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ABDULLAHI PATRICK AROME -VS- LITERAMED PUBLICATIONS NIGERIA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON THURSDAY 7TH DAY OF NOVEMBER, 2019

BEFORE HIS LORDSHIP: HON. JUSTICE  S. O. ADENIYI

SUIT NO: NICN/KD/02/2017

BETWEEN:

ABDULLAHI PATRICK AROME……………….. CLAIMANT

 AND

LITERAMED PUBLICATIONS NIGERIA LTD….DEFENDANT

J U D G E M E N T

The Claimant was an employee of the Defendant until he was summarily dismissed on 31/03/2014. His case, in a nutshell, is that his employment as a Store Officer of the Defendant was from 07/11/2011. On three different occasions, thieves broke into the Defendant’s Kaduna Zonal office; the third incidence occurred on 08/11/2013. He alleged that he reported the three incidents of breaking in and theft to the Defendant and that after he reported the third incidence, he was placed on indefinite suspension on 19/11/2013. The Claimant contends that his suspension and summary dismissal without being indicted with the allegation of gross dereliction of duty was wrongful. The Claimant further alleged that his contributory pension was not remitted by the Defendant to his Pension Fund Administrator and that the Defendant failed to pay all his salaries and terminal entitlements.

  1. On the basis of these essential facts, the Claimant took out aComplaint and Statement of Factsagainst the Defendant on 17/01/2017, and by his Amended Statement of Facts filed on 26/04/2017 his claims against the Defendant are set out as follows:
  2. A DECLARATION that the decision by the Defendant to suspend and eventually dismiss the Claimant from its services is wrongful, null and void in view of the clear provisions of Article/Section 3.11.4 and 3.11.3 respectively of the Defendant’s Conditions of Service 2013 and Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) dealing with fair hearing and the fact that the Defendant neither showed that the Claimant breached any provisions of the conditions of service nor gave him a hearing in respect of any alleged wrong.
  3. A DECLARATION that in the circumstances and facts of this case, the Defendant can only terminate the appointment of the Claimant and not dismiss same.
  4. A DECLARATION that the Claimant is entitled to the payment unto him of the following:

(i)              His salary from November 2013 to date (of this judgment).

(ii)           Three (3) months’ salary in lieu of notice with effect from the date of delivery of this judgment at a monthly salary of N75,534.80 totaling N226,604.40.

(iii)        His 2014 annual leave allowance at the rate of 80% of the Annual Basic Salary totaling N28,928.00.

(iv)         A refund unto the Claimant of the cumulative sum of the money which the Defendant deducted from the Claimant’s salary every month at the rate of 7.5% towards the compulsory contributory pension scheme under the Pensions  Reforms Act, 2014 to the date of judgment in this case.

(v)            The Defendant’s counter-part contribution of the sum of 7.5% from the Claimant’s monthly salary towards the compulsory contributory pension scheme under the Pensions Reforms Act 2014 up to the date of judgment in this case.

  1. AN ORDER that the purported suspension from work and summary dismissal of the Claimant from the services of the Defendant on the 28th of November, 2013 and 31st March, 2014 respectively is unlawful same being in contravention of Article/Section 3.11.3 of the Defendant’s conditions of service 2013 and consequently null and void.
  2. AN ORDER of payment unto the Claimant by the Defendant the following:
  3. The Claimant’s monthly salary from November, 2013 to the date of judgment at a monthly salary of N75,534.80 (Seventy Five Thousand, Five Hundred and Thirty Four Naira, Eighty Kobo).
  4. Three (3) months’ salary in lieu of notice at a monthly salary of N75,534.80 (Seventy Five Thousand, Five Hundred and Thirty Four Naira, Eighty Kobo) totaling N226,604.40 (Two Hundred and Twenty Six Thousand, Six Hundred and Four Naira, Forty Kobo).

iii.             A refund of the monthly deductions at the rate of 7.5% of the Claimant’s salary towards the compulsory contributory pension scheme under the Pensions Reforms Act 2014 from November 2011 till date of judgment.

  1. Payment of the Defendants counter-part contribution to the Pension Scheme at the rate of 7.5% monthly emoluments up to the date of judgment
  2. Payment of   special damages in the sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira) for the psychological and physical torture that the Claimant and his family members have been subjected to as a result of the wrongful indefinite suspension and summary dismissal from the services of the Defendant.
  3. Cost of filing and prosecuting this action.
  4. The Defendant joined issues with the Claimant by filing itsStatement of Defenceon 17/05/2017, whereby it denied the entirety of the Claimant’s claim. The Defendant maintained that the Claimant was properly suspended and dismissed. The Defendant contends that the Claimant failed to honour the several invitations to attend the meeting called by the Defendant for him to give information on the incidence of 08/11/2013. The Defendant further contends that the Claimant was placed on suspension pending the Defendant’s Management decision and that subsequently, the Claimant was summarily dismissed for gross dereliction of duty. The Defendant contends further that the Claimant’s cumulative pension entitlements had been remitted to the Claimant’s Pension Fund Administrator (PFA) and it also denied owing the amount claimed by the Claimant as salaries and for other entitlements.
  5. At the plenary trial, the Claimant testified in person by adopting hisStatement on Oathas his evidence – in – chief; and he tendered thirteen (13) sets of documents in evidence as exhibits. He was duly subjected to cross-examination by the Defendant’s learned counsel.

On its part, the Defendant called a sole witness, by name Balogun Oladapo Agbaje, the Zonal Sales Manager of the Defendant. He adopted his Statement on Oath as his evidence – in – chief, and also tendered five (5) sets of documents as exhibits. He was in turn cross-examined by the Claimant’s learned counsel.

  1. Upon conclusion of plenary trial, parties filed and exchanged their written final addresses in compliance with the provisions ofOrder 45of the Rules of this Court.

The Defendant’s final address, filed on 23/05/2019, was adopted on 18/09/2019 whereby its learned counsel, M. O. Nwanya, Esq., formulated five issues as having arisen for determination in this suit, namely:

  1. Did the Defendant breach Clauses 3.11.3 and 3.11.4 – 5 of the Conditions of Service and the Claimant’s right to fair hearing when it suspended and dismissed him for gross dereliction of duty?
  2.  Has the Claimant proven that the Defendant is liable to pay him monthly salary from November 2013 to the date of judgment at a monthly salary of N75,534.80?
  3. Has the Claimant proven that the Defendant is liable to pay him three (3) months’ salary in lieu of notice at a monthly salary of N75,534.80 totaling N226,604.80?
  4. Has the Claimant proven that the Defendant is liable to pay him refund of the monthly deductions and Defendant’s counter-part contribution to the Pension Scheme at the rate of 7.5% monthly emoluments up to the date of judgment?
  5. Has the Claimant proven that the Defendant is liable to pay him special damages in the sum of N750,000 for the psychological and physical torture that the Claimant and his family members have been subjected to as a result of the wrongful indefinite suspension and summary dismissal from the services of the Defendant?
  6. In the final address filed on behalf of the Claimant on09/08/2019, the learned counsel,Auta Maisamari, Esq., formulated two issues as arising for determination in this suit, namely:
  7. Whether the decision of the Defendant to suspend and subsequently summarily dismissed the Claimant from its employment without giving him a hearing does not infract the Claimant’s fundamental rights to fair hearing contained in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as well as a breach of the Defendant’s Condition of Service.
  8. Whether the Claimant, having not been properly relieved of his appointment in line with the terms of the contract, is not entitled to the reliefs he claims in paragraphs 30, 31, 32, 33 and 34 of the Statement of Facts.   

The Defendant thereafter filed a Reply on Points of Law on 17/08/2019.

  1. Upon a careful appraisal of the totality of the pleadings of parties, particularly the facts and issues in dispute; the evidence led on the record, including the documents admitted as exhibits; and flowing also from the issues submitted for determination by the respective learned counsel and the totality of the written submissions, I am of the view that the focal issues arising for resolution in this suit can be succinctly distilled as follows:
  2. Whether having regards to the conjunction of circumstances and events in this case, the Defendant could be said to have wrongfully terminated the Claimant’s employment.
  3. Whether the Claimant has proved his case to entitle him to his claims for salaries and contributory pension and whether he suffered any loss or damage for which he is thereby entitled to be awarded special damages.

In proceeding to determine these issues, I had taken due benefits of the totality of the arguments canvassed by the respective learned counsel on either sides in the written submissions, to which I shall endeavour to make specific reference as I deem needful in the course of this judgment.

ISSUE ONE:

  1. For starters, it is pertinent to remark that the case put forward by the Claimant is substantially documentary in nature. In that circumstance, the focus of the Court is directed principally at the documents tendered by parties as the yardstick to access the oral evidence adduced by the witnesses on either side of the divide. This course is in consonance with the established legal proposition that documentary evidence, being the best evidence, is the yardstick or hanger by which to access the veracity or credibility of oral testimony and that extrinsic evidence cannot be admitted to contradict it, add or vary the provisions contained in a document. SeeSection 128(1) of the Evidence Act 2011on the issue. See also Skye Bank PLC Vs Akinpelu [2010] 9 NWLR Pt 1198 Pg 179 (SC); Ndubueze Vs Bawa [2018] LPELR 43874
  2. Essentially, the case of the Claimant as CW1 is that, he was offered employment as a Store Officer with the Defendant from 07/11/2011 and that his appointment was confirmed on 01/06/2012. Subsequently, he got an increase in his salary after his performance was evaluated on 01/03/2013. His letter of offer of employment, letter of confirmation of appointment, the performance evaluation, staff identity card and the Defendant’s Conditions of Service were tendered in evidence asExhibit C1, Exhibit C2, Exhibit C3, Exhibit C9 and Exhibit C11respectively.

CW1 testified further that since he was employed, the Defendant had been deducting various sums of money from his monthly salaries purportedly as remittance to Stanbic IBTC Bank, his Pension Fund Managers under the compulsory contributory pension scheme. CW1 tendered in evidence his staff pay slips for November 2011 and October 2013 and his Retirement Savings Account Statement with Stanbic IBTC Pension Managers as Exhibits C10, Exhibit C10A and Exhibit C8 respectively.

  1. CW1 also testified that on 03/06/2013 and 07/06/2013, he discovered that thieves had broken into the Defendant’s store and some items were stolen. He testified that because the Defendant is within the same premises with Stanbic IBTC Bank which had security officers, he wrote a letter dated 08/06/2013 to report the two incidents to the Chief Security Officer of the Bank.

CW1 further testified that thieves again broke into the premises of the Defendant on 08/11/2013 and that thereafter, he wrote a report of the incidence to the Human Resources Manager of the Defendant. The reports of the incidents dated 08/06/2013 and 08/11/2013 were admitted in evidence as Exhibit C4 and Exhibit C4A respectively.

  1. CW1 testified that on the receipt of the report of the incidence of 08/11/2013, the Defendant placed him on indefinite suspension vide a letter dated 19/11/2013; that he was subsequently interrogated by the Police and alleged that he was discharged by the Police after interrogation. CW1 also testified that based on his instruction, his solicitors wrote a letter dated 04/04/2014 to the Defendant to demand for the lifting of his suspension and that on 22/04/2014, he received a letter dated 31/03/2014 summarily dismissing him from the services of the Defendant. The letter of suspension dated 19/11/2013, the solicitor’s letter dated 04/04 2014 and the letter of summary dismissal dated 31/03/2014 were tendered in evidence asExhibit C5, Exhibit C7 and Exhibit C6respectively.

CW1 contends that he did not breach any of the conditions of service of the Defendant and that he can only be dismissed from the services of the Defendant if he had breached any of the said conditions of service. CW1 further testified that he is entitled to the payment of his contributory pension, other terminal benefits and for special damages.

  1. While answering questions under cross examination, CW1 testified further that it was his responsibility to report every major incidence through his zonal manager to the Management but that he did not report the incidents of the theft of 03/06/2013 and 07/06/2013 to the Manager.He also testified that he was not aware of the meeting set up by the Defendant after the incidence of 08/11/2013 to inquire into the said theft.
  2. The Defendant through its sole witness, the DW1 denied the entirety of the Claimant’s claims. DW1 testified that upon the receipt of the Claimant’s letter alleging theft, a report was made to the Police and the Defendant called a meeting to investigate the theft. DW1 further testified that the panel severally invited the Claimant in his capacity as the Defendant’s store keeper but that the Claimant failed and/or refused to honour the invitations.

DW1 testified further that having been satisfied that the notices/invitations had been extended to the Claimant, the Defendant placed the Claimant on suspension pending the Management’s decision and thereafter, the Claimant was summarily dismissed upon due deliberation on the report of the meeting. The extract from the Police crime diary dated 14/11/2013 and the report of the meeting dated 18/11/2013 were tendered in evidence as Exhibit D5 and Exhibit D4 respectively.

  1. DW1 also testified that the Claimant’s contributory pension deductions had been duly remitted to Stanbic IBTC, the Claimant’s Pension Funds Administrator since 04/08/2014 and that the Defendant had settled all entitlements due to the Claimant. Copies of the Defendant’s First Bank cheque dated 01/08/2014, the Defendant’s Stanbic IBTC deposit slip dated 04/08/2014 and the schedule of contribution of the Claimant were tendered in evidence asExhibit D1, Exhibit D2 and Exhibit D3respectively.
  2. While answering questions under cross examination, DW1 further testified that the invitations were orally made to the Claimant and other employees (inclusive of DW1) through telephone calls and that the meeting was constituted of seven members which investigated the incidents of breaking in and theft. DW1 also testified that the Defendant did not have security but that the Defendant’s office is within banking premises which had security officers.
  3. Now, on the Claimant’s claim for declaratory reliefs, the learned Defendant’s counsel had submitted that the Claimant has the onus to prove that the termination of appointment was wrongful and also submitted that the Claimant’s claim cannot succeed if he failed to prove that the Defendant was in breach of its conditions of service. In further support of this argument learned Defendant’s counsel cited the case ofAjuyi Vs FBN Plc[2016] LPELR 40459.

On this issue, it is apt to state here that as correctly submitted by learned Defendant’s counsel, in an action for wrongful termination of appointment, the employee must prove the following:

(a)     That he was employed by the Defendant;

(b)    The terms and conditions of his appointment including duration and termination.

(c)     Who can appoint and remove him;

(d)    The circumstances under which his appointment can be terminated.

It is not in principle for the employer who is a Defendant to an action brought by the employee to prove this. See: Nigeria Gas Co Ltd Vs Dudusola [2005] 18 NWLR (Pt 957) 292; Morohunfola Vs Kwara Tech [1990] 4 NWLR (Pt. 145) 506 SC; Adams Vs L.S.D.P.C. [2000] 5 NWLR (Pt 656) 291 at 316; Ikuma Vs Civil Service Commission, Benue State & Ors [2012] LPELR 8621.

  1. In the instant case, the Claimant’s main grouse is that the Defendant did not comply with the provisions of the condition of service of the Defendant before summarily dismissing him. The Claimant emphasized that the Defendant breached his fundamental right to fair hearing as contained in Part 3:11 of the Defendant’s Condition of Service and as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Learned counsel for the Claimant had argued that the Defendant woefully failed to prove that it set up a panel to investigate the theft of 08/11/2013 at its Kaduna office and that the Defendant also failed to prove that it invited the Claimant to appear before the purported panel or meeting that was set up to investigate the theft that occurred at the Kaduna Store of the Defendant. Learned Claimant’s counsel further submitted that even though the Defendant as the employer of the Claimant can hire and fire him; the Defendant was however under obligation to follow the due process of law by giving the Claimant fair hearing as guaranteed by Section 36 (1) of the 1999 Constitution (supra) and as provided in the Defendant’s Condition of Service. To support his propositions, learned counsel relied on the authorities ofCAN Vs Lamido49 NSCQR 652; Chevron (Nig) Ltd Vs Omoregha [2015] 16 NWLR (Pt 1485) 336.

Based on these submissions the learned Claimant’s counsel urged on the Court to hold that the Claimant was wrongfully dismissed and prayed the Court to grant all the Claimant’s reliefs including award of damages.

  1. On his part, the learned counsel for the Defendant relying on Part 3.11.3 of Exhibit C11 – the Defendant’s Conditions of Service, submitted that the grounds upon which an employee can be summarily dismissed are contained in the said exhibit. Learned counsel further argued that the Claimant was summarily dismissed for the offence of gross dereliction of duty for his refusal to honour several invitations requesting him to attend the meeting called by the Defendant to investigate the theft of 08/11/2013; and for his refusal to obey lawful instructions (that is, his failure, refusal and/or neglect to report the three burglary incidents – 03/06/2013, 07/06/2013 and October 2013) to the principal staff of the Defendant to whom the Claimant had the duty to report such important incidents.

Learned Defendant’s counsel argued that following the receipt of the Claimant’s report on the theft of 08/11/2013 (Exhibit C4A), the Defendant promptly called a meeting to investigate the burglary incidents. Learned Defendant’s counsel submitted that it is settled that the employer has the right to suspend an employee in order to effect proper investigation of allegation or during the process of a disciplinary action and that the Defendant exercised its right pursuant to Part 3.11.4 and Part 3.11.5 of Exhibit C11 when it served a suspension notice (Exhibit C5) on the Claimant. In further support of his legal propositions, learned Defendant’s counsel relied on the cases of Longe Vs FBN Plc [2006] 3 NWLR (Pt 967) 228; Miaphen Vs University of Jos Consultancy Ltd [2013] LPELR 21904.

  1. Now, as correctly submitted by respective learned counsel on both sides, it is glaring that the terms and conditions of employment between parties are governed by Exhibit C11.

In a purely master and servant relationship in which the relationship is purely contractual, as in the instant case, once there is a purported termination of the employment, the Court will rarely make an order that it still subsists. This is on the principle that the Court cannot force a servant on an unwilling master. However, a termination of employment by the employer would be wrongful if it is in breach of the terms and conditions of the contract. See: Geidam Vs NEPA [2001] 2 NWLR (Pt 696) 45; Texaco Nig Plc Vs Kehinde [2002] All FWLR (Pt 94) 143 at 164; Obanye Vs U.B.N [2018] LPELR 44702

The crux of the case is whether the Defendant breached the terms and conditions of the Claimant’s contract in terminating his appointment.

  1. In view of the crucial relevance of Exhibit C11 being the Condition of Service that bind the parties, I take liberty to reproduce the relevant portions of the said Exhibit C11 that relates to discipline and the procedures.

Part 3.11   Discipline

3.11.1        Policy

The Company’s disciplinary procedures provide for issue of written warnings for offences not meriting termination of appointment.

3.11.2        Procedures

Observance of the foregoing rules is necessary to ensure a smooth running of the Company. Breaches of the rules and other causes of indiscipline will be dealt with as follow:

  1. More serious offences, which do not warrant dismissal, will result in a final written warning notice.

3.11.3        Summary Dismissal

The Management may summarily dismiss any employee found guilty of serious misconduct. In such cases, no notice shall be given. Any employee who is summarily dismissed shall automatically forfeit his entitlements such as leave, leave allowance and other entitlement that might accrue to him/her.

Offences, which may cause an employee a summary dismissal and by no means exhaustive include:

  1. Gross dereliction of duty.

3.11.4        Suspension

Employees may, on the approval of the CEO/Managing Director, be suspended from duty for breach of discipline or serious misconduct or suspicion of serious misdemeanour and criminal offence. The Human Resources Manager shall inform the employee concerned in writing of the suspension notice.

3.11.5        Penalty

  1. The suspension shall be without pay in all cases, but the period shall not exceed one month for breach of discipline. During this period, Management will look into the circumstances leading to the suspension with a view of reinstating or terminating the appointment of the individual concerned.

(Underlining for emphasis)

  1. The testimony of CW1 inParagraphs 13, 16, 18, 19, 20, 23 and 28 of the Witness Statement on Oathis that after he reported the incidence of 08/11/2013, he was placed on suspension vide the Exhibit C5, a letter of suspension dated 19/11/2013 and that he was summarily dismissed on 31/03/2014. The Claimant’s contention is that he did not breach any of the Defendant’s Condition of Service, neither was he informed or indicted of any of such breach.

By my understanding, the Claimant is by his testimony alleging infraction of his fundamental right to fair hearing as guaranteed under Section 36 (1) of the 1999 Constitution and he is also challenging a breach of the procedure for discipline as stipulated in Exhibit C11.

  1. As correctly submitted by the learned counsel for the Defendant, it is settled law that before an employer can dispense with the service of his employee under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of dismissal even where the allegation for which the employee is being dismissed involves accusation of crime.See: Ransome-Kuti Vs A-G Federation [1985] 2 NWLR (Pt 6) 211; Yusuf Vs UBN [1996] LPELR 3537

In this regard, the DW1 in Paragraphs 9, 10, 11, 12, 13, 14, and 17 of the Witness Statement on Oath testified that a meeting/panel was set up to investigate the incident of theft and make recommendation to forestall future occurrence; that the Claimant was severally invited to attend the meeting in person but the Claimant failed and refused to honor the invitations and that subsequently, the Defendant placed the Claimant on suspension on 19/11/2011 pending the Management’s decision. The report on Kaduna Depot burglary and theft dated 18/11/2013 was tendered in evidence as Exhibit D4. According to DW1, the Claimant was later dismissed on 31/03/2014 by the Management.

The DW1 further testified that he (DW1) was also invited to attend the meeting set up to investigate the incidents of theft and that he attended the meeting. DW1 testified under cross-examination, that the invitation for the meeting was orally made to three officers including the Claimant.

  1. I wish to point out that the Defendant’s testimony that invitations were made to the Claimant was sufficient to prove that the Claimant was notified of the meeting and that he was given opportunity to defend himself. The important thing required of the Defendant, by the rules of natural justice and the provisions of Section 36(1) of the Constitution of Nigeria 1999 applicable to this case, is to convey to the Claimant that a meeting was set up to investigate the report of theft made by the Claimant through Exhibit C4A. According to DW1, this was done by inviting the Claimant through telephone calls; and as such one can say that the requirements of natural justice were sufficiently complied with in the present case. It should further be stressed that by a community reading of Part 3.11.1, Part 3.11.2 and Part 3.11.3 of Exhibit C11, the Defendant has no obligation to give written notice or warning to employees for offences meriting termination or dismissal of appointment.
  2. The learned counsel for the Claimant’s contention is that the burden of proving that invitation was extended to the Claimant to attend an investigative committee meeting/panel rested on the Defendant.

I do not agree with the legal submission of learned Claimant’s counsel in this regard. It is trite that the duty to prove the wrongfulness or nullity of the summary dismissal rests with the Claimant, not the Defendant. See Ziideel Vs RSCSC [2007] 3 NWLR (Pt. 1022) 554 SC, Morohunfolu Vs Kwara Tech. [1990] 4 NWLR (Pt. 145) 506 SC, Ningi Vs FBN Plc [1996] 3 NWLR (Pt. 435) 220, Katto Vs CBN [1999] 6 NWLR (Pt. 607) 390 SC.

The law is also well settled, that for declaratory reliefs the burden of proof does not ordinarily shift to a Defendant until it has been proved by the Claimant. And that a Claimant must rely on the strength of his own case, and not on the supposed weakness of the Defendant’s case. See: Ansambe Vs Bon Ltd [2005] 8 NWLR (Pt 928) 650; Arabambi Vs Advance Beverages Ind. Ltd [2005] 19 NWLR (Pt 959) 1

  1. The principle of fair hearing is one of substance and not a mere technical rule. Hence, the question is whether a party who is entitled to fair hearing and who is desirous of being heard before his fate is decided, had in fact been given ample and adequate opportunity of being heard as provided under the applicable rules of Court. See Ahmad V Sahab Enterprises (Nig) Ltd & Ors[2016] LPELR 41313and Oloruntoba – Oju Vs AG Federation [2016] LPELR 41250 cited by the learned Defendant’s counsel.

I am of the firm view that the Defendant in the instant case afforded the Claimant the opportunity of being heard which he failed to utilize before the Defendant exercised its power of dismissal. The Claimant’s complaint on the fair hearing is baseless and lacks merits. I so hold.

  1. In the circumstance therefore, I am of the candid opinion that the summary dismissal issued to the Claimant was not unlawful since the Defendant complied with the conditions laid down in Exhibit C11 and exercised its right to summarily dismissed him and bringing the master and servant relationship to an end.In other words, the dismissal of the Claimant vide Exhibit C6 is not wrongful. I so hold.

I hereby resolve issue one against the Claimant.

ISSUE TWO

On this issue the complaint of the Claimant is that he is entitled to salaries for the duration of his suspension, three months’ salary in lieu of notice of the dismissal of his appointment, payment of his contributory pension and special damages.

Having held that the Claimant’s dismissal is not wrongful, I am of the view that the Claimant’s claims for salaries cannot be granted since these reliefs are hinged on the wrongfulness of his dismissal.

  1. I had earlier painstakingly reproduced the relevant portions of Exhibit C11 which deals with discipline and its procedure by the Defendant. With regards to the Claimant’s relief for payment of monthly salary from November 2013 (i.e the period of suspension to date of judgement), it is my considered view that the claim is unfounded since Part 3.11.5 clearly authorized suspension of the Defendant’s employee without pay in cases of breach of discipline. It is further stated in Part 3.11.3 that an employee who is summarily dismissed shall automatically forfeit his entitlements. Without further ado, the Claimant’s claims for salaries fails. And I so hold.
  2. On the claim for the refund of and payment for contributory pension, the Claimant tenderedExhibit C8,the Retirement Savings Account Statement and Exhibits C10 – C10A, the Claimant’s pay slips dated 28/11/2011 and 30/10/2013.

Learned Claimant’s counsel submitted that the Defendant was under obligation to deduct from the Claimant’s salary and remit same to the Claimant’s fund administrators

Now, Section 57(a) of the Pension Reform Act (PRA) 2004, imposes the duty on the pension fund custodian to receive the total contributions remitted by the employer on behalf of the pension fund administrator. By this section, remittances are by the employer, the Defendant in the instant case. The duty is on the Defendant, not on the Claimant, to prove that the contributory pension of the Claimant has been paid by the Defendant. It is the Defendant that has the duty to make the payment; as such the burden of proof that payment was made lies on the Defendant.  See Honk Sawmill (Nig.) Ltd Vs Holf [1992] 4 NWLR (Pt 238) 673

  1. In refuting this claim, the DW1 testified that all remittances due to the Claimant had been fully paid to the Claimant’s Pension Fund Administrator – Stanbic IBTC Pensions since August 2014. DW1 tendered in evidence Exhibits D1, D2 and D3 namely: a copy of First Bank’s cheque and issued in the sum of N222,532.14 (Two Hundred and Twenty Two Thousand, Five Hundred and Thirty Two Naira, Fourteen Kobo), a copy of Defendant’s Stanbic IBTC Pension Manager’s slip dated 04/08/2014 and a schedule of the Defendant’s contribution detailing Claimant’s remitted pension contribution dated 04/08/2014.

I hold the view that the Defendant has discharged the burden of proving that it had paid the Claimant’s contributory pension to Stanbic IBTC Pension Manager, the Claimant’s Pension Fund Administrator. Therefore, the Claimant’s claim for refund of and payment of monthly deductions of his contributory pension fails and it is hereby accordingly dismissed.

  1. The Claimant also claims for special damages in the sum of N750,000.00 for the psychological and physical torture that the Claimant and his family have been subjected to as a result of wrongful indefinite suspension and summary dismissal from the services of the Defendant.

I am afraid, the claims for special damages sought by the Claimant in this matter, woefully fails as such claim do not fall within the scope of damages awardable to employees whose employment were not wrongfully terminated or dismissed.

The Claimant would have been entitled to only damages if his employment was found to have been wrongfully terminated, i.e. to the amount he would have earned within the period.

  1. In the final analysis, what the Court had demonstrated, through the evidence led on record and the totality of the circumstances of this case is that the dismissal of the Claimant from service by the Defendants is not wrongful. The final result therefore, is that the case of the Claimant must and hereby fails in its entirety. It is hereby accordingly dismissed for lacking in merit.

Parties are to bear their respective costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

07/11/2019

Legal representation:

Auta Maisamari Esq. for Claimant

Moses O. Nwanya Esq. for Defendant

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