IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY 12TH JULY 2019 SUIT NO. NICN/OW/87/2016
BETWEEN:
MR ENANG JIMMY……….….……………………………..CLAIMANT
AND
GLASSFORCE LTD………………………………………..DEFENDANT
REPRESENTATIONS:
F.O. OKONKWO FOR THE CLAIMANT.
I.O. ONYEBUENYI FOR THE DEFENDANT.
NOTA BENE: This case was entirely heard at the Owerri Judicial Division of the Court but judgment delivered at the Enugu Judicial Division, pursuant to Order 62, Rule 12(1) of the NICN Rules, 2017.
JUDGMENT
INTRODUCTION
This suit was commenced via Complaint dated and filed 29th December 2016. It was accompanied with Statement of Facts. The following reliefs were claimed in paragraph 27 of the said Statement of Facts [wrongly tagged “Statement of Claim”]:
A declaration that the defendants’ letter of 9th September 2016 and referenced GF/ADM/HR/P302 Vol. 1 purportedly terminating the claimant’s appointment is wrongful, null and void, of no effect, a flagrant breach of claimant’s condition of service and therefore ineffective.
The sum of N10,910,119.00 (Ten Million, Nine Hundred and Ten Thousand, One Hundred and Nineteen Naira) being the sum the claimant would have earned within a total of twenty five years he would have worked in the defendant’s company which sum is worked out thus:-
Basic salary = 819,540 P/Anum = 68,295 P/m
Housing allowance = 327,816 ,, = 27,318 ,, 40% of monthly salary
Shift duty allowance = 163,908 ,, = 13,659 ,, 20% of monthly salary
Transport allowance = 204,885 ,, = 17,073 ,, 25% of monthly salary
Launch allowance = 127,028 ,, = 10,585 ,, 15.5% of monthly salary
Leave allowance = 102,442 ,, = 12.5% of monthly salary
1,745,619
Gratuity based on total emolument of 25 years of service =
Total annual entitlement x number of years served (25 years)
4
= 1745619 x 25 = 10,910,119 [sic]
4 1
The sum of N100,000.00 (One Hundred Million Naira) only being damages for breach of contract, assault and emotional stress the claimant suffered due to the actions of the defendant.
A declaration that the claimant is still in the employment of the defendant and therefore entitled to all salaries, allowances, benefits and accouterments of office until voluntarily disengages from defendant or based on the provisions of Senior Staff condition of service. [sic]
PROCEEDINGS
The Statement of Facts was accompanied with the written deposition of the claimant, his list of documents and the frontloaded documents. The defendant first filed a Statement of Defence dated 16th March 2017 on 28th March 2017. It was accompanied by four written depositions, a document containing list of witnesses and list of documents, and the frontloaded documents. The defendant subsequently filed an Amended Statement of Defence dated 4th March 2019 on the 13th March 2019. Further Amended Written Deposition and Amended List of Documents accompanied the Amended Statement of Defence. The claimant did not file reply. That is about the major processes filed. I move to proceedings before the Court.
The case first came up before Hon. Justice O.Y. Anuwe on 8th February 2017 and the second time on 20th June 2017. The next time, it came up before me, Hon. Justice Anuwe, having been transferred from the Owerri Division. This was on 23rd October 2017. It came up three more times before the 17th April 2018 when it was opened. On this date, the learned counsel to the claimant obtained the leave of Court to make some amendments on the Statement of Facts, which application was granted without opposition. Thereafter, the case proceeded to hearing with the claimant, who testified as CW1. After sworn on the Holy Bible, CW1 adopted his written deposition made 29th December 2016. 9 documents were tendered without opposition and were marked as Exhibits CWA, CWB, CWC, like that to CWJ. The next document to be tendered was objected and the objection was overruled. The document was thereafter admitted as Exhibit CWK. The next document in line was also objected. The objection was overruled too, and the document admitted as Exhibit CWL. The evidence of CW1 was brought to an end at this point. The case was thereafter adjourned to 22nd, 23rd May and 5th June 2018 for cross-examination and further hearing.
It came up on the 22nd May 2018. On this date, cross-examination of CW1 was conducted and concluded while there was no re-examination. At this point, the case was adjourned to 5th June 2018 for defence. It came up as adjourned and the defence opened with one Patrick Eucharia, as DW1. DW1 was sworn on the Holy Bible and adopted her written deposition made 28th March 2017. DW1’s attempt to refer to some documents already tendered by the claimant was objected and the learned counsel to the defendant applied for adjournment to put their house in order. The case was adjourned accordingly to 9th and 10th October 2018 for continuation of defence and cross-examination. It however came up next on 29th November 2018 and on this date, the learned counsel to the defendant moved a motion to amend the written deposition of Patrick Eucharia. This application, together with the oral application for correction of typos, were granted unopposed. The case was at this point adjourned on the application of the defence counsel to 6th December 2018 for defence. It however came up next on 11th December 2018 and could not go on because of the absence of the claimant’s counsel. It was adjourned to 7th February 2019 for defence.
It however came up next on 28th February 2019. DW1 continued with her testimony. DW1 adopted her Amended Written Deposition. Exhibit DWA was admitted without objection. Attempt to tender the next document was objected and the learned counsel to the defendant withdrew it and asked for adjournment to amend the Statement of Defence. The case was thereafter adjourned to 14th March 2019 with cost awarded against the defendant. However, the matter came up next 22nd March 2019. On this date, the learned counsel to the defendant moved the application to amend their Statement of Defence, which was granted unopposed; and the Amended Statement of Defence together with the Further Amended Written Deposition of DW1 and the Amended List of Documents were deemed as properly filed and served. Thereafter, DW1 continued her evidence-in-chief. DW1 adopted the Further Amended Written Deposition. Thereafter, Exhibits DWB, DWC, DWD, DWE and DWF were admitted without opposition.
The learned counsel to the defendant withdrew the next document after objection. Thereafter, Exhibit DWG was admitted without opposition. The next in line was objected and marked ID DWH for arguments to be canvassed on its admissibility at the final address stage. Thereafter, Exhibit DWJ was admitted without objection. Objection on the next document was overruled and it was admitted as Exhibit DWK. At this stage, the testimony of DW1 was brought to an end and cross-examination commenced in earnest. Under cross-examination, the learned cross-examiner attempted to tender two documents on which the DW1 was cross-examined, objection was raised. The objection was overruled and the two documents admitted as Exhibits XXA and XXB. Thereafter, the cross-examination continued and was subsequently closed without re-examination on the same day. The case was thereafter adjourned to 28th March 2019 for continuation while DW1 was discharged. The matter came up as adjourned on 28th March 2019 and one Hon. David U. Egbu was fielded as DW2. DW2 affirmed and adopted his written deposition of 28/03/17.
The Court overruled the objection of the learned counsel to the claimant to the identification, by the DW2, of Exhibit DWD; and the testimony-in-chief of DW2 was brought to an end. The case thereafter proceeded to cross-examination and the cross-examination was also concluded the same day without re-examination. Eventually, the case was adjourned to 4th April 2019 for continuation of defence. It came up as adjourned. DW3 on subpoena was taken. DW3 affirmed. DW3 adopted his written deposition filed 2nd August 2019. The attempt of DW3 to tender some documents were opposed and overruled. The said documents were thereafter admitted as Exhibits DWL and DWM. The next document was objected and the objection upheld; thus, the document marked as rejected. After further testimony, the evidence-in-chief of DW3 was brought to an end; and the case proceeded to cross-examination the same day. The cross-examination was concluded the same day without re-examination. The case thereafter proceeded to evidence-in-chief of DW4.
Imo Amara Egbu testified as DW4. DW4 affirmed and adopted his written deposition of 28th March 2017 and his testimony was brought to an end; and the case proceeded to cross-examination, which was concluded that same day, without re-examination. At this stage, the defence closed its case and the case was adjourned to 24th May 2019 for adoption of the final written addresses of the parties.
The matter came up next on as adjourned. The Court first ruled that counsel had lost the right to reply on points of law since none saw the address of the other before writing his address; the claimant having filed first without serving the defendant and the defendant having filed out of time. The Court asked the learned counsel to the parties to go on to adopt their written addresses. The learned counsel to the defendant’s prayer for leave to effect corrections on the motion for extension of time to file final written address was granted without objection and the motion itself too, was granted without opposition. Thereafter, the learned counsel for the claimant, who filed final written address first, adopted it. At this stage, the Court reconsidered its earlier stand and granted both sides twenty minutes to reply on points of law.
The learned counsel to the claimant: F.O. OKONKWO submitted that ID DWH, which the Court urged counsel to the parties to reserve objection to the final address stage was inadmissible because, it was not frontloaded in line with Order 40, Rule 4 of the NICN Rules and cited Gloria Egwuagu v. Gov. of Imo State delivered by me on March 22, 2019. Thus, ended the oral address of the learned counsel to the claimant. Thereafter, the learned counsel to the defendant: I. ONYEBUENYI took his turn to adopt the final written address of the defendant. In the oral address of the learned counsel to the defendant, it was submitted that, the requirement of fair hearing was fulfilled because, there is proof that the claimant was issued query and he answered it. On this, the learned counsel cited Bamgbose v. Unilorin (1999) 10 NWLR (Pt. 622). The learned counsel submitted that, all that the defendant needed to do was to show that the allegations in issue was disclosed to the employee which was achieved in this case by virtue of Exhibits DWC and DWE, which were also tendered by the claimant. The learned submitted that, it is what the defendant calls a misconduct that is a misconduct and that, the defendant dose not have the burden to retain the claimant in a purely master/servant relationship. The learned counsel also submitted that, Exhibit DWB is the contractual framework between the parties and that, once the defendant terminates, the claimant is only entitled what is sanctioned by it.
The oral address of the learned counsel to the defendant was thus brought to an end by asking the Court to dismiss the case. After this, the case was adjourned to 5th July 2019 for judgment. As the judgment was not ready, it was adjourned off record sine die till communication of date for delivery to the learned counsel to the parties, when it is ready. Having dealt with the proceedings to this stage, I now propose to summarise the pleadings of the parties.
SUMMARY OF THE PLEADINGS OF THE PARTIES
The claimant pleaded that the defendant employed him by a letter dated 23rd April 2009, as a Health Safety and Environment Officer and confirmed him by another letter dated 1st March 2010; and that, as a senior staff, the relationship was governed by the Staff Condition of Service [handbook]. He pleaded further that, he could only be terminated without reason with one-month notice or payment in lieu; and that, if reason is given, proper disciplinary procedure must be followed. The claimant further pleaded that, he was queried in writing on 29th August 2016 and he answered it. The claimant pleaded that, the allegation of fraud was neither reported to the police nor was he charged on it. The claimant also pleaded that, he was not notified of the evidence against him, and was not also allowed to field his witnesses nor given the opportunity to cross-examine his accusers and that, no proper panel was set up. The claimant said he was therefore shocked when he received the termination letter on 9th September 2016, which stated that, the investigation was done that morning.
The claimant said he reacted through his solicitor on 5th October 2016, rejecting the termination while the defendant replied by a letter dated 11th October 2016. The claimant pleaded that, the defendant, since his termination, had been spreading it in the community, where the defendant is situated that, he was a criminal. The claimant pleaded therefore that, his termination was wrongful because, it was not in accordance with the handbook, was in violation of fair hearing and was in respect of criminal allegations not investigated by the police nor charged to court. The claimant pleaded that whereas, barely a month before the termination, he had received a text message via phone number +27828883387 from the General Manager on 12th August 2016 commending him. The claimant pleaded that, he wrote to warn one David Uche Ndukwe, one of the masterminds of his termination, on wrongful disposal of waste. The claimant pleaded too that, he was instructed to visit the defendant to collect his termination benefits, but on getting there, was assaulted and pushed out of the company without being paid, which made him to suffer nervous shock and emotional stress.
The claimant pleaded that, in accordance with the handbook, he was entitled to remain in the employment of the defendant until he attained 55 years; and that by the termination, he had been deprived of all benefits that would have accrued, had he served out his tenure and that, he could only be terminated, if found guilty of any of the misconducts outlined in the handbook and upon following due process, all which were breached. The claimant pleaded that, he was entitled to the sum of N10,910,119.00, being the sum he would have earned, had he served out his tenure, the sum of N100Million damages for breach of contract, assault and emotional stress suffered and a declaration that, he is still in the employment of the defendant.
The defendant responded in its Amended Statement of Defence. The defendant denied paragraph 2 of the Statement of Fact and reacted to paragraphs 7-10 thereof that, it complied with the handbook in terminating the appointment, by issuing the claimant a query following the receipt of petition from one Hon. David Egbu against the claimant; and that, the claimant responded in a handwritten letter wherein, after the receipt of the claimant’s response, the defendant convened a meeting attended by some contractors, including the petitioner and the Management of the defendant; and that, the claimant admitted receiving bribe in the said meeting, from the petitioner at an hotel, where the claimant the visited petitioner. The defendant pleaded further that, the answer to the query was found not satisfactory, and hence, it did not see any need to initiate criminal investigation and prosecution against the claimant. The defendant also denied paragraphs 11, 12, and 13 of the Statement of Facts and stated that, the advert in question was made pursuant to the advice of the claimant in that, he the claimant, had recommended the sacking of the erstwhile Assistant Safety Manager, who was accordingly sacked; and the advert placed to fill the vacancy that would arise because, the claimant was due for promotion. The defendant stated too that, the issue of ethnic cleansing did not arise because the person who replaced the claimant was from the same Akwa Ibom State.
The defendant adopted its paragraph 4-6 in response to paragraph 14 of the Statement of Fact. The defendant denied paragraphs 17, 18, 19 and 20 of the Statement of Fact and stated that, it did not subject the claimant to any inhuman treatment in the community where the company is located or anywhere at all and that, the termination was not in respect of criminal allegations; and that the need for police involvement and criminal prosecution was obviated by the admission of the claimant in the meeting of 9th September 2016. The defendant stated that, the termination was not vitiated by lack of fair hearing and did not violate the Senior Staff Conditions of Service [the handbook] and that, the General Manager of the defendant never commended the claimant in any text message, as regards the claimant’s general performance and that, the said text was sent to the claimant when the General Manager was out of the country on the removal of a waste the claimant participated in dumping wrongly, and the General Manager requested the claimant to clean it.
The defendant further denied paragraphs 21-27 of the Statement of Facts and stated that, the letter purportedly written to David Uche Ndukwe had nothing to do with the claimant’s admission of receiving bribe from Hon. David Egbu and that, it did not receive a copy of the said letter. The defendant also denied physically preventing the claimant from continuing with his job and denied banning him from entering the defendant’s premises but that the claimant, on his own violation, after the receipt of the termination letter, decided to abstain from the premises of the defendant; and that the defendant issued the claimant with a First Bank cheque, which he refused to collect; and hence, the claimant did not suffer shock or emotional stress as alleged or at all. The defendant also said the claimant was not entitled to be in its service till attainment of 55 years of age and stated that, the employment was terminated in accordance with the contract and law. The defendant stated that, the claimant is not entitled to any relief and urged the Court to dismiss the suit with punitive cost against the claimant.
Thus, ended the pleadings of the parties since the claimant filed no reply pleading. The above is therefore the summary of the cases made out by the parties in their respective pleadings. The parties led evidence, as contained in their witnesses’ written depositions, which had been adopted at trial and, which they felt supported their respective cases. Cross-examination was done accordingly, as had been narrated earlier in this judgment. I shall now proceed to summarise the final written addresses of counsel to the parties.
SUMMARY OF THE FINAL WRITTEN ADDRESSES
A. Claimant’s Final Written Address
F.O. OKONKWO franked the claimant’s final written address; and submitted two issues for the determination of the suit, to wit:
Whether the claimant was given fair hearing in the termination of his appointment with the defendant, the said termination being wrongful and unjustifiable. [sic]
Whether the claimant is not entitled to the reliefs sought. [sic]
Arguing issue 1, the learned counsel submitted that, the claimant challenged the reason offered for terminating his appointment and that therefore; justification of this reason is put on the defendant. The learned counsel cited Walters v. Frank Harrison (1992) 4 NLR and I.H.A.B.U.M.B. v. Anyip (2011) 5 SC (Pt. …) 54 at 71; 21, A-C and Olatunbosun v. N.I.S.E.R Council (2008) LPELR-3046 (SC) to buttress this submission. The learned counsel also cited my judgment in Suit No NICN/OW/69/2016 – Njoku v. Zenith Bank Plc [Delivered at Owerri Division on 29th November 2018] at 21-22 to further buttress this submission. The learned counsel thereafter went to the issue of fair hearing and submitted according to the handbook, in the case of disciplinary measures, the employee must be given fair hearing; and that, except in cases where verbal warning is the penalty, such employee must be issued written query, which must also be answered in writing. The learned counsel submitted that, there was not proof that the claimant ever committed similar offence in the past or was ever warned in the past; and that, it was obvious the defendant did not follow the handbook. The learned counsel submitted that, the claimant challenged his termination on the ground that he was not given fair hearing and that his termination was pre-determined.
The learned counsel submitted that, the proof of the fact of premeditation of the termination of the claimant is shown in the fact of advert for his position two days from the date claimant responded to the query. The learned counsel submitted that, the assertion of DW1 that the claimant was due for promotion, which was the reason for the advert, was contradicted by DW3, who asserted under cross-examination that, he would not recommend the claimant for promotion and would be surprised to hear that he was due for promotion. The learned counsel submitted that, the claimant, under cross-examination, maintained that, he was not due for promotion before his disengagement. The learned counsel submitted that, the above showed that, the termination of the claimant was predetermined. The learned counsel also submitted that, DW1 admitted under cross-examination that the claimant was not afforded cross-examination, as DW1 and DW3 were both the prosecutors and judges in their cause; for they both issued the query and both presided and partook in the trial of the claimant. On this, the learned counsel cited Darma v. Eco Bank Nigeria Ltd (2017) JSCNLR (Vol. 2) 292; Nnamdi Azikiwe University and 7 Ors v. CASMIR Nwafor (1998) 12 ILAW/SC175/1996 and SPDC Ltd v. Olarenwaju (2009) ALL FWLR (Pt. 458) 208 at 222, E-G.
The learned counsel further submitted that, if there was a meeting, the claimant was not given fair hearing and the provisions of the handbook were not followed. The learned counsel submitted that, where the reason for a termination is criminal, the defendant must prove it beyond reasonable doubt, and cited Agi v. PAP & Ors (2016) LPELR-42578 (SC). The learned counsel submitted that, the claimant had satisfied the law by tendering his letter of termination, which showed the termination was for specific reason; and it therefore fell on the defendant to justify the reason because, he who asserts must prove. On this, the learned counsel cited Abdulganiyu v. Adeleke & Anor (2012) LPELR-9250 (CA) 34-35, C-A. The learned counsel submitted that, the purported meeting allegedly held 9th September 2016 to justify the proof of the reason for the termination, was a fluke in that, DW1, DW2, DW3, and DW4 called could not prove anything. The learned counsel argued that, DW1 testified that a meeting was held, which the claimant attended on invitation, and yet did not tender the evidence of invitation of the claimant to the meeting. The learned counsel submitted that, DW1 is not a witness of truth in that, she contradicted herself by saying she had only one signature and yet when confronted with two documents signed, she said one was signed for her; and that, the Court observed that, it was not written anywhere in the document ‘sign for’. The learned counsel referred to Exhibits XXA and XXB and cited Adepoju Ayanwale & Anor v. Babalola Atanda (1998) 1 SC 1.
The learned counsel submitted that, from the contradiction of the evidence of DW2, DW3, and DW4 it is impossible to hold that, such meeting ever took place. The learned counsel said DW2 stated under cross-examination that, the meeting took place after break from 12 noon while DW3 said, under cross-examination that, it took place in the morning while DW2 also said it was in the morning that they were notified of the meeting. The learned counsel said this was suggestive of the fact that, they were orally notified, which was against the evidence of DW3 and that, DW3 virtually contradicted all the evidence of DW1, while DW4 named in the minutes of the meeting, as being in attendance and gave evidence, denied under cross-examination that he was ever in the meeting. The learned counsel submitted that, the purported meeting was therefore a hoax. The learned counsel submitted that, this showed that the claimant was never heard before the appointment was terminated. Thus ended submissions on issue 1 and the learned counsel moved to issue 2.
Under issue 2, the learned counsel submitted that, the claimant framed 4 reliefs and tendered Exhibit ECWG [sic] – the handbook, to justify his right thereto thus, discharging the burden placed on him. The learned counsel cited Ikoku & Ors v. Erekwu & Ors (1995) 7 SCNJ 180. The learned counsel submitted that, the evidence adduced in proof of the claimant’s case was not challenged and neither were any of the reliefs challenged. The learned counsel submitted that, the defendant who listed David Uche Ndukwe, as witness and whom the claimant accused on dumping waste in unauthorized sites and warned in his letter [Exhibit CWL] was not called to testify by the defendant because, the defendant knew that his evidence would not have been favourable. The learned counsel also argued that, the claimant tendered the text message [Exhibit CWF(1-4)] from the DW3 [the General Manager], which commended the claimant for a work well done. The learned counsel submitted that, the proof of mathematical precision of the claimant’s reliefs was never challenged and also the evidence that the defendant breached the provisions of the handbook in his dismissal. The learned counsel said the defendant breached the provisions of section 29, pages 17 and 18 of the handbook.
The learned counsel argued that, it was not shown in the purported minutes of the meeting that questions were put to the claimant or that the claimant was asked to cross-examine his accusers. The learned counsel also said that, no mention of the claimant’s answer to the query was made in the said minutes. The learned counsel said that, the last paragraph of the minutes read “Mr, Jimmy denied all but finally agreed for exchange of money with Mr. David Egbu in his hotel. Meeting ended by 12.05pm.” Whereas the DW2 had said the meeting started after break and that break starts around 12 noon. The learned counsel argued that, it was not recorded how exactly the claimant denied the allegations and that the statement that “…he finally agreed for an exchange of money with Mr. David Egbu in his hotel.” Did not communicate any meaning. The learned counsel submitted that, in view of all these, the meeting never took place and that the defendant wholly breached the provisions of the handbook.
The learned counsel submitted that thus, the claimant proved his case on the preponderance of evidence and thus, entitled to the reliefs claimed. The learned counsel cited Nwabuokwu v. Ottih (1961) 1 ALL NLR 487 and Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 510. Thus, the final written address of the claimant was brought to an end. I shall now move to that of the defendant.
B. Final Written Address of Counsel to the Defendant
I. ONYEBUENYI franked the Final Written Address of the Defendant. The learned counsel submitted one issue for determination of the suit, to wit:
Whether predicated on the strength of the pleadings and the materials placed before this Honourable Court and ns [sic] simultaneous consideration of the surrounding facts and circumstances, the Claimant has proven on the preponderance of evidence that he is entitled to all or any of the reliefs sought in this suit. [sic]
The learned counsel however commenced arguments on some preliminary points before going to the above issue. The first is on the issue of the document admitted tentatively as DWH. The learned counsel submitted that, the document be admitted because, it was pleaded in paragraph 7 of the Amended Statement of Defence; and, it was not challenged in any reply pleading. The learned counsel submitted that, it was thereby relevant more so, when the subsequent document, also pleaded in the same paragraph had been admitted. The learned counsel submitted that, when a document is pleaded, relevant, and proper foundation laid for its admissibility, it must be admitted. The learned counsel therefore urged the Court to discountenance the argument of the learned counsel to the claimant that it was not pleaded and as such took the defence unaware. The learned counsel submitted that, its relevancy was further attested because, the fact it sought to prove, had been admitted in Exhibit DWG, without any objection. The learned counsel finally urged the Court to admit it pursuant to sections 12(2)(b) of the National Industrial Court Act [NICA] and 41 of the Evidence Act. The learned counsel thereafter moved to the issue of the document obtained under cross-examination.
The learned counsel submitted that Exhibit XXA was not the subsisting written deposition of the DW1 and that, Exhibit XXB, which the DW1 signed in the courtroom was very consistent with the signatures of the DW1 on other documents. The learned counsel contended that, the character of DW1 was not in issue and even if, she had sworn that she was of good character by admitting that, she did not sign Exhibit XXA. The Court was urged not to attach any weight to Exhibit XXA because of the Amended Further Written Deposition, which, according to the learned counsel, has overtaken Exhibit XXA because a party ought to amend his pleadings if he wants to make use of evidence elicited under cross-examination. The learned counsel cited M.B.U.B.T.H v. Nem Co. Nig. Ltd (2005) 18 WRN 113 CA. Thereafter, the learned counsel moved to the arguments on the substantive.
On the substantive issue, the learned counsel submitted that, the claimant is not entitled to the reliefs claimed because the defendant’s evidence outweighs that of the claimant. The learned counsel argued that, the claimant did not challenge paragraphs 3-8, 11-17 of the Statement of Defence by reply pleading and under cross-examination. The learned counsel referred to section 123 of the Evidence Act and submitted that, unchallenged pleading/piece of evidence is deemed admitted and referred to Mobil Producing (Nig) Unltd & Anor v. Udo (2005) Vol. 36, WRN 53 at 3; Mil. Governor, Lagos State v. Adeyiga (2012) Vol. 30 WRN 1 at 16; and Miliki v. Michael Imodu Institute for Labour Studies (2009) Vol. 21 WRN 35 at 41. The learned counsel urged the Court to examine paragraphs 3-12 of the Statement on Oath to see that they were not challenged. The learned counsel placed reliance on sections 131 and 133 of the Evidence Act to submit that, the claimant could only succeed in a case if he established his case by preponderance of evidence and cited S.C.C (Nig) Ltd v. Elemadu (2005) 7 NWLR (Pt. 923) 28 at 63, B-C.
The learned counsel argued that, the case of the claimant is based on termination of employment on purported allegations of criminal nature and alleged violation of fair hearing and section 29 at page 17 of Exhibit DWB but failed to reckon with the handbook [Exhibit DWB). The learned counsel said the claimant only tendered a portion of the handbook, admitted as Exhibit CWG, while the defendant tendered the composite handbook, admitted as Exhibit DWB. The learned counsel submitted that, Exhibit DWB made provisions for three different ways of terminating employment whereas, Exhibit CWG only dealt with minor offences leaving out serious offences and summary dismissal, which are dealt with in Exhibit DWB and submitted that, the claimant had failed to place before the Court his conditions of service and failed to establish the manner in which it was breached. The learned counsel cited Modu Aji v. Chad Basin Development Authority & Anor (2015) 61 (Pt. 3) NSCQR 1817 at 1854. The learned counsel submitted that, the query issued to the claimant and his answer thereto fulfilled the requirement of fair hearing and that, Exhibit DWE [Minutes of Meeting] showed that the defendant convened a meeting on 9/9/2016 to deliberate on the circumstances leading to the issuance of the query.
The learned counsel submitted that, via Exhibit DWE, it was established that the claimant attended the meeting and admitted that money exchanged hands between DW2 and the claimant. On the basis of this, the learned counsel submitted that, an employer needed not wait before dismissing an employee against whom allegations of gross misconduct, insubordination and breach of the handbook were established. The learned counsel submitted that, it is enough if the employee is given notice of the allegations and allowed to put in a defence. On this, reliance is placed on Yusuf v. Union Bank (Nig) Ltd (1996) 6 SCNJ 203; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 29; and Maliki v. Michael Imodu Institute for Labour Studies (2009) WRN 35 at 42. The learned counsel submitted that, the failure to accept the explanation of the claimant to the query could not constitute breach of allegations of fair hearing; and cited Ansambe v. B.O.N. Ltd (2005) 8 NWLR (Pt. 928) and Saibu v. Kwara Poly (2009) Vol. 27 WRN 120 at 130.
The learned counsel argued that though, under cross-examination, the claimant denied attending the meeting but Exhibit DWE proved that he did; and submitted that, oral evidence cannot contradict a document; as a document tendered and admitted is the best proof of its contents. The learned counsel cited Igbeke v. Emordi (2010) Vol. 27 WRN 76 and Anyanwu & Ors v. Uzowuaka & Ors (2009) 49 WRN 1. The learned counsel equally argued that, where one party relies on oral evidence and the other on document, more credence should be accorded the document because a document speaks for itself. On this, the learned counsel relied on Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 253 a58 at 500.
The learned counsel argued that, the appointment was terminated in accordance with the handbook on grounds of gross misconduct, gross dereliction of duty, sabotage, abuse of office, fraud etcetera, as evidenced in the letter of termination, and as such, the defendant could be weighed down by the alleged allegations of crime, as any of the grounds is sufficient for the termination. The learned counsel submitted that, the visit of the claimant to a contractor of the defendant in a hotel constitutes gross misconduct and also the admission by the claimant in Exhibit DWE that he accepted bribe from the DW2 constitutes misconduct and insubordination. The learned counsel argued that, these infractions were disclosed to the claimant via Exhibits DWC and DWD and he responded via his answers in Exhibits CWC and CWH. The learned counsel argued that, DW2 stated under cross-examination on 25/3/2019, that the claimant admitted in the meeting of 9/9/16 that he accepted bribe from he DW2 in the hotel and that it was also unearthed at the same meeting that the claimant had been defrauding the defendant. The learned counsel submitted that, these pieces of evidence corroborated the earlier evidence of DW1 on 14/3/2019 under cross-examination. On this basis, the learned counsel implored the Court not to countenance the denial of the claimant that he did not attend the meeting.
The learned counsel submitted that, on the strength of exhibits DWE, DWD, DWL and DWM, the defendant has discharged the burden placed on it and therefore preponderance on the balance of probability, because gross misconduct is what the employer considers as gross misconduct; and as such, if the defendant considers the query issued the claimant and his answer, as gross misconduct, it is proper. The learned counsel cited Oyedele v. Ife UTH (1990) 6 NWLR (Pt. 655) 194. The learned counsel argued that, gross misconduct that undermined the relationship confidence of the defendant has even been abundantly proved via DW1, DW2, and particularly DW3, who tendered Exhibits DWL and DWM, petitions complaining against the claimant on dumping of hazardous wastes on premises illegally.
The learned counsel submitted that, this also amounts to insubordination and failure to comply with the handbook [DWB]. The learned counsel argued that, the evidence of DW3 that the claimant was relieved of his appointment in paragraph 8 of his deposition was not challenged under cross-examination. The learned counsel cited pp. 14, and 15 at section 3(c) of the handbook, which gives the defendant power to dismiss summarily. The learned counsel submitted that, willful disobedience leads to summary dismissal and cited UBN v. Soares (2012) 11 NWLR (Pt. 1312) 550 CA and Sule v. Nig. Custom Board (1985) 2 NWLR (Pt. 5) 17. The learned counsel submitted that, the claimant’s admission under cross-examination that he visited the contractor to the defendant in hotel is gross misconduct made worse by the claimant’s further admission in the meeting that money exchanged hands. The learned counsel submitted that, an employer may terminate with or without reason and cited Obe v. Nigersol Construction Company Ltd (1972) 2 UKR (Pt. 11) and Shitta Bey v. Federal Civil Service Commission (1980) SC 40 at 56.
The learned counsel submitted that, the claimant failed to prove any of the reliefs by preponderance of evidence and that a claimant succeeds on the strength of his case and not the weakness of the defence. The learned counsel relied on S.C.C. (Nig) Ltd v. Elemadu [supra] and Egbu v. Nwoloko (2009) 3 NWLR (Pt. 1127) 194 at 230. The learned counsel argued that, the text message in issue in Exhibits CWE and CWF was sent by DW3 to the claimant not as commendation but in acknowledgment his compliance with instruction to evacuate waste dumped on unauthorized places his watch, which resulted in threats of actions against the defendant, as evidenced in Exhibits CWE and CWF. The learned counsel prayed the Court to discountenance Exhibit CWE and CWF on this basis. The learned counsel thereafter moved to the sustainability of the reliefs claimed.
The learned counsel submitted that, the claimant is not entitled to relief one because he did not prove in any way that the termination was unlawful in any manner. The learned counsel argued that, the claimant did not challenge the evidence that he received money, as contained in Exhibit DWE and that of DW3, under cross-examination stated that the claimant came to him before the meeting, confessing to the allegations in Exhibit DWC and begged for forgiveness and also that paragraph 19 of the written deposition of DW3 was not challenged under cross-examination or otherwise. The learned counsel argued too, that the claimant did not dispute the evidence of dumping of waste unlawfully and that this is even supported by Exhibit CWL tendered by the claimant. The learned counsel cited Honda Place Ltd v. Globe Motor Holding Nig. Ltd. (2006) Vol. 10 WRN 34 at 738 and Oyedele v. Ife UTH (supra). The learned counsel submitted that, it is thus clear that the termination was not wrongful or null and void. The learned counsel submitted that prosecution is not compulsory before summary dismissal, even where crime is alleged.
The learned counsel said, on relief two that, the claimant is not entitled to the sum claimed for allegedly not being allowed to finish his tenure because the employment relations is one of master/servant and not tenured and therefore the claimant could not claim for salaries outside the date of termination. The learned counsel submitted that, once a party exercises his power of termination in master/servant employment either rightly or wrongfully, the employment ceases at the very date, as the employer could not be compelled to accept a willing employee. The learned counsel cited Spring Bank v. Babatunde (2012) ALL FWLR (Pt. 609) 1191 at 1205; Obot v. CBN (1993); Savannah Bank v. Akokum (2002) 1 NWLR (Pt. 749) 544 ratio 9 and Onalaja v. AP Ltd (1991) 7 NWLR (Pt. 206) 691. The learned counsel, on this basis, submitted that the claimant is not entitled to relief two; and moved to relief three.
On relief three, the learned counsel argued the claimant did not prove his entitlement to this by his written deposition; and more so, the employment was validly terminated. The learned counsel argued that, the averment in paragraph 6 of the Amended Statement of Defence and its evidence given in paragraph 6 of the Further Amended Written Deposition that the meeting took place and all that transpired therein on 9/9/2016 were not traversed nor controverted by the claimant hence, as their was no reply pleading nor affidavit controverting these, they are deemed admitted. The learned counsel cited section 123 of the Evidence Act and Mobil Producing Nig. (Unltd) v. U.T. Udo (2005) Vol. 36 WRN 53 at 3. The learned counsel submitted that, from these, it followed that the defendant did not in any way breach the contract of employment; the defendant terminated the appointment pursuant to Exhibit DWB. The learned counsel also submitted that, the claimant equally failed to establish the assault alleged; and as such, he is not entitled to any damages in that regard. The learned counsel submitted that, damages for emotional stress are not grantable because there is no basis for quantifying it, apart from the fact that, the claimant did not adduce any evidence in proof of it. The learned counsel submitted that, the Court could not inquire into the motive for terminating an appointment and cited Shitta Bey v. Federal Republic Service Commission [supra] and others.
The learned counsel submitted that, even if the termination was wrongful, the only damages recoverable is payment in lieu of notice and cited N.O.M. Ltd v. Daura (1906) 8 NWLR (Pt. 468) 601; N.P.M. v. Adewunmi [supra] and others. The learned counsel finally submitted that, a close scrutiny of the evidence in this case would show that the claimant is not entitled to relief three; and moved to relief four.
On relief four, the learned counsel was of the view that the claimant is not entitled to a declaration that he is still in the employment of the defendant because this right cannot be enjoyed in employment lacking statutory flavour. The learned counsel cited Onalaja v. A.P. Ltd (supra) and Savannah Bank Plc v. Fakokum (supra]. The learned counsel finally urged the Court to dismiss the entirety of the reliefs claimed by the claimant and the case. That marks the end of the final written address of the defendant. There being no reply on points of law filed, I move to give my decision and the reasons for it.
I wish to preface my decision with the statement of the normal points which a court of law is obliged to show that it took cognisance of in arriving at a just decision. In this wise, I wish to state that, I have carefully studied the pleadings and evidence adduced, both in the written depositions of parties and under cross-examinations of witnesses. I have also carefully appreciated the demeanours of witnesses during their testimonies. Though, I did not summarise the details of these pieces of evidence, but I nonetheless carefully studied them and proof of these would come out in the course of this judgment by making constant references to relevant pieces of evidence, as the needs arise. My appraisal of these pieces of evidence in the course of this judgment would also justify my close knowledge of them. I have also carefully digested the final written addresses of the learned counsel to the parties, as reflected in my summary of them above. I have equally taken out quality time to appreciate the authorities cited by the learned counsel to the parties before coming to my decision. Having done all these, I am fortified to ascend the sacred altar of dishing out decision on the rights of fellow human beings.
However, before going into the decision on the substantive case, let me clear a preliminary issue relating to ID DWH, which arguments and ruling on the objection to its admissibility were deferred to the final address stage. And for this reason the decision of the Court would be broken into two: A. Preliminary Decision, and B. Decision on the Substantive Case.
COURT’S DECISION
A. Preliminary Decision
The learned counsel to the claimant had objected to ID DWH mainly on the ground that it was not frontloaded and therefore took the claimant by surprise, while the defence said it was pleaded in paragraph 7 of the Amended Statement of Defence and relevant, and therefore admissible. I took note of the fact that the learned counsel to the claimant did not ask for adjournment to enable him take the document into consideration in prosecuting his case. The objection, for all purposes, is therefore mere technicality. I found that this document was directly pleaded, so, the learned counsel to the claimant could not claim ignorance of it. More so, in the interval before the learned counsel to the claimant wrote the final written address, he has had sufficient time to study and yet, had not found any good reason for asking that it be rejected other than the mere technical reason that it was not frontloaded. The reliance placed on Egwuagu v. Gov. of Imo State [supra] decided by me is mischievous, as it was cited out of context. It was not decided in that case that once a document is not frontloaded it must be rejected, even if produced in Court. What I decided was that because the document therein was not frontloaded and not equally produced in Court for admission, I could not adjourn for it to be procured on another date, after the learned counsel to the defendant therein refused the indulgence of standing the case down for the document to be fetched in the office of the Attorney-General, which was not far from the Court. And this was a case that had suffered several adjournments from the lackadaisical attitude of the same counsel at fault. This was in fact the main reason that informed my decision then.
Order 40, Rule 4 of the NICN, which the learned counsel cited was also cited mischievously. The Order gave the Court discretion in the matter. In any case, it must be noted that, it is the Evidence Act that governs the admissibility of documents and not the rules of this Court, especially on issues of rejection. The rules of this Court just provide a waivable condition precedent. I therefore cannot fathom the rationale of this objection. Even if the document is not admissible under the Evidence Act, which is not the case here, it is admissible in the interest of justice, under section 12(2)(b) of the National Industrial Court Act. If the purpose of frontloading is to prevent ambush then, a document not frontloaded but copiously pleaded cannot be justly rejected on the altar of another ambush laid by the other side who, ought to have filed a notice for discovery and refused in order to be able to steal a match against the other side, who might have mistakenly failed to frontload it. The rules were not designed to remove one ambush and replace it with another. Justice of such cases would most often, except if malevolent motive is proved, be met by adjourning for the other side that is complaining to have time to study the document and factor it into his/her case. If s/he fails to ask for adjournment and only harps on taking an undue advantage of the situation, the objection ought to be overruled and the document admitted in the interest of justice, and I so hold. In view of my holding above, I hereby admit the original of a document on the letter head of Glassforce Limited, Aba – Internal Memo dated 18th August, 2016 and captioned “Lack of Seriousness to Work and Insubordination: Re- Emeka Nwachukwu” and signed Jimmy Enang as Exhibit DWH.
Having cleared this preliminary issue, let me proceed to the more serious issue of determining the substantive case. There I go.
B. Court’s Decision On The Substantive Case
In the determination of this suit, I shall adopt the two issues formulated by the learned counsel to the claimant but would reframe issue 1, to shun it of wordiness. The two issues are:
Whether the termination of the appointment of the claimant is not unjustifiable and wrongful?
Whether the claimant is not entitled to the reliefs sought?
In determining issue 1, two things have to be taken into cognisance. They are the positions of law on where a reason is given for termination and how to lawfully terminate where allegations of crime are the grounds of termination. The Supreme Court expatiated the position of law on termination with reason in SPDC V. OLAREWAJU [2008] LPELR – 3046 [SC] thus:
“The guiding principle which has been articulated and applied in many cases including Olatunbosun V. N.I.S.E.R. Council [1988] 1 NSCC 1025; [1988] 3 NWLR [Pt. 80] 25, is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court”. [See p. 19 paras E – G]
That is the position of law on termination with reason. The employer is bound to justify the reason offered and thus, the normal burden of proof is shifted from the claimant to the employer [defendant] – see Institute of Health Ahmadu Bello University v. Anyip (2011) LPELR-1517 (SC) 21, A-C, where the Supreme Court stated the law thus:
“Although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has proffered any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more.”
Where a reason is offered for termination, all that the claimant needs do, is to tender the letter of appointment or prove the appointment and tender the letter of termination, which contains the reason, and challenge the reason offered in his pleading by asserting the opposite. He needs not tender the conditions of service because no conditions of service or terms of contract can lawfully excuse giving false reason against an employee. The law of tort and criminal defamation make such plainly unlawful. So, in such instance, tendering of conditions of service by the employee might be totally unnecessary. That is that about termination with reason. Let us now see what the law is on termination on ground of criminal allegations. The locus classicus on this is as stated by the Supreme Court in Dongtoe v. CSC, Plateau State (2001) LPELR – 959 (SC) at 34 – 35, paras. E – G:
“It is well settled that where there is an accusation of the commission of criminal offences, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt. There is no doubt that an administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. However, where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises, and no burden of proof rests on the accuser, the burden of proof having been discharged by the admission of the accused.”
It is also necessary to consider some connected issues to the above citation. This is the issue of where other allegations are mingled with criminal allegations in terminating an employment, which is explicated in Eigbe v. N.U.T (2008) 5 NWLR (Pt. 1081) 610 at 628 and the issue of the authority of Arinze v. FBN (2004) LPELR-551 (SC), which seems to negate Dongtoe v. CSC, Plateau State. This Court has had the opportunity to examine these cases in Suit No. NICN/ABJ/97/2014 – Okolo v. NDIC [Delivered 17/09/2015] at p. 21 and opined thus:
“I have closely read Eigbe v. N.U.T [supra] and Arinze v. FBN [supra]. In Arinze v. FBN, the appellant employee was found guilty of insubordination and fraudulent claim of money and therefore dismissed. Insubordination is not a criminal offence hence, it alone sustains the dismissal. It was also found that the appellant forged doctor’s certificate to claim hospital bills he never incurred and fraudulently claimed allowances for days he was not on duty. To these extents, the facts are different from that of the instant case where all the allegations against the claimant are purely criminal allegations that need serious investigations and trial to unravel. In Eigbe v. N.U.T, the appellant employee actually admitted the allegations against him. Arinze v. FBN seemed to indicate that when an inconvertible [sic] and proven case of misconducts bordering on criminality is established against a person, he can be dismissed summarily without the need for a court to try the person. It is clear that Dongtoe v. CSC, Plateau State still remains a valid authority. Where there is no admission, and there is need to establish the guilt of the accused, the proper forum must still be the Court.”
I think the litmus tests are the existence of incontrovertible evidence of guilt and the existence of other non-criminal ground of misconduct. Where there is none, and the allegation is purely criminal and proof of same needs to be established, the court is the forum and Dongtoe v. CSC, Plateau State remains the authority. I therefore have no reason to depart from the above ratio of this Court. It is against the above settled authorities that the evidence on record shall be tested to know where the pendulum swings.
First, we move to examine the issue of justification of the reasons for the termination. I will first look at this without bordering on whether the reasons are purely criminal or mingled with other non-criminal reasons though, this might not be necessary, if I first determine the issue of whether the allegations were purely criminal and found that they were. I will do this because of the seemingly conflicting signals from the Supreme Court, though explained above. It is not in doubt that the claimant challenged the reasons for his termination; otherwise, this case would not be in Court. Paragraphs 11, 12, 14, and 19 of the Statement of Facts [wrongly tagged “Statement of Claim”] constitute the kernel of the rejection of the reasons offered for termination of his appointment. By these paragraphs, the claimant pleaded that all the allegations against him were cooked up and that a query was issued to him and he answered the query too, in writing and that his termination was unthoughtful and irrational. He pleaded too that no panel was set up and that he was not given fair hearing. Thus, the query, the answer and the letter of termination together with the proceedings of the panel become part of the pleadings and must be examined to determine the issue at stake. And these were tendered and admitted.
The version of the query and answer used is the ones tendered by the defendant because the answer is the original copy and therefore easily readable than the photocopy tendered by the claimant. The query is Exhibit DWC while the answer of the claimant is Exhibit DWD. The query is entirely made up of criminal allegations connected with attempt to fraudulently sell the company’s red mud [conversion], extortion of money from one Mr. Egbu David, a contractor to the defendant [company]. The essence of the seven-page long answer of the claimant to the query is that, the claimant denied the allegations and said they were designed by the said Mr. Egbu David to ease him out of his job for insisting that he the petitioner do the right things. The allegation of sabotaging the defendant was crafted as part of the claimant’s instrument of extortion of money from the said Mr. Egbu David and in aid of his fraudulent attempt to sell off the red mud of the company. In essence, all the allegations against the claimant were purely criminal.
Since the allegations were denied and there were no incontrovertible evidence against the claimant, and the defendant was not satisfied with the answer, it allegedly decided to conduct more elaborate investigation and trial. This takes us to the issue of the alleged meeting of 9/9/2016 on which this further investigation and trial of the allegations allegedly took place. The purported minutes of the said meeting is Exhibit DWE. It was stated in ‘9 Steps To Learn How To Write Meeting Minutes and Share Them’ at https://www.beesapps.com that:
“Meeting minutes can be defined as written or recorded documentation that is used to inform people of what happened during the meeting and define the next step planned.”
It was equally stated therein that an effective meeting minutes must contain amongst the 9 points listed: the main points, decisions made by the participants, and record what is the most important points. Exhibit DWE does not seem to pass these basic tests of a good minute in that, it failed to record the most important points and the decision arrived at. I am of the candid view that, in the proceedings whereby the fate of a fellow human being is to be determined, however rudimentary the tribunal is, what is said against the accused, by whom, and his response are essential elements that must be recorded to show justification of the decision reached on the accused. The decision reached must also be recorded too. These essentials were totally lacking in Exhibit DWE. Exhibit DWE could never pass as minutes of meeting, but perhaps, as a bad summary of minutes of meeting. All that was contained in it, after couching the allegations, is that:
“Surprisingly, all the labour contractors involved confirmed and alleged that all allegation written against him were true.
‘MR. JIMMY’S RESPONSE: Mr. Jimmy denied all but finally agreed for an exchange of money with Mr. Da vid [sic] Egbu in his hotel. Meeting ended by 12.05 pm.”
It is pertinent to note that the allegations enumerated were prefaced with “At this juncture, Mr. Egbu was asked to elaborate in details allegation he wrote against the safety officer.” From this, it is clear that the claimant was tried only on the allegations leveled against him by Mr. Egbu David, and no other. It is therefore totally illogical that all the labour contractors present in the said meeting confirmed these allegations whereas, the alleged petitioner, Mr. Egbu David, never mentioned these contractors as witnesses to these allegations. The only people the petitioner [Mr. Egbu David] mentioned in his petition are the tipper driver, whom he said the claimant had been extorting money from also. He also mentioned the CSO and one Imo Amaraegbu. And in mentioning these people, the petitioner did not say they were witnesses to any extortion or the threat or collection of money in the hotel. It should be noted that the petitioner never mentioned any place where the claimant used to collect the extortions from him and did mention collection of any money in his hotel nor stated the means or mode by which he used to pay the extortions: they were allegations at large without specifics or substantiations. And yet the claimant, who denied all the allegations, later admitted collecting the extortion money in the petitioner’s hotel! How he came to admit this was not stated. It is interesting to note that, the aspect connected with the CSO on the issue of calling back a tipper in order to sell red mud, which was contained in the query, was dropped in the alleged trial before the alleged panel on 9/9/16. It should be noted too, that the CSO was not called as a witness.
The other contractors who allegedly attended the meeting and never knew anything about the allegations, except the driver, if he attended, unnaturally confirmed all the allegations therein contained, which they knew noting about! How come? If Imo Amaraegbu were to confirm anything, it is that which concerns the allegations relating to him that he could confirm, and not everything. This is a factual impossibility. A court of law is not bound to believe a piece of evidence, even though, unchallenged, simply because it was made under oath. If the evidence is totally improbable and against the natural cause of events, the court would simply jettison it – see Dibiamaka & Ors. v. Osakwe & Ors. (1989) LPELR – 940 (SC) at 16, paras. D – E where the Supreme Court stated the position thus:
“When evidence is improbable, it can easily be dismissed as untrue as probability has always been the surest road to the shrine of truth and justice. The balance of probability will thus reflect also the balance of truth. When this happens, it then becomes the balance of justice.”
See also Anzaku v. Gov., Nassarawa State (2005) 5 NWLR (Pt. 919) 448 at 502 paras. C – F, where it was held that, a court of law is not bound to believe a piece of improbable evidence simply because it was deposed to in an unchallenged affidavit. The allegations contained in the purported minutes of meeting are all purely criminal, which must be proved to the hilt, notwithstanding that they were made in the cause of civil relations. Since these allegations were the same as contained in the query, which the claimant had denied, and the petitioner was the only person who had anything useful to say on the allegations, it means it was his evidence against that of the claimant, and that nothing was established against the claimant in view of my finding above that, the other people present could not have confirmed anything against the claimant, except and perhaps the driver, who was also alleged to be a victim of the claimant’s extortion but not a witness to the extortion of the petitioner.
The other contractor, who was never mentioned in the query and who knew nothing about the allegations, his allegedly confirming them, is a factual impossibility. But it is observed that the defendant widened the scope of the query by now adding the name of Imo Amaraegbu on the allegations in the minutes of the alleged meeting. It is certain this Imo Amaraegbu could only confirm what relates to him and not those beyond his knowledge. This puts a lie to the whole of the purported proceedings as sham. Even the driver could not confirm the extortion of the petitioner but only his own alleged extortion. Note too, that the status of those listed under, “For Contractors” are not stated. I assume the 3rd might be the driver because the DW2 [the petitioner] mentioned one David as the driver under cross-examination. This omission too is fatal to the alleged minutes of meeting because a court of law is not allowed to speculate or fill in gaps in the evidence of a witness or party in a case or in the document tendered by a party.
It further shows the improbability of the claimant denying everything and now unnaturally, admitting cashing the extorted money at the petitioner’s hotel, which was never made part of the allegations contained in the petition. What are those other things he denied, when all the allegations against him, as could be gleaned from Exhibit DWE were centred on extortion of money and fraud, and nothing more? How could he have denied the entire allegations and still admitted collecting the alleged extorted money in a hotel not mentioned in the petition or the list of allegations in the purported minutes of meeting! It means the document is incoherent and internally inconsistent with itself. Because, to deny all the allegations therein contained, which were all about extortions and the means devised to achieve same, it could not be plausible again to say the claimant admitted extorting the petitioner, which collection of money in the hotel amounts to. I therefore hold that the said meeting of 9/9/16 was truly cooked up and never held. Though, I note that the claimant admitted visiting the hotel where the DW2 also lived but denied going there for the purpose of collecting money. It is observed too that the evidence of the claimant both in chief and under cross-examination remained very consistent and cogent.
I now come to the testimonies of the defence witnesses both in chief and under cross-examination. DW2 admitted under cross-examination on 28/03/19 [p. 62 of record] that he did not put it in his petition that the claimant came to his hotel to collect money and that it was unearthed at the meeting. So, DW2 did not know that the claimant collected money from him in his hotel before it was unearthed at the alleged meeting! It shows it is an afterthought, more so, when it was only first mentioned in the written deposition of DW2 sworn 28th March 2017 after this case had already been filed. It shows it is an afterthought. It would be observed that DW2 did not maintain under cross-examination that the collection of money was true but that it was unearthed at the alleged trial. The amount involved, the date and time, were not stated. How could the meeting allegedly unearth what the petitioner never said happened or never put in the petition, yet the claimant was said to have denied all the allegations of extortion and summersaulted to admit cashing the extorted money in the petitioner’s hotel! This lacks internal cohesion and is fatal, being against the natural course of human nature. This is more so, when the circumstances leading to the admission were not recorded. Further more, there was no agreement as to the time the purported meeting of 09/09/16 held. And the purported minutes of meeting said it ended at 12.05pm.
On 28/03/19, DW2 initially said they were told in the morning, where they used to assemble before work, to come for the meeting before 12 0’clock; and later said, it was when they came from break that all people involved were asked to come for the meeting – see p. 64 of record. DW3 under cross-examination on 04/04/19 at p. 82 of record said members of staff go on break between 1pm and 2pm. When asked further under cross-examination the same day and at p. 83, DW3 answered that he could not really say when the meeting of 09/09/16 started and that it could be in the morning. When this is pieced with the testimony that it started after break and that break used to be between 1pm and 2pm, the material contradictions are apparent. Yet the letter of termination said the purported meeting was held in the morning. DW3 had earlier said that the notices of invitation were written [p.83]. DW3 also said under cross-examination that he could tell when the notices of invitation were sent, because he was the General Manager, yet the DW2 said they were orally invited in the morning of the said meeting. It is abundantly clear that the evidence of witnesses for the defendant were contradictory on the essential point of existence of the alleged meeting and therefore fatal to the case of the defendant – see Ogbomo v. Ogbomo (2014) LPELR-22612 (CA) 42-43, E-A, where it was opined that:
“It is a settled principle, that the ultimate consequence of multiple material (substantial) contradictions in an evidence, is destructive. As once aptly reiterated by this Court – The consequence of these multiple contradictions are clear. They succeed to destroy the case of the Appellants as presented. They completely knocked down the bottom out of the case of the Appellants. On the other hand, they succeed in making and keeping the case of the Respondents solid, fortified and monolithic…”
Still under cross-examination at p. 83-84, DW3 answered to a question whether he would be surprised to hear that a witness said they were notified of the meeting in the morning of 09/09/16, by saying it was impossible and that, such would amount to perjury. Still on DW3, he said he would be surprised to hear that a witness said the meeting started in the afternoon after return from break. Still yet, in answer to a question whether DW3 would be surprised to hear that the meeting ended by 12 0’clock, DW3 retorted that it was not possible and that the cross-examiner was contradicting himself. Yet, clearly written on Exhibit DWE [the purported minutes of the purported meeting] is that, the meeting ended by 12.05pm! At p. 87, still under cross-examination, DW3 said he could not recommend the claimant for promotion because he was under probation as at 1st August 2016 and also said it was not to his knowledge that the claimant was due for promotion that same August, when asked whether he would be surprised to hear that the claimant was slated for promotion that same August.
Yet the defendant had justified the advert [Exhibits CWJ and DWF dated 02/09/16] for the position of the claimant before he was terminated on the ground that, because he was due for promotion, that was why his position was advertised! This evidence by DW1 was totally rubbished by DW3 [the General Manager] under cross-examination whereby he maintained that the claimant was not due for promotion. Even the evidence of DW1 on this was not plausible by itself. And the claimant had testified that he was not due for promotion. This proves the assertion of the claimant that his termination was premeditated. It raises the inference too, that, the purported minutes of meeting of 09/09/2016 were working toward an answer, already known and further cements the fact that, there was never a meeting and that, the purported minutes were cooked up. More so, it was established via cross-examination of DW3 at p. 88 that, David Egbu, once allegedly defrauded the defendant on bottle sorting and was reported to the police and is yet to pay the debt. This is a question the same David Egbu, as DW2, denied under cross-examination, by saying he was never reported to the police at his village. Thus, it is clear that, this is a witness who has interest to protect and cannot therefore be a witness of truth. It could be seen clearly that DW2 [the petitioner] lacks probative values. He is a tainted witness that a court of law must exercise great restraint to believe – see Effiong v. The State (1998) LPELR-1028 (SC) 8, C.
The DW3 too is a tainted witness. By his conduct, in collaborating with the petitioner, whom he alleged had defrauded the defendant to vilify the claimant, who had not previously been found wanting in matters of honesty, more so, when in the same August DW3 had texted [see Exhibit F (1-4)] the claimant complaining against, one David, who allegedly dumped waste in unauthorized sites, and did not accuse the claimant of any complicity in the dumping of wastes, yet turned round to convict the claimant of these alleged offences in less than a month. Finally on the same 04/04/19, DW4 was cross-examined on whether he attended any meeting in the defendant [company] on 09/09/2016 and he denied flatly. He was asked too, if anything spectacular happened on that date, he said he did not know of any and did not hear of any! Yet this DW4 is presumably the 2nd contractor who was mentioned in item 3, as central to the fraud purportedly perpetrated by the claimant and ostensibly called as a witness.
He was one of the contractors, who allegedly confirmed all the allegations against the claimant and yet, he said he did not attend any meeting in the defendant on the alleged fateful date and said nothing spectacular happened on that date. Yet the defendant wants the Court to believe that a meeting took place and the claimant confessed to a crime. Such is a story only fit for the marines and which a reasonable tribunal must take with a pinch of salt. DW4, in effect, totally denied his written deposition and asserted the opposite. DW4 puts a fitting burial to the corpse of Exhibit DWE [the purported minutes of meeting] which trending destruction had been initiated by the three preceding witnesses.
It is to be noted too that DW3 [Imo Amara Egbu] did not say in his written deposition [p. 78-79 of file] adopted in this Court on 04/04/19 that he attended any meeting on 09/09/16 or at any date at all, where he gave evidence against the claimant or where the claimant admitted the collection of money from the DW2. Mr. David Uche who deposed to the written statement on oath at p. 76-77 of file, and stated at paragraph 7 thereof that a meeting held on 09/09/16, was not called to testify. He is ostensibly the 3rd listed person on the “For Contractors” portion of Exhibit DWE. It should be noted that, in both this written deposition and that of DW2, no mention was made of Imo Amara Egbu. One wonders why this is so, when only three persons were listed in the contractors’ part of the purported minutes and he is central to an important aspect of the allegations [fraud], yet he is not mentioned. So, in effect, it remains only the evidence of DW2 on record against the claimant, and which the claimant had denied in his answer to the query, apart from the destruction wrought on this by the inconsistency of the DW2 himself under cross-examination.
The denial of the alleged meeting and inferentially, everything purported to have happened in it by DW4, puts a big doubt on the evidence of DW2. It would be seen that the attempt to now supply a missing link in the petition, which was at large, after about a half a year later, by saying money exchanged hands in a hotel, is an afterthought. It should be noted too that the specific hotel and the date, and amount were yet not mentioned in the written deposition. In fact, DW2 said it was “…in a Hotel where he arranged for us to meet for that purpose.” He did not say his hotel. Maybe he has forgotten too that it was his hotel! The information that it was DW2’s hotel was surprisingly supplied in the purported minutes of meeting of the defendant on 09/09/16! It was not in the petition too. The concert between the defendant and the DW2 could thus be seen. It is an afterthought to cover the defect of allegations at large in the petition. Perhaps, this is said in realization of the fact that the claimant once visited the hotel; and it was thought to be a good event to turn around to their favour to rope in the claimant and fill the gap in the query and petition. Unfortunately, it is too late in the day. The ulterior motive and the fangs were clearly exposed. That type of evidence must be given at the very first opportunity to induce a shred of belief.
From the scenario painted above, it is clear that on the essential issue of whether any meeting took place on 09/09/2016, the pieces of evidence from the witnesses of the defence on this vital issue were totally contradictory and unreliable; and that, the claimant’s counsel totally demolished this assertion under cross-examination. Thus, it is clear as daylight that no meeting took place on 09/09/2016 where a panel allegedly set up by the defendant sat to consider the disciplinary allegations against him. Cross-examination has two main purposes, which are to discredit the opposing witness and thereby demolish the case of the opposing camp, and the second is to establish the case of the party cross-examining – see Akaniye & Ors v. Etim (2012) LPELR-9792 (CA) 24, D-E, where the Court of Appeal stated the position of law thus:
“I agree that cross-examination of a witness is very important to the party cross-examining. The purpose is to discredit a witness and demolish the case of the opposing party. It is also to put across the case of the party cross-examining the witness.”
The first of the two purposes is not contingent on filing of pleadings or defence. It is contingent on the right of the opposite side to cross-examine. The right to cross-examination is constitutionally guaranteed and could only be lost if the complainant did not take advantage of it at the opportune time. It is not contingent on filing of pleadings but on being a party to a case. It is not the law that when a person has not filed pleadings, he is estopped from cross-examining witnesses lined up against him. If he does and thereby demolishes the case of the other side, the court simply decides the case on the basis of no-evidence or unreliable evidence. It is thus, only in relation to the second purpose of cross-examination that, pleadings become necessary. I observed that, the learned counsel to the defendant has continually harped on the fact that the claimant had not filed reply pleading, and as such, must be deemed to have accepted those important aspects of the Amended Statement of Defence and the evidence led thereto. This could only be so if the evidence led was not totally discredited under cross-examination. The Supreme Court stated the position in Omisore v. Aregbesola & Ors (2005) LPELR-24803 (SC) 152, E-F:
“It is also an established principle of law that where an evidence had been thoroughly discredited during cross-examination so much so that there is nothing left for purpose of weighing on an imaginary scale for consideration then such will certainly need no rebuttal.”
Likewise, this position was inferentially re-affirmed in Nnachi v. Onuorah & Ors (2011) LPELR-4626 (CA) 24-25, E-F, where the Court of Appeal held:
“The legal consequence of the choice not to call evidence by a defendant and resting his case on that of the plaintiff is that though success in a civil case depends upon the balance of probabilities or preponderance of evidence, a trial judge has little or no choice in accepting the evidence adduced by the plaintiff unless it has been thoroughly discredited under cross examination. The defendant in such a situation would obviously be taking enormous risk in proceeding on a course of not adducing evidence to counter balance the evidence by the plaintiff and would be bound by that evidence.
‘Where only one party to a case calls evidence in a case though the trial judge is still under a duty to evaluate such evidence and be satisfied that it is sufficient and credible enough to support the claims made, minimal proof is required in such a situation.” [Underlines supplied for emphasis]
As I have found above, evidence of the witnesses for defence were not only riddled with material contradictions but were thoroughly discredited under cross-examination and shown to be very improbable in material respects that, a reasonable tribunal would take them with a pinch of salt. So, even without pleadings by the claimant, in line with the above authorities, this Court is still bound to throw the discredited evidence of the defendant away, as unworthy of credit. But that is not even the case here. The learned counsel to the defendant is labouring under the erroneous apprehension of the nature of the case before him and the nature of pleadings and burden of proof required. As established earlier in this judgment, where the quarrel is about giving an unjustified reason for termination, the burden is on the defendant to justify the reason offered and not the claimant to establish its opposite. It is enough for the claimant to just plead or dispute the veracity of the reason offered. The claimant herein, contested the reasons for his termination, as contained in the letter of termination and pleaded his answer to the query wherein these allegations were denied. The claimant also said no panel was set up to look into his case and that he was not afforded fair hearing before the determination of his appointment. Therefore, all the pleadings of the defendant in the Amended Statement of Defence amount to joining issue on whether or not the allegations were justified. So, it might not really be necessary to file any reply pleading.
I could not find any new issue raised in the Amended Statement of Defence on which issue had not been joined. The alleged panel meeting where the claimant was allegedly tried and allegedly found guilty contained exactly the same criminal allegations of extortion and fraud against the claimant, as contained in the query, which the claimant had denied in his answer. And the Court had found that the claimant did not make any admission at the said meeting. Besides, the claimant had pleaded plentifully in paragraph 14 of his Statement of Facts [wrongly tagged Statement of Claim] that no panel was set up and that he was neither invited to any panel nor given opportunity to know the nature of evidence against him and to cross-examine his accusers. He pleaded further that, he was shocked on 9th September 2016 when he received the letter of termination stating that the investigation was done that morning and these averments were backed up with evidence adduced in paragraph 16 of the written deposition of the claimant adopted in this Court. So, there is no basis for saying any averment exists where issues were not joined or evidence led, which could therefore be deemed admitted.
Now, the learned counsel to the defendant had also raised the argument that the claimant could not challenge the minutes of the meeting [Exhibit DWE] because it is a document, and that oral evidence could not be used to vary the contents of a document, being that a document is the best evidence and speaks for itself. That is quite rightly the law. But it must be noted that this is mostly in respect of contractual documents duly executed by both sides and not in respect of a document prepared by one side alone; and there is a dispute whether the claimant attended the meeting where the events narrated purportedly occurred. The claimant is not trying to vary the contents of this document. He is not saying the document did not reflect what was purported to have happened in the purported meeting but that, there was no such meeting at all and that the document was a sham. It is only when both sides agree that a document exits but are disputing its contents that this principle arises when the position of one is supported by this document while the other tries to bring in oral evidence to vary it. The learned counsel simply misconceived the issue at hand. The claimant is not disputing the contents of the documents as per the document, which truly speaks for itself but is saying that, the document was a sham and cooked up for the purposes of justifying his termination. That is, the document speaks lies. And he has shown the fakeness of the document via his lawyer under cross-examination, who established that there was in actual fact no such meeting, as depicted by Exhibit DWE and inferentially that the document was truly cooked up. After all, the existence of that meeting is precursor to the veracity of the contents of Exhibit DWE.
Let me observe too, that I found that in the letter of termination [Exhibit CWD], the defendant widened the net of infractions allegedly committed, by including gross misconduct, gross dereliction of duty and non-conformity with the rules and regulations. I wish to observe that in both the query and the minutes of the purported meeting of 09/09/2016, no rules or regulations were cited that the claimant violated nor were any other misconduct than the criminal allegations, cited. You cannot shift the goalpost when the game has commenced. The claimant could not be terminated on a reason for which he was not tried or put in another way, the defendant cannot justify the termination by giving a subsequent reason on which the claimant was not allegedly tried. The implication of these new additions is that they were equally not justified.
In all, the defendant failed to justify the reasons adduced for terminating the appointment of the claimant. In addition, on the authority of Dongtoe v. CSC, Plateau State [supra], all the allegations leveled against the claimant in the query, being criminal in nature, the claimant ought to have established the guilt of the accused in the judicature before sacking him on these allegations, likewise, the purported minutes of the purported meeting. So, the issue of whether or not the defendant could sack for gross misconduct summarily or whether or not allegations made were coupled with other non-criminal ones on which the defendant could sack would not arise, since whatever reason is given must be justified, and it has been found that these reasons were not justified. Since I have found that the reasons offered for the termination of the appointment of the claimant were not justified, it follows that the termination was wrongful and unjustified. Issue 1, as adopted above, for the resolution of this case is therefore decided in favour of the claimant and against the defendant. I move to issue 2 as adopted above.
On issue 2, which relates to the reliefs claimed, I state straight away that I agree with the learned counsel to the defendant that this is purely a case of master/servant employment untainted with statutory flavour. Hence, the claimant could not be entitled to arrears of salaries since he could not be entitled to reinstatement in the circumstance of this case. This is succinctly stated in Obaseki & Anor v. Orukwo (2007) LPELR-8311 (CA) 26-27, G-B and Nwafor v. Anambra State Education Commission & Ors (2017) LPELR-42026 (CA) 32, A-D. I also cannot find sufficient proof of assault because the claimant did not state the person who actually assaulted him or the date of the assault – see paragraph 25 of the written deposition. On the whole, I found that the claimant is only entitled to relief 1, and partly relief 3 and the earned emoluments as at the date of termination and salary in lieu of notice – see Electricity Corporation of Nigeria v. George Nicol (1968) LPELR-25505 (SC) 14-15, D-E:
“…where the plaintiff was held to have been wrongly dismissed, the measure of damages was held to include salary and commission due to the plaintiff, and also staff pension and assurance scheme.”
On being partly entitled to some damages on the peremptoriness of his termination for unjustified reasons, this Court has always held that, where termination is done in a peremptory manner suggestive of the employee doing something heinous, payment in lieu of notice cannot be considered sufficient, the employee must be granted some form of damages. This becomes more so, in the instant case, in which the claimant was actually terminated for an unwarranted and unfounded reasons so clearly stated in the letter of termination, such that, the future employability of the claimant would be negatively affected, because it is doubtful whether any employer of labour would be ready to employ someone terminated for fraud and sabotage amongst other heinous offences stated in the letter of termination. This becomes more poignant when it is realised that the claimant herein was a senior staff of the defendant so disgracefully and humiliatingly removed from office. In an unreported decision of this Court in Suit No. NICN/AB/2012 – Omoudu v. Obayan & 4 Ors (Delivered 08/10/2014) this Court stated the position of law thus:
“In Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258, a case of wrongful termination of employment, where it was decided that one month salary in lieu of notice would not meet the justice of the case. The Court frowned at the peremptory manner by which the Claimant’s appointment was terminated which it believed had the effect of suggesting that the Claimant did something wrong. The Court awarded six months salaries as meeting the justice of the case.”
This is in consonance with the burden-duty [jurisdiction] of this Court to prevent unfair labour practices by virtue of section 254C – (1)(f) of the 1999 Constitution [as altered] in line with international best practices. It is undoubtedly unfair and inequitable to malign an employee at exit or termination and thereby mar his future career. In fact, the decision of the Supreme Court in SPDC Ltd v. Olarewaju [2008] LPELR – 3046 [SC] p. 31, paras. D – G appeared to foreshadow this shift from obtuse common law position in employment relations between master and servant because in that case, the Supreme Court approved the award of N3million damages for detention and humiliation granted by the trial court against the employer. In the Industrial Carton’s case [supra], no reason was given for the termination. This Court awarded 6 months salaries to assuage the peremptoriness of the termination suggestive of culpability of the employee in gross misconduct. In this case, reasons were actually given to malign the claimant and tarnish his career image. Definitely, he must be entitled to more damages. I assess the damages at 12 months salaries as meeting the justice of the case.
Having reached this juncture, it is clear that the claimant succeeded partly in the reliefs claimed and failed in others. The judgment must therefore cruise to an end. I must proceed to make the final orders on the rights of the parties, having given the bases of my arrival at the reliefs to which the claimant is entitled. There I go.
CONCLUSION
I hereby grant relief 1 and order that the claimant be issued with another letter of disengagement, which does not state any reason other than ‘services no longer required’. I refuse relief 2 in its entirety. I grant relief 3 in part by awarding 12 months salaries for the preemptory manner of terminating the appointment and for the unjustified reasons offered for the termination and the attendant stain on the employability of the claimant. I refuse relief 4 in its entirety. I also order the defendant to calculate and pay to the claimant all due emoluments and terminal benefits to which the claimant was entitled at the date of termination. I award N200thousand [Two Hundred Thousand Naira] cost against the defendant. The defendant is given 30-day grace to comply with the judgment of the Court; thereafter, the judgment sums begin to attract 10% interest per annum until fully liquidated.
The above is the judgment and orders of this Court in the instant case.
Judgment is entered accordingly.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
JUDGE
NATIONAL INDUSTRIAL COURT OF NIGERIA
