, a banker in the rank of Officer I with the defendant, testified for the defendant as DW. At the close of hearing, parties filed their respective written addresses. The defendant’s written address is dated 8th August 2016 but filed on 9th August 2016, while the claimant’s is dated and filed on 14th November 2016. The defendant’s reply on points of law is dated 30th November 2016 but filed on 1st December 2016.

THE CASE OF THE CLAIMANT

  1. This is the claimant’s story. She was employed by the defendant on the 1st December 1986 at the Warri Branch of the defendant. By reason of marriage she was later transferred to Lagos in the year 1991. She worked at different branches in Lagos and in the month of April 2009 she was transferred to Oyin Jolayemi Branch, Victoria Island, Lagos. She has had to work in the admin office but was particularly sent to the marketing department, where she excelled. By her transfer to the Oyin Jolayemi Branch, she was given the position of the Operation Manager for the first time. When she reported at the new branch, there was a sitting Operations Manager by name, Mr Mamman. While at the new branch, Mr. Mamman was performing the duties of the Operations Manager, and she, who had been constructively rendered redundant by reason of no vacancy on the post she was sent to occupy, decided to be helping in the marketing department where she has been particularly excellent. Mr. Mamman eventually went on a sick leave in the month of September 2009 and then she started to perform the duties of the Operations Manager. Being a target of a pre-determined redundancy disengagement, one of the first duties she performed was the counter-signing of the voucher for the purchase of office equipment, material and services totaling the sum of N269,000.00 (Two Hundred and Sixty-Nine Thousand Naira) in the month of October 2009. She became the cynosure of the watching eyes of the internal auditor, Mr. Abraham Edeki, who is the agent of the defendant for the purpose of the unlawful disengagement.
  2. The claimants went on that as at the time of disengaging her, her monthly salary was the sum of N500,000.00 (Five Hundred Thousand Naira) and she had worked for the defendant for a consistent period of 23 years, four months without any query, warning or any form of disciplinary action against her. That sometime in the month of June 2009, immediately after her reporting to the office, one Abraham Edeki made an open statement that he was employed as an Auditor by the defendant to make sure that people lose their jobs. To the claimant, in all the circumstances of this case, the only personal allegation made by the defendant against her is the countersigning of Vouchers for expenditures amounting to N269,000.00 (Two Hundred and Sixty-Nine Thousand Naira) made on the 23rd October 2009 (which the defendant without a proof labeled frivolous expenses). That the query given to her by the defendant was admitted as Exhibit D4. Her response to the query was admitted as Exhibit D5. That the defendant failed, neglected and/or refused to tender the evidence of the report of Mr. Abraham Edeki on the issue despite pleading the report. To the claimant, according to the defendant, a further investigation and full audit of expenditures of the branch, where she worked was conducted covering a cycle of July 2008 to October 2009 (a period the claimant was not in the branch and includes a short while when she was around but not acting) and frivolous expenditure were revealed virtually in all cost centres of the branch operations. That the defendant did not give any query to her in respect of the investigation carried out on the 2nd November 2009 for full audit of the expenditures of the branch covering the July 2008 to October 2009 (audit cycle), referring to paragraph 13 of the statement of defense.

That the defendant’s inspectorate department conducted the said audit investigation of the branch expenditures for the 15 months (July 2008 – October 2009), produced a report against the branch management and recommended that the sanctions provided in Article 4 section (IV) sub-section a(i) of the collective agreement should be applied, referring to pages 33 – 34 of Exhibit D3.

  1. The claimant continued that the defendant relying on the recommendation as provided in the collective agreement issued a letter on the 12th March 2010 dismissing the claimant from its services with effect from the 15th March 2009 for gross misconduct. That she made two separate appeals to the defendant to consider her innocence and the effect of its actions on her as a widow, and review her case because of her innocence, but the defendant did not respond to the appeals. In 2013, she engaged the services of her solicitors who wrote a demand letter to the defendant (the letter is Exhibit C7 and is dated 29th October 2013). In the said letter, her solicitors presented to the defendant the grievances of the claimant, the effect of the dismissal letter with the retroactive effect, the effect of investigation of the branch expenditures covering the 15 months period (July 2008 to October 2009), the period she was not in the branch without affording her a right to a fair hearing, her claim on redundancy because of no vacancy on her transfer and the pre-determined termination of her employment through the facade of dismissal. Finally, that the letter also highlighted the resultant monetary claim she would be entitled to on her claim for redundancy and the accumulated and due pension benefits. The defendant received the claimant’s solicitor’s letter and did not respond to the same, whereof she brought this suit and claimed as afore stated.

THE CASE OF THE DEFENDANT

  1. The defendant denied every averment of the claimant and stated that the claimant was involved in series of fraudulent transactions that took place under her nose as the Branch Head of Operations. The defendant went on that upon discovery of the said fraudulent transactions, the claimant was issued queries. That the claimant was subsequently invited by the Inspectorate Department for interrogation i.e. question and answer session, and the claimant responded to the questions posed to her in writing. Thereafter, the Disciplinary Committee met and dismissed the claimant for her involvement in the said fraudulent transactions. The defendant then urged the Court to dismiss the claimant’s reliefs in their entirety.

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant framed four issues for the determination of the Court, namely:

1) Whether the claimant has proved that her dismissal from service on 15th March 2009 by the defendant was wrongful.

2) Whether the claimant has proved that her dismissal from the defendant’s employment amounted to redundancy and, therefore, entitled to payment of emolument in lieu of notice of determination.

3) Whether the claimant has proved before this Honourable Court that her dismissal from the defendant’s employment as a result of her misconduct caused stigmatization of the claimant’s career and life.

4) Considering the submissions above, whether or not the claimant is entitled to monetary claims stated under reliefs 4(a), (b), (c), (d), (e) and (f).

  1. On issue 1), the defendant answered in the negative. That going by the pleadings before the Court and the evidence of parties, the defendant’s Internal Auditor carried out a snap check on the expenditures of the defendant’s branch at Oyin Jolayemi, Victoria Island, Lagos and found that most of the expenditures did not follow due process and that there were irregularities in the expenditures. The outcome of the snap check was reported to the defendant’s management. Consequently the defendant issued queries on the affected officers of the bank including the claimant, referring to paragraph 13 of the claimant’s statement of facts and paragraph 21 of her statement on oath, where she admitted and stated that she received oral queries in relation to payment of items and services used in the administration of the branch. To the defendant, it is trite that facts admitted need no further proof, citing Iyabi-Ayah v. Ayah [1997] 10 NWLR (Pt. 523) and section 123 of the Evidence Act 2011. That contrary to her earlier averment in the statement of fact, the claimant averred in paragraph 3(b) of her reply to the

statement of defence thus: ‘The Claimant appeared before an Investigation Panel at the Inspectorate Department and answered all questions posed to her, but the questions were not based on any snap-check report as none existed rather was based on any conceivable issues in the minds of the investigation’. The fact is repeated in paragraph 12 of the claimant’s witness oath before the Court. In further support of the defendant’s claim that the claimant appeared before the Administrative Panel for interrogation, the Court was referred to Exhibit D2 (the written answers by the claimant). In the question and answer conducted on 16th November 2009, the claimant stated that she was the OPM (Operation Manager) of the branch and that all vouchers passed through her. She admitted that her department was in charge of procuring items for the branch. She admitted that cash payment in the sum of N269,000.00 were made in respect of nine (9) entries contrary to the standing rule of the defendant. That the claimant admitted negligence on her part as the operation manager of the branch.

  1. The defendant continued that during cross-examination of the claimant, she indeed admitted before the Court that she was not conversant with the schedule of her duties as the Operation Manager of the branch and that she was just rubber-stamping what the Head of branch gave to her. That it was after the claimant was queried and interrogated that the management took the decision to dismiss the claimant for her role in the irregularities, falsification of entries and payments made in respect of the branch expenditures. That the defendant satisfied the requirement of fair hearing or principle of natural justice before it dismissed the claimant for gross misconduct, citing Inonikhe v. Unity Bank Plc [2011] LPELR-1503(SC), Arinze v. First Bank (Nig.) Ltd [2000] 1 NWLR (Pt. 1) 103 CA at 104 and Okeke v. West African Ventures Limited [2015] 62 NLLR (Pt. 218) 435, where this Court held that ‘the issuance of query by an employer seeking explanation for an action taken by an employee and a reply by the employee satisfies the requirement of fair hearing’. It is the submission of the defendant that from the evidence before the Court, it afforded the claimant her right to fair hearing before she was eventually dismissed because her response was unsatisfactory and the decision of the defendant was communicated to the claimant in writing via the dismissal letter. That this is more so, when the contract of service agreement between the claimant and the defendant specified clearly that it shall be lawful for the defendant to terminate or dismiss the contract of employment of any employee who has been found guilty of ‘misconduct of any kind’, referring to the contract of service agreement of the claimant before the Court and Olarewaju v.

Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 SC. That the defendant has not in any way whatsoever breach the right of the claimant to fair hearing as guaranteed under section 36 of the 1999 Constitution; as such the dismissal of the claimant by the defendant was proper and lawful.

  1. The defendant went on that the claimant made reference to collective agreements such as Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) and alleged that the defendant did not observe its provisions before dismissing her. To the defendant, the claimant cannot rely on the collective agreements as they do not form part of her contract with the defendant. Hence the collective agreements are not binding on the defendant. That it is important to state at this stage that collective agreements are generally unenforceable as there is no privity of contract between the employer and the employee; as such they cannot be a ground for a cause of action, referring to Gbedu v. Itie [2010] 10 NWLR (Pt. 1202) at 282 – 283, Chukwumah v. Shell Petroleum Development Company of Nig. Ltd [1993] 4 NWLR (Pt. 288) 512, Rector Kwara Poly v. AdefiIa [2007] 15 NWLR (Pt. 1056) 42 and NNB Plc v. Egun [2001] 7 NWLR (Pt. 711) 1 at 18 – 19. That for a party to enforce the provision of a collective agreement, the party must establish that the collective agreement was expressly incorporated into the contract of service of the employee (UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) at 471 – 472, Unity Bank Plc. v. Ademiluyi [2013] LPELR-21984(CA) and Texaco Nig. Plc v. Kehinde [2001] 6 NWLR (Pt. 708) 224) and the employee who seeks to rely on it is a member of the union which signed the collective agreement on behalf of its members. That a collective agreement, standing alone is not binding on an individual employee and the employer unless it is incorporated into the contract of service, referring to the claimant’s letter of employment dated 1st December 1986. That although collective agreement was mentioned in claimant’s letter of employment dated 1/4/1981 particularly in the last paragraph thereof, which states as follows, ‘Other conditions of service will be laid down in the contract of service Agreement and also in the Collective Agreement currently in force’, the issue of whether or not the above quoted clause/term of the claimant’s letter of employment incorporated the collective agreement in the contract of service came up before the Court of Appeal in Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares [2012] 11 NWLR (Pt. 1312) 550, a case on all fours with instant suit, and it was held that specific incorporation of the collective agreement must be made before it can even be held

as such. That this Court is bound by this decision, urging the to hold that the alleged collective agreement was not incorporated into the claimant’s contract of service and as such is not binding on the defendant.

  1. Continuing, the defendant submitted that the alleged collective agreement was between the Nigeria Employers Association of Banks, Insurance and Allied Institutions on the one part, and the Association of Senior Staff of Banks, Insurance and Financial Institutions, on the other part. That neither the claimant nor the defendant was a party to the collective agreement and not being parties to it cannot be bound by same. That the claimant has not pleaded facts or lead evidence at trial to establish that she is a member of the union that allegedly signed the collective agreement. It is further submitted by the defendant it complied substantially with the international best practice of industrial relations and personnel management before it dismissed the claimant for gross misconduct. Also, that ‘the defendant complied with Article 119(5) of the International Labour Organization (ILO)’, and afforded the claimant the opportunity to know the allegation against her and also gave her the opportunity to state her response to the allegation. Indeed, that in her written response, the claimant admitted to the fact that she failed to carry out her duties professionally which contributed substantially to the large scale fraud in the branch, referring to the claimant’s written responses in Exhibit D3.
  2. On whether a dismissal can have a retrospective effect, the defendant submitted that a decision by an employer to dismiss an employee takes effect from the date of the decision to dismiss or a later date, citing Gbenga v. BSJSC [2006] 14 NWLR (Pt. 100) 620 and Bakare v. LSCSC [1992] 8 NWLR (Pt. 262) 641. That a dismissal date cannot take a retrospective effect as being claimed by the claimant, citing NNB Ltd v. Obevuderi [1986] 3 NWLR (Pt. 29). That although, the letter stated that the dismissal takes effect from 15th March 2009, the said letter was dated 12th March, 2010; as such the effective date of the dismissal of the claimant was 12th March 2010, when the letter was delivered to the claimant. That it is in evidence that the claimant was in the defendant’s employment till the date of the letter. There was no evidence that she was not paid her monthly salaries and other emoluments from the 15th March 2009 till the time she received the letter of dismissal. Also, there was no evidence that the defendant requested for a refund of the monthly salaries and other emoluments paid her from 15th March 2009 to the date of the letter. That it, therefore, stands to reason that the date 15th March 2009 was a slip or error on the part of the defendant and ought to be ignored. To the defendant, notwithstanding the irregularity in the date, the claimant was effectively dismissed by the said letter, urging the Court to so hold.
  3. Regarding issue 2) i.e. whether the claimant has proved that her dismissal amounted to redundancy and, therefore, entitled her to payment of emolument in lieu of notice of determination, the defender submitted that she has not, having failed to show by concrete evidence that he dismissal was a case of redundancy. Also that the claimant was not dismissed based on redundancy, referring to PAN v. Oje [1997] 11 NWLR (Pt. 530). That termination of an employee based on redundancy is usually a special procedure; but the claimant failed to prove that her dismissal fell within the scope of redundancy. That it is trite that he who asserts must prove, citing Jabre v. Jabre [1999] 3 NWLR (Pt. 600) and section 136(1) of the Evidence Act. That the contents of the claimant’s letter of dismissal dated March 12, 2010 are clear and unambiguous and should be given their literary meaning without any addition or subtraction, citing Adisa v. Oyinwola [2000] 10 NWLR (Pt. 674) 116 and INEC v. Action Congress anor [2007] 6 NWLR (Pt. 1029) 142. That if this is done, it would be seen that there is nothing to suggest that the claimant was dismissed on the basis of redundancy, citing Imo State Independent Electoral Commission ors v. Elima [2015] 61 NLLR (Pt. 214) 327.
  4. As for issue 3) i.e. whether the claimant has proved that her dismissal as a result of her misconduct caused stigmatization of her career and life, the defendant submitted that when an employer as in this case dismisses its employee, it needs not adduce any specific act of misconduct on the employee’s part as the ground for the dismissal, citing Ogbaji v. Arewa Textiles Plc anor [2015] 61 NLLR (Pt. 212) 1 at 52, Ajayi v. Texaco Nigeria Limited (1988) 3 NWLR (Pt. 62) 575 at 583 – 584, Yusuf v. UBN Ltd [1996] 6 NWLR (Pt. 457) 632 and Nwoboji v. ACB Ltd [1995] 6 NWLR (Pt. 404) 658. That even negligence without a criminal import can be so gross as to be misconduct of a kind which justifies dismissal, citing Danusa v. UBA Plc [2005] 9 NWLR (Pt. 931) 526 at 539, Useni v. Bank of West Africa Ltd [1965] 1 All NLR and Akinnuranye v. Stanbic IBTC ors [2014] LPELR-22250(CA). In any event, that all that is required of the defendant is to disclose to the employee the allegation against her, give her fair hearing and ensure that the disciplinary panel followed laid down procedure, all of which the defendant did, citing Federal University of Technology, Yola v. Danjuma Maiwuya ors [2010] LPELR-9001(CA). Also referred to is Okeke v, West African Ventures Limited

(supra). The defendant then submitted that, on the strength of these authorities, the defendant does not have to state specific act of misconduct in the letter of dismissal, and the said letter of dismissal, as it were, does not stigmatized the person of the claimant or her banking career.

  1. In respect of issue 4 i.e. whether the claimant is entitled to the monetary claims she prays for, the defendant submitted that all the claimant’s reliefs in this suit are based on redundancy packages; hence, if the Court finds that the claimant was not dismissed based on redundancy, then all the reliefs must fail and be refused. That where an employee is properly dismissed as a result of misconduct, such employee is not entitled to wages and other terminal benefits, citing NNB Plc v. Imoneke [2002] 5 NWLR (Pt. 760) 294, J. A. Irem v. Obubra District Council anor [1960] FSC 24; [1960] SCNLR 70 and Abomeji v. NRC [1995] 1 NWLR (Pt. 372) 451. That the dismissal of the claimant by the defendant was proper and the claimant is not entitled to any terminal benefits, urging the Court to so hold.
  2. However, that in the event that this Court finds that the dismissal of the claimant was wrongful, it is the defendant’s submission that the claimant is thereby only entitled to receive what she would have earned if her appointment was properly determined, citing Adeniran v. NEPA [2001] 47 WRN 145 and Ihezukwu v. University of Jos [1990] 4 NWLR (Pt. 146) 598 at 610. That the claimant is not making any claim for wrongful dismissal in her reliefs; hence, the Court cannot grant a relief which is not prayed for by the claimant, citing Ogbaji v. Arewa Textiles Plc anor [2015] 61 NLLR (Pt. 212) 1 CA. The defendant went on that, assuming without conceding, that the Court wants to consider award of damages for the wrongful dismissal, then a claim for damages for wrongful dismissal is a claim in the realm of special damages, which must be pleaded, particularised and proved. That the claimant ought to have pleaded her monthly entitlements that constituted her salary and put her pay slip in evidence. This the claimant failed to do, something fatal to her case. Furthermore, that the claimant’s averment in paragraph 22 of her statement of fact is unsubstantiated with concrete evidence and should be rejected by this Court. Accordingly, that the Court should not grant reliefs (a) and (b) endorsed on the claimant’s claim in the statement of fact. That the said reliefs are based on redundancy and it has been shown clearly that the dismissal of the claimant did not come within the redundancy scheme as the defendant did not declare the claimant’s office or any office at all redundant in compliance with the relevant and applicable laws and agreement. Also, that the claimant failed to plead, particularise and prove her entitlement to the two reliefs in accordance with our laws.
  3. On whether the claimant is entitled to claim arrears of monthly pension and monthly pension from the defendant in view of the Pension Reform Act as amended 2014, it is the defendant’s submission that the claimant cannot claim areas of monthly pension and monthly pension from the defendant. That sections 3 and 4 of the Pension Reform Act 2004 which came into effect on 25th June 2004 but was amended in 2014 make provision for contributory pension scheme between employers and individual employee in the manner stated in the law. Section 11 of the Act provides that every employee to whom the Act applies shall maintain an account as Retirement Saving Account (RSA) in his name with any Pension Fund Administrator (PFA) of his choice and upon retirement, employee shall claim their retirement benefit in accordance with provision of section 11 of the Act. That the claimant was dismissed on 12th March 2013 and is, therefore, within the application of the Pension Reform Act 2014 as amended. That the claimant can only claim her pension, if any at all, from her Pension Fund Administrator (PFA) and not from the defendant. That the claimant has not shown to this Court that the Pension Reform Act 2014 is not applicable to her or that she was exempted from the scheme in accordance with section 5(1)(a) and (b) of the Act. Also, that the claimant has not shown to this Court the basis of her claim for pension from the defendant. It is, therefore, the submission of the defendant that the claimant is not entitled to the grant of reliefs (c) and (d) and should be refused by this Court, urging the Court to so hold.
  4. On whether the claimant is entitled to damages for stigmatization of her life and banking career, it is the defendant’s submission that the claimant is not entitled to compensation for injury done to her feeling by her dismissal, referring to UTC v. Nwokoruku [1993] 3 NWLR (Pt. 281) 295 at 312 and Okeke v. West African ventures Ltd (supra). Accordingly, that the claimant is not entitled to compensation for stigmatization of her person and her banking career, urging the Court to so hold. In conclusion, the defendant urged the Court to dismiss the claimant’s case in its entirety.

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant on her part framed three issues for the determination of the Court, namely:

(a) Whether the retroactive dismissal of the claimant who was rendered redundant by the defendant on the unproven allegations was not wrongful and does not by its circumstance constitute a disengagement of the claimant on redundancy to entitle the claimant to redundancy compensation.

(b) Whether the unproven allegation against the claimant has caused stigmatization of her life, career, future and destiny to be entitled to compensation in damages.

(c) Whether the claimant is entitled to her reliefs.

  1. The claimant started by asking: the ordinary question that may arise is if this Court would not rely on the letter of employment, contract of services agreement and the Collective Agreement, as urged by the defendant, but which both parties barefacedly called into issues in the relationship between them, on what platform will the Court stand to determine the issues in the relationship between the parties’ That no wonder, all the judicial authorities cited by the defence in its submissions are decisions taken by the appellate Courts on the bases of common law principles of master-servant relationship. The claimant then submitted that the relationship between the claimant and the defendant is not simply that of master and servant, but a well-defined contract of employment between both parties. It is, therefore, the peculiar facts contained in this contract of employment that would determine the issues arising from the relationship. That any attempt to employ the common law principles in determining the relationship in which there is obvious contract of employment would do violence to the spirit and soul of contract principles. It will simply suggest that parties would openly enter into a contract, take the benefits derivable from the contract and deny the applicability of the contract agreement when its conduct is called to question. The defence had called on this Court to remember that under the principle of stare decisis and judicial precedent, this Court is bound to follow the the decisions of the appellate courts. To the claimant, there are special features and characters statutorily endowed or invested on this Court, that will naturally put this Court on the path of caution in adopting wholesale the earlier existing decisions on labour matters that were made under the common law in the guise of applying judicial precedents, citing as the notable features section 13 of National Industrial Court (NIC) Act 2006, which enjoins this Court to administer law and equity concurrently; section 15 of the NIC Act 2006, which empowers this Court to apply rules of equity where it is in conflict with the common law; section 12(2)(b) of the NIC Act 2006, which gives this Court power to depart from the provisions of the Evidence Act, if that would promote the interest of justice; and section 7(6) of the NIC Act 2006, which gives this Court power to apply good or international best practices in labour and industrial relations.
  2. The claimant then proceeded to address the issue whether her dismissal by the defendant for gross misconduct was wrongful. o the claimant, there was a contract of employment between her and the defendant evidenced by Exhibit C1 titled, ‘Offer of Employment’. However, that on the face of Exhibit C1, all the conditions for the employment are not condensed into the document, hence the last paragraph of Exhibit C1 provides thus: ‘Other conditions of service will be as laid down in the contract of service agreement and also the collective agreement currently in force’. That the contract of service agreement and collective agreement are not the contract of employment itself, but they are only integral parts of the contract of employment. That the contract of employment (Exhibit C1) has, therefore, incorporated by reference the contract of service agreement and the collective agreement. The defendant tendered the contract of service agreement as Exhibit D1, and accepted that it applies in the relationship between both parties. The claimant also tendered the collective agreement as Exhibit C2. That the critical issue here is that the defendant, who came before this hallowed temple of justice, to assert that the dismissal of the claimant was justified, is now using all the legal technicalities to shield-off all the relevant documents that would enable this Court to dispassionately evaluate their conduct and be able to determine whether it was within the terms of contract of employment between both parties. That it is interesting that the defendant accepted the existence of Exhibit C1 as the contract of employment and tendered Exhibit D1 as part of the contract of employment, but is asking this Court not to apply the collective agreement. The claimant proceeded to give 3 reasons in paragraph 3.16, spanning pages 16 to 28 of her final written address, why this Court should apply the collective agreement in this suit, the key reason being that this Court under section 7 of the NIC Act 2006 has exclusive jurisdiction to determine matters relating to any question as to any collective agreement.
  3. The defence counsel had submitted that even if the claimant could rely on the collective agreement she has not also shown that she is a member of union to which the collective agreement relates. In response, the claimant submitted that Exhibit C1, which expressly incorporated Exhibit C2, the collective agreement as part of the contract of employment, is a legally enforceable contract; and the collective agreement being on integral part of the contract of employment naturally raises the legal presumption that the claimant must belong to the union, in order for her contract to be complete. Any attempt to opt out of the union that operates the collective agreement with the defendant means that she has breached the terms of her contract. That by this contractual presumption raised in favour of the claimant, it is the duty of the defendant to produce evidence to rebut the fact that the claimant was indeed not a member of the union to which collective agreement applies. By making collective agreement part of the conditions of service, the defendant had at the inception of the contract made it a condition precedent to the claimant that belonging to the union to which the collective agreement applied was part of the contract she was to accept or reject. That at the acceptance of the offer of appointment in 1986, the claimant automatically accepted to belong to the union to which the collective agreement contained in her offer of employment applied. Therefore, considering the nature of the contract, the law presumes membership of the union on the acceptance of contract by the claimant. Consequently, it is only an evidence to rebut her automatic or contractual membership that would prove to the Court that she is not a member of the union to which the collection agreement applies
  4. To the claimant, she made attempt to support this contractual presumption of the law in her favour with more evidence, by bringing in evidence of her monthly pay slip to show that without consulting her every month, the defendant automatically deducted the union dues as required by section 5(3) of the Labour Act Cap L1 LFN 2004. But unfortunately, the defendant, who under Exhibit C1 has the legal burden to rebut that the claimant was not a member of the union to which the collective agreement adopted in Exhibit C1 applied, opposed the effort to bring in the evidence that would help the defendant and the Court. While on the bases of law the Court agreed with the defendant and rejected the application to amend to bring in this evidence, equity is asking the defendant to do its work by rebutting the contractual presumption. For a reminder, it is to be noted that the defendant authored Exhibit C1, incorporated and expressly adopted collective agreement made by the union to be an integral part of the conditions of service for the claimant, which in effect made the claimant automatic member of the union, the defendant was deducting union dues from the claimant’s monthly salary in keeping with its obligation in Exhibit C1. The claimant accepted the defendant’s offer in 1986 and lived with it until the determination of the employment. We submit, most respectfully, my lord, that where there is a legal presumption in favour of the claimant, as it is in this case, neither the defendant, the Court nor any other person should lay an additional burden on the claimant that she needs to prove that she opted in as a member of the union. If there is any classification of junior and senior staff in the applicability of Exhibit C2, the document did not state so, and such classification can only come as part of the evidence produced by the defendant to rebut the contractual presumption raised in favour of the claimant by Exhibit C1. We therefore submit that collective agreement having been wholly adopted in the offer of employment as containing some of the conditions of service of the claimant applied in the relationship. The claimant then cited Prof. E. E. Uvieghara’s Labour Law in Nigeria, Malthouse Press Ltd (2001) page 31 as supporting her stance.
  5. It is the further submission of the claimant that Exhibit C2, the collective agreement is applicable to her case because the defendant relied o it to mete out sanctions on her, referring to page 34 of Exhibit D3, the report of the defendant on which it relied to dismiss the claimant as well as section 169 of the Evidence Act 2011, Francis Anaeze v. Ude Anyaso [1993] 5 SCNJ 151, Oyeyemi v. Commissioner for Local Government, Kwara State [1
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