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National Industrial Court

Mr. Emmanuel Oijagbe -VS- Nigerian Bottling Company Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: OCTOBER 31, 2018SUIT NO. NICN/LA/07/2013

 

BETWEEN

Mr. Emmanuel Oijagbe                              –                             Claimant

 

AND

Nigerian Bottling Company Plc-                         Defendant

 

REPRESENTATION

Inam Wilson, N. E. Ogbeide, Joseph Abukpain, Miss Nkechi Obichere and I. U. Uwaifo, for the claimant.

Godwin Etim, with Mutiat Adeyemo, for the defendant.

 

JUDGMENT

  1. By a complaint and statement of facts (together with other accompanying originating processes) filed on 8th January 2013, the claimant prayed for:
  • A declaration that the proceedings and recommendations of the disciplinary panel set up by the defendant hear and determine the allegations made against the claimant contained in an internal memo dated 21st December 2009 did not comply with the Code of Conduct & Grievance Procedure Handbook 1996 and the rules of fair hearing enshrined in the 1999 Constitution of Nigeria and/or the principles of natural justice, equity, fairness and good conscience and is accordingly liable to be set aside.
  • A declaration that the defendant’s Senior Staff Handbook was not part of the contract of service of the claimant and the purported dismissal of the claimant pursuant to Part III, section 18 of the Handbook is wrongful, null, void and of no effect whatsoever.
  • A declaration that the summary dismissal of the claimant by the defendant as contained in the defendant’s letter dated 31st December 2009 was actuated by malice out of victimization for the claimant’s involvement in union activities and is wrongful and/or unlawful, illegal, null and void and of no effect whatsoever.
  • An order setting aside the proceedings and recommendations of the disciplinary panel set up by the defendant to hear and determine the allegations made against the claimant contained in an internal memo dated 21 December 2009.
  • An order setting aside the purported dismissal of the claimant from the services of the defendant as conveyed by the defendant’s letter dated 31st December 2009.
  • An order directing the defendant to reinstate the claimant to his employment, position and rank with the defendant.
  • An order directing the defendant to pay to the claimant all his accrued salaries, allowances, bonuses and entitlements from the 31st day of December 2009 up to the date of judgment or until the defendant finally reinstates the claimant, calculated as follows:

(A) Basic salary of N2,260,660.20; and

(B) The following allowances and benefits per annum:

Housing                              –                                     N904,264.00

Utility                                 –                                     N220,980.00

Education                           –                                       N25,475.00

Transport                            –                                       N71,250.00

Leave                                  –                                     N226,066.00

Xmas bonus                        –                                     N188,388.35

Total                                   =                                  N1,636,423.35

  • The sum of N644,242 being estimate of the medical expenses incurred by the claimant from the date of his purported dismissal (31st December 2009) as a result of the defendant’s withdrawal of the free medical benefit for the claimant, spouse and four (4) children under 18yrs.
  • The sum of N4,446,884 being the defendant’s contribution to its provident scheme from the 22nd of May 2000 to the 31st of December 2009 when the claimant was wrongfully dismissed and an additional sum to be determined by the court from 1st January 2010 to the date of judgment.
  • Interest on the amounts in reliefs (7) – (9) above at the rate of 21% per annum from the date of judgment until the final payment.

 

  1. In response to the claim above, the defendant filed on 28th March 2013 its statement of defence and counterclaim together with other defense processes. The defendant counterclaimed against the claimant the following reliefs:
  • The sum of N2,521,432.32 (Two Million, Five Hundred and Twenty-One Thousand, Four Hundred and Thirty-Two Naira, Thirty-Two Kobo) being damages arising from the claimant’s failure to ensure that 20% deductions were made on Payment Vouchers issued to the defendant’s haulers.
  • The sum of N846,835.00 (Eight Hundred and Forty-Six Thousand, Eight Hundred and Thirty-Five Naira) being damages arising from the claimant’s failure to ensure that requisite deductions were made for the value of fuel used by each hauler and deducted before appending his signature on the waybill.
  • Cost of this action in the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) only.

 

3.The claimant in reaction filed his reply and defence to counterclaim and written statement on oath in support, to which the defendant filed a reply.

 

  1. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C24. The defendant called two witnesses: Mr Olumide Omotoye, the Employee Relations Manager of the defendant, who testified as DW1; and Mr Okike Enyinnaya, the Material Officer of the defendant, who testified as DW2. The defendant tendered Exhibits D1 to D16. At the close of trial, the parties filed their respective final written addresses. The defendant’ final written address was filed on 13th April 2018, while the claimant’s was filed on16th May 2018. The defendant’s reply on points of law was field on 23rd May 2018.

 

THE CASE OF THE CLAIMANT

  1. To the claimant, by a letter dated 8th November 1999, the claimant was offered employment by the defendant.In recognition of his exemplary and devoted services, the claimant was promoted severally by the defendant from level LM3, LM2, LM1, MM3, MM2 to MM1 within a period of 9 (nine) years and was also posted to six of the defendant’s strategic plants located in all the geopolitical zones of the country, his last posting being Enugu Plant.The claimant was actively involved in trade union activities and as the Branch Vice Chairman and later Branch Chairman of Food, Beverages & Tobacco Senior Staff Association of Nigeria (FOBTOB), he was very vocal in communicating the union’s opposition to several management actions and decisions that were not in the best interest of the employees and this brought the claimant in constant loggerheads with the management of the defendant.While the claimant was on his annual leave sometime in October 2009, unknown to him, auditors investigated the operations of the Enugu Plant. The claimant returned from his leave sometime in November 2009 and coincidentally met the scheduled closing meeting held by the Auditors with employees.The claimant attended the meeting and listened to the findings of the Auditors, none of which indicted him. The Auditors informed the staff present at the meeting that their report will be submitted to the defendant’s head office in Lagos, and it would be made public within a week. About four days after the Auditor’s closing meeting, the claimant received a directive from the Head of Human Resources – Supply Chain to extend his leave because the Auditors were yet to finish their assignment. Following his refusal to extend his leave for no justifiable reason, the claimant was suspended via an internal memo dated 9th November 2009 on the ground of alleged ongoing Auditor’s investigation into the operations of the Supply Chain function in the defendant’s Enugu Branch which affects the claimant’s area of responsibility.Upon resumption of duty from suspension, the claimant was issued a query by the defendant’s Plant Manager in Enugu, Mr Clement Adebayo vide an internal memo dated 21st December 2009 alleging, inter alia, breach by the claimant of sections 5.8, 5.11, 5.33, 5.40 and 5.45 of the defendant’s Code of Conduct and Grievance Procedure dated April 1996 and section 3.11 of the NBC Code of Conduct.On 22nd December 2009 the claimant formally responded to the allegations contained in the query following which a disciplinary panel was formed to investigate the allegations made against him.The claimant was summarily dismissed on the basis of the panel’s findings. Aggrieved by the decision of the panel, the claimant instituted this action claiming the reliefs indicated on the statement of facts.

 

THE CASE OF THE DEFENDANT

  1. To the defendant, the claimant alleged that he was wrongfully dismissed by the defendant pursuant to the recommendation of the disciplinary panel set up to hear and determine the allegations made against him contained in an Internal Memo dated 21st December 2009.That the claimant alleged that the proceedings and recommendations of the disciplinary panel set up by the defendant to hear and determine the allegations made against the claimant did not comply with the Code of Conduct & Grievance Procedure Handbook 1996 of the defendant, the rules of fair hearing enshrined in the 1999 Constitution, and/or the principles of natural justice, equity, fairness and good conscience and that on this premise, his dismissal is liable to be set aside. As such, the claimant is contesting his dismissal by the defendant on the grounds that his dismissal was actuated by malice out of victimization for his involvement in union activities, and that the disciplinary panel denied him fair hearing.

 

  1. It is, however, the defendant’s case that the claimant was lawfully dismissed from his employment in accordance with the contract of service. The dismissal of the claimant was premised upon reports of gross misconduct of such grave and weighty character as to undermine the relationship of confidence which should exist between the claimant and the defendant, which misconduct justified the claimant’s dismissal. That investigations by the auditors of the defendant confirmed these reports of misconduct against the claimant (Exhibit D4). Furthermore, that the response of the claimant to the allegations contained in the Internal Memorandum issued to him was found to be unsatisfactory in the light of the evidence before the disciplinary panel. Accordingly, to the defendant, the claimant’s claims are misconceived and should be dismissed in their entirety with substantial costs against the claimant.

 

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant submitted two issues for determination, namely:
  • Whether the dismissal of the claimant by the defendant was valid and lawful.
  • Whether the defendant has made out a case entitling it to judgment on itscounterclaim.

 

  1. On issue (1), the defendant submitted that the success or otherwise of the claimant’s suit herein depends upon the resolution of this narrow issue. That also embedded in this issue is whether disciplinary panel set up to conduct a hearing in respect of the allegations contained in a query issued to the claimant afforded the claimant the opportunity of a hearing. The defendant cited Morohunfolu v. Kwara Tech.[1990] 4 NWLR (Pt. 145) 506 SC andZenith v. RSCSC[2002] 3 NWLR (Pt. 1022) 554, on the requirement that an employee who complains that his employment has been wrongfully terminated has the onus to place before the Court the terms of the contract of employment, and prove in what manner the said terms were breached by the employer since it is not the duty of the employer as a defendant to prove any of these facts. Also cite are sections 131 to 133 of the Evidence Act 2011 on the burden of proof as well asOkereocha v. Min. of Comm and Tourism[2001] 1 NWLR (Pt. 693) 126 at 136. That by his relief (3), the claimant seeks a declaration that his summary dismissal as contained in he defendant’s letter of 31st December 2009 was wrongful, illegal, null, void and of no effect whatsoever. That the burden of proving these assertions lies on the claimant.

 

  1. On the claimant’s assertion that he had problems with the defendant because of trade union activities, the defendant submitted that the claimant failed to name any other union member who was dismissed apart from himself or any that was subjected to the same disciplinary proceedings that he went through. The defendant also submitted that it is now trite law that a mere ipse dixit is not sufficient to prove a vital point where legal evidence is required, citing Palmer v. Dada[1986] 5 NWLR (Pt. 4) 541 at 547 and FMF v. Ekpo[2004] 2 NWLR (Pt. 856) 100 at 120.To the defendant it debunked the claimant’s assertion in paragraphs 7 and 8 of the witness statement of Olumide Omotoye (DW1) of 28th March 2013 indicating that the claimant’s assertion as to being dismissed for union activities was an afterthought since he earlier filed a similar suit before the High Court of Lagos State in Suit No. ID/869/2010 on the 4th May 2010 (Exhibits D8 and D9) on the same issues as in the instant case but said nothing about being dismissed for union activities in that case. That a look at paragraph 11 of the statement on oath in Exhibit D9 will show that the case of the claimant in that suit was his dismissal was because of the access which the defendant had to his account with Zenith Bank account which showed personal benefits (by way of funds) received by the claimant from companies engaged in business with the defendant. Clearly therefore, that by the claimant’s own admission and assertion, his dismissal was not because of any trade union activity as alleged in paragraph 54 of his statement on oath of 8th January 2013 as to justify the grant of his relief (3) before this Court.

 

  1. Furthermore, that the claimant’s admission of ownership of the account in paragraphs 9 and 10 of his statement on oath in Exhibit D9 further contrasts significantly with paragraph 49 of his statement on oath of 8th January 2013 before this Court wherein he denied ownership of the said Zenith Bank Account Number 6028008404. That it is trite that a party’s case before the Court must be consistent, citing Intercontinental Bank Ltd v. Brifina Ltd[2012] LPELR-SC.67/2004; and that where a witness gives contradictory and/or conflicting evidence on material facts, this renders his evidence unreliable, citingCDC (Nig.) Ltd v. SCOA Nig. Ltd[2007] 6 NWLR (Pt. 1030) 300 SC. That contradictions in the evidence of a party are disastrous and have the effect of destroying the case of that party, citingAudu v. Guta[2004] 4NWLR (Pt.864) 463; the effect being that such a witness is treated as an unreliable witness by the Court, citingUkut v. State[1996] 1 NILR 1 SC.

 

  1. The defendant continued that in paragraph 45 of his statement on oath of 8th January 2013, the claimant asserted that the disciplinary panel set up to consider the allegations contained in the query (Exhibit C8) against him “on its own volition withdrew two (2) of the five (5) charges contained in the query”. To the defendant, that may well be so, but just like in criminal trials where an accused person can be found guilty of one out of several offences for which he may have been charged, the claimant’s assertions hold no water. That before considering whether the payment of monies into the claimant’s account number 6028008404 with Zenith Bank was incompatible with the faithful discharge of his duties to the defendant, it is pertinent to observe that the claimant’s evidence before this Court are riddled with opinions, conjectures and speculations, citing paragraphs 16, 19, 20, 25 and 36 of the claimant’s statement on oath of 8th January 2013 as well as paragraphs 4, 5 and 6 of the claimant’s statement on oath of 28th February 2014. To the defendant, paragraphs 43, 44, 46, 47, 50, 53 and 54 of the statement on oath of 8th January 2013 ought to be discountenanced and given no weight as they too are opinions, not facts.

 

  1. The defendant went on that it is trite that in instances where the dismissal of an employee is predicated on the misconduct of such employee, all that the employer needs do is to be satisfied that the facts upon which the allegation of misconduct against the employee is based are true or are likely to be true, citing Mike Eze v. Spring Bank Plc[2011] 12 SC (Pt. I) 218. That having admitted ownership of the Zenith Bank Plc account into which monies were paid by some of the defendant’s external haulers in Exhibit D9 for his own benefit and not that of the defendant, the claimant committed an act which is injurious to the business of his employer and which is incompatible with the faithful discharge of his duties, resulting in misconduct for which he could be dismissed and for which he was dismissed.

 

  1. The defendant then proceeded to submit that the query of 21st December 2009 (Exhibit C8) issued to the claimant outlined the findings of the defendant’s auditors as contained in Exhibit D4. In summary, the allegations against the claimant were as follows:
  • Failure to make the 20% deductions imposed on outside haulers for using the defendant’s trailer back when hauling products for the plant resulting in the failure to realize the sum of N9,706,395;
  • Issuance of fuel from the defendant’s fuel storage to private haulers without payment being made by the haulers, resulting in loss of N5,848,383.81 to the defendant;
  • Deposits of various sums of money made into the claimant’s account by different business concerns involved in doing business with the defendant;
  • Indiscriminate engagement of casual labour leading to payments made to 19 casual workers for work not done; and
  • Purchase of two 33,000 liters of AGO at the rate of N90.00 per litre whereas the defendant’s approved purchase rate is N88.00 per litre.

 

  1. The defendant reproduced the findings of the auditors at page 12 of Exhibit D4, which is as follows:

Emmanuel Oijagbe (Plant Logistics Manager)

He (the Claimant) did not officially declare his knowledge of staff ownership of haulage companies. He also collected kick-back from haulers before trucks are loaded, and ordered that cost of AGP consumed should be passed into the company’s usage account instead of being debited into the contractors’ accounts. He manipulated stock records and records of casual wages while also inflating contract prices. He did not sufficiently supervise his subordinates, particularly the Haulage supervisor, Fuel Clerk, and Shift Warehouse Supervisor. Most employees interviewed testified to his highhandedness, intimidation and victimization.

The defendant then submitted that this finding of the auditors in Exhibit D4 materially contradicts the assertion of the claimant in paragraph 20 of his statement on oath of 8th January 2013 that “none” of the findings of the auditors indicted him. Indeed, that it is now trite law that oral evidence will not be allowed to contradict the contents of a document tendered before the Court, citingOmoniyi v. Alabi[2004] 6 NWLR (Pt. 870) 551. To the defendant, the finding of receiving kickbacks is supported by Exhibit D7 (the statement of account number 6028008404 belonging to the claimant), which showed that payments were made into the said account by some haulage companies that transact business with the defendant. That in particular, deposits were made into the said account by “Bright Star Global Ventures Limited,” “Nuel Ventures” and “Sibling Resources Limited”, who were all contractors of the defendant. That the claimant responded to Exhibit C8 by his “Answer to Your Query” letter dated 22nd December 2009 addressed to the defendant’s Plant Manager, Enugu Plant (Exhibit Cl2).

 

  1. The defendant continued that from the proceedings of the disciplinary panel’s hearing session of 29th December 2009 (Exhibit C11), the claimant did not deny requesting or receiving monies from the defendant’s contractors or other persons related to the defendant. Neither did he proffer any reasonable explanation as to the purpose of such payments. Rather, he declined to affirm his ownership of the said Zenith Bank account number on the basis that he needed evidence in certified true copy before he could confirm that the account was his. The defendant then submitted that in the absence of a plausible explanation for the purpose for which these monies were paid, the claimant was guilty of serious or gross misconduct and liable to be summarily dismissed by the defendant, citing Nwobosi v. ACB Ltd[1995] 6 NWLR (Pt. 404) 658 at 686 on what constitutes “gross misconduct” that would warrant the summary dismissal of an employee. To the defendant, the claimant’s conduct in receiving monies into his private account from the defendant’s haulers was of such grave and weighty character as to undermine the relationship of confidence which should exist between him and the defendant and, therefore, amounted to gross misconduct justifying the claimant’s dismissal, citingUzoho v. Task Force on Hospital Management &ors[2004] 5NWLR (Pt. 867) 627 at 644 and Momoh v. CBN[2007] 14 NWLR (Pt.105) 508 at 526. That the claimant was given adequate opportunity to explain the lodgments of monies into his private account by the defendant’s haulers but he failed to do so.

 

  1. For purposes of clarity and better understanding of why the claimant’s claim for wrongful dismissal is untenable vis-a-vis the unexplained lodgments into the claimant’s private bank account, it is necessary to look at Exhibit C8 (Query), Exhibit C12 (the claimant’s answer to the query) and Exhibit C11 (Notes of the hearing session of the disciplinary panel). The exhibits have been set out in this order to give a chronological background. Exhibit C8 is dated 21st December 2009; Exhibit C12 is dated 22nd December 2009 and Exhibit C11 is shown to have taken place on 29th December 2009. The defendant submitted that from these exhibits and the evidence of the claimant under cross-examination, if the claimant did not claim ownership of the account referred to in Exhibit C11 as asserted, what then was his basis for taking “Zenith Bank to the Lagos High Court on account of Zenith Bank disclosing my account domiciled in Uselu Branch, Benin City to the defendant?”Curiously, that the same Zenith Bank Account number 6028008404 which the claimant disclaimed before the disciplinary panel in Exhibit C11 as being “a forged document” is what he admitted in his own words in paragraph 5 of Exhibit D9 as belonging to him. That what is admitted needs no further proof, citing section 123 of the Evidence Act 2011,Fasuba v. Adumashi[2001] 17 NWLR (Pt. 743) 58 at 98 andEigbe v. NUT[2008] 5 NWLR (Pt. 1112) 604 at 622. That the claimant’s assertion in Exhibit C11 that the self-service copy of account number 608008404 shown to him was a forgery further conflicts with paragraph 9 of Exhibit D9.

 

  1. To the defendant, it is not in dispute that misconduct justifies the dismissal of an employee without notice. That the action of the claimant in receiving money into his private account for his own purposes from some of the defendant’s haulers without the defendant’s knowledge was certainly conduct incompatible with the business of the defendant, citingIdeh v. Motor Collection Co (Nig) Ltd[1968] NCLR 88 at 91. As such, the defendant was justified in dismissing the claimant upon the recommendation the disciplinary tribunal, citing Walters v. Harrison[1922] 4NLR 73 at 74, Phillips v. Vauxhall (1872) 7 QB 666 andOladebo v. Bata (Nig.) Ltd[1973] CCHCJ 34 at 41.The defendant urged the Court to uphold the dismissal of the claimant as lawful and valid.

 

  1. On the disciplinary proceedings against the claimant, the defendant submitted that the facts presented before the disciplinary panel (upon which the allegations of misconduct against the claimant was proved) entitled the defendant to summarily dismiss the claimant.By relief (1), the claimant seeks a declaration that the proceedings and recommendations of the disciplinary panel set up by the defendant to hear allegations against him contained in an internal memo of 21st December 2009 (Exhibit C8) did not comply with the Code of Conduct and Grievance Procedure Handbook 1996 and the rules of fair hearing enshrined in the 1999 Constitution. Citing Bukar Modu Aji v. Chad Basin Development Authority &anor[2015] LPELR-24562(SC), the defendant submitted that the claimant must first plead and prove his conditions of service before any talk of breach of fair hearing can be countenanced. That the conditions of service is accordingly a sine qua non in any claim for wrongful dismissal or termination, as only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination.

 

  1. By relief (2), the claimant seeks a declaration that the defendant’s Senior Staff Handbook (Exhibit C14) was not part of his contract of service and as such, his purported dismissalpursuant to Part III, section 18 of that Handbook is null and void. In paragraph 28 of his statement on oath of 8th January 2013, the claimant asserted that where the Staff Handbook is applicable, the procedure to be followed before determining an employee’s employment is that stipulated in the defendant’s Code of Conduct & Grievance Procedure (Exhibit C9). To the defendant, the claimant in effect is implying that because Exhibit C14 is not part of his contract of employment, Exhibit C9 ought not to be countenanced. If that is so, the claimant ought to plead and prove his conditions of service and how his employment ought to be determined. That the implication of the claimant’s assertion in paragraph 28 of the statement on oath of 8th January 2013 is that he has not furnished his conditions of service before this Court apart from his letter of appointment dated 8th November 1999 (Exhibit C1) and the memorandum of agreement dated 31st June 2000 confirming him as a Manager (Exhibit C2). The defendant accordingly submitted that his failure to do so is fatal to his claim herein as there is, therefore, no material upon which the Court can determine whether or not the dismissal of the claimant by the defendant was wrongful, citing Umoh v. ITF Governing Council[2001] 4 NWLR (Pt. 703) 281. That the law is that an employer has the right to dismiss an employee, even if not specifically written in the contract of service, where he is satisfied that the employee is guilty of misconduct which makes it detrimental to the employer to continue to keep the employee in his employment, citingSimon Ansambe v. Bank of the North Ltd[2005] 8 NWLR (Pt. 928) 60, Osisanya v. Afribank (Nig.) Plc[2007] 6 NWLR (Pt. 1031) 565 at 187 andArinze v. First Bank[2000] 1 NWLR (Pt. 639) 78 CA at 102.

 

  1. The claimant had contended that the defendant did not comply with the procedure and processes laid down in the Code of Conduct & Grievance Procedure Handbook and then itemized the perceived “irregularities” in the proceedings of the disciplinary panel, basically centred on the personnel that composed it. To the defendant, not only were these debunked in paragraphs 22 and 23 of the witness statement on oath of Olumide Omotoye of 28th March 2013, but that the documentary exhibits tendered by the claimant himself (particularly Exhibits C9 and C11) do not support his assertions. That Exhibit C11 gives credence to the fact that the claimant’s assertions regarding “irregularities” in the composition and conduct of the disciplinary panel’s proceedings are afterthoughts lacking any basis or merit. That the opening paragraph of Exhibit C11 states as follows:

PR0CEEDINGS

The Moderator introduced members of the panel and its constitution. The constitution of the panel was accepted as duly constituted in line with the company standard.

That a document speaks for itself, citingOkhomina v. Psychiatric Hospitals Management Board[1997] 2 NWLR (Pt. 485) 75 at 90; and that a court cannot read into a document what is not contained therein, citingNika Fishing Co. Ltd. v. Lavina Corporation[2008] LPELR-2035(SC).

 

  1. The defendant went on that contrary to the assertions of the claimant under cross-examination, Exhibit C11 does not state anywhere that the claimant complained against the composition of the disciplinary panel at the point when it commenced sitting. Indeed, that the only time the claimant raised the issue of the composition of the panel was in Exhibit C15 (the claimant’s mail to Femi A Oke dated 30/12/2009, the second day of the disciplinary hearing), which states:

It is with very deep regret and concern for the future of this company that I write this letter to you.

As of this moment, my hearing process is on break and that is what has afforded me this opportunity to this mail to you…

That the claimant himself did not state anywhere in Exhibit C15 that he raised any complaint against the composition of the disciplinary panel. The defendant then submitted that no witness is entitled to credibility when he has two material inconsistent evidence given by him on record, citingMonoprix (Nig) Ltd v. Dkenwa[1993] 3 NWLR (Pt. 383) 325 at 341.

 

  1. To the defendant, the principle of law is that any complaint against the composition of the disciplinary panel by the claimant ought to have been taken immediately the panel’s composition was read out at the commencement of its sitting on 29th December 2009, citingJibril v. Military Administrator, Kwara State &ors[2006] LPELR-7686(CA). That having not complained about the composition of the disciplinary panel at its inception, and having participated in its deliberations for the whole of 29th and 30th December 2009, the claimant is estopped from complaining about its composition before this Court.In any event, that the claimant’s complaint about the composition of the disciplinary panel is immaterial given thatthe law is that the motive for exercising a right to terminate the contract of service of a servant does not render a valid exercise of that right ineffective, citingAjayi v. Texaco Nig. Ltd &ors[1987] 3 NWLR (Pt. 62) 577. In the circumstance, the defendant submitted that reliefs (3), (4) and (5) sought by the claimant cannot be granted.

 

  1. Citing Olatunbosun v. Nigerian Institute for Social and Economic Research[1988] 3 NWLR (Pt. 80) 25 at 52 andUniversity of Calabar v. Essien[1996] 10 NWLR ([Pt. 477) 225 at 263, the defendant submitted that Exhibit C11 clearly shows that the claimant was afforded an opportunity to defend the allegations against him when he appeared before the disciplinary panel. He gave answers to some of the allegations but declined to answer questions on some other allegations, particularly the allegation of payment of money into his private account from the defendant’s haulers. The defendant then submitted that by affording the claimant the said opportunity of a hearing before the disciplinary panel, it had complied with the requirement imposed on it by law. Furthermore, and citing Yusuf v. Union Bank of Nigeria Ltd[1996] 6 NWLR (Pt.457) 632 SC on the power of summary dismissal, the defendant submitted that he claimant was aware of the nature of the allegations against him and duly appeared before the disciplinary panel constituted by the defendant to answer to those allegations. That it is, therefore, too late in the day for the claimant to allege that he was denied fair hearing. In any event, that the law is that the necessity for fair hearing is not applicable to ordinary master and servant relationships, as the courts have repeatedly held that the observance of the principle of natural justice before dismissing an employee is a privilege and not a right of the servant or employee, citingAngel Spinning & Dyeing Ltd v. Ajah[2000] 13 NWLR (Pt. 685.) 532 at 555 andDavid-Osuagwu v. Anambra State[1993] 4 NWLR (Pt. 285) 13 at 41.

 

  1. The claimant had asserted that he was not allowed by the panel to examine the fuel clerk who was called by the panel to testify on the allegation of failure to deduct the cost of fuel from haulers using the defendant’s haulage trucks thereby causing monetary loss to the defendant. To the defendant, referring to paragraph 7 of the additional witness statement of Mr Okike Enyinnaya (the rule clerk) sworn to on 26th May 2014, is that rather than ask the fuel clerk questions, the claimant chose to abuse and threaten the panel for reasons best known to him. That this piece of evidence was not controverted by the claimant nor did he cross-examine on it; as such the evidence should be accepted and acted on by the Court, citing Okonkwo v. Onoro &ors[1999] 4 NWLR (Pt. 597) 110 at 118 andChukwu v. Diala[1999] 6 NWLR (Pt. 608) 674 at 681.

 

  1. Just like the claimant is not entitled to relief (1) to (3), the defendant submitted that he is equally not entitled to reliefs (4) and (5). Also, that the order of reinstatement sought in relief (6) is not grantable as the claimant has not shown that his employment with the defendant was laced with statutory flavour, citingObaseki v. Orukwo[2007] 17 NWLR (Pt. 1062) 138 at 160-161; and that an order of reinstatement is inconsistent with an action for wrongful dismissal in an ordinary master and servant relationship, citing Hodibia v. Nigerian Cement Co. Ltd[1992] 7 NWLR (Pt. 512) 174 at 191. Furthermore, that the claimant cannot also be granted reliefs (7) and (8) relating to salaries, allowances, bonuses and medical expenses given that where an employee is guilty of gross misconduct he can be dismissed summarily without notice and without wages, citing Yusuf v. Union Bank of Nigeria Ltd (supra). That reliefs (10) and (11) relating to interest and costs are not supported by any shred of evidence from the claimant justifying their grant, citing Ayorinde v. Kuforiji[2007] 4 NWLR (Pt. 1024) 341 at 371 andEkwunife v. Wayne (WA) Ltd[1989] 5 NWLR (Pt. 122) 422 at 445.

 

  1. In relation to relief (9), the claim for the payment of the sum of N4,446,884 sought by the claimant, the defendant submitted that the claimant is entitled to be paid only his own contributions to the Senior Staff Provident Scheme and not that of the defendant, having been dismissed for gross misconduct. This much has been stated in Exhibit C13 (letter of dismissal dated 31st December 2009) and paragraph 36 of Olumide Omotoye’s statement on oath of 26th March 2013. That the claimant was paid the sum of N311,447·67 (Three Hundred and Eleven Thousand, Four Hundred and Forty-Seven Naira, Sixty-Seven Kobo) being his contributions to the Provident Fund.

 

  1. The claimant contended he is entitled to 100% of the defendant’s contributions to the Provident Fund on the fact that section 7 of the defendant’s Senior Staff Provident Fund and Life Assurance Scheme Handbook states that it is only an employee dismissed for “fraud and misconduct constituting a criminal offence” who is liable to forfeit the defendant’s contributions. He asserted that he was not dismissed “for conduct constituting a criminal offence”. To the defendant, these assertions fly in the face of the principle of law that where an employee is guilty of gross misconduct he can be dismissed summarily without notice and without wages, citing Yusuf v. Union Bank of Nigeria Ltd (supra). Secondly, that the claimant did not furnish before this Court the defendant’s Senior Staff Provident Fund and Life Assurance Scheme Handbook to enable the Court peruse the said section 7 thereof. That it is trite that a Court is obliged to act only on the materials and evidence placed before it, citingTrade Bank Plc v. Deen-mak Construction Co. Ltd &anor[1996] 2 NWLR (Pt. 432) 577 at 591; and cannot speculate, citingCarlen v. University of Jos[1994] 1 NWLR (Pt. 323) 631 at 668. That the law is also trite that the court will not assist a party in putting up its case or finding explanation for gaps in a party’s evidence where that party has not done so himself, citingDankula v. Shagamu[2008] All FWLR (Pt. 413) 1280 at 1309.

 

  1. More fundamentally, that the claimant has not denied (and did not deny) anywhere in his pleadings and evidence before this Court the assertion in paragraph 36 of Olumide Omotoye’s statement on oath of 26th March 2013 that he “was paid the sum of N311,447.67 (Three Hundred and Eleven Thousand) Four Hundred and Forty-Seven Naira Sixty-Seven Kobo) being his contributions to the Provident Fund”, nor was Olumide Omotoye cross-examined on it, citingOkonkwo v Onoro &ors (supra) and Chukwu v. Diala (supra). That the law is that an employee’s dismissal cannot be declared as wrongful after he has collected his entitlements in an ordinary master and servant relationship, citingOkwoche v. Nigeria Airways Ltd[2003] 10 NWLR (Pt. 828) 429.

 

  1. It is also the defendant’s submission that the appropriate remedy in an action for wrongful dismissal is damages, citingIlodibia v. Nigerian Cement Co. Ltd (supra) at 188; but that the claimant has no such claim before the Court. That it is now trite that a Court cannot award to a claimant what he did not claim, citingOwena Bank v. Nigerian Stock Exchange[1997] 8 NWLR (Pt. 115) 1. The defendant then urged the Court to dismiss the claimant’s claims in their entirety with costs.

 

  1. Issue (2) is whether the defendant has made out a case entitling it to judgment on itscounterclaim. Counterclaim (i) is for N2,521,432.22 being damages arising from the claimant’s failure to ensure that 20% deductions were made on payment vouchers issued to the defendant’s haulers. To the defendant, it is entitled to this relief. The facts constituting the grounds for this claim is that the claimant who had a duty to advise the defendant’s Finance Department to make the deductions failed to do so, and as a result of the claimant’s negligence to make the requisite 20% deductions in respect of payments made to the outside haulers, the defendant suffered a loss of N2,521,432.32. That paragraph 18 of the statement on oath of DW1, Olumide Omotoye, dated 28th March 2013 provides the background to the sum being claimed by the defendant in the counterclaim; whileparagraphs 43 and 44 of the same statement on oath reiterate that the claimant’s failure in ensuring that these 20% deductions were made caused financial loss to the defendant. That with regard to this particular head of claim, Exhibit D4 (the audit report) provides a detailed report corroborating the fact of claimant’s failure to make these deductions. Under the sub-head, “VERBALLY CORROBORATED FINDINGS” at page 8 thereof, it is stated in Exhibit D4 as follows:

Use of NBC Trailer Back by External Haulers.Most employees of the Logistics Department interviewed insisted that the non-deducted charge of 20% of the invoiced cost of haulage services was being paid back to PLM. This was corroborated by a former Manager of one of the haulage companies, who stated that an amount of N200,000.00 was being paid monthly by his former employer into the PLM’s account for the use of company trailer. A default (by the hauler) on this gentleman’s agreement led to the PLM’s refusal to process all the supplier’s outstanding invoices or allocate any further contract.

That Exhibit D4 goes ahead (at page 15 thereof) to itemize the deductions not made for the use of the trailer-back by some of the external haulers, including the dates and the amount not deducted. That one of the material allegations in Exhibit C8 (Query dated 21st December 2009) was that the claimant did not indicate deductions due from outside haulers for using NBC trailer backs in his recommendations to the Finance Department for payment of these haulers resulting in financial loss of N9,706,395 to the defendant.

 

  1. In his response to this particular allegation by his Exhibit C12 (Answers to your Query), the claimant stated as follows:“On resumption in Enugu Plant, I met some outside haulers already using NBC Trailer BACK. Never met or received any procedure as to the deduction procedure. There was no such thing as Plants established procedure to deduct 20% for haulers using NBC trailer backs”. To the defendant, in Exhibit C11 (Notes taken at the Hearing Session on 29th December 2009), the failure to make the 20% deductions formed Count 1 of the query. That in paragraph 10 of his statement on oath in support of reply and defence to counterclaim of 6th September 2013, the claimant stated that it was not his responsibility to advice Finance Department to make the 20% deductions or to advice that the deductions had not been made before appending his signature to the application letter by haulers. That he went further to state as follows:“…Although, the 20% deduction was introduced newly within the Defendant’s Enugu Plant and the process for making the deduction was still largely informal, there were sufficient division of responsibilities and internal controls to ensure that the 20% deductions were made as and when due and a single officer and/or myself could not on his own waive the 20% deduction or give out the trailer backs to haulers without the 20% deduction”. To the defendant, the claimant’s assertions are inconsistent with his assertion in Exhibit C12 to the effect that he never “met or received any procedure as to the deduction procedure. There was no such thing as Plants established procedure to deduct 20% for haulers using NBC trailer back”. That there was no established plant procedure as asserted by the claimant also conflicts with the procedure highlighted in paragraphs 21.1 to 21.4 of his statement on oath of 6th September 2013.

 

  1. The defendant further referred to paragraph 19 of the claimant’s statement of 6th September 2013 wherein he stated that it was not part of his “schedule of duties as Logistic Manager of the Defendant to ensure deduction from external haulers”.That it must be emphasized that the defendant did not at any time assert that it was the defendant’s duty to ensure the deductions. Rather, the consistent position of the defendant is that the claimant failed to advise the defendant’s Finance Department to make the deductions before appending his signature to payment vouchers, urging the Court to see and consider the following processes:
  2. Paragraph 18(d), (e), (f) and (g) of the Statement on Oath of Olumide Omotoye dated 28th March 2013;
  3. Paragraphs 13, 14, 15 and 16 of the Additional Statement on Oath of Olumide Omotoye dated 8th November 2013;
  4. Paragraphs 7, 9 and 10 of the Statement on Oath of Mr. Okike Enyinnaya dated 7th November 2013; and
  5. Paragraph 6(a) and (b) of the Additional Statement of Mr. Okike Enyinnaya dated 26th May 2014.

Aside from this, that the claimant had admitted under cross-examination that his last position in the employment of the defendant was Supply Chain Manager of the defendant’s Enugu Plant. He had also admitted that the items in Exhibit C24 (Procedure for Fuel Deduction) fell within his mandate.

 

  1. The defendant went on that the claimant expressly confirmed the defendant’s assertion in paragraphs 13 and 14 ofOlumide Omotoye’s Additional Statement of 8th November 2013 that the “buck stopped at his table”, as it was “only what he commended that the Finance Manager paid”, in paragraph 5(c) (iii) of his statement of 28th February 2014 in reply to the statement of Mr. Okike Enyinnaya. In that paragraph, the claimant had stated unequivocally that all invoices and waybills are forwarded to him “to confirm that the rates are correct and for me to append my signature on the invoice and recommend to Finance Manager for further processing”. That under cross-examination, the claimant re-confirmed this assertion as follows:“Yes, I recommend to Finance Manager after confirming the rates for haulage for processing and payment”. That by the claimant’s own admission, therefore, he had a responsibility as Logistics Manager and later, Supply Chain Manager, to approve the payments on payment vouchers, invoices and waybills by appending his signature on them before they were forwarded to the Finance Department for payment. Had the claimant properly carried out his duty in this regard, he would have advised the defendant’s Finance Department to make the requisite 20% deductions for the use of the defendant’s trailer backs by its outside haulers. That a party may rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim, citingIpinlaiye II v. Olukotun[1996] 6 NWLR (Pt. 453) 148 and Onisaodu v. Elewuju[2006] 13 NWLR (Pt. 998) 517 SC. The defendant accordingly submitted that the claimant’s failure to recommend the 20% deductions amounted to a neglect of his duties as an employee who owed his employer a duty of fidelity and good faith, as well as a duty to act in the best interests of his employer. That not only did the claimant’s act of negligence prevent the defendant from realizing monies from external haulers, it caused the defendant to lose money amounting to the sum of N2,521,432.22 as shown in Exhibit D6(a) – (i), referring to Des-Dokubo v. The Nigerian Army[2015] LPELR-25969(CA). In light of all of this, the defendant/counterclaimant submitted that it has proved its claim for the stated sum of N2,521,432.22.

 

  1. Counterclaim (ii) is a claim for N846,835 being damages arising from the claimant’s failure to ensure that deductions were made for fuel usage on waybillsfor payment to the defendant’s haulers.To the defendant, the facts constituting the grounds for this claim are adequately stated in the witness statement on Oath of Olumide Omotoye. That the claimant has also admitted under cross-examination that the items in Exhibit C24 (Procedure for Fuel Deduction) fell within his mandate. That what is admitted requires no further proof, citing section 123 of the Evidence Act 2011. More fundamentally, that the claimant had stated under cross-examination as follows:“Yes, I recommend to Finance Manager after confirming the rates for haulage for processing and payment”. That from all of this, payments were made by the Finance Manager solely on the recommendation of the claimant. That in paragraph 5(c)(iii) of his statement on oath of 28th February 2014 in reply to the statement of Mr Okike Enyinnaya, the claimant had stated that all invoices and waybills are forwarded to him “to confirm that the rates are correct and for me to append my signature on the invoice and recommend to Finance Manager for further processing”. That the assertions in paragraphs 5(c)(iv) and (v) of his statement on oath of 28th February 2014 in reply to the statement of Mr Okike Enyinnaya, (to the effect that the Finance Manager carries out his own independent checks and thereafter recommends payment to the Plant Manager who then signs and sends back to the Finance Manager) are, therefore, afterthoughts not borne out by the evidence before the Court. That the claimant is estopped from making those assertions as they amount to the claimant approbating and reprobating at the same time, citing Lawai v. Honourable Commissioner for Land, Housing & Survey, Oyo State[2013] LPELR-21114 (CA). That as Logistics Manager and subsequently, Supply Chain Manager in the Enugu Plant of the defendant, it was the claimant’s responsibility to ensure that deductions were made by the fuel clerk for the value of the fuel used by each hauler. The claimant also had the responsibility of appending his signature on waybills before they were forwarded to the Finance Department for payment. The failure to make the requisite deductions for fuel usage by the claimant led to a loss of N846,835 suffered by the defendant, urging the Courtto uphold this contention and enter judgment for the defendant in terms of the counterclaim. In conclusion, the defendant urged the Court to dismiss this suit with substantial costs, and grant the counterclaim.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant submitted two issues for determination, namely:
  • Whether the purported dismissal of the claimant by the defendant was wrongful and invalid and if this is answered in the affirmative, whether the claimant is entitled to all his accrued salaries, allowances, bonuses and entitlements (N1,636,423.35), medical expenses (N644,242) and provident fund contributions (N4,446,884).
  • Whether the defendant has made out a case entitling it to judgment on its counterclaim.

 

  1. For issue (a), the claimant submitted that the law is trite that before a court can hold that the dismissal of an employee was wrongful and therefore a nullity, the employee must plead and prove that (i) he is an employee of the defendant (ii) he was appointed under certain terms and conditions and (iii) his appointment is terminable under the stipulated terms and conditions only, citingIbekwe v, Imo State Edu. Mgt. Board[2011] 24 NLLR (Pt. 68) 159 at 163. It is the case of the claimant that his summary dismissal by the defendant was actuated and principally orchestrated by malice and victimization of the claimant for his union activities when he was vice chairman and later chairman of the NBC branch of FOBTOB (the facts of union activities, which brought him at loggerheads with the defendant, particularized in paragraphs 9-15 of thestatement of facts).The claimant referred to Exhibits C19, C20, C21, C22 and C23. That the best response the defendant could offer in paragraphs 4, 5 and 6 of the statement of defence was a mere general traverse and describing as an afterthought the allegations of the claimant. That this Court takes very seriously any attempt by an employer to harass, intimidate, and victimize an employee for his union activities, referring toNational Union of Food, Beverages & Tobacco Employees v. Cocoa Industries Ltd Ikeja[2005] 3 NLLR (Pt. 8) 206 at 218 andComrade Abdulfatai Bakare v. CGC Nigeria Ltd[2013] 30 NLLR (Pt. 87) 379 (NIC) at 428.

 

  1. It is also the case of the claimant that the audit exercise leading to the audit report, the suspension, query and the entire disciplinary proceedings were all designed and masterminded by the powers that be in the defendant to dispose of the claimant for his union activities. That the claimant has approached this Court not merely to enforce the breach of his contractual rights but to provide an opportunity to condemn in the strongest legal terms such unfair labour practices perpetrated by the defendant. That the claimant’s case is that his dismissal was wrongful and invalid for the following reasons: failure of the defendant to comply with the rules of fair hearing;failure of the Managing Director (MD) of the defendant to sign the Hearing Process Form, which is a condition precedent to its validity; failure to prove the allegations of misconduct bordering on fraud, bribery and corruption, and theft against the claimant, which were of a criminal nature to the standards required by law.

 

  1. The claimant then took each of this items one after the other. First, failure of the defendant to comply with the rules of fair hearing. To the claimant, citing section 36 of the 1999 Constitution, Eigbe v. NUT[2011] 22 NLLR (Pt.62) 227 at 238, Morakinyo v. University College Hospital Board of Management[2014] 41 NLLR (Pt. 128) 607 at 619,Akinyanju v. Unillorin[2011] All FWLR (Pt. 569) 1080,UNTHMB v. Nnoli[1994] 8 NWLR (Pt. 363) 376,Arobieke v. NELMC[2017] LPELR-43461(SC),Federal Polytechnic Mubi v. TLM Yusuf[1991] 1 NWLR (Pt. 165) 81 at 100 andOlaniyan and ors v. University of Lagos &anor[1985] 2 NWLR (Pt. 80) 25, his case is that the entire proceedings of the disciplinary panel set up by the defendant to investigate allegations of fraud and misconduct leveled against him were fraught with irregularities which impugned on the fairness and independence of the proceedings and as such violated his right to fair hearing.That the defendant’s Code of Conduct and Grievance Procedure dated April 1996 (Exhibit C9), which regulates the claimant’s employment, provides for the procedure to be adhered to by the defendant in the conduct of any disciplinary proceeding against a senior staff, a category to which the claimant belongs. That the overarching objective of the Code is to ensure that every employee is given fair hearing before dismissal. To the claimant, the following procedure which is aimed at protecting the claimant’s right to fair hearing was not complied with by the defendant, namely:

(i) The panel will be composed of the Director of Human Resources or his representative, who acts as a moderator and a Divisional Director in functional relationship to the affected manager/staff. The function of the moderator is to act as an unbiased umpire to ensure that the panel follows proper procedure and the affected staff is afforded fair hearing.

(ii) The Head of Department of the employee, in this case the Plant Manager of Enugu branch is also part of the hearing process but not as a member of the hearing panel. The duty of the head of Department is merely to present the allegation against the affected staff before the panel.

(iii) During the hearing, the staff is entitled to examine the evidence adduced against him, cross-examine the witnesses of the prosecutor, tender documentary evidence and call a witness to give evidence in his support.

(iv) At the conclusion of hearing, a Hearing Process Form (Management Staff) (Form SS/HP/97) is filled out. The form has provision for the report of the hearing, the signed statement of defence of the affected staff, comment of the panel and their conclusion and recommended penalty. The form is signed off by the affected staff, the witnesses and members of the panel.

(v) The disciplinary panel will forward the Hearing Process Form with its recommendations to the MD through the Human Resources Director and the MD shall append his decision and sign off on the form.

To the claimant, the defendant did not adhere to these procedures, which are binding on them, citingIfeta v. SPDC (Nig) Ltd[2006] 8 NWLR (Pt. 983) 587.

 

  1. Accordingly, that the disciplinary proceedings were fraught with breaches of the claimant’s right to fair hearing as set out below:

(a) On the composition of the disciplinary panel, the claimant submitted that he wrote to the panel via a letter dated 30th December, 2009 addressed to Mr Femi Oke challenging the composition of the panel. The said letter was ignored and never considered by the panel. Mr Clement Adebayo was made a member of the disciplinary panel to sit and consider the allegations against the claimant contrary to the provisions of the Code of Conduct that he should only be present to read the query. Mr. Adebayo participated actively in the panel both as member and prosecutor. That Mr Olumide Omotoye who as moderator is required by the code of conduct to sit on the panel as an unbiased umpire and await the conclusion of the hearing before forming an opinion came for the hearing with his mind already made up about the guilt of the claimant. It was on this premises that Mr Omotoye approached the claimant and his witnesses before the commencement of the hearing to say that the claimant had a bad case and suggested to the claimant to make a plea bargain at the hearing.The defendant had in paragraphs 66 through 70 of the defendant’s address submitted that the claimant did not raise his concerns about the composition of the panel timeously because same was raised after the first sitting of the panel. To the claimant, this position of the defendant is highly misconceived and the defendant misapplied the decision in Jibril v. Military Administrator, Kwara State[2006] LPELR-7686(CA). That nowhere in the said decision did the Court of Appeal hold that an accused person must raise an objection to the composition of the panel at the early stage or on the first day of sitting or he loses his right to raise such concerns. That what the Court held was that the objection to the membership of two members of the panel should have been sustained especially as the objection was raised timeously. That this does not in any way set a standard that such objection must be raised on the first day. In any case, the claimant’s objection was raised early after the proceedings of the first day. That since the claimant’s objection was predicted on his right to fair hearing, the panel should have considered and ruled on the claimant’s objection but this was not done. That the failure to consider the request contained in Exhibit C16 is in itself a breach of the claimant’s right to fair hearing upon which the summary dismissal of the claimant can be set aside, urging the Court to so hold.

 

(b) On examination of evidence and cross-examination of witnesses, the claimant cited Morakinyo v. University College Hospital Board of Management[2014] 41 NLLR (Pt. 128) 607 at 618, and then submitted that he was never afforded the opportunity to cross-examine the witnesses/accusers/haulers said to have been interviewed by the Audit Department in terms of Exhibit D4 and paragraph 19(a) of the witness statement on oath of Olumide Omotoye dated 28th March 2013 and who confirmed that the claimant was receiving kickbacks. The allegations of these ghost witnesses were relied on by the panel in reaching the conclusion that the Claimant received kickbacks from contractors and also that the Claimant demanded money from the contractors instead of paying same into the company’s account for the trailer backs. That his employment was summarily terminated premised on unsubstantiated allegations of criminal nature without being given an opportunity to confront his accusers, citing Adewunmi v. Nigeria Eagle Flour Mills[2014] 14 NWLR (Pt. 1428) 458 CA andImonikhe v. Unity Bank Plc[2011] 12 NWLR (Pt. 1262) 624. That he was also not allowed by the disciplinary panel to cross-examine the Fuel Clerk (DW2) on his weighty allegations against the claimant, referring to the 2nd paragraph of page 4 of Exhibit C11. That the explanation by the defendant that the claimant chose to abuse and threaten the panel is but a failed attempt to import into the disciplinary panel’s report findings that are not contained therein. That the wordings of the report are clear and unambiguous that the claimant was not allowed to interview the Fuel clerk. That where the words of any documents are clear and unambiguous, courts are enjoined to give same their ordinary meaning unless where the literal interpretation will result in some absurdity, citingUBN Pic v. Soares[2012] 29 NLLR (Pt. 84) 329 CA. In any event, that the evidence of DW1 as per paragraph 23 of his deposition is at variance with theta of DW2, the Fuel Clerk: while DW1 talked of the claimant’s threatening remake being targeted at the witnesses, DW2 talked of the remarks being targeted at the panel members. That given this contradiction, the Court has no option but to rely on the record of proceedings, which clearly state that the claimant was not allowed to cross-examine the fuel clerk. To the claimant, the failure of the defendant to allow him cross-examine the Fuel clerk and eventually basing its decision on the testimony of the fuel clerk breached the claimant’s right to fair hearing; consequently, the entire proceedings of the panel is liable to be set aside. Additionally, that the defendant did not oblige him a certified true copy of theZenith Bank Plc statement of account for Account No: CA 6028008404 or give him the opportunity to prepare for his defence in respect of the said statement of account. That a close scrutiny of the document reveals that it is anything but a Zenith Bank statement of account as it is not signed, stamped nor bear any insignia of Zenith Bank. That the law is now well settled that a statement of account can be authenticated by producing a certified copy, citingYesufu v. ACB[1976] 4 SC 1 andTrade Bank v. Chami[2003] 13 NWLR (Pt. 836) 158. The claimant then submitted thatthe analysis far from being aproper bank statement of account, urging the Court to compete it with a proper Zenith Bank statement of account also tendered as part of Exhibit D7. The claimant drew the Court’s attention to the Zenith Bank Plc cover letter dated 5th February 2010 forming part of Exhibit D7. That the letter attaches a statement of account as Appendix I which covers the period from 1st February 2007 to 31st January 2010. That it is evident from the date of the cover letter (5th February 2010) and the dates covered by the statement of account (1st February 2007 to 31st January 2010) that the statement of account forming part of Exhibit D7 was not the document shown to the claimant at the disciplinary hearing and that the statement of account was prepared after the conclusion of the disciplinary hearing (29th-30th December 2009) and dismissal of the claimant (31st December 2009).

 

(c) On the hearing process form, the claimant submitted that to give validity to the decision of the panel, the MD of the Defendant, Mr. Roland Ebelt, was required to mandatorily sign the Hearing Process Form in the case of a senior staff but this requirement was not complied with, referring to page 43 of Exhibit C9. That this fundamental error alone suffices to warrant a nullification and invalidation of the claimant’s dismissal. To the claimant, he asked the defendant as per paragraph 40 of the statement of facts to produce the Hearing Process Form, but the defendant did not. Also that the defendant in paragraph 25 of DW1’s witness statement on oath dated 28th March 2013 stated that the MD reviewed the claimant’s Hearing Process Form, relying on a letter written by the MD to the claimant dated 11th January 2011, which letter was agains not produced by the defendant despite asserting that it will be so produced. To the claimant, the failure to produce these two documents should count against the defendant, citingsection 167(d) of the Evidence Act 2011, Anike v. SPDC Nigeria Ltd[2012] 28 NLLR (Pt. 81) 350 CA at 360;[2011] 7 NWLR (Pt. 1246) 227 at 2401. The claimant accordingly submitted that his summary dismissalis invalid, null and void and of no effect whatsoever for failure of the MD to sign the Hearing Process Form which is mandatorily required to be executed by him before the dismissal of any senior staff in the defendant’s employ.That the above proven violations of the claimant’s right to fair hearing and the failure to sign the Hearing Process Form individually and collectively entitles the claimant to a reversal of his wrongful dismissal. Accordingly, the claimant urged the Court to set aside the entire proceedings of the disciplinary panel and the summary dismissal of the claimant for flagrant breach of the claimant’s right to fair hearing.

 

  1. Second, allegations of fraud and other misconduct made against the claimant not established. The defendant had highlighted in Exhibit C8 (the query dated 21st December 2009) the allegations (i.e. failure to make 20% deduction imposed on outside haulers; issuance of fuel to private haulers without payment; and deposits of various sums into the claimant’s account by persons doing business with the defendant) against the claimant as found by the defendant’s Auditors. That the panel’s findings on these allegations were the bases of the panel’s indictment of the claimant and his consequent dismissal. That the law is trite that in a master and servant relationship, a master needs not state the reason for the dismissal of an employee. But where he decides to state a reason, then that reason must be proved by the employer, citing Chiagorom v. Diamond Bank[2014] 44 NLLR (Pt. 140) 401 at 424-425 andYaroe v. Nigerian Stock Exchange[2014] 46 NLLR (Pt. 147)45 at 61. To the claimant, the allegations he was charged with are of criminal nature. That the Audit Report indicated that the deductions which were to be made from the haulers (for the haulage backs and fuel) but which were not deducted by the claimant found their way into the claimant’s bank account (Exhibit D7). That the claimant is indirectly being accused of fraud, theft, bribery and corruption all of which are of criminal nature. That it is trite that if the commission of a crime by a party is directly in issue in a proceeding whether civil or criminal it must be proved beyond reasonable doubt,citing Agbi v. Ogbeh[2006] 11 NWLR (Pt. 990) 65 andJohn Anakism v. Union Bank of Nigeria Ltd[1994] 1 NWLR (Pt. 322) 557. To the claimant, these allegations were largely unsubstantiated and unjustifiable as to make the dismissal of the claimant wrongful and invalid.

 

  1. On payment of various sum into the claimant’s personal account Zenith Bank CA 6028008404 by companies doing business with the claimant, the claimant is said to have breached Coca Cola HBC Code of Business Conduct (Exhibit C10) and section 3.11 of the defendant’s code of conduct (Exhibit C9). Section 3.11 makes it an offence to seek and/or derive personal benefits in the course of official duties from acts likely to result in conflict between personal and company interest. That an important element of this offence is deriving personal benefits in the course of his official duties. To the claimant, this allegation was not conclusively proved before the defendant proceeded to dismiss him on this score, referring to Exhibit C11. That from reading Exhibit C11 together with Exhibit D7, it will be seen that the latter is an analysis of the content of a statement of account and not the purported Zenith Bank statement of account itself. That the defendant never afforded the claimant the opportunity of sighting the Zenith Bank statement of account forming part of Exhibit D7 before the panel hearing. As a result, a surprise was sprung on the claimant who was not sure if that was his account or not. That as can be gleaned from Exhibit 11, the claimant complained about the authenticity of the analysis of the statement of account. That from the inception, he was forthright about his ownership of a Zenith Bank account. Exhibit C11 states clearly that: “Emmanuel agreed that he was using a Zenith bank account as salary account up till August 2007, but declined to state if he continued to use the alleged account after the above date for any other purposes…” Accordingly, that the submissions in paragraphs 48 to 52 of the defendant’s final address are of no moment, urging the Court to invalidate the claimant’s dismissal as there is no conclusive proof that the monies reflected in the claimant’s statement of account was received as a bribe.

 

  1. On issuance of fuel from the defendant’s fuel storage and failing to make deductions, the defendant had adduced as a reason for terminating the claimant’s employment the failure of the claimant to deduct fuel monies from the account of haulers in the course of processing invoices for payment to the haulers. This was alleged to be related to negligent workmanship and violated section 5.11 of the defendant’s code of conduct. To the claimant, to found this allegation and/or to result in dismissal, section 5.11 requires that the negligent workmanship should result in substantial loss to the company. That substantial loss to the company is not defined but going by section 5.8 of the code of conduct the loss to the company should be in excess of N10m. That by the audit report and query the resulting loss to the defendant is N5,848,383.81, which is far below the threshold for dismissal. That the defendant thus failed to prove any loss to the company. The claimant referred to paragraph 5(c) of his additional witness statement on oath filed on 28th February 2014 where he explained the process for fuel deduction and who is responsible for same. That he who alleges must prove, citingJomani v. Ungoro NULGE Edo Branch[2012] 27 NLLR (Pt. 77) 307 at 310 and Idowu &ors v. The Registered Trustees of Ona Iwa Mimo, Cherubim and Seraphim Church of Nigeria & Overseas[2012] LPELR-7865(CA). That it is the defendant’s case that the claimant is responsible for deducting monies for fuel from the account of its haulers. However, the defendant failed to produce any document or policy of the firm that stipulates who makes such deductions. That the only evidence adduced by the defendant is the deposition of the Fuel Clerk (DW2 in this court) contained in paragraphs 6 and 10 of his witness statement on oath dated 7th November 2013.

 

  1. The claimant continued that the Fuel clerk in a bid to have the court believe that the claimant was responsible for advising the deduction of fuel monies from haulers deposed in paragraph 10 of his witness statement on oath of 7th November 2013 that the claimant was the owner of the entire process i.e. from processing the waybill to advising on payment. He proceeded in paragraph 11 to allege that he remembers an instance when the claimant gave him some vehicle numbers belonging to one of the private haulers and verbally instructed him to post the fuel consumed by these vehicles directly into the defendant’s AGO account without raising debit notes for them to be treated by the finance department.That this allegation demonstrates the defendant’s desperation to implicate the claimant by all means possible. That there is no evidence before this court that DW2 reported this alleged illicit practice of the claimant to the authorities. That during cross-examination when he was asked about whether he reported in writing to the authorities, he stated thus: “Yes, I am authorized to act only on written instruction. Given paragraphs 11 and 6(e) of my 1st and 2nd depositions respectively, I did not insist on a written instruction. Yes, I formally complained in writing about the said facts I deposed to in paragraphs 11 and 6(e) of my 1st and 2nd depositions respectively”. To the claimant, DW2 admitted that he is authorized to act only on written instruction and the alleged instruction of the claimant was oral. That there is no punishment meted out to DW2. That it is common knowledge and accepted between the parties that other officers of the company are also involved in the process of dealing with the haulers for the purpose of releasing fuel and deduction of monies, namely, the Haulage Supervisor, the Finance Manager and the Plant Manager. None of these officers was investigated or questioned as to the role played by them in the process. This underscores the claimant’s testimony in paragraphs 12 through 18 of his witness statement on oath dated 8th January 2013 that he was singled out for punishment and investigation out of malice for his participation and leading role in union activities as the Vice Chairman and chairman of FOBTOB as evidenced by Exhibits C20 to C23. The witch-hunt and victimization was borne out of the defendant’s indignation and aversion towards the claimant for his consistence in being vocal in support of staff welfare issues.

 

  1. Furthermore, that the defendant in a bid to support its position that the claimant was responsible for deducting fuel monies argued that the claimant admitted under cross-examination that he recommends to the finance manager after confirming the rates for haulage for processing and payment. To the claimant, the claimant’s position is nothing different from the claimant’s position in paragraph 5(c)(iii) of the claimant’s written deposition dated 28th February 2014 where the claimant deposed thus: “the warehouse Manager sends the invoice and waybills to me (as Logistics Manager) for me to confirm that the rates are correct and for me to append my signature on the invoice and recommend to Finance Manager for further processing”. That by this deposition, the claimant explained that he cross-checks the waybill against the invoice to ensure that there is no discrepancy in the amount stated on both documents. That this does not by any means suggest that the claimant is responsible for ensuring that monies for fuel used by the haulers are deducted. That in order to demonstrate that the Logistics Manager has no business with deduction of money for fuel, he sought to tender Exhibit C18 before the panel but it was rejected. Exhibit C18 is the procedure for fuel deduction. A glance at that document which was issued by Fred Amobi, a senior personnel of the defendant’s company, shows the different staff that are involved in the administration of matters relating to dispensing and management of fuel in the company. The Logistics Manager is not one of them. That given Exhibit C18, the only evidence adduced by the defendant is the mere ipse dixit testimony of its witness. That the law is clear that oral evidence cannot be used to override or vary the express contents of a document, citingOluwole v. Margaret[2011] LPELR-4970(CA).

 

  1. The claimant went on that DW1 testified under cross-examination that before a vendor is paid, deductions to be made by the defendant will have to be reflected on Exhibit D6(h) and signed off. The claimant cannot alone sign off on Exhibit D6(h) for both payment and deduction. Those who should sign Exhibit D6(h) are the Finance, Logistics and Plant Managers. DW1 testified further that nothing can be taken out from the plant without Exhibit D6(h). The Logistics Manager’s signature is not known to him so he does not know if he signed Exhibit D6(h) or not. That DW2, who was in charge of the fuel station as Fuel Clerk, testified under cross-examination that when trailers enter the premises the security makes a note of the trailer that comes into the premises. The trailer drives in straight to the warehouse to be loaded. The warehouse is headed by the Haulage Supervisor. The Haulage Supervisor then loads the trailer, which then goes to the fuel station where DW2 works. The driver will bring a voucher and the Haulage Supervisor will indicate on the voucher the quantity of the fuel and destination of the trailer. The quantity of the fuel so indicated is then issued to the driver/vehicle. He then issued the fuel and signed off the quantity issued. The trailer then goes through security and leaves. The trailer presents its invoice and deductions are made later. If the deduction is not made and it is discovered later, the company can still make the deduction subsequently so long as the private trailer still continues to do business with the defendant.He does not know if the defendant ultimately made deductions when it was discovered that the deductions were not made. He does not know how many trailers there were that deductions were not made in respect of. For the reasons canvassed, the claimant urged the Court to hold that the defendant was unable to prove that the claimant was responsible for deducting monies for fuel used by the private haulers. Thus, the claimant’s dismissal on that score is null and void and of no effect.

 

  1. Another reason given by the defendant for the dismissal of the claimant is that the claimant failed to deduct or ensure that 20% is deducted on payment vouchers issued to defendant’s haulers. This was alleged to represent substantial neglect of assigned duties and contravened sections 5.8 and 5.11 of the defendant’s code of conduct. To the claimant, to result in dismissal, section 5.8 of the code of conduct requires that the loss to the company must be in excess of N10m. According to the audit report and query the resulting loss to the defendant is N9,706,395 which is the threshold for dismissal. That this allegation and the amount (N9,706,395) like the allegation of failure to make fuel deductions is largely unsubstantiated, making the dismissal of the claimant which was based on same allegation wrongful, null and void and of no effect whatsoever. The claimant relied on Exhibit C11, which is the record of proceedings of the panel, where the panel noted the claimant’s submission as follows: “Deduction of 20% from haulers for using NBC trailer back.Emmanuel responded that there was no records or written plant procedure concerning deduction of this sum or who is responsible for the deductions”. That the defendant never countered the assertion of the claimant by provision of a regulatory or policy document from the defendant indicating who is responsible for deduction of the said funds. The indictment of the claimant on this score is largely circumstantial drawing from the defendant’s already biased impression that the claimant had been receiving gift from some of its customers. The only evidence used to indict the claimant is a letter signed off by the claimant on behalf of a certain Steve Ojo, According to the panel’s report: “Letters of application by different haulers stating that they wish to apply for use of NBC trailer back and agreeing to deduction of 20% as directed by NBC were also provided by the panel and signed off by Emmanuel Oijagbe on behalf of Steve Ojo after discussions on the phone due to expediencies of the sign off. Emmanuel stated that no exact procedure or clear directive was given to him in person to effect such deductions”.

 

  1. To the claimant, it was not his responsibility or duty to carry out the deduction and neither is it his responsibility to advise such deductions. That in paragraph 20 of his witness statement on oath dated 6th September 2013, he highlighted the procedure for the deduction of 20% trailer back cost and who is responsible for same. That it is difficult to comprehend how the claimant will be responsible for advising deduction of funds when the haulers do not have firsthand contact with the claimant which makes it difficult for the claimant to know which trailer has the defendant’s trailer back or which has the haulers’ trailer back. The process embarked on by the haulers, which corroborates the claimant’s deposition in paragraph 20(ii) of his witness statement on oath dated 6th September 2013 was accurately recounted by DW2 in the course of his cross-examination and it is evident from the narration that the claimant had no contact with the haulers. That if the above testimony of DW2 is anything to go by and which it is, the claimant does not feature anywhere in the scheme of things when the trailer is within the premises. How then is the claimant expected to advise deduction of monies for trailers which he has no idea came into the premises unless someone else advises same. The claimant accordingly urged the Court to accept the testimony of the defendant in this respect as the true position. That the claimant does not feature and cannot know the trailer backs for which 20% needs to be deducted. That any testimony given in the course of cross-examination is relevant evidence which can be relied on by the Court, citingNAPPS &ors v. NUT[2012] 28 NLLR (Pt. 81) 483 at 489.In any case, that the claimant asserted that deduction not made can still be received from the company as long as such company still transacts business with the defendant. This fact was further corroborated and confirmed by the DW2 in the course of cross-examination. Accordingly, the claimant submitted that it is not his responsibility to ensure or advice the deduction of 20% for trailer back. That the defendant has not been able to prove that the responsibility is the claimant’s and as such the dismissal of the claimant relying on this allegation is null and void and of no effect.

 

  1. Issue (b) is whether the defendant has made out a case entitling her to judgment on her counterclaim. To the claimant, acounterclaimant must prove his case and he succeeds only on the strength of his case and not on the weakness of the defence, citingOkeke &anor v. Eze[2013] LPELR-22455(CA),Jeric (Nig.) Ltd v. Union Bank[2000] 15 NWLR (Pt. 691) 147 SC,Zenith Bank &anor v. Ekereuwem &anor [2011] LPELR-5121(CA) andAwosunle &anor v. Fagbemi &anor[2011] LPELR-8912(CA). The claimant then adopted his submissions in support of his claims set out in the forgoing paragraphs in support of his argument against the counterclaim and urged the Court to dismiss the counterclaim.

 

  1. To further buttress the claimant’s position that the defendant has failed to prove his entitlement to its counterclaim, the claimant referred to the inconsistency in the defendant’s claim. That in Exhibit C8 (Query issued to the claimant by the defendant) the defendant stated that the amount lost as a result of the failure of the defendant to deduct 20% cost for trailer back is the sum of N9,706,395 (Nine Million, Seven Hundred and Six Thousand, Three Hundred and Ninety-Five Naira). Whereas in itscounterclaim, the defendant counterclaims for the sum of N2,521,432.32 (Two Million, Five Hundred and Twenty-One Thousand, Four Hundred and Thirty-Two Naira, Thirty-Two Kobo) in that regard. Similarly, in Exhibit C8, the defendant claims that the amount lost as a result of the alleged claimant’s failure to deduct monies for haulers’ fuel usage is the sum of N5,848,383.81 (Five Million, Eight Hundred and Forty-Eight Thousand, Three Hundred and Eighty-Three Naira, Eighty-One Kobo). However, before this Court, the defendant counterclaims for the sum of N846,835.00 (Eight Hundred and Forty-Six Thousand, Eight Hundred and Thirty-Five Naira) for that alleged loss.That the defendant has not explained why there is a discrepancy in the figures. That there is no case of or evidence of payment being made by the affected haulers which has drastically reduced the amount of the alleged loss. That this underscores the claimant’s position that this exercise is a machination by the defendant to explore all avenue to fight the claimant on account of the claimant’s union activities. That where a party sets up an inconsistent case before the Court, the Court is obligated to dismiss the claim, citingAnike v. SPDCN Ltd[2012] 28 NLLR (Pt. 81) 350 at 361CA.

 

  1. Furthermore, that the defendant never pleaded strictly and particularize these claims which fall in the realm of special damages. The defendant just dumped all the documents before the Court for the Court to figure out. That where items of special damages are not pleaded and strictly proved, any claim for the alleged loss must fail. The law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence,NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr. Ignatius Anyanwu & ors v, Mr Aloysius Uzowuaka & ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. That all items of loss must be specified by the claimant before they may be proved and recovery granted,Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004]18 NSCQR 895. To the claimant, the major reason why the defendant’s counterclaim is liable to fail is because the defendant still has an opportunity to recover any losses incurred as a result of failure to deduct those monies as the said haulers are still in business with the defendant.

 

  1. The claimant went on that the counterclaim for N1,500,000 professional fees is also ill-conceived and misplaced. Just like special damages, these claims must be specifically pleaded and strictly proved by the claimant, citingOdogwu v. A-G Fed[1996] 6 NWLR (Pt. 456) 508 SC. That the defendant failed to plead, particularize and lead evidence in proof of these claims and as such should be discountenanced in its entirety.

 

  1. On the defendant’s argument that paragraphs 43, 44, 46, 47, 50, 53 and 54 of the claimant’s statement on oath of 8th January 2013 be discountenanced on the ground that the depositions contained therein are opinions and not facts, the claimant submitted that the defendant’s arguments in this regard are misconceived. That the authorities cited by the defendant buttress the claimant’s point that these depositions are statement of facts.

 

  1. In specific response to the submissions of the defendantto the effect that an employer has a right to summarily dismiss an employee for misconduct and that the defendant afforded the claimant adequate opportunity to explain the lodgments of monies into his private account, the claimant answered that the “opportunity” did not pass the minimum standard of fair hearing.

 

  1. On the defendant’s argument that the claimant did not present before the Court his conditions of service, the claimant replied that this argument is farcical given Exhibits C1 and C2. As for Exhibit C14, that it does not regulate the claimant’s employment, referring to paragraph 41 of the claimant’s deposition of 8th January 2013 as well as paragraph 28 of DW1’s deposition of 28th March 2013. That the parties are ad idem that the Senior Staff Handbook does not regulate the claimant’s employment; as such any termination under it must be a nullity. That the defendant’s argument that since the Senior Staff Handbook does not apply, Exhibit C9 ought not to be countenanced, is misconceived as the defendant has not provided any reason why the document should be discountenanced.

 

  1. On the defendant’s argument that an employer can dismiss an employee on grounds of misconduct or willful disobedience even if not specifically written in the contract of employment, the claimant submitted that his case is different as the contract provides the procedure for dismissal, which the defendant must comply with, citing Ekunola v. CBN & anor [2014] 40 NLLR (Pt. 122) 170.

 

  1. The defendant had argued that the claimant cannot be reinstated since his employment if not statutory. To the claimant, this is misconceived. However, that even if the Court were inclined to agree with the defendant, under section 14 of the National Industrial Court (NIC) Act 2006, the Court can award substantial damages against the defendant for breach of the employment contract and the claimant’s right to fair hearing, citing Industrial Cartons Ltd v. NUPAPPW [2006] 6 NLLR (Pt. 15) 258, Maiya v. Incorporated Trustees Clinton Health Access Initiative Nig. [2012] 27 NLLR (Pt. 76) 110 at 173, Longe v, First Bank of Nigeria Ltd [2010] 6 NWLR (Pt. 1189) 1 at 57, British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 274, Adema v. NSPMC [2012] 26 NLLR (Pt. 74) 247 and Olufemi Amodu v. Epesok Paper Mill Ltd unreported Suit No. NICN/LA/304/2013, the judgment of which was delivered on 22nd June 2016.

 

  1. The claimant proceeded to submit that he is entitled to his pension entitlement in line with Exhibit D13 since no dismissal on ground of fraud and misconduct constituting a criminal offence has been established.

 

  1. On Exhibit D15, a letter directing the manager of Union Bank to credit the claimant’s account with the sum of N311,447.67, the claimant submitted that it is for the defendant to prove that the said sum was actually paid, citing section 167(e) of the Evidence Act 2011. That accordingly, the defendant’s argument that an employee’s dismissal cannot be declared wrongful after he has collected his entitlement in an ordinary master and servant relationship fails. However, that even of the money was paid, the principle enunciated by the defendant applies to an employee who voluntarily received the pay as against money surreptitiously paid into the claimant’s account as in the instant case. In conclusion, the claimant urged the Court to grant his claims and dismiss the counterclaim.

 

THE DEFENDANT’S REPLY ON POINTS OF LAW

  1. Regarding the claimant’s argument that his dismissal was wrongful and invalid because it was actuated by malice as a result of his union activities, the defendant responded that this is not substantiated by evidence, citing section 135 of Evidence Act andElias v. Omo-Barre[1982] 5 SC 2. That the claimant failed to prove the element of malice which he alleged; and that the exhibits referred to by the claimant in paragraph 7.1 of his final address cannot be construed to indicate malice.That where in a contract of employment there exists a right to terminate the contract by either party, the validity of the exercise of that right cannot be vitiated by the existence of malice or improper motive. In other words, that the law is settled that where there is a legal right to do a thing, the motive with which it was done is immaterial to its validity, citingCommissioner for Works. Benue State v. Devcom Ltd[1988] NWLR (Pt. 83) 407. That even if the claimant’s dismissal was indeed actuated by malice, such malice cannot vitiate the dismissal of the claimant, citing NNPC v. Idoniboye-Obu[1996] 1 NWLR (Pt. 427) 655 CA at 671.

 

  1. The defendant further submitted that the claimant’s assertion that the averments of the defendant contained in paragraphs 4, 5 and 6 of the statement of defence is a ‘mere general traverse’ is untrue and very misleading. That by the said paragraphs, the defendant joined issues with the claimant on the allegations contained in paragraphs 9 – 15 of the statement of claim. The defendant then submitted that the specific denials in those paragraphs put the claimant to proof of the facts alleged, citingACE Jimona Ltd v. NECC Ltd [1966] 1 All NLR 122 at 124 andAttah &anor v. Nnacho &ors[1965] NMLR 28.

 

  1. In response to the claimant’s argument that the disciplinary panel set up by the defendant to investigate the allegations of misconduct against the claimant failed to comply with the rules of fair hearing, the defendant submitted that the claimant’s interpretation of the law and its application to the instant case is misconstrued and frail. That the claimant in a desperate attempt to canvass his case portrayed the defendant’s Code of Conduct and Grievance Procedure of April 1996 (Exhibit C9) as the document which regulates his employment.To the defendant, the law is clear that it is the contract of employment that regulates the relationship between an employee and his employer, citingUBN Ltd v. Edet[1993] 4 NWLR (Pt. 287) 288 at 300. That in the absence of incorporation of the Code of Conduct and Grievance Procedure into the conditions of service of the claimant, such Code of Conduct cannot form part of the conditions of service of the claimant as to regulate his employment.

 

  1. On the claimant’s argument that his objection to the composition of the disciplinary panel was raised “early after the proceedings of the first day”, the defendant submitted that this argument is at variance with the claimant’s testimony and documentary evidence before this Court. In any event, that the appropriate time to object to a procedural irregularity by a person is at the commencement of the proceedings or when the irregularity arises. That if the person allows the proceedings to continue on the irregularity to finality, he is deemed to have waived his right to complain, citingDuke v. Akpabuyo Local Government[2005] 19 NWLR (Pt. 959) 130 at 153.

 

  1. The defendant then urged the Court to note the lack of authority to support the claimant’s submission that the failure of the Panel to consider and rule on the claimant’s objection contained in Exhibit C16 is an abridgment of his right to fair hearing. That this is because as a matter of law, there is no authority for such submission. That the argument canvassed by the claimant in this regard amounts to deliberately over-stretching the law in order for the claimant to find support for his case.In any event, that the complaint was an email addressed to Femi. A. Oke and not to the disciplinary panel as alleged. As such, the claimant’s arguments that the panel failed to consider the email cannot stand as the statement contained in the email was not properly before the panel, or brought to its notice.

 

  1. With regard to the claimant’s analysis of the investigative process leading up to the issuance of the query, and the hearing process thereafter, the defendant submitted that the arguments of the claimant in that regard are at best hazy. That the audit investigation was merely an enquiry to verify the allegations of misconduct received regarding the claimant. That at this stage, the right to cross-examine the complainants had not arisen. That a case is only an authority for what it decides and nothing more, citing Tanko v. The State[2009] LPELR-3136(SC); as such,the authority of Adewunmi v. Nigeria Eagle Flour Mills referred to by the claimant is no authority for the position that every person who gives information to an employer about the misconduct of his employee becomes the accuser of the employee and must be cross-examined by him. That it was pursuant to the completion of the investigative process that the claimant was issued with a query (Exhibit C8) and was given ample opportunity to defend himself. That the law is clear that “in exercising the powers of summary dismissal, it is sufficient if the employee is issued a query and allowed to willingly respond to same, by so doing the constitutional right to fair hearing would have been observed”, citingFBN v. Akanji[2012] LPELR-43555(CA). Thus, that the claimant’s argument that the opportunity given to him did not pass the minimum standard of fair hearing is unfounded in law and cannot impugn the disciplinary hearing or assail the validity of his dismissal.

 

  1. Furthermore, that the claimant failed to provide the rule of law that requires frontloading of evidence in a disciplinary hearing as he argued. That the attempt to separate the statement of account from the cover letter in Exhibit D7 is frail. That it is settled law that a document should not be interpreted in isolation, citing AG. Benue State v. Umar[2008] 1 NWLR (Pt. 1068) 311at 345. That the argument that the statement of account was neither signed nor stamped, nor bears any insignia of Zenith Bank Plc cannot stand in the face of the two signatures of “John Olorundare” and “Chamberlain Okezie” of the Internal Control & Audit Department of Zenith Bank Plc.That the claimant has not denied that he was confronted with his statement of account during the disciplinary hearing. To the defendant, the material consideration is whether the claimant had sufficient information of the allegations against him and whether he was confronted with these allegations to enable him respond to them. That it is the law that an administrative panel is not a court of law and is not bound by the Evidence Act, citingIkuma v. Civil Service Commission Benue State &ors[2012] LPELR-8621(CA).That at the stage of the disciplinary hearing, there was no legal requirement on her to provide a certified true copy of the statement of account of the claimant. That having been confronted with the allegation of lodgments into his account by third parties having a business relationship with the defendant, all that the claimant was required to do was to explain the basis of such lodgments, an opportunity the claimant clearly failed to utilize.

 

  1. On the claimant’s argument that the allegations leveled against him are criminal in nature and, consequently, the defendant had the burden of establishing the allegations beyond reasonable doubt, the defendant submitted that this is a clear misunderstanding and misapplication of the law, citingEigbe v. NUT[2008] 5 NWLR (Pt. 1081) 604 CA at 623-624, which held that in cases bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself, and be satisfied of the truth of the allegations, citingSamuel Niyi Abereola &anor v. Mr Aliu Toye &ors[2012] LPELR-14805(CA). The defendant then submitted that the evidence against the claimant resulting in his dismissal was sufficient to satisfy the defendant of the truth or likelihood of the truth of the allegations against the claimant. That there was no need for conclusive proof of the allegations beyond reasonable doubt as a prelude to the dismissal of the claimant.

 

  1. On the claimant’s arguments as to the defendant having not made out a case entitling it to judgment on the counter-claim, the defendant submitted that from the pleadings and the facts in evidence before this Court, it proved its entitlement to judgment on the counterclaim. Citing Foyby Engr. Co. Ltd&anor v. AMCON[2018] LPELR-43861(CA), the defendant submitted that the suggestion by the claimant that the defendant ought to explain the discrepancy in the amount claimed against the claimant ought to be discountenanced by the Court since the claimant did not refer to any rule of law (since none exists) which stipulates that a party cannot at any stage of the proceedings of a case, abandon or withdraw any of the reliefs which he seeks.

 

  1. The claimant had argued that the defendant failed to plead and prove the amount sought as damages against the claimant. To the defendant, this argument is punctured with untruths. That the law is that special damages must be pleaded and proved strictly, citingAluminium Manufacturing Company of Nigeria Ltd v. Volkswagen of Nigeria Ltd[2010] LPELR-3759(CA). That the damages sought by the defendant are particularized under three heads and each head clearly stipulates the nature of claim on which the special damages is claimed. The defendant concluded by submitting that it is trite that “a court of law is not known or equated to a charitable organization or Father Christmas distributing largesse to all and sundry”, citingShena Security Company Ltd v. Afropak (Nigeria) Ltd &ors[2008] LPELR-3052(SC). That it can only grant less but not more than the reliefs sought by a claimant. Thus, any relief not specifically stated in the statement of claim cannot be granted by the court and the claimant’s final address cannot supplement the statement of claim; as such, the claimant’s argument as to being awarded substantial damages should be discountenanced by the Court. The defendant urged the Court to dismiss the claimant’s suit in its entirety with substantial costs, and grant the counterclaim.

 

COURT’S DECISION

  1. I have carefully considered the processes filed and the submissions of the parties. I start off with a submission of the claimant at paragraphs 7.56 and 7.57 of his final written address. The claimant had submitted that if the Court finds that he cannot be reinstated because his employment is not statutory but finds that dismissal is nonetheless wrongful, the Court should under section 19(d) of the NIC Act 2006 award substantial damages to him. Now, no where in the reliefs of the claimant did he ask for compensation or damages, not even as an alternative relief. It is surprising, therefore, that the claimant would urge the Court to substantially compensate him even if compensation/damages was not specifically claimed should the Court find that he was wrongly dismissed but cannot be reinstated. The law, by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, is that a claim is circumscribed by the reliefs claimed; as such a claimantcannot obtain reliefs not claimed asa court isbound to grant only the reliefs claimed. A court cannot grant reliefs not claimed. Accordingly, I agree with the defendant that the prayer of the claimant that compensation or damages be paid to him under whatsoever guise cannot be entertained since he did not make any claim in the regard – a claim is circumscribed by the reliefs claimed.

 

  1. I now turn to the admissibility/evidential value of some of the exhibits tendered. Exhibit C9, the Code of Conduct and Grievance Procedure 1996, and Exhibit C10, Code of Business Conduct: Coca-Cola HBC, were objected to on the ground that they were not signed. The rule as to signature of documents is that it applies to documents that ought to be signed i.e. a document which ought to be signed, if not signed, renders its authorship and authenticity doubtful and so has no evidential value. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 andSarai v. Haruna [2008] 23 WRN 130. This Court takes judicial notice of the fact that conditions of service or employees/employers’ codes as is the case with Exhibits C9 and C10 are often not signed. This means that Exhibits C9 and C10 are not documents that ought to be signed as to apply the rule as to signing enunciated earlier. In any event, Isheno v. Julius Berger (Nig) Ltd [2008] 6 NWLR (Pt. 1084) 582 at 602 – 603 held that terms and conditions of service, in a labour agreement, are concise and precise and so stated in the agreement; and thata court of law will, therefore, not find it difficult to grant a relief based on the labour agreement, if the plaintiff pleads it. Exhibits C9 and C10 accordingly remain admissible. I so hold.

 

  1. To the defendant, Exhibit C11, the notes taken at the hearing session of the panel, are conclusive evidence of what transpired at the hearing, and any event not recorded therein cannot subsequently be added unilaterally by the claimant. The signatures on Exhibit C11 are not discernible in terms of those who signed. Exhibit C11 does not disclose the membership of the panel. The exhibit does not disclose who took the notes in issue. As it is, Exhibit C11’s authenticity is in doubt and so has no evidential value. It will be discountenanced for purposes of this judgment. I so hold.

 

  1. Exhibit C12 dated 22nd December 2009 and titled, “Answer to Query”, is not signed and the writer is not disclosed. By Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA), it is the law that an unsigned and undated document has no evidential value. This means that Exhibit C12 has no evidential value and so would be discountenanced for purposes of this judgment. I so hold. Exhibit C16 has no nexus with any of the parties. It accordingly has no evidential value and so would be discountenanced for purposes of this judgment. I so hold.

 

  1. Exhibit C22 is minutes of union/management meeting held on 15th January 2010. It is not signed. Minutes of meetings ought to be signed. This means that Exhibit C22, not being signed, has no evidential value. See Nwancho v. Elem, Aiki v. Idowu and Sarai v. Haruna(all supra). Exhibit C22 is accordingly discountenanced for purposes of this judgment. I so hold.

 

  1. The claimant tendered Exhibit C14, the Senior Staff Handbook, and yet turned around to argue that his dismissal under this handbook is wrong because the handbook is not part of his contract of employment. The design including the change of conditions of service is usually the prerogative, indeed right, of the employer. See Mbachu v. AIRBDA [2006] 14 NWLR (Pt. 1000) 691 SC and Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor [2014] 43 NLLR (Pt. 135) 240. Exhibit C6 under which the claimant was suspended referred to the Staff Handbook as the basis for the suspension; and in Exhibit C13/D12, the claimant was dismissed pursuant to the Handbook. More than one document may provide the terms and conditions of employment. See Ladipo v. Chevron (Nig.) Ltd [2005] 1 NWLR (Pt. 907) 277 CA and Joshua Abiodun Babalola v. State Security Service unreported Suit No. NICN/LA/605/2015, the judgment of which was delivered on 10th July 2017. And in Ondo State University v. Folayan [1994] 7 NWLR (Pt. 354) SC, it was held that where there are several documents forming the conditions of service of an employee, all the documents must be read together. See also Mrs Bessie Udhedhe Ozughalu& anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2015, the judgment of which was delivered on 20th March 2018. As it is, I have not been shown any convincing reason why Exhibit C14 is not part of the terms and conditions of service of the claimant. The argument of the claimant in that regard fails. I hold Exhibit C14 admissible and applicable to the case of the claimant as part of the documents stipulating his conditions of service. This means that the first part of relief (2) i.e. “a declaration that the defendant’s Senior Staff Handbook was not part of the contract of service of the claimant…” is not grantable as it fails and so is dismissed. In holding as such, it means that the argument of the defendant that the claimant did not present his conditions of service and so this suit is not competent, if Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] LPELR-24562(SC) is factored in, cannot stand and so is hereby discountenanced. Whether the second part of relief (2) i.e. “…and the purported dismissal of the claimant pursuant to Part III, section 18 of the Handbook is wrongful, null, void and of no effect whatsoever” is grantable remains to be seen.

 

  1. The claimant’s case is that his summary dismissal by the defendant vide a letter dated 31st December 2009 is null and void because it was actuated and principally orchestrated by malice and victimization given his union activities when he was Vice Chairman and later Chairman of the NBC branch ofFood, Beverages & Tobacco Senior Staff Association of Nigeria (FOBTOB). In proof of this claim, the claimant particularized in paragraphs 9-15 of his statement of facts the union activities he was actively involved in which he said brought him at loggerheads with the management of the defendant, and in support of his assertions, the claimant tendered Exhibits C19, C20, C21, C22 and C23. The reaction of the defendant as per paragraphs 4, 5 and 6 of the statement of defence is that the claimant filed an earlier similar suit before the Lagos High Court i.e. Suit No. LD/869/2010 on 4th May 2010 wherein the claimant’s allegation as to being dismissed for union activities never featured; as such, having to make that claim now must be an afterthought. I must state that the supporting evidence of the defendant is, however, at variance with this pleading of the defendant. Exhibits D8 and D9 are the originating processes of the Lagos High Court case. Its suit number is LD/906/2010, not LD/869/2010 as pleaded in paragraphs 21 and 22 of the statement of defence filed on 28th March 2013, and indicated as such by the defendant in paragraph 24 of its final written address; although “Suit No. LD/906/2010” is pleaded as per paragraph 17(c) of the statement of defence filed on 28th March 2013. Exhibit D9 (consisting of the list of witnesses, incomplete statement on oath of the claimant as witness and list of documents to be relied upon at the trial) is dated 5th May 2010, not 4th May 2010 as the defendant pleaded.

 

  1. Additionally, the claimant’s case is that his dismissal was wrongful and invalid for the following reasons:failure of the Managing Director (MD) of the defendant to sign the Hearing Process Form, which is a condition precedent to its validity; failure to prove the allegations of misconduct bordering on fraud, bribery and corruption, and theft against the claimant, which were of a criminal nature and so were not proved to the standards required by law. Once the Court agrees with the claimant on this score, then the claimant prayed that he be reinstated and paid his entitlements from the said 31st December 2009 till date of judgment or date of reinstatement. The key question, therefore, is whether the claimant’s dismissal is null and void.

 

  1. Exhibit C13/D12 dated 31st December 2009 is the letter of dismissal. In it, the claimant was dismissed sequel to a hearing conducted on 29th and 30th December 2009 and in accordance with Part III, section 18 of the Staff Handbook (Exhibit C14). Exhibit C13/D12 did not state the reason for the dismissal; as such, the reason for the dismissal must be gleaned from the events that led to the hearing of 29th and 30th of December 2009. The claimant had on 9th November 2009 been suspended vide Exhibit C6 of that date on the ground that auditors were conducting investigations into operations in the Supply chain function, Enugu, issues that affected the area of responsibility of the claimant. By a memo dated 16th December 2009 (Exhibit C7), the claimant was recalled from suspension with effect from 21st December 2009. On same 21st December 2009, the claimant was queried vide Exhibit C8 of that date and asked to answer within 48 hours and explain why he should not be disciplined for the following charges: the loss of N9,706,395 and N5,848,383.81 due to the claimant’s negligence; various sums deposited into the claimant’s account by different business concerns that are involved in doing business with the defendant; casual labour being engaged indiscriminately and for work not done; and purchase of AGO at an unapproved rate. To the claimant, he answered to the query vide Exhibit C12, which is not signed and which did not disclose the writer and so was discountenanced. On record, there is thus no valid response of the claimant to Exhibit C8, the query.

 

  1. I need to quickly dispose of the charge of casual labour being engaged indiscriminately and for work not done. The parties did not allude to or address this charge and so made no issue of it throughout their submissions. I take it that that charge was abandoned.

 

  1. The claimant placed great reliance on fair hearing arguing that he was not accorded fair hearing by the defendant. In making this argument, the claimant contended that he was denied fair hearing by the defendant especially as the disciplinary panel set up by the defendant did not observe laid down procedures. Incidentally, the claimant’s reliance on fair hearing appears misconceived. The Supreme Court decision in Ziideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1 is emphatic when in holding that it is now firmly settled that in statutory employment, just as in private employment (the claimant’s employment falls under the private category), an employer can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee is given the opportunity of fair hearing. Consequently, fair hearing today is about opportunity to be heard. The concurring judgment of His Lordship Hon. Justice Rhodes-Vivour, JSC in Imonikhe v. Unity Bank Plc [2011] LPELR-1503(SC); [2011] 12 NWLR (Pt. 1262) 624 SC is quite emphatic. In the words of His Lordship:

Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed.

 

  1. Now, in the instant case, Exhibit C8 queried the claimant and gave him opportunity to answer. The claimant said he answered, and then he submitted an inadmissible, an unsigned, document (Exhibit C12) in evidence. The fact is that he was given the opportunity to answer the query. This satisfies the requirement of fair hearing for especially non-statutory (private) employment as is the claimant’s case. The claimant’s argument that laid down procedure was not followed, even if correct, can only make the fact of his dismissal wrongful, not make null and void. This is because as to an employer’s right to dismiss an employee, the authorities are pretty clear that the defendant has such a right even if not specifically written in the contract of service. For instance, by Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt. 928) 650, the fact that there is no specific provision as to termination or summary dismissal in the terms of the contract will not prevent the employer from exercising his right to so terminate or dismiss e.g. for gross misconduct; and that fair hearing does not necessarily mean an oral representation; it is enough if it is in writing.

 

  1. The point is that, as it is, and in this sense, the claimant’s argument that fair hearing was not accorded him as to warrant an order of reinstatement cannot thus be tenable if the ground upon which he makes the argument is the absence of fair hearing. Like I pointed out earlier, the non-observance of procedure can only make the dismissal wrongful entitling the claimant to only damages, which incidentally he did not claim for as I indicated earlier. This aside, the fact that the claimant was given opportunity answers the fair hearing question. Accordingly, I do not agree with the claimant that he was not accorded fair hearing given that the requirement of fair hearing today especially in terms of private employments has been watered down to just affording opportunity to be heard. The argument of the claimant as to fair hearing accordingly fails. I so hold.

 

  1. As an additional point, the reliance of the claimant on section 36 of the 1999 Constitution on the fair hearing question makes matters worse for him. In Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor &ors[2017] 14 NWLR (Pt. 1577) 410, the Supreme Court, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing is that of a non-judicial body. Thedisciplinary panel set up by the defendant to investigate allegations of fraud and misconduct leveled against the claimant is a non-judicial body. The reliance on section 36 of the 1999 Constitution by the claimant would accordingly be uncalled for since the disciplinary process the claimant complains of in the instant case is one composed of a domestic tribunal, which is not a Court or Tribunal established by law as to enable the claimant assert that the defendant did not comply with section 36 of the 1999 Constitution. See also Dr Cecilia Arinye v. The University of Lagos unreported Suit No. NICN/LA/305/2017, the judgment of which was delivered on 16th February 2018, Steve C. Okebu Esq v. Delta State Judicial Service Commission& anor unreported Suit No. NICN/LA/79/2017, the judgment of which was delivered on 11th July 2018 and Prince Benjamin Saliu Ikani v. Chairman/Chief Executive National Drug LawEnforcement Agency (NDLEA)& 2 ors unreported Suit No. NICN/LA/351/2013, the judgment of which was delivered on 16th July 2018.

 

  1. This leaves out the question whether the defendant has made out a case as to the justification of the charges against the claimant i.e. the loss of N9,706,395 and N5,848,383.81 due to the claimant’s negligence; the fact of various sums deposited into the claimant’s account by different business concerns that are involved in doing business with the defendant; and purchasing AGO at unapproved rates. The law is that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 551 CA,Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC), George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (W.A.) Co. Ltd [1961] 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317.

 

  1. To take the charge of loss of N9,706,395 and N5,848,383.81 due to the claimant’s negligence, the argument of the defendant is that the claimant failed to make certain entries or do proper checking, and this led to the loss of these sums. The evidence of DW1, though he was very evasive all through his cross-examination, is that the claimant cannot alone sign Exhibit C6(h) for both payment and deduction. To DW1, those who are to sign Exhibit C6(h) are the Finance, Logistics and Plant Managers; and DW1 did not even know the signature of the claimant as to know if he signed Exhibit D6(h) or not. I wonder then why the defendant would single out the claimant and not the Finance and Plant Managers for a negligence inquiry.

 

  1. On the charge of purchasing AGO at unapproved rates, DW2 testified under cross-examination that he did not present the AGO report to the disciplinary panel, nor did he present the Court a copy. DW2 also testified that he was not involved in the process for deduction for AGO consumption and use of the defendant’s trailer backs. DW2 went on that if deductions are not made and it is so discovered later, the defendant can still make the deductions subsequently so long as the private trailer continues to do business with the defendant; but that he does not know if the defendant subsequently made the deductions when it was discovered that the deductions were not made. DW2 concluded by saying that he does not know how many trailers there were for which deductions were not made. With this testimony, I do not see why the defendant should hold a negligence inquiry against the claimant. Consequently, I hold that the defendant failed to satisfactory justify its holding of negligence against the claimant for the charges of loss of N9,706,395 and N5,848,383.81 due to the claimant’s negligence and purchasing AGO at unapproved rates.

 

  1. This leaves out the charge of various sums being deposited into the claimant’s account by different business concerns that are involved in doing business with the defendant. Before considering this issue, I need to dispose of a submission of the defendant. The defendant had argued that there is inconsistency in the claimant’s stance as to ownership of Zenith Bank account number 6028008404, the statement of which the claimant had asked for certified true copy before he can answer questions as to it. Exhibits D8 and D9 are originating processes in Suit No. LD/906/2010, a suit the claimant filed against Zenith Bank Plc and Nigeria Bottling Company Plc (the defendant in the instant case). In paragraph (4) of the statement of claim to Suit No. LD/906/2010, the claimant owed up to the ownership of Zenith Bank account number 6028008404 domiciled at Uselu Branch, Benin, Edo State. However, in paragraph 49 of his statement on oath of 8th January 2013, the claimant denied ownership of a Zenith Bank Account domiciled at Ojuelegbe, Surulere, Lagos. No account number was indicated by the claimant in paragraph 49 of his said deposition. So it cannot be, as argued by the defendant, that the claimant lied in paragraph 49 of his deposition. What the claimant denied was owning a Zenith Bank account domiciled at Ojuelegbe, Surulere, Lagos. The claimant repeated this denial in his testimony under cross-examination. The statement on oath of Suit No. LD/906/2010 attached to Exhibit D9 does not have the signature page; as such, this takes away the sting of lying that the defendant heaps on the claimant. It is really curious, funny and indeed disgusting what a counsel (the counsel to the defendant in the instant case) would do to win a case.

 

  1. All of this aside, I note that the claimant in his final written address said nothing about Suit No. LD/906/2010. I thus take judicial note of the fact that because an account is domiciled in Uselu, Benin, Edo State, in this era of internet banking, does not mean that it cannot be transacted on any where in the country, or the globe for that matter. Accordingly, by Exhibit D7, Zenith Bank account number 6028008404 belongs to the claimant, and is used as a salary account although other than salary deposits were paid into the said account. Exhibit D7 is actually a letter from Zenith Bank (jointly signed by John Olorundare and Chamberlain Okezie, both of Internal Control & Audit) to the Deputy Commissioner of Police, SCID, Panti Street, Yaba, Lagos. The statement of account of the claimant with Uselu branch of Zenith Bank is attached. See column (iii) of the said covering letter of Exhibit D7. The argument of the claimant that the statement of account is unsigned and uncertified is thus untenable especially if note is taken of section 12 of the National Industrial Court Act 2006, which allows this Court to dispense with the Evidence Act in the interest of justice, something I am prepared to do in regard to Exhibit D7; and I so hold and do.

 

  1. The case of the defendant here is that payments were made into the claimant’s Zenith Bank account number 6028008404 (I already held that it is established that the account is the claimant’s) by some haulage companies who do business with the defendant i.e. Brightstar Global Ventures Ltd, Nuel Ventures and Sibling Resources Ltd. Exhibit D7 shows that on 24th and 25th June 2009, Brightstar made two cash deposits of N200,000.00 and N50,000 respectively into the Zenith Bank account of the claimant; and on 13th July 2009, it made a cash deposit of N340,000.00. The defendant asked the claimant to explain the monetary entries into his account but the claimant refused. And in response, the claimant concluded that from Exhibit C11, he complained about the authenticity of the analysis of the statement of account.

 

  1. I need to make some points here. First, the claimant was asked to bring his bank statement of account. He refused. When an analysis of his statement of account was read out to him, he declined to comment arguing that he wants a certified true copy of his bank statement of account, the statement of account he refused to supply. The defendant then somehow got Exhibit D7. The claimant took a huge and I dare say stupid risk here. The law is clear that the burden of proof is not absolute on him who asserts. The burden can move to he who is in the know of the facts in issue. This is the import of the proviso to section 36(5) of the 1999 Constitution, which provides that nothing in section 36 “shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts”. Accordingly, by section 140 of the Evidence Act 2011, “when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him”; and by section 143 of same Evidence Act,“when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”.

 

  1. The claimant was asked to supply his statement of account and explain the monetary entries in it. He refused.Unless the claimant had something to hide, what would it have taken him to supply the said statement of account? The claimant submitted that right from inception, he was forthright about his ownership of a Zenith Bank account. Couldn’t he have just extended that forthrightness to supplying the statement of account? That the claimant would argue in paragraph 7.11 of his final written address that “each of these allegations were largely unsubstantiated and unjustifiable” suggests that the allegations were in part substantiated and justifiable. They may not meet the proof beyond reasonable doubt that the claimant argued, but they sufficiently meet the sting of misconduct required to support a dismissal inquiry in an employment. See B.A. Imonikhe v. Unity Bank Plc[2011] 5 SCNJ73 at 89-91, and Samuel Niyi Abereola & anor v. Mr Aliu Toye & ors [2012] LPELR-14805(CA), which held that in a master/servant employment relationship, where an audit committee investigated the financial position of the employer and found some irregularities in the maintenance and keeping of the records of accounts, the usage of the word fraud or fraudulent or misappropriation of the funds of the employer by an employee is in the general sense and certainly not intended to be with a criminal flavour;and to that extent, proof of such an allegation beyond reasonable doubt will notarise. The facts as to the statement of account of the claimant are specifically within the knowledge of the claimant and the ownership of Zenith Bank account number 6028008404 is for the claimant to disprove. So by sections 140 and 143 of the Evidence Act 2011, the burden of proof is squarely on the claimant. I so find and hold.

 

  1. In Tunde Ajani v. Zone 4 Energy Limited& 2 ors unreported Suit No. NICN/LA/2016, the judgment of which was delivered on 24th May 2017 at paragraph 82, the claimant in that case was asked by the defendant to supply the statements of account of the four banks that he has accounts with. He supplied those of two banks only and refused to supply those of the other two banks. This is what this Court said:

… Under cross-examination, the claimant first testified that during his employment with the defendants, he operated 4 personal banking accounts, and then acknowledged that he was asked to bring his bank accounts of which he brought those of Diamond Bank and Access Bank. Why would the clamant give out two of his accounts but not others including First Bank that was specifically requested for by the defendants? This act is sufficient to fuel suspicion on the part of the defendants. When the defendants used the words, “To prove your innocence…we request that you submit your First Bank Account statement…”, given that the defendants had already found the claimant culpable (by the claimant’s reckoning), what the defendants meant was nothing more than “it is up to you to convince us otherwise”. The claimant did not take up the gauntlet, and now hides under the presumption of innocence rule when he himself had acknowledged that he was found culpable before Exhibit C5 was issued. The [proviso to] section 36(5) of the Constitution is pretty clear in providing that nothing in section 36 “shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts”. The claimant was found culpable by the defendants; it was up to the claimant to show the defendants that they were wrong. The claimant did not think that the First Bank statement of account would help his case, that is why he did not release them. This does not take away the fact that the defendants already found him culpable. As it is, therefore, I do not see Exhibit C5 as infringing section 35(6) of the 1999 Constitution…

 

  1. I repeat. In the instant case, the claimant was asked to produce his bank statement of account. He refused. The defendant is thus entitled to draw any adverse conclusion against the claimant (section 167(d) of the Evidence Act 2011 and The People of Lagos State v. Umaru [2014] LPELR-22466(SC) allow it). It was up to the claimant to convince the defendant otherwise. The window given to him to do this was not seized by the claimant. So he has himself to blame. Like I held in Tunde Ajani v. Zone 4 Energy Limited& 2 ors, in the instant case, the refusal of the claimant to supply his Zenith Bank statement of account and explain the monetary entries entitled the defendant to reach the adverse conclusions it did that the claimant used his position in the company to ask for kickbacks from contractors of the defendant. In this sense, I am satisfied that the defendant justified that charge of various sums being deposited into the claimant’s account by different business concerns that are involved in doing business with the defendant. This charge is sufficiently a gross misconduct to ground a dismissal as is the present case. This being so, and on this score alone, I find and hold that the dismissal of the claimant was valid.

 

  1. The claimant’s argument that he was dismissed for trade union activities accordingly goes to no issue. This is because, the fact of unionism cannot be an excuse for misconduct at the workplace. The acts which the claimant reeled out as the union acts that earned him the dismissal, aside from not being contemporaneous with the dismissal (though this is not necessarily a factor to be taken into account), cannot excuse the fact of receiving payments from contractors of the defendant. The claimant was expected to act above board given his union activities; but he did not. He has only himself to blame.

 

  1. Since all the reliefs as claimed by the claimant are hinged on a successful plea of wrongful and/or invalid dismissal, it means that none can be granted given my finding that the dismissal was justified and so valid. The claimant’s case accordingly fails and so is dismissed.

 

  1. I now turn to the defendant’s counterclaim. Counterclaims (i) and (i) are hinged on the claimant’s failure to ensure that 20% deductions were made on Payment Vouchers issued to the defendant’s haulers, and the claimant’s failure to ensure that requisite deductions were made for the value of fuel used by each hauler and deducted before appending his signature on the waybill. These counterclaims are based on the negligence of the claimant in terms of the charges against the claimant as to the loss of N9,706,395 and N5,848,383.81 due to his negligence; and purchasing AGO at unapproved rates. I already found that the defendant did not establish that the claimant was negligent as claimed by the defendant. This means that the counterclaims cannot be granted. Additionally, I agree with the claimant that the counterclaims are claims for special damages, which must be particularized and proved specially and specifically. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA). The broad particularization that the defendant talked about is not the particularization required here. The defendant must show it arrived at the respective sums it is claiming as counterclaims. This it did not do. I so find and hold. Counterclaims (i) and (ii) accordingly fail and so are hereby dismissed.

 

  1. The claim for cost as per counterclaim (iii) must thus fail given that counterclaims (i) and (ii) failed. The award of cost is entirely at the discretion of the court, although costs follow the event in litigation. SeeNNPC v. Clifco Nigeria Ltd(supra), Anyaegbunam v. Osaka [1993] 5 NWLR (Pt. 294) 449 and Obayagbona v. Obazee [1972] 5 SC 247. I am not inclined to awarding any cost; as such, counterclaim (iii) is rejected and so dismissed.

 

  1. On the whole, and for the reasons given, both the claimant’s case and the defendant’s counterclaim fail. They are accordingly dismissed.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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