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National Industrial Court

GABRIEL OTOR -VS-1. DANGOTE FLOUR MILLS PLC & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DATED: 17TH DAY OF JANUARY, 2020

SUIT NO: NICN/AK/05/2018

BETWEEN

GABRIEL OTOR…………………………………………CLAIMANT

V

  1. DANGOTE FLOUR MILLS PLC                                   DEFENDANTS
  2. MABE THABO

REPRESENTATION:

  1. Obalomose holding the brief of Ronke Adeyemi for the claimant

I.H. Ohmoeheri appears holding the brief of A.Y. Usman for the defendants.

JUDGMENT

The claimant by a complaint filed before this court on 14th May, 2018, claims against the defendants as follows;

  1. A declaration that by virtue of the letter of appointment and the 1st defendant’s Terms and Conditions of Service, Staff Handbook 2006, the employment of the claimant with the defendants is still subsisting.
  2. A declaration that the defendants’ letter dated 2nd February, 2018 to the claimant titled “Summary Dismissal’’ purporting to dismiss the claimant from work with the 1st defendant is in bad faith, malicious, ultra-vires, null and void and contrary to the express provisions of the 1st defendant’s terms and conditions of service, staff handbook 2006, letter of appointment, labour laws, equity and therefore of no effect whatsoever.
  3. A declaration that the defendants are not entitled to summarily dismiss the claimant without complying with the provisions of the Terms and Conditions of Service and other relevant statutes and instruments
  4.  A declaration that the purported dismissal of the claimant by the defendants is contrary to the provisions of the Pension Act of Nigeria in that the claimant is a permanent and pensionable staff of the 1st defendant
  5. A declaration that the purported dismissal of the claimant by the defendants negates the claimant’s fundamental rights provisions of the Constitution of the Federal Republic of Nigeria 1999
  6. An order setting aside the purported dismissal of the claimant and nullifying the defendants’ letter to the claimant in that regard
  7. An order compelling the defendants to reinstate and/or restore the claimant to his post as staff of the 1st defendant with all his rights, entitlements and other privileges of his office.
  8. An order compelling the defendants to pay the claimant all his arrears of salaries and allowances from 2nd February, 2018 till judgment is delivered and when the whole sum is liquidated
  9. The cost of this suit.

Alternatively:

  1. A declaration that the dismissal of the claimant’s appointment by the defendants by virtue of a letter of dismissal dated 2nd February, 2018 is illegal, wrongful, arbitrary, malicious, humiliating, embarrassing and in bad faith.
  2. An order compelling the defendants to pay the claimant all his arrears of salaries and allowances from 2nd February, 2018 till judgment is delivered and when the whole sum is liquidated and thereafter retire the claimant with all gratuity and pension benefits
  3. The sum of twenty-five Million Naira only (#25,000,000) being general damages for wrongful dismissal.

The claimant filed along with the complaint all accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witnesses and documents to be relied upon.

The claimant’s case is that he was employed by the 1st defendant via an appointment letter dated 19th March, 2001 as a trainee miller in productions and his employment was later confirmed vide a letter dated 1st December, 2001. He stated that he was employed as a permanent and pensionable staff and is expected to retire at the age of 60 and averred that he has enjoyed several promotions and is now senior staff of the 1st defendant

The claimant pleaded that the conditions of service applicable to his employment is the 1st defendant’s Terms and Condition of Service Staff Handbook of 2006, and he has been diligent in the performance of his duties with no record of disciplinary lapse on his part. The claimant pleaded that on the 15th January, 2018, he received a WhatsApp message from one of his acquaintances which he forwarded to a WhatsApp group consisting of some members of staff of the 1st defendant. Later, while he was away on his off day, he got information from his colleague that some members of the WhatsApp group had gone to the mosque to incite people against him because of the message he sent. He was surprised by this turn of events and had to arrange for men of Nigerian Police Force for protection for himself and his family. He averred that he got a query from the 1st defendant on this issue on 15th January, 2018 and was invited by the Department of State Security (DSS) on 15th January, 2018, where he received the information that he had been dismissed by the 1st defendant.

He averred that later on 22nd January, 2018, the claimant averred that he was invited by the Group Head, Human Resources of the 1st defendant and appeared before a committee, who he adjudged were biased against him and he thereafter tendered his resignation letter dated 2nd February, 2018 to the 1st defendant. He continued that his resignation was rejected by the defendants, and he later received a letter of summary dismissal dated that same day. He thereafter instructed his solicitors to write the 1st defendant, to demand for his reinstatement. He stated that the defendants failed to respond to the letter despite receipt of same. He finally averred that he was embarrassed and shocked by the defendants’ stance on the issue, and his dismissal is unwarranted as he didn’t commit any misconduct.

Hence, the claims against the defendants as aforestated.

The defendants upon receipt of the originating processes in this suit, filed their statement of defence and counter-claim with other accompanying documents on the 13th July, 2018. The defendants amended same by order of court of 16th January, 2019, and filed an additional witness statement on oath and list of documents on the same date, wherein they denied all material allegations in the claimant’s statement of facts as if same were set out and traversed seriatim.

The defendants averred in their defence that the claimant and the 2nd defendant were employees of the 1st defendant, They contended that the claimant has been issued several queries in the course of his employment and suspended at various times.

The defendants alleged that on 15th January, 2018, the claimant sent an abusive and blasphemous message to a WhatsApp platform. the content of which is a religious and political hate speech directed at the Government and the Muslim community. They averred that the message is provocative and some members of the group immediately reached out to the claimant to retrieve the message and tender an apology on same but he refused.

The defendants averred that as a result of the action of the claimant, their plant was attacked and they had to call in security agents i.e. Department of State Security, plain clothes policemen and Third Party Truck Owners Association and they all collaborated and calmed the situation.

As a result of this incident, the 1st defendant’s plant was shut down in the process and the staff were instructed to keep away from the plant, till peace is restored.

The defendant admitted issuing a query to the claimant thereafter, and dissatisfied with the claimant’s response to same, they set up a disciplinary committee against the claimant. The defendants stated that the claimant denied the intention to cause the crisis and apologized before the committee but could not explain why he did not apologize and withdraw the offensive message before it degenerated into chaos. The defendants averred that the committee wrote a report which the claimant refused to sign and, in the end, recommended that the claimant’s employment be terminated for gross misconduct.

The defendants denied the claimant’s allegation of bias or threat in any form, and admitted that the claimant was dismissed vide a letter dated 2nd February, 2018.

The defendants also averred that sometime in 2013, the company underwent an ownership change, until it was bought back by the 1st defendant. They asserted that the staff handbook of Tiger Brand Consumer Goods Plc, issued by the former owner and endorsed by all the staff is applicable to the claimant’s employment.

The defendants denied receiving any resignation letter from the claimant. They stated that the claimant’s action amounted to gross misconduct as defined in the 1st defendant’s handbook and asserted that the 1st defendant followed due procedure in the dismissal of the claimant.

The defendants also counter-claimed for the serious pecuniary loss and damages suffered by the 1st defendant as a result of the claimant’s action and sought the following reliefs:

  1.             The total sum of #99, 540, 000.00 being the cost of flour and bran lost by the counter-claimant with the sum of #96, 000, 000.00. representing 436.8 metric tons of flour and #3, 444, 000. 00. Representing 114.8 metric tons of bran lost by the counter-claimant to the crisis.
  2.             The counter-claimant’s cost of defending this action in the sum of #5, 000,000.

The claimant’s reply and defence to the counter-claim of the 1st defendant, along with depositions to same were filed on the 31st July, 2018. Wherein he denied all allegations of fact in the counter claim. He reiterated the averments in his statement of facts and contended that the handbook applicable to his employment is the Dangote Flour Mills Staff Handbook, 2006. He added that he was a dutiful employee of the 1st defendant and did not blaspheme the holy prophet of Islam. He denied liability for the damage done to the 1st defendant’s plant and averred that the disciplinary committee set up against him went beyond its powers, hence his refusal to sign the report.

Trial commenced in this suit on 26th November, 2018, with the claimant testifying for himself as CWI. He adopted his witness statement on oath and his further statement on oath. CW1 tendered several exhibits which were admitted in evidence and marked Exhibit G1-G8, and was cross-examined. The claimant thereafter closed his case. The defendants opened their defence on 4th March, 2019 by calling Lukman Ola as DW1. DW1 adopted his statement on oath and his additional statement on oath and tendered several exhibits which were admitted in evidence and marked Exhibits FM 1- FM18, he was also duly cross-examined and the defence also closed their case. The matter was later adjourned for adoption of final written addresses.

Parties adopted their final written addresses on 18th October, 2019 and this matter was adjourned for judgment.

The defendants final written address filed on 31st July, 2019, was adopted by A.Y Usman of counsel for the defendants wherein they submitted six issues for determination, to wit;

  1. a)The terms and conditions of service in the contract between the claimant and the 1st
  2. b)Whether or not the claimant’s dismissal was done in accordance with the terms and conditions contained in the contract.
  3. c)Whether or not the claimant had resigned his employment before he was dismissed by the 1st
  4. d)Whether or not the claimant has disclosed a reasonable cause of action against the 2nd
  5. e)Whether or not the claimant is entitled to judgment for any of the claim.
  6. f)Whether or not the defendants are entitled to the damages suffered as a result of the claimant’s actions.

It is worthy of note that learned counsel for the defendants in his address referred to Exhibits FM13 as the 1st defendant’s staff handbook and Exhibit FM14 as claimant’s commitment form. However, the records of this court and the evidence on record reveals that the 1st defendant’s staff handbook was marked Exhibit FM14 while the claimant’s commitment form is Exhibit FM15. This court finds and shall therefore treat counsel’s reference to Exhibit FM13 as Exhibit FM14 and Exhibit FM14 as Exhibit FM15. I so hold.

On the first issue, defendants’ counsel submitted that the terms and conditions of service that applies to the claimant’s employment as at the time the cause in this case arose are as provided for in Exhibit FMI (letter of employment), Exhibit FM2 (letter of confirmation of employment), Exhibit FM 14 (1st defendant’s staff handbook and Exhibit FM15 (claimant’s commitment form). He argued that Exhibit FM14 overrides Exhibit G4 by implication of the execution of Exhibit FM15 by the claimant.  He argued further that in any proceeding, the applicable law is the one in force at the time the cause of action arose. He submitted that the cause of action in this suit occurred on the 2nd of February, 2018 and the terms and conditions in force at that time are the terms contained in Exhibits F1, FM2, FM14 and FM15. Counsel cited the cases of LSPDC v Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) pg. 82 at pg. 106 para. F-H and pg. 107 para A-B. and Ayida v Town Planning Authority (2013) 10 NWLR (Pt. 1362) pg. 226 at pg. 269-270 para H-B.

Learned defence counsel argued that the change in the name, ownership and management of the 1st defendant did not affect its relationship with the claimant because to find to the contrary will imply that the claimant’s employment terminated when the majority shares of the company changed hands and it was renamed. He continued that the fact that Exhibit FM14 bears Tiger Brand does not affect the sanctity of the content of the document to which the claimant and the 1st defendant are committed. He therefore posited that where parties have entered into an agreement and there is nothing to show that it was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions of the agreement. He cited the case of AG Rivers State v AG Akwa Ibom State (2011).

On the second issue, it was counsel’s submission that the 1st defendant dismissed the claimant from its employment in accordance with terms and conditions provided in Exhibits FM1, FM2, FM14 and FM15. He relied on Exhibit FM14 in submitting that it is only logical, reasonable and lawful to hold the claimant responsible for the crisis that emanated as a result of Exhibit FM6.

Counsel also argued that in an action for wrongful dismissal, the burden is on the claimant to place the contract of employment before the court and proof in what manner they were breached by the employer, he added that the claimant in this case has failed to discharge this burden and since the claimant’s reliefs are declaratory, same ought to be proved on the strength of the claimant’s case and not on the weakness of the case of the defendants. He cited NRW Ind. Ltd. v Akingbulugbe (2011) 11 NWLR (Pt. 1257) Pg. 131 at 148mpara. C-G and West African Offshore Ltd. v Ariri (2015) 16 NWLR (Pt. 1490) pg. 177 at 197-198 para. F-B. and submitted that the claimant’s dismissal is not wrongful.

On issue three, counsel contended that the claimant did not resign his employment before he was dismissed by the 1st defendant on 2nd February, 2019, as there is no evidence in proof of this assertion. The claimant who pleaded that he sent the resignation letter i.e. Exhibit G7 to the Human Resources Manager of the 1st defendant bears the burden of proving same. He continued that the claimant merely tendered an unacknowledged hard copy of the purported letter of resignation which, he stated was sent vide email when the hard copy was rejected by the HR Manager and added that Exhibit G7 is not a printed email and does not meet the requirements of Section 84(4) of the Evidence Act 2011. He placed reliance on Dickson v Sylva (2017) NWLR (pt. 1576) pg. 167 at 213-214 para G-D, in submitting that the resignation letter having been admitted in evidence, should be expunged from the records of the court.

On the fourth issue, it is counsel’s contention that the claimant disclosed no grouse against the 2nd defendant.

On the fifth issue, counsel argued that the declaratory reliefs sought by the claimant in A, B, C, D, E and J must fail because the claimant has failed to prove the particular term of his conditions of service that was breached in the process of his dismissal. Counsel cited the case of Aji v CBDA (2016) 16 NWLR (Pt. 1486) pg. 554 at 570 para. H.

A.Y Usman of counsel submitted that neither a declaration that the claimant’s dismissal is null and void nor reinstatement are reliefs available in a master-servant relationship save for the award of damages for the breach alleged. He relied on Adewunmi v Nig. Eagle Flour Mills (2014) NWLR (Pt. 1428) pg. 443 at 470 para B-D.

On issue six, learned counsel argued that the 1st defendant is entitled to the damages suffered as a result of the action of the claimant which resulted in a huge financial loss to the defendants. He submitted that the rule in Rylands v Fletcher applies to this case, such that the claimant is responsible for the damages caused by the message he sent.

Learned Counsel argued that the defendants are entitled to recover the total sum of N99,540,000.00 being the total cost of flour and bran lost as a result of the claimant’s negligence, and cited the case of FBN Plc. v Banjo (2015) 5 NWLR (pt. 1452) pg. 253 at 271 para. F-H.

Counsel finally submitted that the claimant did not specifically traverse the defendants’ counter- claim, thus it remains uncontroverted and unchallenged. He relied on Oando Nig. Plc. v Adiejre (2013) 15 NWLR (pt. 1377) pg. 374 at 401 para F-H, and concluded by urging the court to dismiss the claimant’s suit and grant the defendants’ counter-claim.

The claimant’s final written address was filed on 3rd October, 2019 wherein counsel submitted 6 issues for determination, to wit;

  1. Whether or not the claimant is entitled to the declaratory relief sought, the honourable court will first have to determine the terms and conditions of service in the contract between the claimant and the 1st defendant
  2. Whether or not the claimant’s dismissal by the 1st defendant was done in accordance with the terms and conditions of service contained in the contract?
  3. Whether or not the claimant had resigned his employment before he was dismissed by the 1st defendant?
  4. Whether or not the claimant has disclosed a reasonable cause of action against the defendants?
  5. Whether the claimant is entitled to judgment for any of his claims?
  6. Whether or not the defendant is entitled to the damages suffered as a result of the claimant’s action?

On issue one, learned claimant’s counsel contended that the contract between the claimant and the 1st defendant is governed by Exhibit G1, G2, and G4 and they are strictly bound by same. He cited the case of Madira v Halilu (2000) LPELR-10695 (CA), and contended that since the ownership of the 1st defendant has changed hands it is only logical that the employee handbook has changed back from Tiger Brand Consumer Foods Plc to Dangote Flour Mills. Counsel pointed out that Exhibit FM13 referred to by the 1st defendant as the handbook is a certificate of compliance and as such is not applicable to the argument of the 1st defendant. Counsel also submitted that there is no Exhibit listed as Exhibits MC1, MC2 and MC14 as cited by the defence counsel, and urged the court to so hold.

It is the contention of counsel that Exhibit G3 reveals that the 1st defendant was repurchased by Dangote Industries Ltd. and submitted that it is strange for a conglomerate to abandon its own handbook and adopt that of a moribund company. Counsel continued that even if it is assumed that when the 1st defendant was bought back from Tiger Brands only its name was changed not its management and handbook, DW1 in his evidence testified that Tiger Brands is no longer in charge of the 1st defendant, thus the claimant need not controvert the defense’s averment that Tiger Brands handbook is applicable because DW1’s testimony has taken care of the issue and the fact was not pleaded by the defendants.

It was also argued by claimant’s counsel that the defendant’s counsel made erroneous reference to the exhibits in this suit in his final address. He posited that this is misleading and confusing as counsel muddled up the exhibits in his submissions. He urged the court to discountenance the argument of defence counsel in respect of the erroneously cited exhibits and hold that the defence counsel has not been diligent in his writing and reference to the appropriate exhibits. He cited the case of Okafor v Nweke (2007) ALL FWLR (Pt. 368) 1016.

Learned counsel submitted that although Exhibits FM13. FM14, FM15, FM16, FM17 and FM18 were admitted in evidence, no probative value should be ascribed to them as they were not tendered through their makers and are irrelevant. He cited Section 83(1)) (b) of the Evidence Act 2011 and the case of Gbafe v Gbafe (1996) LPELR-1316(SC) and Anyegwu v Onuche (2009) 37 NSCQR 109 at 127.

Counsel argued further that the claimant’s contract with Tiger Brands reflected in Exhibits FM14 and FM15 has been discharged by the re-purchase of the 1st defendant from Tiger Brands, and cited the case of Commissioner for Works, Benue State & Anor. V Devcon Develoment Consultants Ltd. (1988) LPELR-884 (SC).

On issue two, counsel submitted that there was no subsisting contract between the claimant and Tiger Brands to warrant the application of Exhibits FM14 and FM15 to the claimant’s employment. Counsel also contended that Exhibit FM6 is not a religious or political hate speech and is not the cause of the crisis in the 1st defendant’s company. Learned counsel submitted further that a cursory look at Exhibit FM6 in comparison with Exhibit FM7 reveals that the claimant’s message was not the genuine cause of the crisis as the claimant’s message was received on FOBTOB WhatsApp platform at 2:11 pm, while evidence on record shows that, the 1st defendant noticed at 1:30 pm that people had gathered at the 1st defendant’s gate, DW1 testified that the claimant’s message was received at 2:03pm and from the, police report i.e. Exhibit FM7, the complaint on the issue was lodged at the station at about 1:30 pm. He submitted that it is practically impossible for the crisis to have emanated from the claimant’s message since the uprising started long before the claimant sent his message to the platform.

Learned counsel argued that the defendant’s reference to the fact that some of their staff were injured was not pleaded and no evidence was led in that regard, thus, it goes to no issue. On Exhibit FM7 he argued that it is not credible because it ought to have been tendered by its maker and added that Exhibit FM7 was apparently procured in anticipation of this trial as same was obtained on the 27th July, 2018 long after this suit was commenced i.e. on 14th May, 2018. He therefore urged the court not to ascribe any probative value to the exhibit and cited Anagbado v Faruk (2018) LPELR-44909 (SC).

He contended further that blasphemy and inciting religious crisis is a crime under the criminal and penal code, therefore it ought to be proved beyond reasonable doubt in a court of competent jurisdiction, before the 1st defendant could validly rely on it to dismiss the claimant. He cited Maku v Al-Makura (2017) ALL FWLR Pg. 20.

Claimant’s counsel also argued that the procedure followed by the 1st defendant is a departure from Exhibit G4 and Exhibit FM14 and thus is unfair, bias and repugnant to natural justice, equity and good conscience. He submitted that the claimant’s message did not violate any of the rules and regulations in Exhibit G4 or any part of Exhibit FM14.

On issue three, counsel argued that the claimant’s grouse here is not whether his resignation was accepted or not but that his dismissal is wrongful, arbitrary and malicious. He urged the court to discountenance the submission of defence counsel as the claim before this court is that of wrongful dismissal.

On issue four, counsel argued that the claimant led evidence to show that the 2nd defendant is the Managing Director of the 1st defendant who is tasked with the overall management of the 1st defendant and by implication, makes final decisions for the 1st defendant and cannot claim ignorance of the unlawful termination of the claimant. He submitted that the suit discloses a reasonable cause of action against the 2nd defendant and prayed the court to so hold.

On issue five, it is counsel’s contention that the claimant is entitled to the reliefs as stated on the complaint. He argued that the claimant has successfully pleaded Exhibits G1, G2 and G4 and has shown that the claimant was dismissed in breach of the said exhibits. He submitted that the case of Aji v CBDA (2015) 16 NWLR (Pt. 1486) pg. 554-570 para. H is apposite.

Counsel argued further that in cases of wrongful dismissal/termination, the main issues for determination are (a) whether the termination was in accordance with the terms and conditions of the contract of employment, (b) what is the measure of damages recoverable in the circumstances of the case learned counsel argued that the claimant’s employment was terminated in breach of the contract of employment and submitted that the case of BEDC Plc v Esealuka cited by the defendants supports the claimant’s alternate reliefs/claims while the claim for reinstatement is abandoned.

On the last issue, counsel argued that both Exhibits FM6 (i-iii) and FM7 (i-iii) reveals that the claimant’s message is not the cause of the unrest outside the 1st defendant’s factory since the crowd had gathered before the claimant sent his message to the executive members of FOBTOB..

He argued on the counter-claim, and that for it to succeed, the law requires the defendants to prove the particulars of the claimant’s negligence as well as the duty of care owed to the 1st defendant by the claimant. He cited the case of Anyah v Imo Concorde Hotels Ltd. (2002) LPELR-512 (SC) and argued that the burden of proving the pecuniary loss suffered rests on the defendants and they having failed to lead evidence to substantiate their claim, he urged the court to discountenance the defendant’s argument on this point. He cited the case of Archibong v Edak (2006) 7 NWLR (Pt. 980) 455 at 502.

In conclusion, counsel urged the court to hold that the claimant’s relationship with the defendants is governed by Exhibit G4 and his dismissal was contrary to Exhibit G4 and is unjustifiable. He further urged this court to hold that the claimant is not guilty of any misconduct or negligent act to warrant his dismissal hence he is entitled to the alternate reliefs of accrued pension and damages.

I have patiently considered all the processes filed, evidence led by both parties and the submissions of Counsel in their final written addresses. Having done all this, I have identified 2 issues for the effective determination of this case and stated as follows:

1)    Whether the claimant is entitled to the reliefs sought.

2)    Whether the defendant is entitled to the reliefs sought in their counter claim.

The claimant in this case is seeking reliefs for wrongful dismissal of his employment with the 1st defendant and it is the position of the law that in an action for wrongful dismissal, the claimant must plead and prove, not only the appointment but also the terms and conditions of such appointment for it to constitute sufficient foundation for the action. See the case of |Joseph Enugunum & Ors. v Chevron Nigeria Limited (2014) LPELR-24088 (CA).

It is well known that in civil proceedings, the burden of proof of a particular fact rests on the party who asserts the fact, hence the primary burden of proof rests on the party who will fail if no evidence is called on the issue. This burden however is not static, if a party successfully proves a particular fact, the burden shifts to the other party to prove its own assertion as dictated by its pleadings. See Sections 135,136, and 137(1) of the Evidence Act 2011 and the case of First Inland Bank v Craft (2011) LPELR-4167 (CA).

The claimant’s employment by the 1st defendant is not in contention in this case as Exhibits G1, G2 and G3 all establish this fact. What is in contention is the propriety or otherwise of the dismissal of the claimant. The claimant contends that his dismissal is in breach of his contract of employment i.e. Exhibit G1, as well as the terms and conditions contained in Exhibit G4, while the defendant relied on Exhibits FM1 to FM18.

The purport of the pleadings and evidence of the claimant is that he was wrongfully dismissed and the defendants are contending that the dismissal is justified giving the fact that the claimant was in breach of the terms and conditions of his employment. In determining the propriety or otherwise of the claimant’s dismissal, I have a taken a long hard look at Exhibit G8 (the letter of termination of employment) and I find that it reveals that the dismissal of the claimant was for acts of gross misconduct which from the evidence of both parties is related to the event of 15th January, 2018. Exhibit FM11 contains the proceedings of the 1st defendant’s committee that recommended his dismissal.

In determining the terms and conditions of service applicable to the claimant in this case, the law is that the change of name of a company does not affect its rights and liabilities under the former name or render defective any legal proceedings by or against it. Furthermore, by the corporate personality rule, where a company is incorporated under the extant laws, it assumes a separate personality from the individuals who are its members, and enjoys rights and bears liabilities that does not coincide with that of its members. Thus, a change in the company’s membership will not ipso facto affect the rights and obligations of the company. See the case of New Resources Intl. Ltd. v Ejike Oramusi, Esq. (2010) LPELR-4592(CA). The evidence before this court reveals that the 1st defendant was bought by Tiger brand who changed the conditions of service to Exhibit FM14. Consequently, I find that Exhibit FM14 being the latest conditions of service issued by the 1st defendant as subscribed to by the claimant, is applicable to the claimant’s employment. I so hold.

On this note, I reason that the resolution of the issues in this suit goes further and beyond the determination of the condition or terms of employment applicable to the claimant’s employment and this will be treated in the course of this judgment.

On the allegation of gross misconduct, it is the 1st defendant’s case that on 15th January, 2018, the claimant sent a message to the WhatsApp platform of FOBTOB and this message led to an uprising among some staffs of the 1st defendant and some other persons around the 1st defendant’s factory in Ilorin. The defendants tendered Exhibits FM6-FM11 in support of this assertion. Exhibit FM6 is the message in question and a close look at the said Exhibit FM6 reveals in the first line of the second paragraph the date and time of the message as ‘’1/5/18, 2:11 PM’. However Exhibit FM7tendered by the defendants i.e. the police investigation report of the incident, reveals that information on the incident leading to the report of the case was received at about 1330hrs which is 1:30 pm, DW1’s statement oath also reveals in paragraph 13 that  ‘’ Between 1:30pm and 2:30 pm of the 15th day of January, 2018, people have gathered at the gate of the 1st defendant’s Ilorin Unit and upon inquiry, the management staffs of the 1st defendant in Ilorin were informed that a hate speech was circulated by the claimant by which he blaspheme the Holy Prophet of Islam.’’ In the additional statement of DW1, the same identical deposition is contained in paragraph 15 of same. Thus from the evidence before this court, it is logical to conclude that the riot started at about 1:30 pm, before the message was received on the WhatsApp platform

This creates a big hole in the defendant’s case which leaves a reasonable doubt as to whether the claimant’s message in fact incited the riot of 15th January, 2018. The fact that there is evidence of police investigation on the incident and no evidence of any arrests or prosecution, strengthens the claimant’s case in this regard.  Furthermore considering the totality of the evidence adduced by the defendants in support of their allegation of gross misconduct, which is, in one breath the defendants stated that some members of FOBTOB platform tried to prevail on the claimant to tender an apology and retract the message, and in another breath the defendants tendered Exhibit FM7 in proof that the incident was reported to the police around 1:30 pm, of which both of these pieces of evidence presupposes that whatever started the unrest happened before the claimant’s message was received and that inevitably places the claimant’s message farther from the cause of the riot.

It is irreconcilable for a message that was sent at 2:11 pm to cause a riot that started about 1:30 pm even before the message was received. The principle of cause and effect presupposes that events follows cause, not the other way around. This in my view creates a huge doubt as to the cause of the uprising and it would be absurd to conclude that the claimant’s message is the cause, giving the material contradictions in the case of the defendants. It is premised on the above that I find that the defendants have failed to establish that it was the claimant’s message on the FOBTOB platform that caused the incident of 15th January, 2018. I so hold.

Furthermore, I agree with the claimant in his submission that incitement of a riot or affray is an offense punishable under the extant criminal laws in Nigeria, and Section 135(1) of the Evidence Act 2011 provides that:

‘’If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.’’

Thus, the defendants bear the evidential duty of proving the allegation of incitement that caused religious uproar raised against the claimant in Exhibit FM8 beyond reasonable doubt, but they failed to discharge this burden.

It is on record that the claimant was dismissed for gross misconduct. I find that gross misconduct is known to be a conduct of grave and weighty character that can undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer. See the case of Anaja v UBA Plc. (2010) LPELR-37669 (CA).

The allegation of gross misconduct against the claimant, based on Exhibit FM8 is bound to fail based on the reasoning above, in that the defendants has failed to establish that the claimant’s message caused the incident of 15th January, 2018, as that was the sole offence the defendants premised the dismissal of the claimant upon.  I find that the allegation of gross misconduct is wrong in the circumstance, as an employer is not bound to give a reason for terminating his employee’s employment, but where he does that reason must be proved and tenable, see U.T.C Nigeria Ltd. Samuel Peters (2009) LPELR-8428 (CA)¸which in this case was not done.

It is now settled beyond any doubt that in a master/servant relationship, the master has a right to dismiss a servant where the servant has indulged in conduct inconsistent with due and faithful discharge of the duties for which an employee was engaged and this connotes dismissal without notice or pay. See the case of Wilbros Nig. Ltd. &Anor v Macaulay (2009) LPELR-8507 (CA).  It is also a settled position of law that a dismissal is only wrong if it is not done in accordance with the terms and conditions of service. See the case of New Nigeria Newspaper Ltd. v Atoyebi (2013) LPELR-21489 (CA). 

Having found that the allegation of gross misconduct is wrong, it follows that the claimant’s dismissal was not done in accordance with the terms and conditions of service between the parties, and as such is wrongful. I so hold.

It is a general principle of our civil jurisprudence that a court will not impose an employee on an unwilling employer. The court will not also order specific performance and/or payment of arrears of salary in an employment relationship unless it the employment is statutory. Added to the mix is the law that the remedy available to an employee who successfully proves a case of wrongful dismissal is damages, to be calculated in form of salary in lieu of notice. See the case of Union Bank of Nigeria Plc. v Soares (2012) LPELR-8018 (CA). It therefore flows from the authorities cited above that the remedy available to the claimant in this case is the prescribed salary in lieu of notice. The claimant is therefore entitled to one-month salary in lieu of notice as provided in Exhibit FM 14, as damages for his wrongful dismissal. I so hold.

The claimant is also seeking the payment of his pension and gratuity in his reliefs. Having held that the claimant was wrongfully dismissed, I find that he is entitled to his due pension and gratuity from the 1st defendant, therefore the relief succeeds. I so hold.

On the claim for General damages, it is trite that this can only be awarded in respect of pecuniary loss which has been sustained. It is the kind of damages which the law presumes to be the consequence of an act complained of and unlike special damages, a claim for general damages does not need to be specifically pleaded or specially proved. It is also settled law that apart from damages naturally resulting from a breach, no other form of general damages can be contemplated see the case of Nigeria Produce Marketing Board v. Adewunmi [1972] All NLR (Pt.11) 433, Gari v. Seirafia (big) Ltd [2008] 2 NWLR (Pt 1070) 1 at P.22, Para C, UBN Plc v. Ajabule [201] 18 NWLR (Pt 1278) 152. The Apex Court in Hon.Nze Herbert Osuji &Anor v. Anthony Isiocha [1989] 3 NWLR (Pt 111) 623 at 636 held;

“On the other hand, the quantum of general damages need not be pleaded and proved; for it is the loss which flows naturally from the defendant’s act and it is generally presumed by law”.

Having held earlier that the claimant has succeeded in establishing his case. I am inclined to grant the claim for general damages in favour of the claimant in this suit, for his wrongful dismissal. Consequently, I hereby award a sum of #2,000,000 (Two Million Naira) as general damages in favour of the claimant to be paid by the defendants

The defendants counter-claimed against the claimant for the reliefs captured above, and against the pecuniary loss suffered by the company on the perceived action of the claimant.

Having held in this case that the claimant’s message is not the cause of the riot at the 1st defendant’s Ilorin Plant on 15th January, 2018, the proper question now is how this finding affects the defendants’ counter claim which is premised on the allegation that the claimant’s message incited the riot which in turn caused the loss suffered by the 1st defendant.

Strict liability as canvassed by the defendants is rooted in the case of Rylands v Fletcher (1866) L.R. 1 Ex. 265, the rule is that a person who brings and keeps upon a land anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for all the direct consequences of its escape, even if he has not been found guilty of negligence. See the case of MTN Nig. Communications Ltd. v Sadiku (2013) LPELR-21105 (CA). The   catchword in this instance is the direct consequences of its escape. Can the loss suffered by the 1st defendant then be said to be a direct consequence of the claimant’s message, in the light of my earlier findings in this case. I answer this question in the negative and hold that the loss suffered by the 1st defendant is not a direct consequence of the message sent by the claimant since it was earlier resolved by this court that the riot that resulted in the stated loss claimed by the 1st defendant in its counter-claim was not caused by the claimant’s message.

It is trite law that negligence is a question of fact not law and each case must be decided in the light of its own peculiar facts. The burden of proof in negligence falls upon the party who alleges same and failure to prove particulars of negligence pleaded is fatal to that party’s case. See the case of WAEC v Mekwunye (2016) LPELR-40350 (CA). A person who asserts negligence must plead and prove by evidence that the defendant owed him a duty of care, that the defendant is in breach of that duty, and the resultant damage See WAEC v Mekwunye (SUPRA). It is also not enough to plead negligence without credible and reliable evidence at the trial. See the case of Universal Trust Bank of Nigeria v Fidelia Ozoemena (2007), LPELR-3414 (SC). I find that the defendant in this case have failed to lead evidence to establish the injury suffered by the 1st defendant  and that it resulted from the claimant’s message.

Premised on the above, I find that the defendants’ counter-claim lacks merit, fails and is hereby dismissed. I so hold.

In conclusion I find and hold that the claimant’s case succeeds in part and for the avoidance of doubt, I declare and order as follows;

  1. The dismissal of the claimant from his employment with the 1st defendant is wrongful
  2. The defendants are to calculate and pay to the claimant one-month salary in lieu of notice for his wrongful dismissal.
  3. The claimant is entitled to his due pension and gratuity from the 1st defendant.
  4. A sum of N2,000,000.00 [Two million naira] is awarded as general damages against the defendants .
  5. All sums awarded in this judgment is to be paid by the defendants within 30 days from the date of this judgment, failing which the sum shall attract a 10% interest per annum.

AND

  1. The Defendant’s counter claim lacks merit and is hereby dismissed

I make no order as to cost.

Judgment is accordingly entered.

 

 

  1. A. Adewemimo

JUDGE

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